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...compulsory assessment. Under section 9(2)(d) DAO is required to ensure that the purpose of the assessment and the requirements of the notice of assessment are explained to the proposed patient in the presence of a member of the proposed patient's family, or a caregiver or other person concerned with the welfare of the proposed patient. Three recent court decisions under the Habeas Corpus Act 2001 (NZ) have challenged existing DAO practices in arranging the presence of a third party. This article outlines these cases and discusses their implications for nursing practice in the role of DAO. Further research focused on unravelling the complexities associated with the DAO role is suggested.
Key words: compulsory treatment, habeas corpus, mental health law, mental health nursing, statutory roles.
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In 1992 the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) (MH(CAT) Act) became law in New Zealand, replacing the Mental Health Act 1969 (NZ). The intent of the MH(CAT) Act was to "redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment, to define the rights of such persons and to provide better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder" (Mental Health (Compulsory Assessment and Treatment) Act, 1992, p. 3). The intent of the MH(CAT) Act is to balance the interests of a person suffering from mental disorder with the interests of the wider society, while at the same time ensuring adequate checks and balances are in place that protect individual civil liberties (Ministry of Health, 2000a, p. 6).
The MH(CAT) Act also signalled a general move away from reliance on medical authority in decision-making concerning compulsory assessment and treatment. Correspondingly there are a number of statutory roles undertaken by other health professionals. One such role is that of the Duly Authorized Officer (DAO). The DAO role is usually undertaken by mental health nurses and involves being the public face of the legislation. Nurses practising as DAOs provide general information, advice and practical assistance as to how the MH(CAT) Act operates, information about the services available and also assist in transporting patients to where assessments are to take place (Ministry of Health, 2000a). DAOs are responsible for maintaining the procedural requirements necessary to bring about a preliminary assessment by a medical practitioner; these are discussed below. Most nurses acting as DAOs are employed in multidisciplinary community mental health teams where the DAO role is an occasional component of their clinical work.
The MH(CAT) Act outlines several procedures for assessment and review that must be upheld before a compulsory treatment order can be made. Under section 8A of the MH(CAT) Act, the committal process is commenced by an application made to the Director of Area Mental Health Services for the assessment of the person who is believed to be mentally disordered. The application must be accompanied by a medical certificate (section 8B) completed by a medical practitioner who has examined the patient within 3 days prior to the application. The medical practitioner must state on the certificate that there are reasonable grounds to believe that the person they examined is mentally disordered. At this stage the person becomes a "proposed patient". Proposed patient status ends when a medical practitioner records under section 10 of the Act that the person will or will not become a patient. Most DAO practice takes place in the context of mental health emergencies. A person should therefore, be a proposed patient only for a matter of hours, something recognized in the requirement under section 9(1) that the arrangements for an assessment examination are made "forthwith". Once the application and medical certificate are received by the Director of Area Mental Health Services arrangements for assessment under section 9 of the Act can take place.
The procedural requirements of section 9 of the MH(CAT)Act are particularly important to the DAO role. Section 9 requires the DAO, acting under the authority of the Director of Area Mental Health Services, to make arrangements for the proposed patient to undergo assessment by a medical practitioner. Specifically, the DAO must nominate the person by whom the assessment examination is to be conducted; determine the time and place at which it is to be conducted; and give the proposed patient a written notice of the circumstances and details of the assessment. Under section 9(2)(d) the DAO must ensure that the purpose of the assessment examination and the requirements of the notice given are explained to the proposed patient "in the presence of a member of the proposed patient's family, or a caregiver in relation to the proposed patient or other person concerned with the welfare of the patient.
Subsequent to section 9, a medical...
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