Cross-Examination: How Discrimination Impacts Mental Health Recovery

Chantelle Murray, content contributor

Mental illness affects 1 in 5 Kiwis every year. However, many New Zealanders living with mental illness suffer from unfair discrimination.[1]

A 2014 Health Promotional Agency (HPA) survey posed the following question to 2500 respondents: “You are a member of a local sports club. A new person wants to join the club. You know they have schizophrenia. When they are alone, they often shout and argue as if someone else was there with them. They speak carefully, using uncommon and sometimes made-up words. They are polite but avoid talking to other people.”[2]

The survey reported that 65% of respondents would not have a problem with the person joining the sports club, 59% would play in the same team, and 50% would socialise with the person away from the club. 27% of respondents, however, would not invite that same person home for a meal.[3] It is troubling that these results indicate that people do not want to socialise too closely with people with mental illness because this aversion bars them from fully participating in the community.

According to Virginia McEwan, HPA’s Mental Health Manager, discrimination slows recovery because people with mental illness pick up the “vibes” of being viewed negatively.[4] This causes them to withdraw from social gatherings, work, close relationships and even family.[5] One survey of 1134 people showed that 57% of people with mental illness hid their condition from others. 37% stopped themselves from having close relationships because of expected discrimination. 33% did not apply for jobs for the same reason.[6] This is especially concerning as being included in everyday social life aids recovery from mental illness.[7]

The function of the law should be to set norms that reshape social values in order to promote more positive attitudes towards the mentally ill, given that the ability of the law to protect people with mental illness is necessarily limited.

For instance, the Mental Health (Compulsory Assessment and Treatment) Act 1992 aimed to redefine the assessment and treatment of people with mental illness, but the Act’s protections only extend to providing mentally ill persons with a mechanism for pursuing grievances.

Another example:  s 19 of the New Zealand Bill of Rights Act 1990 (BORA) provides that everyone has a right to be free from discrimination against mental illness.[8]  However, the rights advocated for by BORA are not necessarily enforceable. Section 5 says that these rights can be limited if the limit is justifiable in a free and democratic society. However, even if there is a breach of the BORA, the range of remedies available to plaintiffs is relatively limited.

Rights cannot, of course, be absolute, as there are often other factors which must also be considered. For example, in B v Waitemata District Health Board (WDHB)  the defence counsel argued discrimination on the ground of mental illness because  patients in a psychiatric facility were deprived the choice to smoke.[10] This was dismissed by the court because it was within the statutory powers of the WDHB to set rules and requirements of conduct on their site: the health of the patients was a paramount consideration, and maintaining ventilated areas where the patients could smoke posed a significant financial cost.[11]

Any laws governing mental health must seek to strike a balance between various practical considerations and respect for the autonomy and dignity of the individual. The provisions of such laws, and the conversation surrounding their enactment, will help condition society’s attitude and help to breakdown discrimination. The enactment of special patients’ rights legislation governing the treatment of the mentally ill, or the consolidation of existing provisions into a single enactment, might provide the opportunity for changing society’s attitudes.

It is important to note that there are cases where the law has adequately protected mentally ill people from discrimination, such as in P v Family Court.[12] Here the applicant was both absent and unrepresented at her hearing due to a mental breakdown. The court found that her right to be heard was breached and she was allowed to go to trial again after she had recovered. This takes a favourable approach towards the temporarily mentally ill applicant. However, discrimination is not always avoidable..

There are laws protecting people with mental health issues from discrimination but they alone are not enough. Society’s mentality towards people with mental illness is what needs to be addressed. Eliminating discrimination starts with individuals treating friends and family members with mental illness the same as they would any other person. In reality, the most common form of discrimination comes from friends and family.[13] Using the law in order to establish social norms in the treatment of mental illness must be accompanied by broader efforts to raise awareness and educate the public.

New Zealand is a democratic society which prides itself in the principle of equality. We aim to have a free society where everyone can have the best life possible for them. We need to address all instances where people are being treated unfairly — including discrimination against mental illness.

[1] New Zealand Mental Health Survey 2006 as cited in “Sports clubs shown up in mental health survey” New Zealand Herald (online ed, New Zealand, 30 June 2015).

[2] “Sports clubs shown up in mental health survey”.

[3] “Sports clubs shown up in mental health survey”

[4] “Discrimination delays recovery from illness” New Zealand Herald (online ed, New Zealand, 8 June 2015).

[5] “Discrimination delays recovery from illness” ; “Award winner recovered from mental illness” New Zealand Herald (online ed, New Zealand, 14 June 2015).

[6] “Sports clubs shown up in mental health survey”, above n 2.

[7] “Discrimination delays recovery from illness”, above n 4.; Andrew Bonallack “Inclusion helps to ban prejudice” New Zealand Herald (online ed, New Zealand, 1 July 2015).

[8] See Human Rights Act 1993, s 21(1)(h).

[9] New Zealand Bill of Rights Act 1990, s 5.

[10] B v Waitemata District Health Board (WDHB) [2008] NZFLR 1133.

[11] At [17], [30] and [41].

[12] P v Family Court [2008] NZFLR 1133.

[13] “Sports clubs shown up in mental health survey”, above n 2.

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