The number of people being forced to undergo treatment under mental health and intellectual disability laws continues to increase. 

Data released by the Family Court shows in the year to June 2023, 6118 applications were approved for compulsory care under both the Mental Health Act and the Intellectual Disability Act. 

That’s up on last year’s 5773 and a 17 percent increase on five years ago.  

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The majority of these applications fall under the Mental Health (Compulsory Assessment and Treatment) Act, with orders under the Intellectual Disability (Compulsory Care and Rehabilitation) Act less frequent. 

According to Whaikaha Ministry of Disabled People, between 200 and 300 people are cared for under the Intellectual Disability Act at any given time. 

Applications under the Mental Health Act can be for compulsory care in the community or in a hospital. 

Last year about 85 percent of applications were for compulsory community care.  

Mental health compulsory care orders

The Mental Health and Wellbeing Commission recently released a report on compulsory community care, saying it needed to end because it was out of step with the Treaty of Waitangi and human rights laws.

The commission's report also said there was little evidence to show compulsory treatment was clinically effective.

Work is underway to repeal and replace the Mental Health Act.

However acting chief executive Tanya Maloney said the continued upward trend in compulsory treatment orders was concerning.  

"We want to see a reduction in the use of all coercive practices, and particularly community treatment orders for a number of reasons. Firstly, it does not meet our obligations under the Treaty of Waitangi and it does not meet our obligations under human rights law and international human rights law ... It's out of date and that's widely accepted.

"Manatū Hauora [Ministry of Health] has developed guidance recently, which is supporting the change in practice that we would want to see and the change in practice that is likely to be required under the new legislation. So what we want to see is change and we don't need to wait for a new legislation to see that reduction in coercive practices."

According to data published by the Office of the Director of Mental Health and Addiction Services for the year to June 2022, Māori were four times more likely than other ethnicities to be subject to a community treatment order and 3.6 times more likely than other ethnicities to be subject to an inpatient order.

Of all population groups, Māori men were the most likely to be subject to community and inpatient treatment orders.

Māori were also more likely to be subjected to indefinite treatment orders.

She said there were ways to reduce the need for compulsory orders. 

"In most cases these people are already known to the services so we have the opportunity to talk with people and their families and their carers and support people so that they can make decisions when they are well about what they want to happen when they aren't well. 

“This is the kind of advanced care planning that happens across other health services and we want to see that happen in mental health services as well.” 

"What we hope for is a law that honours our obligations under the Treaty of Waitangi and tino rangatiratanga for tāngata whaiora and a law that meets our human rights obligations." - Tanya Maloney

She said if the right supports and resources were in place, compulsory orders would not be required. 

"If we're offering people the kind of support and the kind of treatment that is acceptable, if it was culturally appropriate and they trust the treatment provider and the clinician, they would be a lot less likely to refuse care, and in that context, we don't need to use the Act.

"We want to see a system with more options available to people across the country, more kaupapa Māori services, people like peer support workers who can get alongside people and really help them in their recovery process."

The chances of being placed under compulsory treatment differs depending on which part of the country you live.  

Data from the Office of the Director of Mental Health and Addiction Services shows people living in the Wellington, Hawkes Bay, Northland and Waikato regions were more likely to be placed under a community treatment order. 

People living in Wellington were also far more likely than the national average to be placed under an inpatient (hospital) compulsory order.  

Maloney said regions that were filing fewer orders should share what was working with regions with higher orders. 

“What we want to do is not point a finger at the districts where it's problematic. It’s a system and with one health system now we can really learn from areas that are doing well.” 

The repeal and replacement of the Mental Health Act is underway and an amendment to the Act which stops the use of "indefinite treatment orders" will come into effect at the end of this month.

Indefinite orders will be replaced with 12-month extension orders meaning clinicians will need to reapply to the courts annually if they believe a person still requires compulsory treatment.

As at June 2022, 2841 people were subject to indefinite orders, mostly community orders. 

On average a person stays on an indefinite community treatment order for four and a half years, with the maximum period recorded being 29 years.

The average period for which a person was subject to an indefinite inpatient treatment order was just over four years with the maximum period approximately 22 years. 

Earlier this year the Ministry of Health issued updated guidance on the use of compulsory treatment, which the commission supports.

"What the guidance does is encourages practitioners, clinicians, health professionals, to consider the preferences of the person and where possible to support the person to make decisions about their care as opposed to enforcing the treatment that the person will receive."

She said reducing the frequency of compulsory care orders could start to happen before the law was changed. 

The commission wants the new law to be aligned with human rights, but would not go so far as to explicitly advocate for a total removal of compulsory care orders from legislation. 

"What we hope for is a law that honours our obligations under the Treaty of Waitangi and tino rangatiratanga for tāngata whaiora and a law that meets our human rights obligations.

"The nature and detail of law is not for us to determine."

The Law Commission is also currently undertaking an investigation into the laws surrounding adult decision-making, which includes when a person is experiencing mental distress.

Emma Hatton is a business reporter based in Wellington.

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