Ministry of Health’s guidelines on interpretation of Mental Health (Compulsory Assessment and Treatment) Act 1992 need clarification
Ministry of Health guidelines on interpretation of Mental Health (Compulsory Assessment and Treatment) Act 1992, s 38(1)—guidelines advised broad interpretation—relevant case law suggested narrow construction—guidelines amended—Innes v Wong 3 NZLR  238
In 1995 the complainant’s neighbour advised the local health authority that the complainant might be suffering from a mental disorder. The health authority invoked the powers in section 38 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and a mental health team visited the complainant. As a result of the visit it was concluded there were no reasonable grounds for taking any further action. The complainant was concerned about the health authority’s interpretation of section 38 and tried without success to resolve these concerns with the health authority, the Ministry of Health and the Mental Health Commission. This section provides:
Assistance where person may need assessment … (1) Anyone who is concerned in any way with the care of any person and who believes that that person may be suffering from mental disorder may request the assistance of a duly authorised officer.
The nub of the complainant’s argument was that, on a proper interpretation of section 38, the expression ‘Anyone who is concerned in any way with the care’ must be interpreted as ‘caregiver’. The neighbour who had contacted the health authority could not possibly be said to have been a ‘caregiver’. The complainant therefore argued that the health authority had acted unlawfully.
It is not a function of an Ombudsman to determine the law. However, from the information provided by the complainant, it was clear that the health authority had acted on advice provided by the Ministry of Health. The Ministry’s advice was that section 38 should be interpreted broadly and that individuals ‘concerned … with the care’ of a person may include members of the public who are concerned about the mental state of an individual. This advice was conveyed to the complainant in November 1996 in response to the issues he had raised with the Ministry.
It appeared that the Ministry’s advice may have been contrary to law in that it appeared to have overlooked comments made by Cartwright J in Innes v Wong  3 NZLR 238. While the Judge was not required to address the question of whether a person who was not a caregiver could invoke section 38, the judgment was nevertheless helpful for what it said about how the section is to be interpreted. The following passages appeared relevant:
Under ss 8, 9 and 10 of the Act there is a standard procedure for straightforward cases. When Matthew’s behaviour gave rise for concern among his family members they called for assistance from the staff at Kingseat hospital. As a consequence, the duly authorised officer attended and the situation fell within the provisions of Part III of the Act which provides assistance for caregivers and for the supervision of outpatients. Consequently, the more usual procedures under sections 8, 9 and 10 were not invoked.
… It is my view that sections 38 and 41 must be read strictly and narrowly. There is no room for enlarging the powers of a duly authorised officer to allow the omission of the first step in the procedure established under section 8.
In the light of this, an investigation was commenced into whether:
the publication of guidelines by the Ministry which did not reflect the clear statement of the Court in Innes, that section 38(1) is to be construed narrowly, was unreasonable; and
in light of the decision in Innes, it was unreasonable for the Ministry to continue to advocate a wide interpretation of section 38(1).
The Ministry’s papers showed that there were administrative policy arguments favouring a wide interpretation of the subsection. However, the Ministry cannot, by administrative decision, change the law. Regardless of any arguments to the contrary, the wording of section 38(1) must be read strictly and narrowly. It was put to the Director-General of Health that to continue to disseminate advice which may be contrary to the law would be unreasonable. It was suggested that until such time as the Act is amended by Parliament, the Ministry should amend its guidelines and ensure that any advice provided is consistent with the law.
The Director-General agreed that the guidelines were potentially misleading. In the light of the factors highlighted by the investigation and on the basis of legal advice she had received, Directors of Area Mental Health Services would be advised on the issue and the Ministry’s guidelines revised. The Director-General also advised that the Ministry no longer advocated a wide interpretation of section 38.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.