Repealing and replacing the Mental Health Act

What is the Mental Health Act?

The Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act) sets out the rules for when the government may intervene in a person’s life to provide mental health treatment without their consent. It is intended to be used as a last resort for people in a vulnerable and distressed state who are otherwise unwilling or unable to engage in mental health care.

Most people in Aotearoa New Zealand who access specialist mental health and addiction services will not be placed under the Mental Health Act. In 2020/21, less than six percent of people using specialist mental health and addiction services were placed under the legislation.

Although the Mental Health Act is only used for a small proportion of people each year, it has a significant impact on the lives of those who do experience it, as well as their whānau.

Why we are repealing and replacing the Mental Health Act

He Ara Oranga, the report of the independent Inquiry into Mental Health and Addiction, recognised that the Mental Health Act has not kept pace with the shift towards a recovery and wellbeing approach to care, and has never been comprehensively reviewed. The report made the following recommendation:

‘Repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992 so that it reflects a human rights-based approach, promotes supported decision-making, aligns with the recovery and wellbeing model of mental health, and provides measures to minimise compulsory or coercive treatment.’

How this will be achieved

Government accepted the recommendation to repeal and replace the Mental Health Act.

Since 2019, we have been working on immediate, short-term improvements under the current legislation, alongside work to understand what issues need to be addressed in creating new mental health legislation for New Zealand. These activities are reflected in the three work streams below.

Improving service user experiences under the current Mental Health Act

Initial amendments to the current Mental Health Act to better protect people’s rights and improve safety

The full repeal and replacement of the Mental Health Act

  • Principles to guide development of new legislation approved by Government in 2019
  • Review of previous related consultations, academic research, and international examples to understand key issues and potential options for new legislation
  • Public consultation in late 2021 and early 2022 to inform new legislation.
  • Engagement with the Mental Health Act Expert Advisory Group from May 2022 to March 2023 to test and refine policy proposals
  • Policy proposals for new legislation approved by Government in December 2022 and July 2023 (see Cabinet Material: Policy decisions for transforming mental health law).

Public consultation

Public consultation opened on 22 October 2021 and closed on 28 January 2022. We released a discussion document, Transforming our Mental Health Law, and invited people to share their views on what new mental health legislation should look like.

We engaged widely to ensure feedback was representative of key groups, including people with lived experience and their family and whānau, Māori, Pacific, Asian and ethnic communities, the mental health sector including non-government organisations, clinicians, as well as the general public.

Public consultation findings

An external independent research company was contracted by the Ministry to analyse all the feedback and submissions received through public consultation. The submissions analysis document contains the analysis of the feedback gathered across two public consultation channels – written submissions where we received 317 submissions and from consultation hui where feedback was gathered from over 500 people across 60 online information sessions.

The submissions analysis shows that there is a strong desire for the Mental Health Act to be more tāngata whaiora and whānau focused, that Te Tiriti o Waitangi should be the foundation for new mental health legislation, that rights should be upheld in alignment to international conventions and that the current Mental Health Act is being misused. The findings are explored in more detail here.

Many submissions and comments reiterated why the repeal and replacement of the Mental Health Act is important, covering wider system and operational issues. While these insights go beyond the scope of legislative reform, they will inform ongoing work to transform the Mental Health and Addiction system more broadly.

Mental Health Act Expert Advisory Group

Following public consultation, we established a group of experts to help balance the diverse range of views gathered through public consultation. We appointed group members following an open expressions of interest process where over 130 applications were received.

The term of the Expert Advisory Group commenced in May 2022 and ended in March 2023.

The Expert Advisory Group included the following members:

  • Co-Chairs: Anthony O'Brien and Kerri Butler
  • Frank Bristol
  • Gemma Griffin
  • Karaitiana Tickell
  • Kiri Prentice
  • Mark Fisher
  • Patsy-Jane Tarrant
  • Tereo Siataga-Kimiia
  • Tui Taurua
  • Wheeti Maipi.

The Government has agreed policy proposals for new mental health legislation

In December 2022 and July 2023, the Minister of Health took policy proposals for new legislation to Cabinet for approval.

The proposals were developed based on:

  • the strategic direction for new legislation set through the principles agreed by Cabinet in 2019 and He Ara Oranga
  • known issues with the current Mental Health Act and how people experience it
  • feedback received through public consultation
  • feedback from the Mental Health Act Expert Advisory Group
  • available evidence from New Zealand and comparable overseas jurisdictions.

In December 2022, Cabinet agreed to the key pillars of new legislation to transform the way people receive compulsory care. These include:

  • new purposes and principles, and the inclusion of specific provisions to clarify how the legislation will give effect to the Crown's obligations under Te Tiriti o Waitangi
  • updated legal criteria for compulsory mental health care, and clearer statutory processes when a person is subject to the legislation
  • placing a person's ability to make decisions about their own care at the centre of decision-making, through embedding supported decision-making approaches
  • greater recognition and involvement of whānau, hapū and iwi in a person’s care
  • a more holistic and comprehensive approach to mental health care provided under legislation, promoting a broader range of care and support options
  • more balanced provisions for the use of seclusion, restraint, and other restrictive practices.

In July 2023, Cabinet agreed to a second tranche of policy decisions for new legislation focused on new and enhanced oversight, monitoring, and accountability mechanisms. This includes improvements to:

  • statutory roles and responsibilities for administering and overseeing the legislation
  • the rights of tāngata whaiora under legislation and associated complaint resolution procedures
  • means of reviewing and challenging statutory decisions
  • strengthen monitoring and reporting requirements.

In August 2023, as authorised by Cabinet, the Ministers of Health and Justice jointly agreed that new legislation should allow for a Special Patient Review Tribunal to be established. This new tribunal will make decisions about leave and change of legal status for special patients, who enter compulsory mental health care through the criminal justice system.

The suite of policy proposals place tāngata whaiora at the centre of their mental health care. The proposals will recognise tāngata whaiora decision-making capacity and support them to make their own decisions and choices, enabling greater self-determination and autonomy in their lives.

Taken together, the proposals will shift the legislation towards a more rights-based and recovery approach and will enable care in line with a te ao Māori world view. New legislation will ensure we better meet the needs of people when they need urgent intervention, and that legislation is only used as a last resort.

More detail on the policy proposals is set out in the Cabinet materials and briefing available here:

Next steps

The next steps are for the Parliamentary Counsel Office to draft a Bill based on the policy proposals agreed by Cabinet. Following this, the Minister of Health will take the Bill to Cabinet for approval.

After the Bill is approved by Cabinet, it will go through the Parliamentary process. This includes select committee consideration where people will have the opportunity to comment on the Bill before it becomes law. You can find more information on all of the steps involved on the Parliament webpage: How a Bill becomes law.

We will provide updates on significant developments on this work through the Mental Health and Addiction newsletter. You can subscribe to receive the newsletter at Updates from the Mental Health and Addiction directorate.

If you have any questions or would like more information, you can email the Mental Health Act team at [email protected].

Page last updated: 14 February 2024

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