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Re-imagining mental health legislation that honours Te Tiriti o Waitangi and human rights through wānanga

Published December 22, 2021. Last modified December 23, 2021

On 15 December 2021, more than 85 people from across the health sector connected virtually to listen to a panel wānanga and share their aspirations for the development of new mental health legislation that honours Te Tiriti and human rights.

The consultation process to repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992 provides a once in a generation opportunity to shift the way we deliver mental health services in Aotearoa. To create new legislation that reflects diverse perspectives and collective learning about what approaches promote and value hauora rather than cause harm.

All parts of the consultation are equally important. However due to timing restrictions and based on the special interests of the Whāriki and KPI Programme networks, the hui focused on Part 7 – considering the use, or prohibition, of seclusion, restraint, or other restrictive practices.

The evidence for changing our approach to seclusion, restraint and other restrictive practices is compelling. Human rights-based agencies such as the United Nations, Human Rights Commission, Ombudsman and Disabled People’s Organisation have criticised Aotearoa for the ongoing use and high rates of seclusion and restraint in mental health services. Research confirms that they are practices which can be relationship damaging and traumatic not only for tāngata whai ora and their whānau, but also for health workers involved.

This growing body of evidence was reinforced by more than 5000 submissions to the 2018 Government Inquiry into Mental Health and Addiction calling for transformative action. Action to address persistent inequities in the use of seclusion for Māori. Action to change practices that breach human rights. And action to provide the resources and facilities the health workforce need to deliver mental health services that keep everyone safe.

Six panel members with diverse experiences of the mental health and addiction sector used the hour long hui to wānanga pātai from Part 7 of the consultation discussion document, as well as pātai received from hui attendees. The following is a summary of their wānanga and the key themes which arose:

The panel highlighted a number of systemic issues which need to be addressed before new mental health legislation is created to ensure a strong foundation for practice changes that reduce or remove the use of restrictive practices. The issues include:

  • Institutional racism:
    • Service use data collected in PRIMHD provides evidence of persistent inequities and disadvantage Māori experience when accessing mental health services. It shows that Māori are more likely to be secluded than non-Māori when using services.
    • There is a need for treatment providers to own institutional racism and increase awareness of how this influences their practices in relation to Māori.
    • People spoke of practices in their region where Māori would be secluded as soon as they entered the service, versus non-Māori who had to exhibit multiple risk factors before seclusion and restrictive practices were used.
  • Redefine risk:
    • Existing definitions and risk mitigation strategies are out of step with the needs of tāngata whai ora and can cause harm, rather than minimise it. There is a need to wānanga and create a shared understanding of risk from both a clinical and lived experience perspective.
    • Failure to create a contextually accurate and modern shared definition of risk could result in new legislation which perpetuates the issues and challenges identified and evidenced in the existing Mental Health (Compulsory Assessment and Treatment) Act 1992.
  • Acknowledge and accept the fear and harm the current system has created:
    • The use of seclusion, restraint and restrictive practices have created fear amongst people who access services. It is no longer acceptable to cause harm or consider the practice of seclusion as ‘therapeutic’. Therefore, the process to develop new mental health legislation must take into account not only what is required to shift to human centric trauma-informed practices, but how services will build trust with rangatahi, tāngata whai ora and whānau that care will be capacity building.
  • Create a shared language and understanding of restrictive practices:
    • Before creating new mental health legislation, there is a need to work in partnership to develop a shared language and understanding of the different restrictive practices. For example, it was noted that while seclusion data indicates a decrease in the use of seclusion in some District Health Board mental health services, this did not capture the increase in other restrictive practices such as chemical restraint and intensive psychiatric care (IPC).
    • Compulsion exists on a continuum. Therefore, before developing rules for the use of practices related to compulsion it is critical to clearly define what seclusion, restraint and restrictive practices are and consider these in line with human rights and Te Tiriti to effectively determine what legislation is required to inform their use, or removal of use in mental health services.
    • Language is powerful. The language we use can influence our mindsets and how we perceive different scenarios. Therefore the language used to create new legislation must set the tone for how we want mental health services to be delivered and be honest, clear and translatable for everyone.

There was a clear consensus from the panel that any new legislation created to reflect te ao Māori needed to be written by and with Māori. Te Tiriti o Waitangi includes the principles that must be used to guide rights for Māori in all legislation. To ensure these principles are accurately translated and defined within the legislation, it is critical Māori are given the remit to interpret what is required from a te ao Māori world view. #givebackthepen

Effective communication offers real alternatives to seclusion, restraint and restrictive practice. The first introduction to mental health services is important and can shape how tāngata whai ora engage with health workers. Lived experience advocates and peer workers note the power of communication to ease tension, address anxiety and uncover the real reasons tāngata whai ora may be responding to care in a certain way. New mental health legislation should seek to prioritise effective communication as valid tool for addressing behaviours which may have historically resulted in seclusion, restraint or restrictive practices.

Whānau can hold the answers. Whānau have knowledge and skills that cannot be learnt, but are highly transferable when it comes to mental health care. The panel supported the creation of mental health legislation which upholds ‘nothing about us, without us’ and strengthens how services partner with whānau to provide care for tāngata whai ora.

 

Resources to support submission development

Note: To access the resources, hover over the resource and click on the green font.

SOURCE: Ministry of Health
SOURCE: Mental Health and Wellbeing Commission (MHWC)
SOURCE: New Zealand Human Rights Commission. Te Kāhui Tika Tangata.
SOURCE: Health Quality and Safety Commission (HQSC)
SOURCE: Te Rau Ora
SOURCE: Whāraurau
  • Trauma informed care. Raising trauma awareness for caregivers and people working with children and whānau.
SOURCE: Te Pou
SOURCE: Mental Health and Addiction KPI Programme
SOURCE: Recent international mental health reform

 

Making a submission

Consultation is open until 28 January 2022. Please talk to someone you trust if you need support to prepare and submit your submission.

You can provide feedback by:

  • making an online submission
  • answering the questions in the consultation document and emailing your responses to mhactreview@health.govt.nz
  • answering the questions in the consultation document and sending a hard copy to: Consultation: Transforming mental health law in Aotearoa New Zealand, Ministry of Health, PO Box 5013, Wellington 6140
  • sending your views on a particular topic relating to the consultation by emailing mhactreview@health.govt.nz
  • sending your views on a particular topic relating to the consultation by emailing mhactreview@health.govt.nz

Submissions can be in any format, including video submissions. Please send these through as an attachment or link to mhactreview@health.govt.nz.

 

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