The legislation cannot and should not be used to plug a gap in criminal law, writes mental health expert Anthony O’Brien.
In the wake of such an atrocity such as the terrorist attack at Lynmall shopping centre there is an understandable search for reasons, causes and explanations – anything that helps us make sense of such a terrible event occurring in our community. It is reasonable to ask questions and explore all the avenues of intervention that could have been or should have been considered. But the Mental Health Act is not one of those avenues, for very good reasons. Security expert Paul Buchanan is quite wrong to suggest that the act might have been used to detain the individual, as reported by RNZ.
The Mental Health Act is a controversial piece of legislation that involves significant limitations on the rights of a small number of people. It is designed to provide compulsory treatment to people with mental disorder who might otherwise harm themselves or another person. It is perhaps understandable that some people might consider that that definition includes the Lynmall terrorist. But there is an important qualification. That is, that the risk of harm must be due to the person’s mental illness and not to their criminal intent.
The wording of the Mental Health Act very clearly excludes political beliefs as a reason for invoking compulsory treatment. The current legislation was drafted in the 1980s and passed into law in 1992. It was part of a wave of international mental health law reform which addressed the concern that such legislation needs to be narrowly defined to focus on mental disorder, not simply illegal, undesirable, unusual or antisocial behaviour.
Concerns remains that in some countries mental health is unethically used to detain and contain people who simply have unpopular personal or political views, or who engage in criminal behaviour. However the Mental Health Act, as seen in its name, is focussed on mental health, not the prevention of criminal acts. If the criminal law is not adequate to contain terrorist behaviour it is that law that needs to change. The Mental Health Act cannot and should not be used to plug a gap in criminal law.
There is a further reason that terrorist acts should not be viewed through the lens of mental health. Such a view conflates mental illness with dangerousness and stigmatises people with mental illness. We know that people with mental illness frequently feel stigmatised within our society, despite the efforts of many courageous individuals to speak about their experiences. In our search to find meaning in acts of terrorism we should not reach for an easy explanation, especially one that shifts the focus of responsibility from criminality to health.
The media have a critical role in shaping public understandings of issues such as terrorism and mental health, too. They should seek to avoid simplistic framings of these issues that misinform public opinion. We all want answers and explanations. But let those answers and explanations be informed by evidence, by careful, considered thinking, not discredited stereotypes of mental illness.