Your rights as a mental health patient
If you are receiving compulsory assessment or treatment under the Mental Health Act, you have a number of rights. These rights can be divided into four groups:
- patient rights under the Mental Health Act (see below)
- rights under the New Zealand Bill of Rights Act 1990 (see in this section “Patients’ rights under the Bill of Rights”)
- the right to apply for a review or to appeal decisions during the assessment and treatment process (see “Reviews and appeals” in this chapter)
- rights under the Code of Health and Disability Services Consumers’ Rights (see the chapter “Disability rights”).
Patients’ rights in the Mental Health Act
Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 63A-75
The Mental Health Act sets out 11 patient rights. These rights apply as soon as you become a patient or proposed patient under the Act (see “Definitions of key terms and descriptions of key people” in this chapter).
Right 1: The right to information
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 64
Once you become a patient under the Mental Health Act, you have a general right to information. This includes:
- a statement listing your rights as a patient
- information about your legal status, in other words, whether you are under compulsory assessment or treatment or not
- information about your treatment, including any likely side effects and the expected benefits of the treatment
- information about your rights to have your condition reviewed (see “Reviews and appeals” in this chapter)
- information about District Inspectors and official visitors.
Right 2: Respect for cultural identity
Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 5, 65
This right acknowledges that different cultures have different needs and beliefs and that these must be taken into account when you are being assessed or treated under the Mental Health Act. The Act says a patient must be treated with:
- proper respect for their cultural and ethnic identity, language and religious or ethical beliefs, and
- proper recognition of the importance of a person’s ties to their family, whānau, hapū, iwi and family group, and
- proper recognition of the contribution those ties make to the person’s well-being.
Right 3: The right to an interpreter
Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 6, 65, 67
If English is not your first or preferred language, you have the right to an interpreter. Even if you can speak and understand English you can ask for an interpreter if you would rather communicate in another language.
Note: The Mental Health Act says an interpreter only has to be provided if this is reasonably practicable. This means that sometimes it may not be possible to provide an interpreter if, for example, a patient requires urgent treatment or an appropriate interpreter cannot be found.
Right 4: The right to treatment
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 66
You have a right to appropriate treatment. This is treatment of a professional standard that will benefit your condition. The treatment does not have to cure your condition but should at least relieve your symptoms or stop you from becoming more unwell.
Right 5: The right to be informed about treatment
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 67
Before any treatment is started, you are entitled to be told about the benefits and likely side effects of that treatment. Even when your consent to that treatment is not required, you must still be given information about it. The information should be in a form that you can understand and should be repeated if necessary.
Right 6: The right to refuse video recording
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 68
Your responsible clinician can only tape or record any part of your treatment if you consent to this (this applies to video and audio recording).
Right 7: The right to independent psychiatric advice
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 69
If you are unhappy with your diagnosis or treatment, you can ask an independent psychiatrist for a second opinion.
Right 8: The right to legal advice
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 70
You have a right to a lawyer who can:
- give you advice about the Mental Health Act
- represent you at hearings, reviews and appeals
- give you advice about other matters on which people ordinarily seek legal advice.
If you don’t have a lawyer, you can get help with finding one from staff at the hospital or from a district inspector. If you cannot afford to pay for a lawyer, you may be able to get Legal Aid (for more information see the chapter “Legal Aid and other legal help”).
Right 9: The right to company
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 71
A patient has a general right to the company of other people. You can only be isolated or put into seclusion if this is necessary for your treatment or safety, or for the protection of others.
Right 10: The right to have visitors and make telephone calls
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 72
You have the right to have visitors and to make telephone calls. This right can be lost if your responsible clinician believes that to have visitors or make calls would not be in your interests or be bad for your treatment. But you cannot lose the right to access legal advice, a District Inspector or an independent psychiatrist.
Right 11: The right to send and receive mail
Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 73, 74, 123, 124
You have the right to send and receive mail. Hospital staff should not open your mail. This right can be lost if your responsible clinician believes that sending and receiving mail would not be in your interests or be bad for your treatment.
However, mail from these people can never be opened or withheld:
- an MP
- a judge or officer of any court or other judicial body
- an ombudsman
- the Director-General of Health or Director of Mental Health
- a district inspector or official visitor
- the person in charge of the hospital
- the patient’s lawyer
- a psychiatrist from whom the patient has sought a second opinion.
What can I do if any of my patient rights are breached?
Mental Health (Compulsory Assessment and Treatment) Act 1992, s 75
If you believe that any of your patient rights have been breached, you can contact a lawyer and seek advice. You can also make a complaint to a district inspector. The district inspector must investigate the complaint and report to the Director of Area Mental Health Services (DAMHS), making any recommendations they believe necessary. The DAMHS must then take steps to resolve the matter.
The district inspector must inform you (or the person who made the complaint) about the outcome of the investigation.
You can find a list of local district inspectors if you go to www.health.org.nz and search “mental health district inspectors”.
Note: If you are not satisfied with the district inspector’s investigation, you can apply to the Review Tribunal, which can investigate further (see “Applying to the Review Tribunal” in this chapter).
Patients’ rights under the Bill of Rights
Overview of the Bill of Rights
New Zealand Bill of Rights Act 1990
As well as the patients’ rights in the Mental Health Act (see above), anyone being assessed under the Mental Health Act also has rights under the New Zealand Bill of Rights Act. The Bill of Rights sets out some fundamental rights and principles that protect all members of society when dealing with the government sector, including public health services like mental health institutions.
However, the rights in the Bill of Rights can be overridden by other specific laws. For example, the Bill of Rights says you have the right to refuse medical treatment, but this is overridden by the Mental Health Act, which allows a court to make a compulsory treatment order for you.
Relevant rights in the Bill of Rights
New Zealand Bill of Rights Act 1990, ss 8–27
Some of the relevant rights in the Bill of Rights include:
- the right not to be tortured or treated cruelly or to be forced to take part in medical or scientific experiments
- the right to refuse medical treatment (but an order for compulsory treatment made by a judge will legally override that right)
- the right not to detained (held) without a good reason
- the right to see a lawyer without delay if you’re being held
- the right to vote and stand in elections
- the right to freedom of thought and to practise your religion, culture and language
- the right not to be discriminated against because of, for example, your race, gender, sexual orientation, family situation, political opinions or religious beliefs (see the chapter “Discrimination”)
- the right to freedom of expression, association (meeting with whoever you want) and peaceful assembly
- the right not to be searched unreasonably and to be free from unreasonable “seizure” (having your things taken off you).