International and Regional Influences on Tonga's Mental Health Act

• Author: Timothy P. Fadgen
• Position: Lecturer, Management Department, Auckland University of Technology
• Pages: 125-149

125

INTER NATIONAL AND REGIONAL INFLUENCES ON

TONGA’S MENTAL HEALTH ACT

T P. F*

A

In 2001 Tonga adopted a new mental health law as part of an overall health

sector reform process. is was only the third iteration of a statute designed to

address the island Kingdom’s mental health sector since 1948. International

actors had considerable inuence over the form and substance of each of these

law changes with only minimal input from the indigenous mental health sector.

Moreover, this article will situate the 2001 Act as falling short of international

best practice at the time of adoption. e circumstances of how these laws came

to be adopted in Tonga play an important role in understanding the law’s

proper context within national medico-legal institutions. Given the long gaps in

time between policy change at the statutory level, this article will then argue

that practitioner application and court interpretation of Tonga’s constitutional

rights will likely be the source of any broadening of protections for individuals

with mental illness in the near term. Two recent decisions that have implicated

Tonga’s Mental Health Act will be discussed. ese cases each ra ise natural justice

concerns within the mental health context . is article will conclude that because

the law was largely the product of international intervention and was not guided

by the development of a local mental health policy setting forth the indigenous

aspirations or guiding principles of the mental health system in Tonga, future

reforms should follow such a formul a and in the interim, advocates should appeal

to natural justice to secure their client’s rights are protected in the area of mental

health court practice.

I. I 

In 2001, Tonga became one of the rst of many Pacic Island countries to

reform its mental health legal fra mework when it adopted its Mental Health

Act (MHA 2001). e adoption of this law reform, however, did not happen

on its own. Along with the MHA 2001, Tonga’s parliament passed laws

* Lecturer, Man agement Department, Auck land University of Technology. e author wishes

to acknowledge t he University of Auckla nd for its support of this rese arch. He can be reached

at: tim.fadgen@aut.ac.n z.

126 Canterbur y Law Review [Vol 21, 2015]

revamping most of its health sector legislative regime.1 is art icle sets out

to consider this process of law change in the Tongan context. In particular,

this article sha ll examine the 2001 statutory change brought about with

international assistance in Tonga’s mental health policy and law history.

After presenting Tonga’s mental health policy context it shall t hen consider

the composition of the current mental health system in Tonga. is article

will argue that indigenous involvement in the mental health law reform was

minimal with important implications for the resulting law. It will show that

the adopted law mirrors Australia n mental health law in several important

aspects, and neither international best practice at the time of adoption nor

Tonga’s indigenous mental health policy context. Moreover, the law has

serious deciencies as a tool for securing individual rig hts in the mental

health setting or for institutional izing some of Tonga’s important functional

indigenous mental health practices. e consequences of this mismatch have

important implications for litigants including providing possibly inadequate

protection of individual liberty interests. e ar ticle concludes that since

statutory changes in Tonga’s mental health policy area tend to be infrequent,

the best tool for advocates of individuals with mental i llness is likely to be

found in an appeal to natura l justice principles. Two recent cases interpreting

the MHA 2001 will be considered as embodying this reasoning.

e article is presented in four main par ts. First, the article will consider

an overview of Tonga’s mental health law context. Here, the current

understandings and role of mental health in Tonga will be discu ssed. e

historical development of the government’s role in mental health is presented.

e evidence is drawn from both textu al sources and interviews conducted

with Tongan government and civil society representatives. Following this

discussion, a brief overview of the international mental hea lth as human right

context is given. is article arg ues that since the reform eorts in Tonga’s

health sector were ostensibly international eorts and not essential ly bilateral

eorts between Australia and Tonga or purely domestic policy responses to a

perceived problem of national importance, consideration of the international

context is critical to understanding the environment within which important

international and regional organizations approach mental health law reforms

in such contexts. is section presents the mental health context as one

framed by human rights as advanced through disability human rights in

international instruments.

e article also incorporates t he role international and regional entities

played in the health sector reform process generally a nd mental health

law reform in particular. e key actors identied in this section include

the Australia n government (acting then through AusAID), the Asian

Development Bank and the World Health Organization, including a regional

organization cal led the Pacic Island Mental Health Network (PIMHnet).

1 ese new la ws included: erapeut ic Goods Act [2001], Nurses Act [2001], Medical and

Dental Practit ioners Act [2001], Pharmacy Act [2001] and a Health Pract itioners Review Act

[20 01].