Judicial Review of the Meaning of “Mental Disorder”

Abstract

New Zealand has recently experienced its first successful judicial review of a discharge decision made by a mental health review tribunal acting under the civil commitment legislation, the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ). This article discusses the substantive issues in the litigation and the reviewing posture adopted by the courts. The litigation presents numerous issues central to the work of mental health review tribunals including the meaning of “mental disorder” for civil commitment and discharge purposes; the choice between legal and psychiatric readings of mental health legislation; the conflict between psychiatric ethics and community expectations; the right of the Crown to natural justice in tribunal proceedings; and the degree of deference to be shown by a reviewing court to a specialised tribunal.