Appendix 3A Contact Sarah Murphy 19 September 2019 Mr Patrick Davis Senior Policy Analyst Mental Health and Addiction Directorate T 19 82 By email: Patrick.Davis@health.govt.nz AC Dear Mr Davis IO N Mental Health and Wellbeing Commission Bill R M AT Thank you for the opportunity to comment on the key features for the Mental Health and Wellbeing Bill. You have some specific questions to which we respond below. The Cabinet paper at paragraph 40 indicates that agencies would not be required to supply information in response to a request from the Commission when there are good reasons to refuse to do so, such as those found in the Official Information Act. However one of the reasons for refusing information as set out in paragraph 9 appears to go beyond the parallel provision in the Official Information Act. Specifically: O FF IC IA L  IN FO Are the objectives and functions clear on the role the Commission will play? Do they align with the policy intent [CAB-19-MIN-0329.01]? Clause 9(1)(a) enables agencies to refuse to supply information subject to legal professional privilege. However under the OIA this is subject to a public interest override test. This could give rise to the anomalous situation of members of the public being able to obtain information under the Official Information Act that the Commission could not access to fulfil its function. It may be that clause 9(2) is intended to ensure that a public interest balancing test is undertaken in accordance with section 9(1) of the OIA. If this is the case, this should be made more explicit. - The section 9(1)(b) provision bears no obvious relationship with any of the provisions of the OIA, and its intent is unclear. EA SE Paragraph 2.3 of the Cabinet minute includes, as one of three key purposes of the Commission, to ‘uphold and actively promote the principles of the Treaty of Waitangi’. This is a strong expression of Treaty obligations. However in the draft Bill, the Treaty section (clause 1) uses more diffuse language, being ‘…to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi’. In order to reflect the Cabinet minute, the more direct obligation ‘give effect to the Treaty’ would appear appropriate. R EL  D U N D ER TH E -  The prohibition on publication may need further thought given that the functions of the Commission are ‘to make public statements about mental health and wellbeing’ (see 5(4) and ‘report publicly on the effectiveness, efficiency and adequacy of strategies, policies, Appendix 3A Office of the Ombudsman Tari o te Kaitiaki Mana Tangata programmes, services and evidence base relating to mental health and wellbeing’. It may be that clause 10 is too prescriptive in limiting the classes of information that can be published, to the extent that it may impact adversely on the efficacy of its publicity functions. It is suggested that consideration be given to creating a separate (potentially overarching) category under the clause 5 functions to better reflect the Cabinet minute, being to ‘monitor the government’s progress in improving mental health in New Zealand’. This would put the key goal of improvement of mental health in New Zealand at the heart of the Commission’s function. 19 82  N AC T Should the Commission be required to seek views of certain groups (stronger obligation) or to maintain mechanisms to ensure it can readily access the views of certain groups (weaker obligation)? Following on from the comments at Question 2 above, to implement the policy objective of strong and proactive adherence to the Treaty, the Chief Ombudsman considers that there should be a requirement to seek the views of Maori and other groups. Additionally, clause 6 should be recast to make it clearer that Maori and Pacific peoples within the other categories listed (such as disabled persons) should be consulted with. Currently Maori and Pasifika read as a ‘stand alone’ category.  On the question of the Commission’s consultation more broadly, mental health is directly relevant to two key areas of the Ombudsman’s work, being monitoring New Zealand’s compliance with the United Nations Convention on the Rights of Persons with Disabilities, and a National Preventive Mechanism tasked with monitoring the conditions and treatment of detainees in of places of detention, including prisons, mental health facilities and secure private rest homes. To that end, while there is no need for a statutory reference to consultation with the Ombudsman, engagement with this Office will be mutually very beneficial in performing the respective functions of both Offices. ER TH E O FF IC IA L IN FO R M AT IO  EA SE There may be some limitations to the extent to which the Commission can fulfil its mandate to provide systems oversight in the absence of an ability to obtain information from the private sector and NGOs. This is because the mental wellbeing system includes civil society and the private sector (see paragraph 11 of the Cabinet paper). Robust and comprehensive systems oversight would appear to necessitate an ability to access information from all organisations that form part of the mental wellbeing system. For example, it would appear to be difficult to fulfil the statutory function to ‘monitor mental health and addiction services’ (clause 5(d)) in the absence of a full suite of information from all services including the non-governmental sector. There could be statutory limitations built in to ensure that this is not overly burdensome for NGOs. R EL  D U N D The powers to compel information is currently limited to Government, including Crown entities etc. Cabinet invited further work in this area – which could include the powers being broadened to include non-government. Do you think the powers currently proposed are sufficient for the Commission to carry out the specified functions? If not, why not? Page 2 Appendix 3A Office of the Ombudsman Tari o te Kaitiaki Mana Tangata If the information gathering powers are extended beyond government, should these be limited to the Health and Disability sector? The remit of the Commission is to ‘look right across the system, including the health, social education and justice sectors’. In order to ensure effective oversight, it would seem logical for it to be able to obtain information necessary for fulfilling that function from all relevant sectors, including the social, education and justice sectors. 82  AC T It is important to note that as a Crown Entity, the Commission would be subject to the Ombudsmen Act and the Official Information Act, as Crown Entities are in the schedule to the Ombudsmen Act. This is appropriate as it ensures that the Commission is fully accountable. The courts have described the OIA as both a ‘constitutional measure’, and a significant part of New Zealand’s constitutional matrix (most recently in Kelsey v Minister of Trade [2015] NZHC 2497, at [156]). The OIA is one of the vehicles by which New Zealanders may exercise their fundamental freedom to seek and receive information, as enshrined in section 14 of the New Zealand Bill of Rights Act 1990. It follows that the OIA, as a constitutional measure which reflects fundamental freedoms. Accordingly, oversight is important for the Commission to achieve its objectives. IN FO R M AT IO N  19 We have not identified or proposed any exceptions to the Crown Entities Act 2004. Please advise if there are exceptions we should be considering. FF I C IA L By way of more general comment, clause 3 would benefit from a more specific requirement for ‘lived experience’ of mental health and addiction forming a type of experience/knowledge necessary to have in the mix of members. ER TH E O I hope that these comments are of assistance and the Office looks forward to continuing to engage with you on the development of the Commission. If you have any further questions, please feel free to contact Sarah Murphy, Executive Advisor Strategic Projects at: Sarah.Murphy@ombudsman.parliament.nz. EA SE D U N D Yours sincerely R EL Alex Schroder Acting Assistant Ombudsman Page 3