Mental health

The vulnerability of those receiving healthcare underscores the need for regulation and oversight, and this is particularly the case when dealing with mental health patients. Claro’s lawyers regularly advise on the compulsory assessment and treatment of mental health patients, including the use of restraint, search and seizure, and the management of risk to patients and third parties.

We understand the need for practical solutions, frequently working with inpatient and community providers to identify and achieve the best possible result. We understand incapacity and regularly assist in applying for orders under the Protection of Personal and Property Rights Act.

When it comes to mental health services:

  • clinically sound and practical solutions sit at the heart of the legal framework;
  • the legal framework includes parallel but distinct statutory regimes
  • knowledge is power – rigorous information management is essential.
We work with the following groups in relation to mental health issues:

Examples of work done by Claro lawyers

A coroner’s inquest into a suicide. A counsellor had raised concerns about the mental health of a former colleague and friend. A telephone assessment was undertaken by the mental health team. The patient was assessed as not being suicidal, however he committed suicide soon after the assessment. Our lawyers represented the DHB at the inquest. The expert evidence was that the assessment was appropriate. The tension between individual autonomy, the applicability of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the extent to which mental health services are legally and practically able to respond to these sorts of situations was explored at the inquest.

Judicial review of a DHB’s smoke-free policy preventing mental health patients in the DHB’s in-patient units being able to smoke on DHB premises. We represented the DHB in the proceeding. The application, brought by two mental health patients and a former mental health nurse – challenged both the DHB’s decision-making process and the legality of the policy itself in a mental health context. The applicants alleged that the policy discriminated against mental health patients. The High Court dismissed the application in its entirety and found that the DHB’s decision-making process was robust; the policy was consistent with the DHB’s statutory functions and objectives under the NZ Public Health and Disability Act (including its public health functions); the policy was not discriminatory; and the policy was consistent with the DHB’s obligations under the Health and Safety in Employment Act.  The High Court’s decision is currently the subject of appeal before the Court of Appeal.

An inquiry into a DHB’s mental health service under s95 Mental Health (Compulsory Assessment and Treatment) Act (Mental Health Act). This was the largest s95 inquiry in recent years. Evidence was heard over 12 days, including investigating the care provided; the role of the Director of Area Mental Health Services (DAMHS); rights of patients under the Mental Health Act; incident reporting; detention of informal patients; the effect of restructuring/staff shortages; the role of the Chief Medical Adviser; the dual role of the clinical director and DAMHS; conflict with registrars; management of concerns about a doctor’s conduct and obligation to refer to Medical Council on resignation.


Habeas corpus in a mental health context. A patient detained under the Mental Health (CAT) Act applied for a writ of habeas corpus alleging an unlawful detention by a DHB’s mental health service. The allegation related to an alleged procedural error by the Judge who made the compulsory inpatient order. The ‘second health professional’ consulted by the Judge for the purposes of section 18 Mental Health (CAT) Act had not been involved in the care of the patient. We acted for the DHB in the High Court in responding to the application for a writ. While the High Court found that the Judge had not met the consultation obligations under section 18, it was not prepared to issue the writ.

A claim by a mental health patient who was raped by another patient. The victim sought exemplary damages and public law compensation from the DHB responsible for treating both patients. The plaintiff alleged that the DHB breached its duty to her by not protecting her from the harm posed by the assailant. The claim included an allegation that the plaintiff’s right not to be deprived of life protected under s 8 NZ Bill of Rights Act had been breached. The High Court’s judgment is now a leading decision in the duty owed by a mental health service to a third party.

A person subject to a community treatment order who intended to travel overseas. When the patient had done so in the past, the patient had stopped taking their medication and become mentally unwell. The patient’s family had been put to significant cost to arrange for the person’s return to New Zealand. We provided advice to the DHB on the right to freedom of movement; the principle of least restrictive intervention, and the powers of other agencies to prevent a person from leaving the country. We also discussed the possibility of an inpatient order if the concerns and risks were significant; or an application for a personal order under the Protection of Personal and Property Rights Act 1988.

Advice on all aspects of forensic mental health, including the role of the health assessor when undertaking a court ordered assessment under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and their legal and ethical obligations to the person being assessed and to the court in terms of consent, information obtained in the course of the assessment, and the provision of a report. See here for an article on some of the legal and ethical issues for mental health practitioners writing court ordered reports.

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