New Zealand Human Rights Commission Submission to the CAT in relation to NZ’s 6th periodic review 193. 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.104 194. 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.105 As such, people with a mental disorder may be treated against their will despite retaining decision-making capacity.106 195. A gap in OPCAT monitoring that has been identified by the 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, communitybased homes and residences for disabled persons. People detained in these facilities are potentially vulnerable to ill-treatment and this can remain largely invisible because of the nature of the residences. 196. NPMs strongly argue that persons in such facilities or situations can effectively be in a state of detention, which means these places should be subject to preventive monitoring under OPCAT.107 The Commission would welcome the Committee’s guidance on these issues. 104 United Nations Working Group on Arbitrary Detention, Statement at the conclusion of its visit to New Zealand (24 March -7 April 2014), p.5. 105 Mental Health (Compulsory Assessment and Treatment) Act 1992. 106 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). 107 See also CRPD General comment No.1, p.10. 74