Associate Professor Giles Newton-howes1
1University Of Otago Wellington
Following the signing of the UNCRPD there have been concerted efforts internationally to repeal and replace mental health legislation, including in Australasia. % of Australian states have now amended their civil mental health legislation to be capacity as opposed to risk based. New Zealand has also commenced proceeding down a public policy and legislative route to repeal and replace its mental health legislation. However, progress has been slow. Gordon and Newton-Howes (the applicants), a mental health consumer and psychiatrist respectively, have initiated proceedings in the High Court with a view to enhancing the human rights of people in psychosocial distress, pending substantive law reform. Put another way, the applicants seek a more human rights consistent interpretation and application of existing mental health legislation while the legislation remains in force in its current form, given that replacement legislation is unlikely to be enacted and/or come into effect within the next two years. The mechanism by which the applicants seek to do so is by seeking declarations under the Declaratory Judgments Act 1908 and the Judicial Review Procedure Act 2016, as well as (in the alternative) declarations of inconsistency with the New Zealand Bill of Rights Act 1990. In addition, the applicants hope that these proceedings may contribute to the current law reform process. The proceedings will be heard on 7-9 November. This paper will discuss how the law can be used as a mechanism to facilitate a more human rights centred interpretation of outdated mental health legislation pending law reform.
Biography:
Giles is a practicing consultant psychiatrist and associate professor at the University of Otago. He has an enduring interest in the various ways the freedoms of people in psychosocial distress are stigmatized and how to counter this to improve mental health care.