Against Coercion in Community Mental Health Services

Abstract

In 2018, the New Zealand Government accepted a recommendation from a national inquiry into mental health and addiction to repeal and replace the country's mental health legislation, the Mental Health (Compulsory Assessment and Treatment) Act (1992) (The Act) New Zealand Government (2018). The Act was widely considered to be out of step with international human rights standards and current practice in mental health. Developed in the era of deinstitutionalisation, the Act helped to facilitate the closure of stand-alone psychiatric hospitals through the creation of community treatment orders (CTOs). It also introduced procedural protections in the process of civil commitment (Dawson and Gledhill 2013). A phenomenological definition of “mental disorder” was introduced, meaning that any one of a specified list of changes in mental functioning, rather than psychiatric diagnosis, became the clinical criterion for compulsory treatment. Medical practitioners were no longer the sole group of clinicians involved in making decisions. Nurses became involved in the committal process through the statutory role of a duly authorised officer (Street and Walsh 1998) and later as responsible clinicians (McKenna et al. 2006).

An unintended consequence of New Zealand's adoption of CTOs was that numbers of people placed under CTOs grew rapidly under the new legislation. By 2013, New Zealand had one of the world's highest rates of CTOs (O'Brien 2014). That high rate of CTO usage has continued over the past decade (Lees et al. 2023). Not only are rates of CTO use very high, they are used disproportionately with New Zealand's indigenous Māori population (Ministry of Health 2023). They are also more likely to be used in geographical regions of high social deprivation (O'Brien et al. 2012).

Reform, therefore, appeared to offer an opportunity to utilise the lever of legislation to promote greater equity and decrease the overall use of compulsion in mental health services. A Ministry of Health discussion document (Ministry of Health 2021) set the tone of high expectations for reform. Optimistically titled “Transforming our Mental Health Law”, the document declared the aspirational goals of reducing the use of compulsion, reducing inequities, and introducing a Te Ao Māori worldview in the operation of mental health legislation. Perhaps such lofty ideals were always going to lead to disappointment. In this editorial, I focus on one aspect of the new legislation, the use of compulsory community treatment.

After a long process of consultation, submissions from the public and advice from an expert committee, the Mental Health Bill (Bill) emerged in 2024. The Bill is now wending its way through the process of select committee submissions, political negotiations and redrafting towards adoption in late 2027 (New Zealand Government 2025). The Bill echoes the 2021 discussion document in its stated aim to improve equity in mental health outcomes. But in the black letter of the law, at least concerning CTOs, little has changed. One of the striking features of the Bill is that it uses different language to refer to compulsory community treatment, but the place of coercion in community mental health care remains the same. The legal status of individuals subject to compulsory care will not change with changes in language. Nothing in the new legislation will lead to a reduction in the use of compulsion in community settings. However, the outcome could have been very different if there had been political will to end compulsion in community mental health services.

On reading the first version of the Bill, I was struck by a sense of lost opportunity. In relation to compulsory community treatment, the Bill only dimly reflected the ideal of transformation. However, one ray of hope remained, and that was the select committee process. The Bill would be debated in the Health Select Committee; submissions were open to everyone, and any suggested changes would be considered before the Bill was reported back to parliament. Reflecting on the lost opportunity to abolish compulsory community treatment, I formed the view that the drafters of the legislation simply could not imagine a voluntary model. Together with lived experience experts and academic colleagues, I set about drafting an amendment to the Bill that would achieve this vision. Our proposed amendment introduces a voluntary alternative to the 1992 CTO regime, called the Community Support Commitment.

The Community Support Commitment begins from the position that mental health support for individuals discharged after involuntary hospitalisation should be entirely voluntary, allowing service users to choose whether to accept or refuse any treatment offered. Without the support of a coercive framework of compulsion, service users would be free to voluntarily engage with or decline support from mental health services. Under the Community Support Commitment, for a period of 1 year following discharge from compulsory treatment in a hospital, service users could request support from the mental health service, and services would be obligated to respond. The key shift with the Community Support Commitment lies in the commitment from the service to provide support. The direction of commitment would reverse from the current obligation for service users to accept treatment (including medication) to an obligation on services to remain engaged and respond as needed.

Responses to the suggestion of the Community Support Commitment were overwhelmingly supportive among all the groups consulted, with the exception of psychiatrists. Some psychiatrists consulted expressed support for the Community Support Commitment while others expressed scepticism or strong opposition. Perhaps unsurprisingly, the most commonly given reason for maintaining CTOs was risk. Traditionally, psychiatrists have been key decision makers in relation to mental health legislation (Dawson 2013) and have advanced many arguments in support of compulsory treatment in the community (Manning et al. 2011; DeRidder et al. 2016). Without the framework of legal coercion, it is argued, service users would not take prescribed medication and would experience a deterioration in their mental health, ultimately leading to relapse. Clinical deterioration would pose serious danger to those individuals or others, criteria which provided the initial justification for the use of compulsion. As a result of this resistance to change, CTOs, clothed in new language, seem set to continue under the new legislation, with little prospect of any significant decrease in numbers. Perhaps some small success could be claimed from reading the report of the select committee which prefaces the redrafted legislation (New Zealand Government 2025). In that report, two “differing opinions” are recorded, opinions put forward by opposition parties in parliament. These differing opinions express support for our proposed amendment to end CTOs and significantly reduce New Zealand's use of compulsion in mental health services.

In this editorial, I have avoided rehearsing the research evidence on the effectiveness of CTOs. Suffice it to say that the benefits of CTOs show an inverse relationship to rates of use (Kisely et al. 2023). I have arrived at the position that compulsory community treatment is not an issue that can be resolved by appeal to evidence. If that were the case, CTOs would be abandoned tomorrow. However, the process of legislative reform in New Zealand pays little mind to evidence (Newton-Howes and Beaglehole 2025). What maintains the place of CTOs is not evidence, but entrenched stigma. Legal coercion of people with mental distress has been a feature of New Zealand's mental health legislation since 1846 (O'Brien and Kydd 2013). In each of its six iterations, mental health legislation has allowed for some form of legal coercion of people with mental distress or illness living in the community. The new legislation was an opportunity to chart a different course. The drafters of the Bill currently before parliament have found neither the will nor the vision to realise the transformational agenda set by the 2021 discussion document. Instead, we are left with statements of intent, statements that must be taken at face value in the absence of any mechanism of realisation. There still remains a sliver of hope that if our proposed amendment were presented in parliament, it could be approved by a majority vote. A bold statement by professional bodies could also be influential, even at this stage. The hour is late, but it will soon be dark.

The author declares no conflicts of interest.