An v Manukau District Court

[2017] NZHC 2190

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001986 [2017] NZHC 2190

BETWEEN

A N

Applicant

AND

MANUKAU DISTRICT COURT Respondent

Hearing:	On the papers
Judgment:	8 September 2017

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 8 September 2017 at 3.30 pm

Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Crown Law Office, Wellington

Copy to:            Applicant

A N v MANUKAU DISTRICT COURT [2017] NZHC 2190 [8 September 2017]

[1]      Mr N has filed what he calls an application under the Habeas Corpus Act 2001 (Habeas Corpus Act) on behalf of his wife, Mrs N.  The document, with supporting affidavit, was faxed to the High Court Registry on 22 August 2017 but was brought to my attention in the late morning of Monday 28 August 2017.

[2]      I have investigated the reasons for the week-long delay in the documents being brought to the attention of a judge in accordance with the urgency requirements in s 9 of the Habeas Corpus Act.  It appears that because of staff absences over the week of

22 August 2017, the facsimile machine on which the documents were received was not checked and the papers went unnoticed for a week.   The Registry staff have apologised for the delay. I have asked that steps are taken to ensure this does not happen again. However, for the reasons given below, I am satisfied that the delay did not cause prejudice to Mrs N on whose behalf the application was filed.

[3]       The Registry brought the papers to my attention as Duty Judge seeking guidance on how they should deal with the documents because of their unusual form and because, as I rehearse below, there have been a number of previous habeas corpus applications on behalf of Mrs N, all of which have been either dismissed or withdrawn.

[4]      The Registry also brought up the files on the earlier applications.   These showed that Mrs N, who has been diagnosed with moderate dementia with significant cognitive impairment, is subject to orders made by the Family Court at Manukau under the Protection of Personal and Property Rights Act 1988 (PPPR Act), directing her to enter and reside in a secure dementia-level care unit at a rest home.   She has been in that unit since 24 February 2016 except for the times she has been taken out by her husband, Mr N.

[5]      After reviewing the papers, I formed the preliminary view that the application was not within the bounds of the Habeas Corpus Act.  First, under s 7(1) of that Act, the application should have been be filed by way of originating application as provided by the High Court Rules 2016 and the document filed by Mr N was well short of what would normally be expected on an originating application.   Secondly, and more importantly, there was a question whether the substantive complaint being made was appropriate for consideration by way of a habeas corpus application.

[6]      The principal contentions in the papers are that Mrs N is being detained in breach of the New Zealand Bill of Rights Act 1990 (NZBORA), that the orders for her protective care are outside the scope of the PPPR Act and that there are other procedural defects that make her detention unlawful.  Such contentions should more appropriately have been pursued by other means such as an appeal against the Family Court decision, judicial review proceedings or an application for declaratory judgment.

[7]      Even so, given the urgency accorded to habeas corpus applications under the Habeas Corpus Act and the common law, and having regard to s 7(2) of the Habeas Corpus Act, which provides that nothing in subs (1) “excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency,” I considered I should deal first with the substance of the matter and determine later any issues of legal form. Accordingly, I considered the papers submitted by Mr N, reviewed the decisions of this Court on earlier habeas corpus applications made on behalf of Mrs N, and endeavoured to arrange a hearing of the application.

Efforts to arrange a hearing

[8]      While I had strong doubts this was a proper application for habeas corpus, I considered I should give Mr N an opportunity to be heard having regard to the references in ss 7 and 9 Habeas Corpus Act to a hearing being held:

7        Manner of application for writ

(1)       An application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules 2016.

(2)       Despite  subsection  (1),  nothing  in  that  subsection  excludes  the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.

(3)       Despite  subsection  (1),  the  provisions  of  any  High  Court  Rule providing for directions by the court before the hearing, or affecting the hearing, of an originating application or empowering the court to convene a conference of the parties to an originating application do not apply to an application.

…

9         Urgency

(1)       An application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a Judge of that court considers that the circumstances require otherwise.

(2)       Judges and employees of the Ministry of Justice must ensure that every application, including any interlocutory application, is disposed of as a matter of priority and urgency.

(3)       The Registrar must allocate a date for the inter partes hearing of an application that is no later than 3 working days after the date on which the application is filed.

(Emphasis added in bold).

[9]      Whether or not a hearing is required in circumstances where it is apparent on the face of the application that habeas corpus is an inappropriate remedy being sought was considered by Heath J in McNab v Matthews, where the learned Judge said:1

[14]     There is no specific judicial authority on the ability of the Court to dismiss a habeas corpus application on the papers. The terms of s 9(3) of the [Habeas Corpus] Act, read in conjunction with the observations of the Court of Appeal in Jones v Skelton,2 suggest that a “hearing” is required. The length of that hearing, and the priority to be given to it in relation to other litigation with which the Court is dealing at the time will be a question for the Judge to determine, in accordance with s 9(1). In a case where the application is seemingly hopeless, a short hearing by telephone should suffice.

[10]     Given the nature of the documents and the subject matter, I asked the Registry to arrange a telephone conference with Mr N rather than a formal Court hearing. I did not consider it appropriate to involve Mrs N directly given observations made by judges, counsel and medical experts in the earlier proceedings regarding Mrs N’s competence to manage her own affairs.  I also asked the Registry to ensure that the Crown Law Office, which represents government entities in litigation, was made

aware of the application and was available to participate in the conference.

1      McNab v Matthews [2014] NZHC 580.

2      Jones v Skelton [2007] 2 NZLR 192 (HC and CA).

[11]     On the morning of Tuesday 29 August 2017, the Registry was not able to contact Mr N directly. Despite the Registry later making indirect contact with Mr N through Mr W, who appears to have assisted Mr N on this and earlier applications, it did not prove possible to put the arrangements in place for a conference on 29 August

2017.  Mr W asserted on Mr N’s behalf, however, that Mr N would want a hearing in

person.

[12]     I asked for a conference to be arranged at the Court for 3.00 pm on 30 August

2017.  However, once the Registry had established direct contact with Mr N, he said he did not want to come into town. I then asked the Registry to arrange for a telephone conference at the same time. In the event, Mr N did not make himself available to the Court at the appointed time but asked, via the Registry, that I not finalise my decision until I had received additional material he wished me to consider.  That material was sent in by way of memorandum dated 30 August 2017.

[13]     It had been my intention to complete and release my decision on Monday

4 September 2017.   However, late in the evening of Friday 1 September 2017, a memorandum sent by Mr N to the Registry earlier that afternoon was brought to my attention.  It stated, among other things:

This is to advise the court I am available to the court by way of telephone or hearing.

[14]     Accordingly, on 4 September 2017 I arranged for a minute to be sent to Mr N and Crown counsel which noted my request to the Registrar to arrange a conference with Mr N and counsel representing the Manukau District Court, preferably at 10am on Tuesday, 5 September 2017 or, if that timing did not suit Mr N, at 10am on Thursday, 7 September 2017. The minute noted my preference for Mr N to attend the conference in  person but stated  my willingness  to  undertake the  conference by telephone if that was Mr N’s preference. It also noted my agreement to Crown counsel

— based in Wellington — participating by telephone.

[15]     Mr N initially confirmed his intention to attend in person at the time appointed, together with Mr W and Mrs B whom Mr N described as Mrs N’s best friend. However, he also recorded his objection, on various grounds, to the Manukau District

Court being represented by the Crown Law Office. After I had responded, by Minute dated 4 September 2017, that it was for each party to decide its legal counsel and that it was a function of the Crown Law Office to represent entities of the New Zealand government in litigation, Mr N sent in an email asking that the conference be cancelled.  Attached to that email was a memorandum signed by Mr N in which he stated that he had offered to meet under certain conditions, that those conditions had not been met and that he therefore had not agreed to the conference. The memorandum also complained at the delay in dealing with the application.

[16]     I subsequently released a Minute dated 5 September 2017 in which I said that I was taking from Mr N’s request to cancel the conference that he was waiving any right to a hearing.

[17]     Mr N sent in a further memorandum on 6 September 2017.  It stated, among other things, that:

I am confirming that I have not waivered [sic] any rights for my wife and I stand for her in all matters.

However, the memorandum did not seek to reinstate the conference.

[18]     In  summary,  three  attempts  were  made  between  29 August  2017  and

5 September 2017 to have a conference with Mr N and Crown counsel to respond to the hearing requirement in the Habeas Corpus Act, despite my preliminary view that habeas corpus was not an appropriate remedy in this case.  While I can accept that communication and timing issues may have made it difficult for Mr N to attend in person or by telephone the conferences proposed for 29 and 30 August 2017, there can be  no  such  explanation  for  the  cancellation  of  the  conference  scheduled  for  5

September 2017.  The stated reason for the cancellation was that the Court had not met Mr N’s conditions and grounds for the meeting.  It is not for Mr N to set the conditions and grounds on which the Court carries out its functions.

[19]     In the above circumstances, I consider the hearing requirements in the Habeas

Corpus Act, to the extent applicable, have been satisfied.

Previous habeas corpus applications and related proceedings

[20]     Before considering the current application, it is appropriate to canvass the earlier proceedings in which challenges have been made to the orders in respect of Mrs N under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and under the PPPR Act.

25 September 2015 habeas corpus application

[21]     On 25 September 2015, Mr W made a habeas corpus application on Mrs N’s behalf, when Mrs N was subject to an order made under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The application was directed at the Counties Manukau District Health Board (Counties Manukau DHB) which then had  Mrs N  under  its  care.    That  application  was  dismissed  by  Woolford  J  on

28 September 2015 for want of representation and because he could not be satisfied

Mrs N knew of the application.

[22]     On receipt of correspondence from Mr N, Woolford J indicated his willingness to consider the matter further if Mr N could provide information that addressed the nature of a habeas corpus application.  After consideration by Lang and Gilbert JJ of further information provided by Mr N, the matter was set down for hearing on

29 October 2015. However, on 19 October 2015, Mr N advised the Court Mrs N was no longer being detained and the application was withdrawn.

22 February 2016 habeas corpus application

[23]     On 22 February 2016, Mr N made a habeas corpus application on behalf of Mrs N when Mrs N was still subject to the compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992. It was again directed at the Counties Manukau DHB.  The application was continued even though Mrs N was discharged into the care of a private rest home on 24 February 2016.  The focus of consideration of the habeas corpus application became the interim orders that had been made under the PPPR Act on 22 February 2016 by the Family Court at

Manukau, directing Mrs N to enter and reside in a secure dementia level care unit at a rest home at Wiri.

[24]     The application was comprehensively considered by Thomas J and dismissed in her judgment of 26 February 2016.  Thomas J also held that the matters raised by Mr N in his application were not appropriately determined on an application for habeas corpus.

[25]     Mrs N’s appeal of Thomas J’s decision to the Court of Appeal was struck out on 27 May 2016.  Mrs N’s application for leave to the Supreme Court to appeal the Court of Appeal’s striking out of her appeal was dismissed on 20 June 2016.3

[26]     The Family Court made final orders under the PPPR Act on 17 August 2016. The  only  material  change  to  the  final  orders  from  the  interim  orders  made  in February 2016 was to stipulate that visitors were permitted only at times decided by the manager. On the same date, the Family Court also revoked the enduring power of attorney held by Mr N in relation to Mrs N’s care and welfare.

13 March 2017 habeas corpus application

[27]     On 13 March 2017, Mr N made another application for habeas corpus on behalf of his wife, this time directed at the rest home where Mrs N is being cared for.  That application was heard by Downs J and dismissed in his judgment of 17 March 2017.4

Downs J noted that:

(a)      While the application appeared to have been signed by Mrs N, given her condition and appearance at the hearing, grave doubt attached to whether she knew what she was signing.

(b)Mrs N did not appear to be sufficiently well to make submissions in support of the application.  Nor was it obvious to the Judge that Mrs N knew what was going on.   He nonetheless permitted Mr N to make submissions on her behalf.

(c)      Mr N’s complaint was not really about the legality of Mrs N’s detention at the rest home but was more about whether she was being sufficiently cared for and, in particular, could have visitors whenever she (or Mr N) pleased.

[28]     Downs J held that not only was Mrs N’s detention legal but it was also a case where habeas corpus was not the appropriate procedure for considering the allegations made by Mr N in relation to Mrs N.  He dismissed the application.

[29]     Mr N, on behalf of his wife, sought leave to appeal directly to the Supreme Court against Downs J’s decision.  That application was dismissed by the Supreme Court in its judgment of 12 April 2017.5

27 April 2017 habeas corpus application

[30]       On 27 April 2017, Mr N made a further application for habeas corpus on behalf of his wife, this time directed at the New Zealand Police.  The application was heard by Lang J on 1 May 2017.

[31]     In his judgment, Lang J noted the circumstances that had given rise to the application — namely a visit by the police to Mr N’s residence to take Mrs N back to the rest home after Mr N had taken her out of the home earlier that day. At the hearing on 1 May 2017, Mr N advised the Court that Mrs N was no longer at the rest home or in the care of the police but was at another location being cared for by a friend.  It appeared Mr N had removed Mrs N from the home the day before the hearing.

[32]     Lang J dismissed the application, noting that the habeas corpus procedure related to situations where a person was being unlawfully detained.    Given the preceding day’s events, Mr N could no longer allege Mrs N was being detained by the rest home facility or the police. Lang J noted that Mrs N was effectively under Mr N’s control and observed that whether or not that was lawful may also be a matter the Courts would be required to determine in the future.6

Family Court proceedings subsequent to last habeas corpus application

[33]     Lang J’s observations proved prescient.   A few days after his decision, the Counties Manukau DHB applied to the Family Court at Manukau for a variation of the order made in respect of Mrs N on 17 August 2016.  The principal purpose of the variation was to require that any visits made by Mr N to the rest home where Mrs N resides would be supervised by security guards arranged by the manager of the rest home, with the cost born by Mr N. The variation was granted by the Family Court on

9 June 2017.

[34]     The explanation for this turn of events is found in the decision of Judge Mahon of 21 July 2017, following hearings on 5 May 2017 and 7 June 2017.7   This was the third substantive judgment given by the Family Court in this case.

[35]     Judge Mahon’s judgment of 21 July 2017 discloses that when Mrs N was uplifted from the family home on 5 May 2017 she was admitted to hospital because she had sustained a broken pelvis while in the care of Mr N. The judgment also records evidence from the manager of the rest home and from Mr and Mrs N’s daughter about Mr N’s treatment of Mrs N and his behaviour at the rest home.  It is sufficient for present purposes to note that, according to that evidence, Mr N had caused continual difficulties for rest home staff during his visits and that his daughter supported the continued placement of Mrs N at the rest home and strongly opposed Mr N looking after her mother.  Judge Mahon records that the daughter:

… was clear that her mother is not safe in the care of Mr [N].  Her concern has been borne out by the fact that Mrs [N] suffered a broken pelvis when at home with Mr [N].

[36]     Other relevant features of the Family Court decision are that:

(a)      In addition to considering the application for a variation of the PPPR Act order of 17 August 2016, the Court was asked to make a direction referring the file to the police for prosecution of Mr N for his breaches of the confidentiality requirements of Family Court proceedings and to

award indemnity costs against Mr N;

7      Anaru v N [2017] NZFC 5733

(b)Mr N did not appear at the hearings of the application to vary the order of 17 August 2016 and also chose not to appear at the substantive hearing on the application for a final protection order in 2016. However, he filed submissions for this year’s hearings which the Family Court Judge considered:

(i)contained  defamatory  and  offensive  comments  about  the lawyers in the case, the applicant (Counties Manukau DHB) and the Court process;

(ii)      confirmed Mr N’s refusal to comply with Court orders; and

(iii)did not address the issues the Judge had required Mr N to address for the hearing.

[37]     In the event, Judge Mahon did not refer the matter to the police but awarded indemnity costs against Mr N.  He also recorded relevant paragraphs from one of his earlier decisions regarding the way Mr N had behaved. One of those paragraphs read:

[42]      … I find this to be one of the most serious cases of a vexatious and misguided litigant who has been given every opportunity to fairly participate in proceedings but whose actions have made proceedings which should have been straightforward, protracted and expensive when Mr N has no basis for his defence.

High Court proceedings against Mrs N’s solicitor and Counties Manukau DHB

[38]     In July 2016, after the interim orders under the PPPR Act had been made but before those orders had been made final and before Mr N’s enduring power of attorney in respect of Mrs N had been revoked, Mr N brought two proceedings in the High Court on behalf of himself and Mrs N against the solicitor who had represented Mrs N in the Family Court proceedings leading to the interim orders. The proceeding was also brought against the Counties Manukau DHB.  Both defendants filed applications to strike out the proceedings. Earlier this year, Mr N also filed notices of discontinuance of the proceedings in respect of himself. On 31 August 2017, the High Court struck out the proceedings in respect of Mrs N after considering a memorandum

from an amicus curiae appointed by the Court to represent Mrs N’s interests and to

advise the Court.8

[39]   In her decision striking out the proceedings, Edwards J noted that the proceedings against the solicitor “appear to allege negligence in the conduct of his role as lawyer for Mrs N.” With respect to the proceedings against the Counties Manukau DHB, her Honour stated:

[12]      The claim is not easy to follow.  As best I can make out it appears to allege negligence on the part of the DHB arising from the care provided to Mrs N pursuant to the compulsory treatment order dated 16 October 2015.  It also alleges multiple breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) as well as breaches of other statutes dating back to 2012.

[40]     Edwards J made the following observations relevant to the current application:

[26]      I am unable to confidently identify the claim against the DHB from the pleadings.  Any claim of wrongdoing on the DHB’s behalf is presently unsubstantiated, as are the alleged breaches of the NZBORA.

…

[28]     Mrs N is currently residing in a dementia care unit where she is receiving treatment and care for her condition.  In my view, there is no merit in allowing proceedings to continue that effectively amount to a collateral attack on the orders which allow that to happen. …

[41]     In striking out the application, Edwards J awarded indemnity costs as sought by the Counties Manukau DHB for expenses incurred by the DHB up to the date Mr N filed notices of discontinuance.  In explaining that aspect of her decision, Edwards J said:

[36]     Furthermore, I am satisfied that Mr N has advanced claims that were not reasonably arguable and have been rejected in a number of forums. As set out above, at the heart of the proceeding is a concern about the continued detention of Mrs N. That concern is understandable. But it is a concern which has been reviewed by a number of different Courts, including the Family Court, and in a number of unsuccessful writs for habeas corpus filed in this Court.  Against that background the proceedings filed against the District Health Board are vexatious.

[42]     This judgment was released after Mr N had made the current application.

8      N v Solicitor T [2017] NZHC 2102.

Current application

[43]     In  considering  the  current  application,  I  have  had  regard  to  the  initial application and supporting affidavit faxed to the Court on 22 August 2017, the additional supporting material in Mr N’s memorandum dated 30 August 2017, and the further material in Mr N’s memorandum dated 6 September 2017.

[44]     I had similar difficulties to those described by Edwards J in her strike out decision in identifying the specific claims being advanced by Mr N on his wife’s behalf. It was useful, however, that the memorandum of 30 August 2017 had attached to it a copy of the varied orders made under the PPPR Act by the Family Court on

9 June 2017, thereby confirming that these orders were at the centre of Mr N’s complaints.  The application is directed at the Manukau District Court.  I understand this is because the Family Court is a division of the District Court under s 4 of the Family Courts Act 1980.

[45]     The principal contentions in the documents filed by Mr N appear to be that: (a)       Mrs N’s detention is in breach of the NZBORA;

(b)Mrs N is being detained illegally amongst mental health and psychiatric patients and that is contrary to the PPPR Act under which the orders in respect of Mrs N were made;

(c)      It was invalid for the Counties Manukau DHB (through Middlemore Hospital) to make the application for the orders in respect of Mrs N; and

(d)Mrs N’s rights are being denied to her by the provider/manager of the rest home, who has a conflict of interest.

[46]     I consider each in turn.

Detention contrary to NZBORA

[47]     The basis of this argument is difficult to comprehend. Mr N cites ss 3 and 6 of

NZBORA, which provide:

3        Application

This Bill of Rights applies only to acts done—

(a)       by the legislative, executive, or judicial branches of the

Government of New Zealand; or

(b)       by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

…

6         Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

[48]     He then cites s 10(4) of the PPPR Act which provides:

10       Kinds of order

…

(4)       Where a court makes any personal order, it may also make such other orders and give such directions as may be necessary or expedient to give effect, or better effect, to the personal order.

[49]     Mr N asserts that that the Manukau District Court has unlawfully used s 10(4) of the PPPR Act to breach Mrs N’s rights.  He does not explain how that is so, other than to state that the provision:

… clearly authorises the Manukau District Court to make “other orders”, but does not authorise the Manukau District Court to make “other orders” that “trench upon” any enactments under the bill of rights.

[50]     I have set this out so Mr N can see his argument has been considered.  I mean no disrespect to him when I state there is no legal content to it.  Sections 3 and 6 of NZBORA set out the scope of application of the NZBORA and how other statutes are to be interpreted with regard to the NZBORA.  The sections do not state rights in

themselves. Section 10(4) of the PPPR Act is a machinery provision in the sense that it makes it clear that a Court can make ancillary orders and directions to ensure the effectiveness of primary orders made under s 10 of the PPPR Act. These provisions do not provide, either separately or in combination, any actionable basis for challenging Mrs N’s compulsory care by orders made under the PPPR Act.

Detention is contrary to PPPR Act

[51]     This contention, which is the most cogent of those advanced by Mr N, appears to be based on s 10(1)(d) PPPR Act.  It provides:

10       Kinds of order

(1)       On an application for the exercise of a court’s jurisdiction under this Part in respect of any person, the court may, subject to subsection (2), make any 1 or more of the following orders:

…

(d)       an order that the person shall enter, attend at, or leave an institution specified in the order, not being a psychiatric hospital or a licensed institution under the Mental Health Act

1969:

[52]     Mr N tries to make something of the fact that the Mental Health Act 1969 has been repealed.  It is enough to note that, in accordance with s 22 of the Interpretation Act 1999, the reference to the Mental Health Act 1969 is now a reference to the Mental Health (Compulsory Assessment and Treatment) Act 1992 which repealed the Mental Health Act 1969. For the purposes of s 10(1)(d) of the PPPR Act, I consider the phrase “psychiatric hospital or licensed institution under the Mental Health Act 1969” should now be read as “hospital or psychiatric security institution under the Mental Health (Compulsory Assessment and Treatment) Act 1992”, bearing in mind that that Act prescribes definitions of both “hospital” and “psychiatric security institution”.

[53]     Although Mr N’s application does not put it this way, an orthodox argument would be that the rest home in which Mrs N has been directed to reside falls outside the scope of s 10(1)(d) of the PPPR Act because it is either a hospital or a psychiatric security institution as those terms are defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992 and therefore is not a permitted institution under

s 10(1)(d) of the  PPPR Act.  However, Mr N has not put the argument that way and has submitted no evidence in support of any such argument. Accordingly, there is no basis for this Court to reach a position on the validity of that proposition which, in any event, would seem rather unlikely.

[54]     Indeed, Mr N’s argument appears to be much simpler.   It seems to be that because there are people with mental health disabilities at the rest home, that of itself means the rest home is not a permitted institution in terms of s 10(1)(d) of the PPPR Act.  That is plainly wrong.

[55]     To succeed with an argument based on s 10(1)(d), it is not enough to assert that Mrs N is being held with other persons who may have mental health disabilities.  It is in the nature of the facility in which Mrs N has been ordered to enter and reside — namely a dementia level care unit at a rest home — that there will be others in the unit with dementia.  That does not bring the unit or the rest home within the meaning of the terms “hospital” or “psychiatric security institution” under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and therefore outside the scope of s 10(1)(d).

[56]     Accordingly, on the information available to me, there is nothing to suggest that the orders made in respect of Mrs N under s 10(1)(d) of the PPPR Act were outside the scope of that section and this contention also fails.

Alleged invalidity of application by Counties Manukau District DHB

[57]     The affidavit sworn by Mr N on 22 August 2017 asserts, in effect, that because the application for the Varied Order was made by an employee of Middlemore Hospital (that is, an employee of the Counties Manukau DHB), that somehow makes the application invalid because the applicant is an employee of the CEO of Middlemore Hospital, about whom Mr N has apparently complained. No information is given of the specific conduct being complained about or why that would prevent the Counties Manukau District DHB from applying to the Court for an order under s 7(f) of the PPPR Act.

[58]     That section provides:

7         Persons who may apply for exercise of court’s jurisdiction

Any 1 or more of the following persons may apply to a court for the exercise of its jurisdiction under this Part:

…

(f)       where the exercise of the court’s jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:

[59]     Mrs N was a patient at Middlemore Hospital when the first order was made in February 2016 so the Counties Manukau DHB was the appropriate applicant at that time. Because of the broken pelvis she sustained in May 2017, she was again a patient at Middlemore when the application to vary the order was made. There can be no question, therefore, that the application made on behalf of the manager of Middlemore Hospital was validly made.  This contention also fails.

Denial of rights by provider or rest home manager

[60]     This complaint, as stated in the application, is that:

The provider has a “Conflict of Interest” profit versus care. As the manager is controlling the applicant’s rights then the applicant cannot complain about the services. Thus stripping the applicant of her entire rights provided under the Health and Disability Act and associated regulations.

[61]     Mr N cites Right 2 in the Health and Disability Commissioner (Code of Health

and Disability Services Consumers’ Rights) Regulations 1996.

[62]     Right 2, as set out in cl 2 of the Code, is:

Right to freedom from discrimination, coercion, harassment, and exploitation

Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial, or other exploitation

[63]     Mr N asserts that the orders made by the Court “… place the provider in a dominant position over Mrs N and therefore breach Right 2”.

[64]     Mr N has provided no evidence that the manager of the rest home has been acting coercively and in breach of Right 2. Moreover, were there to be such evidence, there would be a question whether the actions complained of were in accordance with the order made under the PPPR Act.  If they were, any inconsistency with Right 2 could well be justified by reference to Clause 5 of the Regulations which provides:

5.        Other enactments

Nothing in this Code requires a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.

[65]     In summary, there is no evidence to support Mr N’s complaint that in restricting access to Mrs N, the rest home manager has been acting coercively. Even if there were such evidence, the manager’s actions could be justified on the basis she has been acting in accordance with orders made under the PPPR Act. Accordingly, this contention also fails.

Conclusion

[66]     For the reasons given above, the application for habeas corpus that Mr N has brought on behalf of Mrs N is dismissed.  Mr N has not established that the orders made under the PPPR Act for Mrs N’s care, including those that restrict Mr N’s access to Mrs N, are invalid. To the contrary, and as borne out in Judge Mahon’s decision in the Family Court, the orders are lawful, made with Mrs N’s interests in mind, and are supported by Mr and Mrs N’s daughter.   Moreover, having analysed the various arguments advanced by Mr N, I confirm my preliminary view that a habeas corpus application was not the appropriate procedure for advancing those arguments.

Final observations

[67]     Mr N has brought five applications for habeas corpus on behalf of his wife. All have sought to challenge the legal basis on which Mrs N is being held in protective care.  Three applications have been dismissed and two were withdrawn. All three of the applications that were dismissed have found that Mrs N’s compulsory care under orders made under the PPPR Act is lawful.  They have also found that habeas corpus

was not the appropriate procedure for considering the allegations made by Mr N in each case.

[68]     It is also relevant that, as of 17 August 2016, Mr N no longer holds an enduring power of attorney in respect of Mrs N.  In strict legal terms, therefore, he has no right to bring legal proceedings on behalf of Mrs N or to represent her interests in such proceedings, even though in this and in the other habeas corpus applications brought after 17 August 2016 Mr N has been permitted to represent his wife’s interests.

[69]     Given this history, I consider that this Court should examine carefully any future application for habeas corpus or any other legal proceedings brought by Mr N, or indeed anyone else, on behalf of Mrs N. In any such case, I recommend consideration be given to whether there are grounds under s 167 of the Senior Courts Act 2016 for an order under s 166 of that Act restricting the commencement or

continuation of the proceedings.

van Bohemen J