Government agrees to policy proposals for new mental health legislation
Kia ora koutou
I am pleased to let you know that Government has agreed to the policy proposals for new mental health legislation. The Cabinet papers are now available on the Manatū Hauora website. This is an important milestone in our work to repeal and replace the Mental Health Act.
We are repealing and replacing the Mental Health (Compulsory Assessment and Treatment) Act 1992 in response to He Ara Oranga. The aim of this work is to create new legislation that protects and respects human rights, better reflects Te Tiriti o Waitangi and improves equity.
This update outlines the work done to get us to this point, the Government’s agreed policy for new legislation, and what happens next.
We want to thank everyone who has helped shape new mental health legislation so far
We are working toward the vision of mental wellbeing in Aotearoa set out in Kia Manawanui: Long-term pathway to mental wellbeing and the Oranga Hinengaro System and Service Framework. We want to ensure that mental wellbeing is promoted and protected, people are supported to stay well, and they can get the support they need, when and where they need it. New mental health legislation forms part of this broader work and vice versa – the broader work underway to expand mental health and addiction services and workforces will support the successful implementation of new legislation.
When the Government agreed to recommendations in He Ara Oranga in 2019, work began immediately to address some issues with the current Mental Health Act, while at the same time we began longer-term work to develop the new legislation. This includes amendments through the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 which made improvements including the elimination of indefinite treatment orders.
Work to develop new legislation started with asking New Zealanders what they wanted to see in new mental health legislation. Public consultation closed in January 2022.
Thank you to everyone who took part in the consultation and generously shared their own experiences and perspectives. The feedback we received provided a wealth of wide-ranging and divergent viewpoints across all the issues that needed to be considered.
Following public consultation, we established a Mental Health Act Expert Advisory Group, to help balance the diverse range of views gathered through consultation. Group members came from diverse backgrounds and brought a range of expertise, including tāngata whaiora, whānau of tāngata whaiora, mental health service providers and clinicians, as well as legal and academic expertise. Over half of the members of the group had personal or whānau lived experience of the legislation, and more than half were Māori.
We want to extend our gratitude to the Expert Advisory Group, who assisted us to consider the differing views on the problems with the current Mental Health Act and what new mental health legislation should look like. The group’s views helped shape our policy advice to Government.
The Government has now agreed to the policy for new mental health legislation
We are pleased to share that the Government has now agreed to the policy proposals for new mental health legislation.
The suite of policy proposals is intended to shift legislation governing compulsory mental health care towards a more rights-based and recovery approach, and to enable care in line with a te ao Māori world view.
The policy proposals for new legislation place tāngata whaiora at the centre of their mental health care. The proposals will recognise tāngata whaiora decision-making capacity and support them to make their own decisions and choices, enabling greater self-determination and autonomy in their lives. The new legislation will also recognise the key role that a strong support network of whānau and trusted people have in supporting tāngata whaiora on their recovery journey.
We want to ensure that practice and services focus on how compulsory mental health care can be provided in a way that protects and respects the rights of tāngata whaiora and their whānau. New legislation will ensure we better meet the needs of people when they need urgent intervention, and that compulsion is only used as a last resort.
The Cabinet papers and materials setting out the Government’s agreed policy for mental health legislation are now available on our website, which can be accessed here: Cabinet Material: Policy decisions for transforming mental health law | Ministry of Health NZ
Summary of some of the key policy proposals for new mental health legislation
Below is a summary of the some of the key proposals:
- Purposes and principles to underpin how the legislation will work in practice. They will include important considerations like promoting the decision-making capacity of tāngata whaiora and protecting their rights, as well as achieving equitable mental health outcomes.
- Updated legal criteria for compulsory mental health care including consideration of decision-making capacity. This will mean that tāngata whaiora who have capacity to make decisions about their own mental health care will not be subject to compulsory care.
- New rights in legislation for tāngata whaiora to be supported to make decisions and express their views, including any communication assistance required. Mental health services will be obligated to ensure these new rights are upheld. Rights will also be extended to people being supported voluntarily in inpatient services.
- Advance directives to enable tāngata whaiora to give instructions on what they want to happen should they need to receive compulsory mental health care. This includes giving directions in specific areas, such as particular types of treatment that tāngata whaiora do or do not consent to receive.
- Nominated persons appointed by tāngata whaiora to represent their interests should they be under legislation. This could be members of a person’s whānau, hapū, iwi, or other trusted persons.
- Independent support persons and advocates who tāngata whaiora will be entitled to access for help with exercising their rights and participating in decisions affecting them. These roles would ensure tāngata whaiora have comprehensive support alongside the existing independent role of District Inspectors.
Tāngata whaiora who need compulsory mental health care can expect care that better meets their needs and supports their recovery journey. New legislation will require:
- A broader range of care options available, beyond medical interventions, including kaupapa Māori approaches and other cultural support.
- More holistic and comprehensive care planning, including consideration of mental, physical, social, and cultural needs, as well as protective factors and strengths of tāngata whaiora. Each tāngata whaiora will have a care plan, developed collaboratively with them and their whānau, that sets out what supports will be provided to meet their needs.
- Collective approaches to care, where each tāngata whaiora will be looked after by a kaitiaki team which will include clinical, lived experience and cultural expertise. Supported decision-making hui will enable more inclusive processes for identifying care options with people of significance identified by tāngata whaiora.
New legislation will also feature new and enhanced oversight, monitoring, and accountability mechanisms, including strengthened requirements to report on things like the use of seclusion and restraint, as well as monitoring of equity, particularly for Māori as well as other underserved population groups. These proposals will help us to better identify where things are working well, and where they may be improved, to ensure that tāngata whaiora are experiencing compulsory care in line with the expectations set out in new legislation.
What happens next?
Now that Government has agreed the policy for new mental health legislation, the Parliamentary Counsel Office will draft a Bill. The policy proposals in the Cabinet papers focus on intent and desired outcomes rather than specific wording for new legislation. How the policy is translated into legal wording is determined by the Parliamentary Counsel Office and may look different.
Once a Bill is drafted, the Minister of Health will take the Bill to Cabinet for approval. Following Cabinet approval, the Bill will go through the Parliamentary processes. This includes:
- Introduction, when the Bill is published on Parliament’s website, and everyone will be able to read it, and
- Select committee consideration, where people will have the opportunity to comment on the Bill before it becomes law.
You can find more information on all of the steps involved on the Parliament webpage How a Bill becomes law.
Bringing the new legislation to life will involve shifts in practice and support available for tāngata whaiora being cared for under the legislation. We know there is already evidence of best practice in the sector which aligns with the direction Government has set for new legislation, being undertaken by Te Whatu Ora, Te Aka Whai Ora and non-governmental organisations, including Lived Experience and Peer Support services. There will be more work to come in partnership with the sector to support the shifts required.
Supporting the mental health sector to prepare for the changes is an important priority, acknowledging that mental health workforces are already working hard under significant pressure to provide support to tāngata whaiora. Alongside the work already underway to improve how tāngata whaiora experience compulsory mental health care, we can begin new work that will support faster and smoother implementation of new legislation.
While Government’s confirmation of the policy settings for new legislation is an important milestone, we still have many more stages ahead of us before the new mental health law is in place. We know that people are eager to see change happen, particularly tāngata whaiora and their whānau. These stages ensure that there are opportunities for checks and balances along the way.
Right now, we are not able to confirm specific timeframes for when the Bill will be approved, nor when the new law will come into effect. These decisions will be up to Ministers and Parliament, but we are committed to keeping you informed as the work progresses.
The diagram below provides an overview of the work so far and stages are still to come:
You can keep up-to-date on the work to repeal and replace the Mental Health Act at: Repealing and replacing the Mental Health Act | Ministry of Health NZ
Ngā mihi
Kiri Richards
Associate Deputy Director-General of Mental Health and Addiction
Ministry of Health - Manatū Hauora
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