THENAMES AND ANY IDENTIFYING PARTICULARS OF EACH OF THE APPLICANTS ARE SUPPRESSED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2010-485-379 [2017] NZHC 2629
IN THE MATTER OF Applications for Declarations and
Compensation for involuntary placement in Psychiatric Institutions leading to breach of a range of domestic and international human rights instruments
BETWEEN
S
First ApplicantM
Second ApplicantC
Third ApplicantAND
ATTORNEY-GENERAL First Respondent
CAPITAL & COAST DISTRICT HEALTH BOARD
Second Respondent
WAITEMATA DISTRICT HEALTH BOARD
Third Respondent
MENTAL HEALTH REVIEW TRIBUNAL
Fourth Respondent
A DISTRICT INSPECTOR Fifth Respondent
S v ATTORNEY-GENERAL [2017] NZHC 2629 [30 October 2017]
Hearing: 25 July 2016 - 2 September 2016
Further memoranda, conferences and applications 16 and
27 September 2016, 7 February, 13 March, 21 March, 3 April,
21 April, 1 June, 7 June, 12 June, 26 June, 7 July, 24 July,
18 August and 25 September 2017 and further hearing on
28 September 2017Counsel:
T Ellis and S Ruthven for Applicants
M Coleman and M McKillop for First Respondent
D La Hood, I Auld and K Orpin-Dowell for Second and Third
RespondentsP Gunn for Fourth and Fifth Respondents (abiding) B Wilson assisting the Court
Judgment:
30 October 2017
JUDGMENT OF ELLIS J
Table of Contents
Paragraph No.
STRUCTURE OF THIS JUDGMENT [4] THE CLAIM IN OVERVIEW [6] PROCEDURAL MATTERS AND THE TRIAL PROCESS [13]
The litigation guardian issue [13]
Post-hearing development – Mr Burgering’s death [22] The applicants’ evidence [26] Process [26]
Mr Burgering and Dr Webb [32] The respondents’ evidence [35] Site visits [40] Alleged unfairness of the proceeding [41]
RELEVANT LEGISLATION [43] The criminal justice gateways to the detention of those
with intellectual disability [43]
The CPMIP Act and the IDCCR Act [51]
Compulsory treatment and compulsory care [63] Compulsory treatment under the MHCAT Act [63] Compulsory care under the IDCCR Act [68] Duration of orders [70] Special patients and special care recipients [70]
Patients subject to compulsory treatment orders
under the MHCAT Act [74]
Those subjects to compulsory care orders under
the IDCCR Act [76] Oversight mechanisms [79] Rights of review: MHCAT Act [79]
Rights of review: the IDCCR Act [84] Rights and complaints: MHCAT Act [87] Rights and complaints: IDCCR Act [89] DHB complaints procedures [93] District Inspectors [94] The Mental Health Review Tribunal [99] The Health and Disability Commissioner [100] The Ombudsman/NPM [102] The Human Rights Commission [115]
Standards, audits and guidelines [116]
FACILITIES FOR OFFENDERS WITH INTELLECTUAL
DISABILITIES [122] The Units [128] Wellington [129] Auckland [133]
Layout of Units [135]
Staff [140]
THE APPLICANTS AND THEIR INTERACTIONS WITH
FORENSIC SERVICES [144] Mr S [145] Presentation [162]
Mr M [167]
Presentation [184] Mr C [188] Presentation [198]
Summary: the bases for the applicants’ initial
and ongoing detention [202]
SECTIONS 9 AND 23(5) OF THE NZBORA [206] The content of the s 9 right [212] The content of the s 23(5) right [215] Taunoa [218]
Other cases in which a breach of s 23(5)
has…
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- AGLC
- S v Attorney-General [2017] NZHC 2629
- Case
- [2017] NZHC 2629
- Decision Date
CaseChat Overview and Summary
The court found that the applicants' claims were largely unsubstantiated. The court found no evidence of a breach of the applicants' rights under the NZBORA or any relevant standard. While the applicants had experienced some difficulties and challenges during their detention, the court found that these were not due to any intentional wrongdoing by the staff or the system. The court concluded that the applicants had been treated with respect and as individuals throughout, and that their care had improved over time.
The court dismissed all of the applicants' claims, finding that there was no evidentiary basis for a finding of breach of either ss 9 or 23(5) of the NZBORA. The court praised the staff who had cared for the applicants, describing them as a devoted group of medical professionals committed to improving the lives of those like the applicants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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