disagreement with the State. This is the rationale for section 4(c) of the Act, which excludes
criminal or delinquent behaviour. Conflicts of these types between the individual and society
are best reserved for the criminal justice system. Psychiatry’s ethical position in the treatment
of the mentally ill is undermined if it becomes an agent of state control for groups of people
who society may find irksome."
More:
1.2 ‘Mental disorder’
The Mason Report (Ministry of Health 1996) noted that ‘now that the interpretation of the
legislation is better understood and “settling down”, it would be unwise to make further
sudden far-reaching changes’ (p 47), and that ‘the remedy [to any interpretative
difficulties] is not to amend the definition’ of mental disorder (p 45), but rather to provide
clear guidelines.1.2.1 General points
The definition of ‘mental disorder’ is based on phenomena rather than diagnosis.
1
Parliament has deliberately eschewed reference to particular major mental disorders as
understood in the psychiatric community. Rather it has set the parameters for establishing the
existence or otherwise of a mental disorder according to the presence or absence of observable
symptomological indices.
(Re Review Tribunal (RT), 12/4/96, SRT 13/96)
The actual diagnosis remains relevant in relation to:
• the exclusions in section 4 of the Act
• defining the prognosis and likelihood of continued need for compulsory treatment,
particularly in the case of intermittent disorders.
1.2.2 Intermittent disorders
The definition of ‘mental disorder’ specifically includes intermittent disorders. This serves to
emphasise that most of the major mental disorders follow a fluctuating course. Frequently,
remission of illness may be due to compliance with treatment. There is no requirement that
the phenomena on which the diagnosis of mental disorder are based must necessarily be
present at the time of examination, or at the time that the application is made. There are times
when it may be appropriate to continue or even initiate compulsory treatment during a period
of remission. Compulsory treatment may be appropriate for a person who appears well (free
from symptoms) in the following circumstances:
• repeated or prolonged episodes of illness
• severe consequences during phases of illness, such as severe violence to self or others
• early loss of insight during an episode of illness, with a pattern of failing to be able to take
the necessary steps to halt the development of illness
• changeable insight that results in an inability to maintain a consistent decision.
At these times, continuing compulsory treatment may provide for a more intensive overview
and the possibility of early intervention should there be a relapse. It is good clinical practice to
try to ensure relapse prevention, and the statutory reference to ‘intermittent nature’ encourages
that possibility.
1
‘Phenomena’ are abnormalities of specific areas of mental functioning (psychopathology) that may be
observed. The presence of individual abnormal phenomena does not necessarily indicate a specific illness or
diagnosis. ‘Diagnosis’ is an attempt to identify an illness, based not only on the presence of patterns of
psychopathological abnormalities, but also on the basis of the cause (aetiology), time course (history) and
outcome (prognosis) of the disorder. Diagnosis is relevant to the definition in terms of assessing whether the
disorder of mind is of a continuous or intermittent nature (for a fuller account refer to John Dawson,
Psychopathology and Civil Commitment Criteria, Medical Law Review, 4, Spring 1996, pp 62-83).1.2.3 Degree of disorder
There are two alternative definitions of the degree of disorder necessary to invoke the Act.
Both are equally applicable and should be carefully considered. The order in which they are
presented in section 2 of the Act is irrelevant. Criterion (b) should be considered carefully:
‘(b) Seriously diminishes the capacity of that person to take care of himself or herself’
People whose capacity is seriously diminished include those individuals whose judgement is
impaired to the extent that they are unable to take care of themselves in a way that would be
generally accepted as compromising their ability to maintain themselves. It is not enough that
the individual simply chooses an alternative lifestyle. The degree of impaired care should be
of sufficient magnitude to put the health or safety of the individual at significant risk.
For example:
• failure to comply with life-supporting medication (eg, insulin)
• self neglect, such as inattention to cooking and a consequent risk of fire
• a person in a manic state who overspends to such an extent that he or she finds himself or
herself bankrupt when symptoms of mania are no longer present.
‘(a) Poses a serious danger to the health or safety of that person or others’
Although the meaning of ‘serious danger’ caused difficulties in early rulings under the Act,
the situation has been now been clarified. When considering ‘a serious danger to health’, both
physical and psychological health should be considered (see Re RWD [1995] NZFLR 28 Judge
Doogue). The clinician should also consider whether the risk of deterioration of the illness
process itself, as the result of lack of treatment, might constitute a serious danger to the health
or safety of the person or of others. The following elements may be useful in determining if a
‘serious danger’ is posed:
• the nature and the magnitude of harm
• its imminence
• its frequency
• situational circumstances and conditions that affect the likelihood of the harm occurring
• balancing the alleged harm against the nature of the proposed intervention.
1.2.4 Examples of ‘serious danger’
The following are examples of cases in which the ‘serious danger’ test has been met.
• Re D [1995] NZFLR 28, Judge Doogue – ‘[T]he statute requires the Court to have regard
not just to the possibility of physical harm, but also to the impact of the patient’s behaviour
on the psychological and emotional wellbeing of himself and others’ (p 45). ‘Fear and
feeling threatened can be as disabling to the victim as violence itself’. (p 46)• Re T [1995] NZFLR 351, Judge Boshier – ‘[I]t is important to consider psychological harm
to the patient or members of the public and the definition so permits. I prefer an approach
that requires the psychological wellbeing of patients and members of the public to be
enhanced and protected. Too restrictive an approach has the undesirable consequence of
not only permitting people to become grossly unwell before intervention is possible, but
also it wrongly exposes members of the public to the consequences of that unwellness.’ (p
355).
• Re IC [1996] NZFLR 562, SRT – Where there was evidence that a patient’s obsessional
attachment and stalking behaviour had caused great anxiety and fear to his victim and her
family, but there had been no physical threats, the Southern Review Tribunal held that
‘there is clear and unequivocal evidence to show that [the] behaviour poses and continues
to pose a serious danger to the psychological health of the victim and her family’. (p 575).
1.2.5 Threshold for application for compulsory assessment
The Act requires a lower threshold for initial application for compulsory assessment, than for
making a compulsory treatment order:
• under section 8(3)(b) of the Act, the medical practitioner must ‘consider that there are
reasonable grounds for believing that the proposed patient may be mentally disordered’
• under sections 10 and 12 of the Act, the medical practitioner must consider that there are
‘reasonable grounds for believing that the proposed patient is mentally disordered’.
However, under section 27(1) of the Act, the Court must ‘consider that the patient is mentally
disordered’ in order to make a compulsory treatment order.
The test of ‘reasonable grounds for believing’ may be derived both from the medical
practitioner’s examination of the patient and/or from information given by caregivers, family,
and third parties. In determining ‘reasonable grounds’ it is important to note that fanciful or
unsubstantiated grounds are not ‘reasonable grounds’ for believing a person is mentally
disordered.
The significance of this difference is that whereas there is a reasonable certainty required
before a compulsory treatment order can be imposed by the Court, a clinician can act to
invoke compulsory assessment on much less certainty. There is thus the capacity to
compulsorily detain and assess in cases where there is some doubt, but where the assessing
clinician feels it is prudent to err on the side of caution.
1.2.6 Abnormal state of mind
‘Abnormal state of mind’ may refer to a state that is:
• abnormal for the individual, compared to what is normal for the individual (as is the
case in an acute illness, for example); or
• abnormal in terms of population norms (see R v T [1993] DCR 600, Judge McElrea).In many cases, both meanings will apply. There may be instances in which interpretation is an
issue. Clinicians should be aware of the two possible meanings, and should be clear which
meaning applies in the particular case.
Particular care should be taken to ensure that the state of mind is ‘abnormal’ in terms of the
individual’s cultural norms.
1.2.7 Disorders of volition and cognition
The concepts of ‘delusions’, ‘disorder of mood’, and ‘disorder of perception’ are clinical
concepts that are well defined and, in general, do not pose problems.
However, the concepts of ‘disorder of volition’ and ‘disorder of cognition’, are not well
defined clinically, and are open to a wider range of interpretation, as explained below. The
intent of the authors of the Act, in including the term ‘disorder of volition’, was primarily to
ensure that the amotivational syndrome of schizophrenia was included in the definition. This
term may, however, be applied to a variety of other conditions. The following definitions are
intended to provide guidance.
‘Disorder of volition’
Volition can be defined as either the exercise of the will or power of willing, or the act of
power or willing. In psychiatric textbooks, it is defined as the ‘state of energy and drive
which directs our purpose or activity’ (sources: Oxford Concise Dictionary (8th ed in 1990),
Dorlands Illustrated Medical Dictionary (28th ed in 1994), Oxford Textbook of Psychiatry
(3rd ed in 1996)).
From a psychiatric perspective, a disorder of volition clearly covers:
• catatonic excitement or withdrawal
• depressive stupor
• passivity phenomena and command hallucinations
• amotivational syndrome in major psychosis.
These are examples of absent or changed volition that occur in the context of a major mental
illness. There are rare states such as conversion disorders, sleep walking, and epileptic
automatism that would also be disorders of volition.
There are many other circumstances where volition may be seen as abnormal. These are
within the areas of disorders of impulse control. Here, patients are aware of their actions and
potential outcomes and have normal reality testing, but act according to an impulse or desire
for a variety of reasons and a variable degree of pleasure or distress. One of the difficulties
here is the conflict between an irresistible impulse and an impulse not resisted. It is extremely
difficult to judge clinically whether someone is able to resist an urge, but chooses not to, or is
truly unable to resist. Whether these should be included as disorders of volition is, therefore,
arguable. Examples of disorders of volition include:• obsessive compulsive disorder
• eating disorders
• impulsive states (for example, in borderline personality disorder or attention deficit
disorder)
• psychosexual disorders (for example, paedophilia)
• kleptomania/pyromania
• pathological gambling.
It is the uncertainty of the group of disorders listed above that gives rise to one of the largest
potential abuses in the definition of mental disorder. Because the term ‘disorder of volition’ is
not one that is generally used in psychiatry, its interpretation is difficult. Moreover, diagnostic
systems such as DSM-IV refer to all the behaviours it describes as ‘disorders’, although many
are clearly not ‘mental disorders’ (as defined in the Act) that could ethically be subject to
compulsory treatment. These factors result in confusion about where ‘disorder of volition’
should appropriately be used. Most psychiatrists would probably feel that there are times with
obsessive compulsive states and eating disorders where compulsory treatment is appropriate.
Certainly a diagnosis of borderline personality disorder does not preclude a person from
coming within the ambit of the Act if he or she meets the definition of ‘mentally disordered’
(see RT, 12/4/96, SRT 13/96).
There is a presumption in the Act that an individual has the right to choose and the right to
take responsibility for the outcomes of his or her choices. It is only in very particular
circumstances that society takes away such power of choice. In general, conditions such as
psychosexual disorders and anti-social personality disorder do not fall within such
circumstances, unless complicated by another mental abnormality such as a disorder of mood,
perception, cognition, or disorder of delusion.
‘Disorder of cognition’
Cognition can be defined as ‘the action or faculty of knowing, perceiving, conceiving, as
opposed to emotion or volition’. An alternative definition is the ‘operation of the mind by
which we become aware of objects of thought or perception including understanding and
reasoning’. Cognition is loosely defined in psychiatric literature. It refers to obtaining,
organising and utilising sensory and perceptual information from the environment, past
experience, and such mental activities as plans and strategies. Cognition is not a term
generally used in psychiatry. As well as referring to a process, cognition is at times used as a
noun to mean ‘a thought’ (sources: Oxford Concise Dictionary, Dorlands Illustrated Medical
Dictionary, Oxford Textbook of Psychiatry).
‘Disorder of cognition’ clearly covers:
• slowing of cognition in depressive states
• increased rate of cognition in manic states
• disorganisation or disruption of thought process in psychotic states
• cognitive changes in dementia and other acquired organic mental disorders.A disorder of cognition can be seen to embrace the thought disorder commonly noted during
psychosis, namely disorganised or illogical thought processes of a very severe degree, as well
as poverty of thought or absence of thought that can occur in some marked psychotic states.
As the terminology has been different (‘cognition’ versus ‘thought’), some psychiatrists have
been uncertain whether formal thought disorder is embraced by a disorder of cognition. In the
Ministry’s view it is. Formal thought disorder may be the only mental state abnormality in
some manifestations of psychosis. It may also cover:
• obsessional rumination in obsessive compulsive disorder
• disordered self-perception such as eating disorders
• anxiety disorders with recurrent ruminations.
The status of some states where there is a recurrent thought that is dangerous (for example,
paedophilia) is uncertain.
Intellect is clearly a component of cognition. Intellectual disability can be seen as a disorder
of cognition for the purpose of section 2 of the Act. However, section 4(e) of the Act qualifies
this by stating that Parts I and II of the Act shall not be invoked in respect of any person by
reason only of intellectual disability. Intellectual disability has been held to be included in the
definition of mental disorder for the purpose of the ‘under disability’ test in section 108 of the
Criminal Justice Act 1985.
There are fewer difficulties in defining a ‘disorder of cognition’ than a ‘disorder of volition’.
The potential difficulties with the use of the term ‘disorder of cognition’ are primarily the
confusion between cognition as a process and a cognition as a thought. The latter use, if
adopted as a means of including people with deviant but non-delusional thoughts, is an
inappropriate extension of the term. If cognition is seen as the process of thinking, perceiving
and recalling, then the use of this concept should not spread excessively beyond that which
was originally conceived by the authors of the 1992 Act.
1.2.8 Head injury
There appears to be a widely held misapprehension that the Act does not apply to individuals
presenting with disturbances of behaviour resulting from head injury, on the grounds that they
are not ‘mentally ill’. However, the Act can be used in this situation.
As mentioned the definition of mental disorder under the Act is quite deliberately stated in
terms of phenomena rather than diagnoses. The Act requires an abnormal state of mind
characterised by one or more phenomena including ‘disorder of cognition’. This applies
irrespective of whether the disorder results from a diagnosis of mental illness (in the narrow
sense) or any other cause, such as brain injury, toxicity, or dementia.
Section 4 of the Act contains the only reference to diagnosis. This specifically excludes
certain conditions (such as intellectual disability) as a sole reason for invoking compulsory
assessment procedures. There is no clause in the Act that excludes head injury as the basis of
its application.
It is important to differentiate clearly between the application of the law and what is
considered to be clinically appropriate in any individual case.A patient subject to the Act may be assessed and treated in any hospital, or in any other
appropriate community setting. Use of the Act is not necessarily synonymous with admission
to a psychiatric unit.
If a clinician considers that intervention by the mental health service is not possible or
appropriate without the patient’s admission to a psychiatric unit, such a judgement should be
based on the best use of clinical resources and the needs of the individual, rather than on the
criteria of the Act.
1.2.9 Personality disorder
Individuals with ‘personality disorders’ are neither specifically included in nor excluded
from the provisions of the Act (because the Act is couched in terms of clinical
phenomena rather than in terms of diagnosis). Individuals who display the phenomena
covered by the definition of mental disorder, which will include some individuals with
certain types of personality disorder, may be brought within the scope of the Act when
necessary.
The Review Tribunal has recently reiterated that the Act is not concerned with diagnostic
labelling in relation to whether personality disorder is included within the definition of
mental disorder as a ‘disorder of volition’. Thus the fact that a current diagnosis suggests
the presence of a borderline personality disorder of a severe type does not preclude a
person from coming within the ambit of the Act (see RT 12/4/96, SRT13/96).
1.2.10 Substance abuse
Section 4(d) of the Act specifically excludes substance abuse as a sole basis for the
application of procedures for compulsory assessment and treatment under the Act. But the
presence of substance abuse does not preclude the use of the Act if the criteria for ‘mental
disorder’ are otherwise met.
The following are examples of the types of situation in which mental disorder may arise in the
context of substance abuse:
• When an intoxicated individual displays suicidal behaviour, or threatens suicide or selfharm, it may be appropriate to utilise the Act. It may be reasonable to form the belief that
someone who is threatening suicide or acting in a suicidal manner may be mentally
disordered, no matter how intoxicated they may be.
• The effects of intoxication may present as mental disorder, for example the effects of
hallucinogenic drugs. The disturbance may be seen as a mental disorder irrespective of its
causation and the Act may be invoked in the acute situation should this be necessary.• Mental disorder may arise as the consequence of substance abuse, for example the
cognitive impairment of a Korsakoff’s psychosis or a drug induced psychosis. If there is a
mental disorder, irrespective of its underlying causation, the Act may apply.
• Individuals who have a so-called ‘dual-diagnosis’ or ‘co-morbidity’ of a mental disorder
and a substance abuse disorder at the same time present particular difficulties for clinical
management. An individual who is mentally disordered can be made subject to the
provisions of the Act, irrespective of whether he or she also has a co-existing substance use
disorder.
The terms of a community treatment order or leave from an inpatient order, should specify
whether abstinence from drugs or alcohol is a condition of the order. The continuing abuse of
drugs by an individual who is subject to a compulsory treatment order, particularly if this is
associated with disturbance of behaviour, may be sufficient grounds for readmission or
reassessment.
The Alcoholism and Drug Addiction Act 1966 provides a legislative basis for compulsorily
detaining people in order to treat them for an alcohol or substance dependence problem. That
Act should be used if compulsory treatment for such problems is required.
1.3 ‘Person in charge’
The Act defines the person in charge of a hospital or a service to be the chief executive
officer. It is relevant to note that section 99B of the Act enables the person in charge of a
hospital or service to delegate his or her powers under the Act to another person who is
suitably qualified. For example, powers may be delegated to members of a psychiatric crisis
team (see section 99B for further information).
1.4 ‘Principal caregiver’
The Act defines the ‘principal caregiver’ to mean ‘the friend of the patient or the member of
the patient’s family group or whänau who is most evidently and directly concerned with the
oversight of the patient’s care and welfare’. The fact that the patient does not give the name
of the principal caregiver, or does not authorise, or even forbids, the principal caregiver being
contacted, does not affect the statutory duty to send the principal caregiver a copy of the
certificate of preliminary (section 10(4)(a)(iv)), further (section 12(5)(d)), and final (section
14(4)(b)(iv)) assessment, and a copy of a certificate of clinical review that states that the
patient is not fit to be released from compulsory status (section 76(7)(b)(iii)).
The Privacy Act 1993 (the Privacy Act) does not affect the clear statutory duty of notification
in these circumstances (see EW, 24/1/96, DC Auckland, Judge McElrea), nor does the Health
Information Privacy Code or the Code of Health and Disability Services Consumers’ Rights
(the Code of Rights).
For many patients, there is no dispute as to who the ‘principal caregiver’ is. If there is doubt or
disagreement, the viewpoints that need to be considered are those of:
• the patient• spouse or partners
• the family/whänau
• friends of the patient
• health professionals in the service
• other parties concerned with the care of the patient, for example prison staff.
If the patient is competent to make a decision about who is the principal caregiver, his or her
advice as to who the principal caregiver is should be accepted.
In cases of doubt or dispute, the responsibility for the decision about:
• whether the patient is competent to advise whom the principal caregiver is; and
• who the ‘principal caregiver’ is for the purposes of the Act
should be that of the Director of Area Mental Health Services (DAMHS), who will be advised
by the responsible clinician or appropriate DAO involved. In cases of dispute, the DAMHS
should consult with other knowledgeable parties, for example a keyworker. In cases of
dispute with patients who identify as Mäori, the DAMHS should also consult with Mäori
health workers and cultural support staff.
It is important to note that in Re H M, 4/4/99, FC Auckland, Judge Inglis, it was held that
more than one principal caregiver may be appointed.
1.5 ‘Proposed patient’
Section 2A of the Act provides a definition of ‘proposed patient’. A person becomes a
proposed patient when an application is ‘made’ under section 8A of the Act. An application is
‘made’ when both the application under section 8A of the Act and the certificate under section
8B of the Act are completed and received by the DAMHS.
Proposed patient status ends when:
• a medical practitioner records a finding under section 10(1)(b)(i) of the Act, in which case
the person does not become a patient; or
• a medical practitioner records a finding under section 10(1)(b)(ii) of the Act, in which case
the person becomes a patient.
It is important to note that a person should only be a proposed patient for a matter of hours
