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 Applicant

M
Second Applicant

C
Third Applicant

AND

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 2017

Counsel:

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
Respondents

P 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S v Attorney-General

Details

AGLC: S v Attorney-General [2017] NZHC 2629
Case: [2017] NZHC 2629
Decision Date: 30 October 2017

CaseChat Overview and Summary

In S v Attorney-General, three applicants, each intellectually disabled, challenged their detention and treatment in forensic units. The applicants argued that their detention and treatment constituted a breach of their human rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The court considered various aspects of the applicants' claims, including their detention, treatment, and living conditions, as well as the adequacy of the review processes and oversight mechanisms in place.

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