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First of its kind: Academics granted right to challenge Mental Health Act for free

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By Jeremy Wilkinson, Open Justice multimedia journalist of NZ Herald

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Two academics are bringing a case against the Attorney General.
Photo: RNZ / Dan Cook

Court cases are naturally expensive, with lawyer’s fees and court administration mounting quickly into the tens of thousands.

But in a first for New Zealand a court has agreed to waive its fee for a case brought by two academics against the Attorney General, granting them a protective costs order (PCO).

Sarah Gordon and Giles Newton-Howes from the University of Otago don ot want to wait for the government to repeal and replace the Mental Health Act – they want clarification as soon as possible on a legal provision that forces someone deemed as having a mental disorder to have compulsory treatment.

“Imagine if you had diabetes and you weren’t taking your medicine, so the police are called and you’re hauled off to hospital for a week and forced to take it,” Newton-Holmes told Open Justice.

“There would be societal outrage if things were done that way … But that’s what we’re doing with people who are deemed mentally unwell at the moment.

“It’s absolutely bonkers.”

Under the current Mental Health Act a person can be served with a Compulsory Treatment Order – which is exactly what it sounds like; a legal order forcing a person to receive treatment for up to six months.

If after six months a doctor believes they need further treatment then the order can be extended for the same time period. After that six months ends it can be extended indefinitely.

Newton-Howes and Gordon want five things out of their case:

The first is if a patient has mental capacity they should not be required to undergo compulsory treatment and they must be released. Their second and third actions relate to treatment with consent for adults and also people under the age of 16.

The fourth relates to advance directives which indicate a patient’s treatment wishes are legally binding while the fifth is an acknowledgement that compulsory treatment orders are ineffective.

A repeal and replacement of the Mental Health Act is currently before parliament after being introduced in 2021 and public consultation closed early this year.

It is at a stage where the Minister of Health is due to bring it back to Cabinet with any policy changes and once they are agreed upon it will go through the standard parliamentary process to go into law.

But Newton-Howes said that could years, and in the meantime many more people would be subject to unjust Compulsory Treatment Orders.

“We are not trying to fast-forward or predict what parliament is trying to do,” he said.

“But historically this kind of complicated legislation can take a decade to actually enact. So in the meantime we’re seeking a clarification.”

In June he and Associate Professor Sarah Gordon took their case to the Court of Appeal, which then kicked it up to the High Court.

In a judgment released to Open Justice from late last month it was revealed the pair had been granted New Zealand’s first protective costs order. That essentially meant if they lost they would not have to pay any money to the court – which could have been in the tens of thousands.

“I think it’s massively important. I’ve put hundreds of hours into this, but I’m not exactly rolling in cash and taking action to court is really expensive,” Newton-Howes told Open Justice.

“It allows us to chase this without the financial barrier to justice. Without it we wouldn’t be able to take the next step.”

Senior Associate for Simpson Grierson’s public litigation team Nick Chapman told Open Justice that while it was a first for the country, he did not think it would open the floodgates for other plaintiffs seeking a free ride.

“The case has to be pretty exceptional for it to be granted this order,” he said.

“It’s more of a gentle step forward by the courts to find ways that people can bring claims that might not otherwise be brought.”

Chapman said because the case was in the public interest and brought on behalf of people who wouldn’t otherwise pursue it, and that the Human Rights Commission had shown an active interest, it helped meet the threshold.

Another factor was that Newton-Howes and Gordon stated explicitly that they would abandon the case if it meant they were at risk of having to foot the bill.

“Access to the courts is a really important part of our justice system and an effective costs regime is part of that,” Chapman said.

“Requesting parties pay costs are important to stop the justice system becoming clogged with frivolous claims.”

This story originally appeared in the New Zealand Herald

Story Credit: rnz.co.nz

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