Removing a person from a statutory board on the basis that they have been committed as a mental patient breaches the New Zealand Bill of Rights Act, Attorney-General Michael Cullen said yesterday.
Dr Cullen tabled the advice in Parliament in relation to a provision in the Auckland RegionalAmenities Funding Bill, but the advice would apply to other statutory boards.
Failing to get a Bill of Rights tick does not mean the Government must remove the clause from the law but there may be a sense of obligation to do so.
The Bill of Rights allows for rights and freedoms to be limited if the impingement "can be demonstrably justified in a free and democratic society."
In this case, it cannot be, Dr Cullen said.
The bill lists various circumstances under which a vacancy on the funding board is created - including a member who becomes subject to compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
But relying on advice from Crown Law, Dr Cullen accepted that the clause is discrimination on the grounds of disability, which is a breach of protections under the Human Rights Act 1993.
"Disability" is defined as including psychiatric illness, or intellectual or psychological disability or impairment.
Linking the test of incapacity to an individual's status under particular legislation does not amount to an accurate assessment of incapacity for the purpose of making decisions and holding a position on the board, Dr Cullen said.
About 80 per cent of people subject to a compulsory treatment order lived in the community under community-based treatment orders.
"Given the extent that individuals subject to a compulsory treatment order may contribute to society and the goal of treating those with mental illness with dignity, prematurely ending the term of a board member based on what may be an irrelevant label and potentially in cases involving a transitory condition is disproportionate.
"The bill will disadvantage those with mental illness and who are subject to a compulsory treatment order at some point after their appointment to the board and who have the capacity to contribute to making Auckland a vibrant and attractive place to live and visit."
