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MENTAL HEALTH LAW KŌRERO

Thursday 10 February 2022


The Role of the District Inspector for Mental Health


Rosemary was one of the presenters at the Seminar on Thursday 10 February 2022


Tēnā koutou katoa


Appointment process

A District Inspector is appointed by the Minister of Health under s 94 of the Mental Health (Compulsory Assessment & Treatment) Act 1992, for a term of 3 years.


The position is advertised and any qualified barrister and/or solicitor can apply. They must demonstrate that they fulfil the criteria in terms of knowledge of mental health law.


The role of the District Inspector is triggered when a person is detained under the Mental Health (CAT) Act 1992 (MHA), commencing with the s 9 assessment onwards[1], to ensure proper adherence to law and procedure, and that the rights of the patient are protected and respected.


District Inspectors when attending the inpatient units, are the eyes and ears on the ground. They are not advocates but act as a watchdog to ensure that the service provider is fulfilling their obligations appropriately for the patient’s benefit.


A person who is a voluntary patient does not come within the ambit of the District Inspector role, unless they have signed a written consent document and this has been provided to the District Inspector.


The role of the District Inspector was carried over from the 1969 Mental Health Act but was strengthened and given increased functions under the 1992 Act. This Act has now recently been amended and will eventually be replaced once a full review and consultation has been completed.


The role of the District Inspector under the MHA resulted in a more proactive role rather than a reactive one. This proactive role is encouraged in the following ways:


· Assist patients to seek s 16 Judicial reviews.

· A District Inspector is not permitted to lodge a s 16 within the first 5-day assessment period (s 11) but can advise the patient of this right.

· The District Inspector does not initiate contact with the patient until after they receive the s 12 5-day certificate of further assessment, at which point the s 16 review is raised.

· Monitor clinical reviews including facilitating and obtaining second opinions under s 69 if challenging diagnosis or medications.

· Visitation and document checking.

· Following a s 76 clinical review, make contact and discuss with the patient, the right to lodge an application for review to the Mental Health Review Tribunal.


Access to the District Inspector

The Ministry of Health has emphasised that District Inspectors’ names and contact details are

prominently displayed in the Inpatient Units for patients to be able to access District Inspectors for assistance.


The District Inspector role has often been referred to as that of a mental health Ombudsman.


Although a qualified lawyer, the District Inspector is not counsel and cannot act for an individual. Patients and nursing staff are often not aware of this and it is important to explain and distinguish the role between District Inspector and counsel. It is important to note that the District Inspector does not give clinical advice; this is the domain of the medical team.


The District Inspector’s role is a facilitator assisting and supporting patients in terms of lodging reviews, ensuring appropriate legal representation by counsel and following up any concerns that they raise.


Judicial hearings and Mental Health Review Tribunal hearings

The roster of legal counsel was previously administered by the ADLS, however that changed several years ago when the NZLS assumed responsibility.


There was an expectation by NZLS that the District Inspector would arrange counsel for the hearings, however the reality is that this is done by the Mental Health Administrator Office within the District Health Board (DHB).


The District Inspector however, has a duty to oversee and ensure that patients are seen at least the day before their scheduled hearing, so that adequate instructions are obtained in advance.


Mental Health Review Tribunal (MHRT) hearings are available once the first s 76 3-month review of the Compulsory Treatment Order is completed. The District Inspector receives a copy of the certificate of clinical review and must:


(a) Communicate with the patient and find out, if possible, whether or not the patient wants an application to be made to the Review Tribunal for a review of their condition. The District Inspector must communicate by talking to them, unless it is impracticable; and


(b) Decide, having regard to any view expressed by the patient, whether or not an application should be made.


If that District Inspector considers that such an application should be made, they are required to take whatever reasonable steps they think necessary to encourage or assist the patient, or any of the other persons entitled to apply to the Tribunal, to make such an application.


In recent years, with the change of Secretariat administering the hearings, there is now an expectation by the Tribunal that the District Inspector arrange representation for the patient. The practical effect is that as District Inspector, I adopt the approach of contacting counsel who appeared at the last Judicial hearing, unless the patient directs otherwise.


Section 75 complaint of breach of rights

Section 75 is a mandatory requirement for the matter to be referred to a District Inspector or an official visitor for an investigation.


This section stipulates that where a complaint is made by or on behalf of a patient, that any right has been denied or breached in some way, the matter shall be referred to a District Inspector or an official visitor for investigation.


This requires the District Inspector to talk with the patient, or the complainant (if this is not the patient), and everyone else involved in the case and generally investigating the matter.


If the District Inspector is satisfied that the complaint has substance, they are required to report the matter to the Director of Area Mental Health Services (DAMHS), together with any recommendations they think fit and the Director shall take all steps as may be necessary to rectify the matter.


On concluding any investigation, the District Inspector shall inform the patient or complainant of their findings.


The inquiry does not stipulate a full written report, although if the matter is serious, usually this occurs with recommendations. It however creates a dialogue between the patient or complainant, District Inspector and the DAMHS and hopefully results in a positive outcome.


The s 75 process does not preclude other avenues such as a complaint to the Health & Disability Commissioner’s Office (HDC).


I approach the role of District Inspector positively and adopt the view that all participants are working together to progress and achieve positive outcomes. This includes the clinicians and nursing staff.


I am frequently contacted by clinicians with queries about the scope of their jurisdiction in assessing and treating patients, who are mindful of compliance with the MHA.


If the issue they raise affects or impinges on a patient’s rights and is outside the District Inspector’s role, I will refer them to the legal section of their District Health Board (DHB).


Section 95 Inquiries

Section 95 inquiries are significant and ambitious undertakings, with the terms of reference being set by the Directorate.


Section 95 inquiry allows a District Inspector to inquire as to:


(a) Any breach of the Act or regulations, or any breach of duty by any officer or person employed in the hospital or service; and


(b) Such other matters as the District Inspector or Director thinks fit to be enquired into respecting any patients, or the management of the hospital or service.


The powers conferred on the District Inspector when conducting an Inquiry to summon witnesses and receive evidence are the same as a Commission of Inquiry by the Commissions of Inquiry Act 1908. A full report is then sent to the Director.


This section is reserved for serious inquiries and requires approval from the Director of Mental Health.


Government Inquiry into Mental Health Legislation

The New Zealand Government carried out an inquiry into mental health and addiction with a report published in 2018 (He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction (Government Inquiry into Mental Health and Addiction, November 2018)), which found that New Zealand’s mental health legislation approach was out of step with New Zealand’s international obligations under the United Nations Conventions, particularly the United Nations Convention on the Rights of Persons with Disabilities (CRPD).


They recommended that the MHA should be repealed and replaced, with a new approach applying human rights, recovery and supported decision-making, in accordance with least restrictive care principles and minimise the use of compulsion, seclusion and restraint.


The Government accepted the recommendation and work is presently underway. This will take time with public consultation to repeal and replace the existing MHA having closed on 28 January 2022.


Covid-19

Covid-19 abruptly changed the landscape with access to patients and provision of care.


The role of the District Inspector was also impacted in that under Levels 3 and 4, they were not permitted to enter the Units and had to attend on patients by Zoom or telephone.


Everyone had to immediately adjust to the onset of the pandemic and it took a while to put adequate processes in place, to be able to fulfil the obligations of service providers and access to District Inspectors.


Court hearings were affected and Judicial hearings were conducted remotely in respect of the Judge and counsel. In Auckland this continues.


Temporary legislative measures[2] were put in place, which have now been formalised under the recent Amendment Act.


Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021

On 29 October 2021, Parliament passed the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 (the Amendment Act) into law.[3]


The Amendment Act seeks to improve the protection of individuals’ rights and the safety of patients and the public. It also aims to enable the MHA to be applied more effectively. The Amendment Act is an initial step in the wider work programme to fully repeal and replace the MHA and addresses some pressing issues with the current legislation while longer-term work progresses. It also serves to make permanent the changes that were made as part of the COVID-19 Response (Further Management Measures) Legislation Act 2020.[4]


Significantly, this has eliminated the indefinite compulsory treatment order under the MHA and requires the courts to review any compulsory treatment order at the end of each 12-month period for the duration of the order.


The Amendment Act has introduced s 6A specifically addressing the use of Audio Visual Links (AVL). It covers assessments and judicial hearings. It allows the use of AVL for assessments if the practitioner considers it not practicable for the person to be physically present and the use of the link is appropriate in the circumstances. It also allows family, whānau or caregivers to be present by audio or video link in s 9 assessment examinations.


In the case of judicial or MHRT hearings, if the Judge or member of the Tribunal considers that it is not practicable for the person to be physically present for an examination, they can direct use of an AVL link to examine the person under the MHA Act.


The Amendment Act has also replaced ‘medical practitioner’ with ‘mental health practitioner’, which includes medical practitioner, nurse practitioner and registered nurse practicing in mental health in certain sections of the Act. Also, ‘medical examination’ has become ‘examination’ and clarifies the responsibilities of duly authorised officers (DAOs) to make arrangements for assessments. It is intended that these changes will improve the administrative efficiency of the existing MHA.


To comply with expectations of transparency and reporting about the use of legislation that restricts people’s rights, there will now be a requirement to record in the supporting documentation the rationale for using AVL in patient assessments.


This will require statutory officers, including the DAMHs and District Inspectors, to report the use of AVL assessments to the Director of Mental Health.


The changes in respect of AVL made by the Amendment Act will be incorporated into the Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 issued in September 2020 and will be available on the Ministry of Health website.


The Future of Mental Health Law in New Zealand

The area of mental health is continuing to evolve and is currently transitioning as a result of the response to a rights-based approach with an emphasis on human rights and recovery, care and treatment and least restrictive care principles. There is also a need to give greater emphasis to obligations under Te Tiriti o Waitangi (The Treaty of Waitangi).


Further, an emphasis on acknowledging feedback from people with lived experience, and their families and whānau, on what their experience has been under the MHA.


The Amendment Act is an interim solution to the outdated MHA that will be 30 years old on 1 November 2022.


There will be an overhauled and updated Mental Health Act in due course and a new era in Mental Health Law, which is likely to be quite different from the present legislation as the world continues to rapidly change into a virtual universe.


Ngā mihi





Rosemary L. Thomson

District Inspector for Mental Health

3 February 2022

[1] Sestan v Director of Area Mental Health Services Waitemata DHB [2007] 1 NZLR 767 (CA). [2] COVID-19 Response (Further Management Measures) Legislation Act 2020. [3] The changes came into force on 30 October 2021, except for the changes in relation to the elimination of indefinite treatment orders, which will come into force by order in council, upon royal assent. This was to ensure sufficient time for courts and mental health services to prepare for implementation. [4] Toni Dal Din (Acting Director of Mental Health) correspondence dated 29 October 2021.

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