N v Police

[2017] NZHC 840

THE NAMES OF THE APPLICANT AND HER HUSBAND HAVE BEEN REDACTED TO PROTECT THEIR IDENTITY BECAUSE THE APPLICANT IS SUBJECT TO ORDERS MADE UNDER THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-828 [2017] NZHC 840

UNDER	the Habeas Corpus Act 2001
BETWEEN	N Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 May 2017
Appearances:	Applicant in support of application N E Copeland for Respondent
Judgment:	1 May 2017

JUDGMENT OF LANG J

[on application for writ of habeas corpus]

This judgment was delivered by me on 1 May 2017 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

N v NEW ZEALAND POLICE [2017] NZHC 840 [1 May 2017]

[1]      In the present proceeding the applicant, Mrs N, purports to seek orders under the Habeas Corpus Act 2001 (the Habeas Corpus Act).  In reality, the application is advanced by her husband, Mr N

Background

[2]      Mrs N resides in a secure rest home by virtue of orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 (PPRRA).  The Family  Court  made  interim  orders  placing  her  under  the  medical  care  of  the Counties-Manukau District Health Board (CMDHB) on 22 February 2016.  It made final orders to the same effect on 17 August 2016. At that time the Family Court also revoked an enduring power of attorney that Mr N had previously held in respect of his wife.

[3]      The Family Court directed that Mrs N was to “enter into and reside in secure dementia level care” at a nominated facility.  She was to receive “all medical care and attention as directed by her medical practitioners as nominated by CMDHB from time to time”.  The orders were made by the Family Court because Mrs N suffers from moderate dementia with significant cognitive impairment.  Mrs N has resided at the nominated facility since 24 February 2016.

[4]      Perhaps anticipating what was likely to occur in the future, the Family Court directed that the facility “may call the Police to provide assistance as is necessary in the circumstances to transport [Mrs N] to or return her to her place of residence” in accordance with the orders of the Court.

[5]      On 22 February 2016, the same day as the Family Court made the interim orders, Mr N applied for orders under the Habeas Corpus Act releasing his wife from the care of the nominated facility.  Thomas J declined that application in a judgment delivered on 26 February 2016.1    Subsequent appeals to the Court of Appeal and

Supreme Court against the judgment of Thomas J were unsuccessful.2

1      AN and DN v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC

277.

2      AN v Chief Executive Officer Counties Manukau District Health Board [2016] NZCA 226; AN v

Counties Manukau District Health Board [2016] NZSC 74.

[6]      On 15 March 2017, Mr N made a further application seeking orders under the

Habeas Corpus Act.   Downs J declined this in a judgment delivered on 17 March

2017.3    A subsequent attempt by Mr N to appeal directly to the Supreme Court against the judgment of Downs J was unsuccessful.4

The present application

[7]      The present application arises out of events that occurred on 23 and 24 March

2017.  Rather than attempt to summarise these, I set the factual allegations contained in the application out in full:

[N] resides in provider care at Hayman Rest Home.

On the 23/4/17 at approximately 1300 hrs [N] came home with me.  I was asked to sign a form which I did.

Ref A

On  the  24/4/17  at  approximately  1930,  I  returned  [N]  to  Hayman  Rest

Home.

Whilst  I was  about  to  leave  [N]  insisted  that  she  go  home.    This  was witnessed by several staff the main staff member involved was Genine.

The staff did not supply a form for me to sign.

[N] then left under her own steam (in credit to the staff nobody tried to stop her).

We arrived home at approx 20:30. At 23:30 I was awoken by police. The police said they wanted to see my wife was OK.

I woke my wife up and took her to the door.

[N] confirmed to a police lady that she wanted to stay home for the night. The lady asked if [N] had tablets.   This was confirmed by [N] and I separately.

The  police  lady  seemed  satisfied  and  stood-down.     I  then  heard  a conversation of coming back in the morning.  I thought that was a good idea.

The police then  advised that the  CMDHB was  [N’s]  carer.   However I advised that [N], Myself and Dean McKay ([N’s] consented GP) looked after [N’s care and that [N’s] GP advises that [N] is better off at home.

3      N v Bupa Care Services (New Zealand) Ltd [2017] NZHC 499.

4      N v Bupa Care Services (New Zealand) Ltd [2017] NZSC 49.

The police questioned me about personal orders I advised that if they had a legal document of personal orders they would have been to the court hearing that issued them.  As they were not then they must be holding a copy given by the complainant.  They confirmed it was given to them.  I advised they were therefore not bound by them (under the trespass act, police hold a record.  The same applies to personal orders).  They were not holding a valid document and if they were they had no obligation to act on them.

I also gave them some sheets of information, but they refused to take them. The police advised that [N] was held in a secure rest home and was held

under the Mental Health act.

I advised the police that I was [N’s] principle care giver and husband and that [N] was not in a secure rest home and is totally released from the mental health act.

NOTE:  I am aware that the police have authority to act under the mental health act, which is why I specifically emphasised to them [A] was not held under its provisions.

To gain entry they then cited another act Care & protection act section 12.

Ref B

And said they were exercising a “Duty of Care” and attempted forced entry with a silverish crowbar about 15” long.   I partially prevented damage by unlocking the door.

The police physically pushed me back past my wife and took her away.

I walked out and observed they had an A4 size mug-shot of me and more paperwork underneath and were carrying out a confirmation of who I was by comparing me with the mug shot.

I believe this information caused them to escalate their operation to forced entry.

I believe they are therefore holding misleading information that defames me.

I advised the police they were taking [N] from a safe place and putting her back in an unsafe place where [N] has no rights and deteriate’s [sic] due to the environment

The police advised my wife has dementia and that is why she is deteriating

[sic] in health.

I advised that they were wrong and their submission is inconsistent with previous history and I have more insight than they do.   [N’s] condition improves at home and [N] is supported in this by [N’s] GP.

The truth is [N’s] health deteriates [sic] in provider care due to her unusual condition not her dementia.

[8]      The application then goes on to advance arguments under the New Zealand Bill of Rights Act 1990.  These are directed to the overall submission that Mrs N is currently being “detained by the police in [the facility] without any support”.  Mr N also submits that the police and the facility had no justification for forcibly removing Mrs N from her home and returning her to the facility.

The hearing today

[9]      Matters have moved on significantly since Mr N filed the application on behalf of his wife.  When the matter was called today, Mr N advised me that his wife is no longer at the facility or in the care of the police.   Instead, she is at another location being cared for by a friend.   Counsel for the police advised me that she understood Mr N went to the facility yesterday and removed his wife.  I say no more about that incident, because it may need to be the subject of further scrutiny by the courts in the future.

[10]     What is important for present purposes is that the habeas corpus procedure relates to situations where a person is being unlawfully detained.  Given yesterday’s events, Mr N can no longer allege his wife is being unlawfully detained by either the facility or the police.  She is effectively now under his control.  Whether or not that is lawful may also be a matter the courts will be required to determine in the future.

Result

[11]     The application is dismissed.

Lang J

Solicitors:

Meredith Connell, Auckland