219 The Commission urges the Committee to remind the Government of its obligation to afford access to justice on an equal basis and to develop a set of actions designed to ensure there is equal access to justice for persons with Disabilities is New Zealand. E Detention under the Mental Health (Compulsory Assessment and Treatment) Act 1992 220 The number of people subject to both community and inpatient compulsory treatment is growing both absolutely and as a proportion of the population. Of particular concern is that New Zealand’s use of community treatment orders is amongst the highest in the world.121 In 2013 Māori were 2.9 times more likely to be under a community treatment order than non-Māori.122 221 The WGAD noted with concern that the legislative framework governing the detention of persons with mental disabilities under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“MHCAT Act”) is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur. In practice, compulsory treatment orders are largely clinical decisions, and it is difficult to effectively challenge such orders as the right to legal advice of patients undergoing compulsory treatment may be limited.123 222 Concerns also remain over the issue of capacity and the tension between compulsory treatment and the right to refuse mental health treatment, to make an informed choice and to give informed consent. The MHCAT Act arguably does not differentiate between people who have capacity and those who do not.124 As such, people with a mental disorder may be treated against their will despite retaining decision-making capacity.125 223 A gap in monitoring under the Optional Protocol to the Convention against Torture (“OPCAT”) that has been identified by New Zealand’s National Preventive Mechanisms (“NPMs”) concerns facilities where people reside subject to a legal substitute decision-making process, such as locked aged care facilities, dementia units, compulsory care facilities, community-based homes and residences for disabled persons. People detained in these facilities are potentially vulnerable to illtreatment and this can remain largely invisible because of the nature of the residences. 121 O’Brien AJ. Community treatment orders in New Zealand: regional variability and international comparisons, Australas Psychiatry (2014). 122 Supra note 90. 123 United Nations Working Group on Arbitrary Detention, Statement at the conclusion of its visit to New Zealand (24 March -7 April 2014), p.5. 124 Mental Health (Compulsory Assessment and Treatment) Act 1992. 125 The right to refuse consent, s(57), and not accept treatment, s(59), is limited as the Act effectively deprives a person of any power to refuse treatment within the first month of compulsory treatment, at the discretion of the responsible clinician, s(59)(4). Page 59 of 93 Human Rights Commission submission to the Human Rights Committee in relation to New Zealand’s 6th periodic review under the ICCPR