S v Attorney-General
[2017] NZHC 2629
•30 October 2017
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 been found [221]
Cases in which a breach of s 23(5) has been
asserted but not established [225] Positive duties under s 23(5) [234] The standard of care [242]
Conclusions [245]
FIRST, THIRD AND THIRTEENTH CAUSES OF ACTION –
SEXUAL VIOLATION OF MR S [249] Narrative of relevant events [253] The claims [277]
Failure by the DHB to provide a safe place
of detention [277]
Failure by the DHB to provide “preventative
therapy and education” or condoms [288]
Failure by the DHB to conduct a prompt and
impartial inquiry [289]
Failure by the DHB to provide Mr S with
legal advice [292] Failure by the DHB to facilitate a police complaint [293] ACC claim [307]
Absence of an impartial investigation by the
District Inspector [308] Conclusions [309]
FOURTH CAUSE OF ACTION – REHABILITATION [310] Preliminary comment [312] Scope of the fourth cause of action [312] Rehabilitation [315] The relevance of changes over time [318]
What services are provided? [334]
Range and frequency of activities [348]
Transitioning to the Community [352] Contact with the outside world [360] Correspondence [362]
Visits [363] Mr S [369] Mr C [374] Telephone calls [376] Access to lawyers [381]
Leave [386] Mr M [391] Mr S [398]
Conclusions [399]
FIFTH CAUSE OF ACTION – SEXUAL RELATIONSHIPS [400] The evidence [402] Sex [402] Absence of written policies [415]
Sex and relationship education [417] Condoms [422] Masturbation [428] Pornography [431] Discussion [434] Sex [434] Absence of written policies [438]
Sexual and relationship education [440] Condoms [443] Masturbation [448] Pornography [452] Conclusions [457]
SIXTH CAUSE OF ACTION – USE OF SECLUSION
AND RESTRAINT [458] Preliminary comment [458]
Regulation of the use of seclusion and restraint
in forensic units [463] Legislation [463] Applicable standards [468]
Guidelines under the IDCCR Act [473] Ministry of Health Guidelines [475] DHB Policies [477]
Seclusion and restraint in practice [483] Prophylactic measures [485] Restraint [490] Seclusion [495]
Management following an incident of
challenging behaviour [503] Reduction and elimination of seclusion [506] Record keeping and debriefing [507]
Night safety [509] The applicants’ experiences of seclusion and restraint [520] Mr M: 1 – 2 May 2007 [522]
Mr C: self seclusion [547] Mr S [565] PRN and “chemical restraint” [568]
Analysis of the claims [574]
Seclusion and restraint a “solitary confinement
regime” in breach of ss 9 and 23(5) NZBORA? [574]
Night safety procedures [597]
Absence of detailed policies about seclusion and
restraint and failure regularly to review such policies [602] Absence of s 148 guidelines [605] Section 130 MHCAT guidelines [609] HDSSA standards [615]
Conclusions [620]
SIXTH CAUSE OF ACTION – FIRST APPLICANT’S
CORRESPONDENCE [621] Facts [624] Discussion and conclusion [627]
SEVENTH CAUSE OF ACTION – MENTAL HEALTH
REVIEW TRIBUNAL [630] Facts [631] Discussion and conclusion [635]
EIGHTH CAUSE OF ACTION – LIVING CONDITIONS
AT PORIRUA HOSPITAL [638] Preliminary comment [639]
Reasonable living conditions comparative to a
‘home-like’ accommodation [641] General condition of the Units [644] Sanitary facilities [652] Personal belongings [657] Privacy [661] Conclusions [666]
NINTH CAUSE OF ACTION – DISCRIMINATION AND
ARBITRARY DETENTION [668] The alleged discrimination [669] Discrimination: the law [671] Discussion [675] Arbitrary detention [686] Section 31(4) CPMIP [693] Executive detention? [695]
Breach of natural justice [698]
Non-compliance with specified timeframes [699] Section 76 MHCAT Act: the pleaded claims [707] Section 76 MHCAT Act: the unpleaded claims [711] Discussion [714] Conclusions [722]
TENTH CAUSE OF ACTION – MEDICAL CARE
AND CONSENT [724]
Alleged breach of s 23(5): inadequate medical care/
inappropriate medication [726] Access to medical care generally [734] Mr C’s dental treatment [735] Medication error [761] Conclusion [767]
Alleged breach of s 11 NZBORA: consent to
medical treatment [771] Informed consent and capacity [775] Conclusion [785]
ELEVENTH CAUSE OF ACTION – REVIEW AND
COMPLAINTS PROCEDURES [788]
Failing periodically, regularly or automatically to review the basis for
the applicants’ continued detention [791]
Failing to provide a review by an independent judicial body of the
lawfulness of the applicants’ continued detention [794]
Failing to advise the applicants of their right to obtain a second opinion
from a medical practitioner in respect of the medical assessment [805]
Failing to review interrogation rules, instructions, methods and practices, and arrangements for the custody and treatment of Special Patients
or Care Recipients, in breach of Article 11 CAT [806]
Failing to give the applicants their NZBORA rights prior to undertaking any medical assessment which forms the basis of their continued
detention [808]
Failing to provide applicants with the right to be heard in person, or through legal representation during the “proceedings” determining their continued detention [809]
Failing to provide the applicants with legal representation in respect of
the medical assessments [811]
Failing to provide the applicants with written and/or verbal reasons for
their continued detention [812]
Failing to provide the applicants with the criteria for termination of
their continued detention [813] Failing to provide an effective and confidential complaints procedure [815] Failing to provide procedural safeguards for the applicants’ liberty [820]
Breach of Articles 12, 13, 15 and 15 of the Convention on the Rights of
Persons with Disabilities [821]
Breach of Right 10 in the Code of Health and Disability Services
Consumer Rights (Right to Complain) [823] TWELFTH CAUSE OF ACTION – TOTALITY [824]
SUMMARY [826] Litigation guardian [827]
First, third and thirteenth causes of action – sexual assault
of Mr S in 1999/2000 [828] Fourth cause of action – rehabilitation [829] Fifth cause of action – sexual relationships [830] Sixth cause of action – seclusion and restraint [831] Sixth cause of action – Mr S’s correspondence [832] Seventh cause of action – MHRT decision [833]
Eighth cause of action – living conditions at
“Porirua Hospital” [834]
Ninth cause of action – discrimination and
arbitrary detention [835] Tenth cause of action – medical care and consent [837] Eleventh cause of action – periodic reviews [839] Twelth cause of action – totality [840]
CONCLUDING REMARKS [841]
[1] Each of the three applicants, Mr S, Mr M and Mr C, is intellectually disabled.1 Each also has other conditions which mean that he falls within the statutory definition of “mentally disordered”. More specifically:
(a) Mr S has a mild to moderate intellectual disability, is autistic and also has an intermittent bi-polar affective disorder.
(b)Mr M has a moderate intellectual disability and a personality disorder with borderline anti-social and narcissistic personality traits.
(c) Mr C has autism, a schizoaffective disorder, a mild intellectual disability and epilepsy.
[2] Historically, all three men have been charged with violent offending of a moderately serious kind. They have also been involved in many other acts of violence that have not been the subject of criminal charges. Their respective disabilities meant that, for the period covered by their claims, they were not dealt with through the criminal justice process. Rather, they have been detained and treated in medium secure forensic hospital units controlled and operated by the Capital and Coast District Health Board (CCDHB) and Waitemata District Health Board (WDHB), on the grounds that their clinicians and the Courts have considered
that they continue to pose a risk of harm to others and to themselves.2
[3] In these proceedings Messrs S, M and C have challenged (through their litigation guardians) the fact, circumstances and conditions of their detention from
2000 onwards. They say that the operation of the statutory provisions authorising their initial and continued detention are unlawfully discriminatory in breach of s 19 of the New Zealand Bill of Rights Act 1990. They seek declarations that aspects of their treatment while detained constituted torture or was cruel and inhumane, in
breach of ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA).
1 In very general terms, each has an IQ of less than 70. The statutory definition of “intellectual disability” is set out at [60] and [61] below.
2 Mr M is no longer subject to a compulsory treatment or care orders and lives in supported accommodation in the community.
They claim their detention has been punitive rather than protective and was, or became, arbitrary, in breach of s 22 of the NZBORA.
STRUCTURE OF THIS JUDGMENT
[4] This judgment is structured in two broad parts. The first is in the nature of background, and addresses:
(a) the claim in overview;
(b)procedural matters and the trial process, including: (i) the litigation guardian issue;
(ii) the applicants’ witnesses; (iii) the respondents’ witnesses; (iv) the site visits; and
(v) alleged unfairness of the process; (c) the relevant legislation, namely:
(i)the criminal justice gateway to the detention of those with intellectual disabilities;
(ii)the legislative provisions governing their continued detention, the conditions of their detention and their treatment; 3
(iii) the relevant oversight mechanisms; and
(d) the (largely uncontested) evidence about:
3 More specific statutory provisions and guidelines (such as those which relate, for example, to the use of seclusion and restraint) will be addressed under the specific causes of action which relate to the issues with which they deal.
(i)the facilities in which the applicants have been detained over the years; and
(ii)the applicants themselves, including their personal history, circumstances and medical presentation and the way in which the relevant statutory processes have applied to them.
[5] The second part of this judgment essentially addresses the specific causes of action. But because sections 9 and 23(5) of the NZBORA form the basis for the majority of the applicants’ claims, a discussion about those sections and the Court’s proposed approach to them is included at the beginning.
THE CLAIM IN OVERVIEW
[6] The claim was originally filed in 2010 and was amended subsequently, and again in October 2014. Its focus from a temporal perspective is on the applicants’ detention and treatment between 2000 and 2012.4 Because of the nature and time-span of the claim it engages a number of statutes, both current and repealed, and the sometimes complex interplay between them. In particular, it involves the operation of, and processes under:
(a) part 7 of the Criminal Justice Act 1985 (the CJA)5;
(b)the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act);
(c) the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act); and
(d) the Intellectual Disability (Compulsory Care and Rehabilitation) Act
2003 (the IDCCR Act).
4 One aspect of the claim relates to events in late 1999.
5 Repealed in 2004.
[7] The second amended statement of claim contains some 13 causes of action and is nearly 600 paragraphs long. It contains a plethora of factual allegations spanning, as I have said, a 12 year period. Those allegations are said to give rise to numerous, overlapping grounds of legal challenge. The pleading was justifiably criticised by counsel for the respondents as prolix, repetitive and confusing.
[8] In the course of the six week trial:
(a) leave was sought and granted to amend the sixth cause of action; and
(b) other aspects of the claims were, quite properly, abandoned, namely:
(i)the second (negligence) cause of action relating to alleged sexual offending against Mr S in 1999/2000;
(ii) claims relating to the ban on smoking; and
(iii) claims alleging medical experimentation.
[9] No doubt due to the enormity of the task which he had set himself, Mr Ellis for the applicants did not pursue all aspects of the remaining causes of action at trial. In that way at least, the applicants’ case became narrower and more focused as the hearing went on.
[10] What remains of the claims may be summarised as follows:
(a) the first cause of action, which relates to sexual abuse said to have been suffered by Mr S at the hands of another patient, in 1999/2000;
(b)the third cause of action which also relates to these allegations of sexual abuse;
(c) the fourth cause of action which relates to aspects of the applicants’
care, treatment and rehabilitation;
(d) the fifth cause of action which relates to sexual expression;
(e) the sixth cause of action which principally concerns the use of restraint and seclusion but also includes an unrelated issue about Mr S’s correspondence;
(f) the seventh cause of action which concerns a decision of the Mental
Health Review Tribunal (the MHRT) on 29 March 2007 about Mr S;
(g) the eighth cause of action which relates to general living conditions at
“Porirua Hospital”;
(h)the ninth cause of action which focuses on the allegations of arbitrary detention and discrimination;
(i)the tenth cause of action which concerns issues of medical treatment and consent;
(j) the eleventh cause of action which relates to review processes;
(k) the twelfth cause of action which is essentially an omnibus or
“totality” claim; and
(l) the thirteenth cause of action which, again, relates to Mr S’s
allegations of sexual abuse in 1999/2000.
[11] As a matter of both practical and legal necessity, however, this judgment addresses only those of the factual claims which have some proper evidentiary foundation. I endorse and adopt the approach taken by the respondents in closing submissions, namely that where evidence was either not adduced or not put (in accordance with s 92 of the Evidence Act 2006), the relevant aspects of the claims are treated as abandoned.
[12] I also record at the outset that these proceedings are not, and could never be, some form of Commission of Inquiry into past and present forensic disability
services in New Zealand. That is not this Court’s function. And nor is it the Court’s function to second-guess clinical decisions made in good faith, or issues of disability or clinical policy.
PROCEDURAL MATTERS AND THE TRIAL PROCESS The litigation guardian issue
[13] When the proceedings were first filed in March 2010 an application was also made to commence proceedings without a litigation guardian.6 Dobson J declined that application on the grounds that, given the applicants’ disabilities, r 4.30 required a litigation guardian to be appointed.7
[14] Following that decision, there was an application that Mr Colin Burgering be appointed as litigation guardian for Messrs S, M and C. Mr Burgering was a member of the Justice Action Group (JAG) and had, from time to time, taken on a support and advocacy role for the applicants.8 That application was granted by MacKenzie J.9
[15] Subsequently, however, the applicants filed a further application seeking to dispense with their litigation guardian and seeking a declaration that r 4.30 was unlawful. But Ronald Young J held that r 4.30 was not discriminatory and did not breach the Convention on the Rights of Persons with Disabilities 2006 (CRPD).10
He held the rules did not limit the rights of intellectually disabled people to access the courts. Rather, he said that the litigation guardian procedure facilitated their
equal access. He said the Convention anticipated such an accommodation.11
6 The application was consistent with one of the pleadings repeated throughout the statement of claim, namely that High Court Rule 4.30 (which requires incapacitated persons who are involved in proceedings to have a litigation guardian) was unlawfully discriminatory.
7 S v Attorney-General HC Wellington CIV-2010-485-379, Minute of Dobson J, 22 June 2010.
8 JAG is a lobby group concerned with promoting the rights of those with intellectual disabilities.
9 S v Attorney-General HC Wellington CIV-2010-485-379, Minute of McKenzie J, 13 April 2011.
10 S v Attorney-General [2012] NZHC 661.
11 In the context of that interlocutory skirmish the applicants resiled from their earlier acceptance that they were incapacitated persons in terms of HCR 4.29. Although it was suggested that that question (and the relevant medical evidence) could be explored at trial, it was not something that was pursued before me.
[16] Notwithstanding Ronald Young J’s reasoned and express findings on the issue Mr Ellis sought to relitigate it before me. In response to the proposition that the matter was res judicata, he said that it was not, because since Young J’s decision, the UN Committee on the Rights of Persons with Disabilities has issued General Comment 1 on art 12 of the CRPD.
[17] Article 12 relevantly provides that:
1.States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2.States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3.States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4.States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5.Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
[18] General Comment 1 states that the effect of art 12 is that lacking the “mental capacity” to make a particular decision is not adequate grounds for being considered to lack “legal capacity” to make that decision. It also states that mental capacity testing on a functional basis (that is, the situational competency approach taken in New Zealand, whereby medical practitioners examine a person’s ability to absorb, understand and consider information about a particular subject, and to communicate a decision) is unlawful.
[19] This unlawfulness is said to be a result of “mental capacity” testing being discriminatorily applied to people with disabilities, and the impossibility of knowing “the inner workings of the human mind”. The Committee expressed the view that the CRPD prohibits substituted decision-making for people with intellectual disabilities, and requires States to replace such regimes with “supported” decision-making regimes.
[20] Putting to one side the controversy created by this aspect of the General Comment12, its recent release does not enable the Court to ignore the operation of the res judicata doctrine in relation to this issue. Ronald Young J has already expressly held that the litigation guardian rules were not inconsistent with the CRPD. He made that finding in relation to these proceedings and as between the present parties. That the Committee has subsequently expressed a different view does not alter the finality of that determination.13
[21] All I will therefore say about the General Comment is that its import would appear to be that treating those with intellectual disabilities differently from those without such disabilities will always be discriminatory, however beneficial or preferential such treatment might be. It certainly seems to run contrary to most States’ parties understanding of the Convention, including New Zealand’s. The New Zealand understanding finds expression (for example) in the Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008, which substituted status-based disability exclusions throughout previous New Zealand legislation (which did discriminate against people on the basis of their
disabilities) with capacity-based exclusions.14
12 See for example Melvyn Freeman and others “Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities” (2015) 2(9) The Lancet Psychiatry 844.
13 There was no appeal from Ronald Young J’s decision.
14 This meant that references to persons subject to the MHCAT Act (and the previous Mental Health Act 1969) throughout New Zealand legislation were replaced by references to people subject to personal and/or property orders under the PPPR Act. PPPR Act orders can arise for any number of reasons giving rise to incapacity. It is not a status-based refusal of legal capacity.
Post-hearing development – Mr Burgering’s death
[22] In February 2017, and before I had had the opportunity to issue this judgment, the Court received advice that Mr Burgering had died. The relevant High Court Rules say that, in those circumstances, no further step may be taken in a proceeding unless and until another guardian is appointed. I formed the preliminary view that that meant that a new litigation guardian (or guardians) should be appointed prior to releasing this judgment. Regardless of whether issuing a judgment can strictly be regarded as a “step in the proceeding” it seemed to me that, in the absence of a litigation guardian, any appeal rights that the applicants might wish to exercise would undoubtedly be prejudiced. Moreover, it had been agreed with counsel at the end of the hearing that the litigation guardian might well have an important role in explaining the judgment to the applicants in a way that did not cause them anxiety or distress.
[23] The need to appoint a new litigation guardian or guardians was complicated by the fact that proceedings were then in train to have Mr S’s sister appointed as his welfare guardian to have Mr C’s father appointed as Mr C’s welfare guardian.15 On the authority of this Court in B v Waitemata District Health Board those appointed as a person’s welfare guardian for general purposes are also required to act as that person’s litigation guardian.16
[24] But Mr Ellis disputed the correctness of B and wished to have Mr Michael Bott appointed as the litigation guardian for both Mr S and Mr C, as well as Mr M (who does not have a welfare guardian) and wished to have a further hearing about the issue. One was duly scheduled for late September 2017.
[25] Just prior to that hearing, however, a process was agreed between counsel whereby a District Inspector would speak to both Mr S and Mr C about their wishes and also to their respective welfare guardians. The outcome of that process was advice to the Court that both men wished their welfare guardians to be their litigation guardians. Orders were made to that effect. Mr Bott was appointed as Mr M’s
litigation guardian without opposition.
15 Those appointments were made on 19 June 2017 and 16 May 2017 respectively.
16 B v Waitemata District Health Board [2013] NZHC 852, (2013) 21 PRNZ 429.
The applicants’ evidence
Process
[26] The applicants’ respective disabilities presented obvious difficulties in terms of their capacity (in the literal sense) to give evidence and to be cross-examined. Their literacy skills range from non-existent to very modest, their concentration spans are limited and each suffers from some kind of anxiety disorder. They tend to respond poorly, and sometimes violently, to situations of stress. For those who are unfamiliar with them, they can be difficult to understand.
[27] Initially, briefs of evidence written by Mr Burgering and signed by the applicants were prepared. But the respondents expressed concern that the briefs contained no indication that they had been read aloud and explained to, or understood by, the applicants (as required for the swearing of an affidavit by an illiterate person in r 9.84). There can be no doubt that the applicants would have been unable to read these briefs when giving evidence and, as I have said, would have found any Court appearance (let alone cross-examination) extremely stressful.
[28] For these reasons, counsel for the respondents proposed, and then facilitated, a process whereby the applicants’ evidence was given by a DVD recording made before the hearing, pursuant to an order made under ss 103 and 105(1)(a)(iii) of the Evidence Act 2006, without the need for cross-examination. The following procedure was adopted:
(a) the applicants each underwent an evidential video interview by a specialist interviewer experienced in conducting evidential video interviews with intellectually disabled people;
(b)the interviewers were provided by the New Zealand Police, who have specialist expertise in this area. The Police also organised the logistics of conducting the interviews;
(c) the interviewers were provided with material to assist them to understand the case, as agreed between the parties;
(d)counsel conferred, both with each other and with the interviewers, to create interview plans, in order to ensure that the interviews canvas all of the matters that counsel wished the claimants to be questioned about;
(e) counsel monitored the interviews and provided feedback and direction to the interviewers at pre-determined stages throughout the interviews; and
(f) the interviews were conducted where each of the applicants reside, in order to minimise stress on them.
[29] As a result, all the clinicians who gave evidence at trial who had seen the DVDs and who were familiar with the applicants confirmed that the recordings showed them at “their best”.
[30] This process and, indeed, the conduct of the respondents throughout these proceedings, were very fairly and properly praised by Mr Ellis in his opening submissions. He said:
Indeed the way the litigation has been conducted encapsulates the notion of the Crown—an ideal litigant. Counsel is grateful for the very helpful approach adopted.
[31] I agree.
Mr Burgering and Dr Webb
[32] The other evidence called by Mr Ellis for the applicants was from the (now) late litigation guardian Mr Burgering and from Dr Olive Webb, a psychologist who gave evidence as an expert.
[33] Mr Burgering’s evidence was brief and I need say no more about it here. It
is, however, necessary to say a little more about the evidence of Dr Webb.
[34] Dr Webb said that she had reviewed all the files relating to the applicants care and treatment over the period covered by the claim. Those files are, undoubtedly, voluminous. She had also interviewed the applicants and spoken to a number of their clinicians. She presented as a woman of strong views about intellectual disability policy and the care and treatment of those who are intellectually disabled. I do not doubt the strength of her convictions or that they are well motivated. But it is fair to say, however, that by and large I did not find her evidence substantially helpful. The language in which she expressed some of her views was unnecessarily emotive; it detracted from the content and gave rise to doubts about her impartiality. Nor, in my view, were her sometimes strident criticisms of the care that the applicants have received over the years justified. Nonetheless I do not discount her evidence completely and will refer to aspects of her evidence in the course of this judgment.
The respondents’ evidence
[35] The respondents called a number of witnesses whose evidence covered three general areas.
[36]
intell
The ectual d
(a)
evidence of the first group of witnesses explained the forensic isability and mental health system. The witnesses in that group were:
Ms Rachel Daysh, who is the National Manager of Intellectual
Disability Services at CCDHB. Her role includes management of the
National Intellectual Disability Care Agency (NIDCA);
(b)
Dr Amanda Smith, who is the Chief Advisor, Disability, and Director for the IDCCR Act at the Ministry of Health; and
(c)
Dr Anthony Duncan who is the National Advisor in relation to the
IDCCR Act. He was formerly Deputy Director and Senior Advisor in
Mental Health at the Ministry of Health and gave evidence about the
operation of the MHCAT Act.
[37] The evidence of the second group of witnesses related to the Pōhutukawa Unit at the Mason Clinic in Auckland, where Mr M was, for a time, detained and where Mr C remains detained. The witnesses in that group were:
(a) Dr Jeremy Skipworth, who is the Clinical Director at the Mason
Clinic; and
(b)Dr Mhairi Duff, a clinical psychologist and psychiatrist, who works at the Pōhutukawa Unit. Dr Duff is currently the Responsible Clinician for Mr C and was previously the Responsible Clinician for Mr M before his transition to community care.
[38] The third group of witnesses gave evidence relating to the Haumietiketike Unit at Ratonga-rua-o-Porirua in Wellington, where all the applicants have at one point or another been detained and where Mr S remains, in a step-down cottage. The witnesses in that group were:
(a) Dr Justin Barry-Walsh, a forensic psychiatrist who was Mr S's
Responsible Clinician on and off for a number of years;
(b)Mr Nigel Fairley who was, until recently, the Clinical Director at the Regional Forensic Mental Health Services, also known as Porirua Hospital or Ratonga-rua-o-Porirua;
(c) Dr Anthony Duncan who as well as having held the posts already mentioned, is also a forensic psychiatrist and has previously been one of Mr S’s Responsible Clinicians;
(d) Dr Nick Judson, who was, at various times, and is presently Mr S’s
Responsible Clinician; and
(e) Mr Paul Oxnam who is a clinical psychologist who worked with Mr S for a number of years. He is presently the Clinical Leader of Intellectual Disability Services for CCDHB and has been instrumental
in devising and implementing the internationally acclaimed “Stepping
Stones” programme.
[39] In addition to those three groups of witnesses, the respondents also called Ms Louisa Medlicott, a clinical psychologist as an expert witness. Ms Medlicott undertook a comprehensive review of the documentation and interviewed the applicants. Her evidence was careful, thorough and understated. I found it substantially helpful on a number of issues.
Site visits
[40] After the delivery of the applicant’s opening submissions, the Court and counsel undertook site visits to both Haumetiketike at Porirua (where Mr S still lives) and Pōhutukawa at the Mason Clinic in Auckland (where Mr C still lives). We were shown around the facilities by Dr Duncan (at Porirua) and Dr Duff (in Auckland). They were also able to answer questions. I did not meet either Mr S or Mr C. The visits were extremely useful in terms of general orientation and understanding and also in terms of certain specific aspects of the claims.
Alleged unfairness of the proceeding
[41] Mr Ellis at one point submitted that it was impossible for the applicants effectively to bring a proceeding challenging their detention and the conditions of detention, because there is an insurmountable power imbalance between them and the DHBs.
[42] Although I necessarily acknowledge that the respondents are comparatively well resourced, I do not accept that the proceedings were unfair. The respondents made every possible additional accommodation to facilitate the applicants’ claims. As well as the matters already noted above (in relation to the applicants’ evidence):
(a) clinicians made themselves available to speak with Dr Webb in the preparation of her expert evidence; and
(b)the respondents provided extensive evidence on all issues raised by the claim, notwithstanding the deficiencies in the pleadings and notwithstanding that many of those issues were not addressed or supported by expert or other evidence called by the applicants themselves.
RELEVANT LEGISLATION
The criminal justice gateways to the detention of those with intellectual disability
[43] Between 1985 and 2004, part 7 of the CJA conferred powers on the Courts in relation to a person who was charged with imprisonable criminal offending but was “under disability”. By virtue of s 108 of the CJA, a person was “under disability” if, because of the extent to which that person was “mentally disordered”, that person was unable (a) to plead; or (b) to understand the nature or purpose of the proceedings; or (c) to communicate adequately with counsel for the purposes of conducting a defence. The decision was made by a Judge, on the evidence of two specialists who provided reports to the Court.
[44] Up until 1992, the term “mentally disordered” had been specifically defined in the Mental Health Act 1969 (the MHA) to include intellectual disability.17 So when a Court was confronted by an alleged offender who appeared to be intellectually disabled it could order that the person be detained for the purpose of preparing a psychiatric report to determine whether he or she was under disability.18
If a finding of disability was made, the Court was then provided with alternative dispositional options.
[45] More specifically, s 115 of the CJA authorised a Court to order that a mentally disordered offender be detained in a hospital as a special patient or, if the
Court was satisfied on the basis of medical evidence that it would be safe in the
17 The relevant part of the definition would now be regarded as infelicitously phrased, but read “Mentally subnormal—that is, suffering from subnormality of intelligence as a result of arrested or incomplete development of mind”.
18 CJA s 121.
interests of the public to do so, it could make an order that the person be detained in a hospital as a patient or immediately released.
[46] If the person was to be detained as a special patient, the criminal proceedings were not stayed and could, in certain circumstances, and within specified time frames be reactivated.19
[47] If an order was made that the person be detained as a patient, then the relevant criminal proceedings were permanently stayed.20
[48] But when, in 1992, the MHA was repealed and replaced by the MHCAT Act that Act contained a new definition of “mental disorder”:
… an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition,21 of such a degree that it—
(a) poses a serious danger to the health or safety of that person or of others; or
(b) seriously diminishes the capacity of that person to take care of himself or herself [.]
[49] This new definition did not cover people with an intellectual disability, unless they also had a mental disorder. But for alleged offenders who did fall within this narrower definition, the available options were more or less as before.
[50] The effective exclusion of people with intellectual disability simpliciter from the MHCAT Act appropriately recognised that intellectual disability involves limitations in intellectual functioning, rather than a mental illness. But the exclusion also left a legislative lacuna as far as intellectually disabled offenders were concerned. This resulted in some such people being inappropriately detained in
prison or within the mental health services, or discharged into the community.
19 CJA s 116(4) and (6)(a), discussed further in relation to the ninth cause of action, below.
20 CJA s 116(7).
21 Disorders of cognition are typically associated with organic brain dysfunction arising, for example, from drug-related delirium, head injury, severe depression or dementia and usually
involve disruption of the formal mechanisms of thought such as memory, judgment and insight. “Volition” has no clear psychiatric meaning although the Ministry of Health Guidelines to the MHCAT Act (November 2012) indicate that it will include: catatonic excitement or withdrawal; depressive stupor; passivity phenomena and command hallucinations; and a motivational syndrome found in the major psychoses.
The CPMIP Act and the IDCCR Act
[51] This lacuna was eventually filled in 2003 with the dual enactment of the
CPMIP and the IDCCR Acts.22
[52] Section 3 of the CPMIP Act provides that its purpose is:
… to restate the law formerly set out in Part 7 of the Criminal Justice Act
1985 and to make a number of changes to that law, including changes to—
(a) provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b) provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c) provide for a number of related matters.
[53] As s 3 makes clear, the CPMIP Act speaks in terms of offenders who are “unfit to stand trial” rather than “under disability”. The “unfitness” threshold is defined in the same way as the earlier “disability” threshold except for the crucial use of the term “mental impairment” rather than “mental disorder”. Although “mental impairment” is not defined in the CPMIP Act itself, it is plainly (on both a literal and purposive interpretive approach) wide enough to encompass intellectual
disability.23
[54] As s 3 also indicates, the CPMIP Act provides that a defendant cannot be found to be unfit to stand trial unless the Court is satisfied on the balance of probabilities that he or she caused the act or omission that forms the basis of the offence with which he or she has charged.24
[55] Although the CPMIP Act repealed Part 7 of the CJA, it did not repeal the
MHCAT Act, which continued to apply to:
22 Although enacted in 2003, the two Acts did not come into force until 2004.
23 The term “intellectual disability” itself is defined in the IDCCR Act, and is set out later, below.
24 Section 9.
(a) those offenders who are a mentally impaired but not intellectually disabled; and
(b)those intellectually disabled offenders who, by virtue of a co-existing mental disorder have, prior to 2004, been detained as special patients or patients (and are subject to compulsory treatment orders) under the MHCAT Act.
[56] The dispositional options available to the Courts under ss 24 and 25 of the CPMIP Act when dealing with mentally impaired offenders are similar to those that were available under s 115 of the CJA in relation to offenders who were mentally disordered. The principal difference is that a Court confronted by an intellectually disabled person who is charged with an imprisonable offence can order him or her to
be detained as a “special care recipient” under the IDCCR Act.25 Such an order can
only be made if the Court is satisfied such an order is necessary “in the interests of
the public or any person or class of person who may be affected …”.26
[57] The other important difference is that the principal alternative dispositional option is no longer that the person be “detained” as a patient under the MHCAT Act but rather that the person be “treated” as either a patient under that Act or as a “care recipient” under the IDCCR Act. While s 26 of the CPMIP Act deems such an order to be either a compulsory treatment order (under the MCHAT Act) or a compulsory care order (under the IDCCR Act) it leaves to the Court the determination whether:
(a) the compulsory treatment order takes effect as a community treatment order or as an inpatient order; or
(b)the compulsory care order will require the defendant to be detained in a secure facility or not.
[58] I interpolate at this point that notwithstanding the new terminology just
noted, I propose to use the term “patient” rather than “care recipient” when referring
25 CPMIP Act s 24. The parallel power to order detention of mentally disordered persons as a
“special patient” under the MHCAT Act remains.
26 CPMIP Act, s 24(1)(c).
to the applicants in this case. That is not intended to signify anything in particular other than a desire for consistent descriptors and the fact (discussed more fully below) that Mr S and Mr C have always been detained under the MHCAT Act, not the IDCCR Act.27
[59] So as the foregoing discussion already makes clear, the IDCCR Act was intended to work in tandem with the CPMIP Act and in parallel with the MHCAT Act. The stated purposes of the IDCCR Act are:28
(a) to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b) to recognise and safeguard the special rights of individuals subject to this Act; and
(c) to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.
[60] The term “intellectual disability” is defined in s 7(1) as meaning a permanent impairment that:
(a) results in significantly sub-average general intelligence; and
(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and
(c) became apparent during the developmental period of the person.
[61] And ss 7(3) and (4) elaborate that:
(3) For the purposes of subsection (1)(a), an assessment of a person's general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—
(a) as 70 or less; and
(b) with a confidence level of not less than 95%. (4) The skills referred to in subsection (1)(b) are—
27 Mr M was transferred from being a patient under the MHCAT Act to being a care recipient under the IDCCR Act, although that only occurred at a relatively late stage in his detention.
28 IDCCR Act, s 3.
(a) communication: (b) self-care:
(c) home living: (d) social skills:
(e) use of community services: (f) self-direction:
(g) health and safety:
(h) reading, writing, and arithmetic: (i) leisure and work.
[62] There are statutory mechanisms by which an intellectually disabled patient detained under the MHCAT Act can be transferred into the IDCCR Act regime.29
Compulsory treatment and compulsory care Compulsory treatment under the MHCAT Act [63] As noted above:
(a) s 44 of the MHCAT Act provides that where an order is made under either s 115(1) of the CJA or s 24(2) of the CPMIP Act that a person should be detained as a special patient, the person subject to that order is required be given “such care, treatment, training, and occupation” as if subject to a compulsory treatment order under that Act;
(b)s 116(4)(A) of the CJA deems an order made under s 115(2) of the CJA that the person be detained as a patient, to be a compulsory treatment order under the MHCAT Act;
(c) s 26 of the CPMIP Act deems an order made under s 25 of the
CPMIP Act that the person be treated as a patient to be a compulsory treatment order under the MHCAT Act.
29 See for example s 47A of the MHCAT Act.
[64] Compulsory treatment orders under the MHCAT Act are of two kinds:30
(a) a community treatment order; or
(b) an inpatient order.
[65] Obviously, where a court has ordered under the CJA or the CPMIP Act that a person be “detained” as a special patient or as a patient he or she will be treated as if he is subject to an inpatient order. But where an order is made under s 25(1) of the CPMIP Act an inpatient order may only be made where the court considers that the patient cannot be treated adequately as an outpatient.
[66] An inpatient order requires the patient to be detained in a specified hospital
for the purposes of treatment and “shall require the patient to accept treatment”.31
[67] A compulsory patient must accept treatment during the compulsory assessment period, and during the first month of the order. At any other time, a compulsory patient may only be treated by consent, or if consent cannot be obtained, in accordance with a second opinion given by an appointed psychiatrist. There is no power under the MHCAT Act to provide any other form of medical treatment.
Compulsory care under the IDCCR Act
[68] Under the IDCCR Act a special care recipient is liable to be detained in a secure facility. A secure facility is any place used to provide care to persons with intellectual disability with particular features designed to prevent a patient leaving that facility. Those who are not special care recipients can be made subject to either secure orders or supervised care orders. For those who are no longer subject to the criminal justice system, secure care can only be ordered if the Family Court considers supervised care poses a serious danger to the health or safety of the care
recipient or others.32
30 MHCAT Act s 28.
31 MHCAT Act s 30. “Hospital” means premises used to provide hospital mental health care in
terms of the Health and Disability Services (Safety) Act 2001 (HDSSA).
32 IDCCR Act s 45(3).
[69] Under s 47 a care recipient must accept the care properly given to him or her under the court order or the care plan. Care recipients are required to comply with every lawful direction given by his or her co-ordinator or care manager.
Duration of orders
Special patients and special care recipients
[70] Where a person is unfit to stand trial and an order has been made under either s 115 of the CJA or s 24 of the CPMIP Act that he or she is to be detained as a special patient under the MCHAT Act or as a special care recipient under the IDCCR Act, then he or she may only be detained as such pursuant to that order for up to half of the maximum sentence on the charge which led to the making of the order for detention.33
[71] If, at the expiry of half the maximum sentence, a certificate under the MHCAT or the IDCCR has been given to the effect that the person has become fit to stand trial, he or she may, at the direction of the Attorney-General:34
(a) be returned to court to face the original charge; or
(b) be held as a patient (under the MHCAT Act) or as a care recipient
(under the IDCCR Act).
[72] If the special patient/special care recipient remains unfit to stand trial at the expiry of half the maximum sentence, and no other change of status has been ordered in the interim, the Attorney-General must direct that the person is then to be held as a patient or a care recipient.35 Such a direction is then deemed to be a compulsory
treatment order or a compulsory care order as the case may be.36
[73] In short, after the expiry of half the maximum sentence for the qualifying original offence, a special patient or a special care recipient will (one way or
33 CJA, s 116(1); CPMIP Act, s 30. If the charge was punishable by life imprisonment then the relevant maximum detention period is 7 years under the CJA or 10 years under the CPMIP Act.
34 CJA, s 116(4); CPMIP Act, s 31(2).
35 CJA, s 116(6)(b); CPMIP Act, s 31(4).
36 CJA, s 116(6A); CPMIP Act, s 31(5).
another) no longer be “subject to the criminal justice system”. Any order for their
continued detention (as a patient or a care recipient) will be civil in nature.
Patients subject to compulsory treatment orders under the MHCAT Act
[74] If a person is detained as a patient pursuant to a compulsory treatment order under the MHCAT Act:
(a) the order expires after six months;37 but
(b)if the responsible clinician conducts a review under s 76 within 14 days of the expiry date and is satisfied that compulsory status should continue then he or she may apply to the Family Court for a six month extension of the order;38
(c) in determining such an application the Family Court the patient has a right to be heard, represented and to call evidence;39
(d)at the expiry of the first six month extension a further extension application can be made which, if granted, has effect indefinitely, unless and until the patient is released from compulsory status.40
[75] Notwithstanding that, if a patient’s responsible clinician considers a patient is
fit to be released from compulsory status he or she may so direct at any time.41
Those subject to compulsory care orders under the IDDCR Act
[76] Every care recipient must have a care and rehabilitation plan42 and there is a system providing for regular reviews of that plan. Reviews are initiated by a
patient’s compulsory care co-ordinator.43
37 MHCAT Act, s 33.
38 Section 34(2).
39 The Part 2 processes are incorporated by virtue of s 34(3).
40 Section 34(4).
41 Section 35.
42 IDCCR Act, ss 24-28.
43 Section 72. Compulsory care co-ordinators are appointed by the Director-General of Health under s 140 of the Act.
[77] There is also a requirement for regular six-monthly reviews of a care recipient’s condition by one or more specialist assessors to ensure that there is a continued need for compulsory care.44 If the assessor takes the view that there is no continued need for compulsory care the care co-ordinator can (on the advice of the specialist assessor) apply to the Family Court for the cancel a compulsory care order.45
[78] One key difference between compulsory treatment orders under the MHCAT and orders under the IDCCR Act is that compulsory care orders under the latter Act are always finite and may not be for a period of longer than three years (although they can be renewed).46 Expiry can be deferred when an application to renew is pending.47
Oversight mechanisms
Rights of review: MHCAT Act
[79] For so long as a compulsory treatment order is in force, the responsible clinician is required to undertake a six monthly review, after which he or she must produce a certificate of clinical review setting out whether or not the patient is fit to be released from compulsory status.48
[80] After a certificate of clinical review has been completed, any person to whom the certificate is sent may apply to the Mental Health Review Tribunal (MHRT) for a review of the patient's condition.49 District Inspectors are specifically charged with
reviewing such certificates and reports. 50 They discuss them with the patient and
then decide whether an application should be made the MHRT for a review of the
44 Sections 77-79.
45 Section 84.
46 Section 46(2).
47 Section 87.
48 MHCAT Act section 76(3). If the outcome of the review is that the patient is not fit to be released, s 76 requires the certificates to be sent to (inter alia) the patient, his or her welfare
guardian, a District Inspector and an official visitor.
49 Section 79.
50 District Inspectors and official visitors are appointed by the Minister of Health under s 94 of the MHCAT Act. Their role under that Act (and under the IDCCR Act) is discussed in more detail later, below.
compulsory treatment order.51 The MHRT’s jurisdiction is limited to a consideration of whether a patient is fit to be released from compulsory status.52 It cannot make recommendations as to the appropriateness of a patient's treatment. There is a right of appeal from the MHRT to the District Court.53
[81] Section 84 of the MHCAT Act also provides for patients to apply for an inquiry into various matters by a High Court Judge.
[82] Special patients have all the same review rights as compulsory patients, but there are different processes for clinical review and MHRT consideration, due to the continuing interaction with the CPMIP Act. More particularly, in the case of a special patient who was ordered to be detained following a finding of unfitness to stand trial, s 77(3) provides:
(a) at the conclusion of the review, the responsible clinician shall record his or her findings in a certificate of clinical review in the prescribed form, stating—
(i) that in his or her opinion the patient is no longer unfit to stand trial; or
(ii) that in his or her opinion the patient is still unfit to stand trial but it is no longer necessary that the patient should be subject to the order of detention as a special patient; or
(iii) that in his or her opinion the patient is still unfit to stand trial and should continue to be subject to the order of detention as a special patient:
[83] The link with the Attorney-General’s functions under the CPMIP Act is made
clear later in the subsection:
(c) in any case where the responsible clinician is of the opinion that the patient is no longer unfit to stand trial, or that the patient is still unfit to stand trial but it is no longer necessary that the patient should be subject to the order of detention as a special patient, that clinician shall also send a copy of the certificate of clinical review to the Attorney-General for the purposes of section 31 of the Criminal Procedure (Mentally Impaired Persons) Act 2003:
(d) despite section 31 of the Criminal Procedure (Mentally Impaired
Persons) Act 2003, on receiving a copy of the certificate of clinical
51 Section 76(9)-(11).
52 Section 79(7).
53 Section 83.
review under paragraph (c), the Attorney-General may, instead of exercising and performing the powers and duties under that section, apply to the Review Tribunal for a review of the patient's condition.
Rights of Review: the IDCCR Act
[84] There are broadly similar provisions in the IDCCR act. That Act requires that, following each six monthly review, the specialist assessor must produce a certificate as to whether or not the patient is fit to be released from compulsory status.54 That certificate is required to be forwarded to (inter alia) the care recipient him or herself, his or her welfare guardian and lawyer (if any) and the responsible District Inspector.55
[85] As well as the extensive powers of investigation and inquiry conferred by the IDCCR Act on District Inspectors, the Act also confers examination, inquiry and reporting powers on the High Court, which may be initiated at the Court’s own motion or on the application of any person.56
[86] As under the MHCAT Act, there are specific provisions dealing with status reviews of special care recipients (again, due to the continued interaction with the CPMIP Act).57
Rights and complaints: MHCAT Act
[87] Patients retain all their usual rights, so far as they are compatible with compulsory treatment under the Act. Patients also have a range of special rights, outlined in Part 6, which provide minimum standards for compulsory hospital detention. These include the rights to:58
(a) be initially informed, and then kept informed, of the person’s rights as a patient, including legal status, the procedures for initiating a review of the compulsory treatment order or the conditions of their treatment,
and the functions and duties of District Inspectors;
54 IDCCR Act s 79.
55 Sections 80 and 81.
56 Sections 102–107.
57 Sections 89–94.
58 MHCAT Act ss 64–74.
(b) respect for cultural identity;
(c) medical treatment and health care appropriate to the person’s
condition;
(d)be informed about the nature and side-effects of treatment prior to its commencement;
(e) seek independent legal and psychiatric advice;
(f) enjoy the company of others unless seclusion is necessary for the care or treatment of the patient, or for the protection of other patients; and
(g)receive visitors, make phone calls, and send and receive letters and postal articles.
[88] Section 75 of the MHCAT Act establishes a complaints process. Complaints are made to either a District Inspector or an Official Visitor in the first instance.
Rights and complaints: IDCCR Act
[89] The procedural protections and the special rights of people subject to orders under the IDCCR Act are very similar to those under the MHCAT Act. Rights materially identical to those just listed are contained in subpart 1 of Part 5 of the Act.
[90] As well, s 48 specifically states that care recipients are “consumers” under the Code of Health and Disability Services (the Code).59 That Code confers rights on consumers, and imposes obligations and duties on the providers of health and disability services.
[91] As well s 11, sets out the principle which is to govern the exercise of all powers under the Act as follows:
59 Although the MHCAT Act does not make this express, it is clear that patients are also consumers in terms of the Code. The evidence was that on admission to the service all patients or care recipients receive a copy of their rights under the Code,
Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—
(a) the health and safety of the care recipient and of others; and
(b) the rights of the care recipient.
[92] And in RIDCA Central v VM the Court of Appeal said of this section:60
[35] The reference to the rights of a care recipient in s 11(b) is not specific as to which rights are being referred to, and there is no reason to read it down in any way. The IDCCR Act itself sets out a number of rights applying to care recipients or proposed care recipients, such as the right to legal advice and the right to information. There are many others. However, we think the focus of the principles set out in s 11(b) is on more fundamental rights, particularly rights ensuring basic freedoms of the kind described in the New Zealand Bill of Rights Act 1990 (the Bill of Rights) such as the right to freedom of movement, the right not to be arbitrarily arrested or detained, and the right to be free from discrimination on the grounds of disability. In a similar context, the Supreme Court of Canada used the phrase “liberty interest” to describe these rights and we will adopt the same term.
DHB complaints procedures
[93] Both DHBs have comprehensive complaints policies and procedures. Patients are made aware of their right to complain and about the complaints procedure through information available at all facilities (including by way of posters, leaflets and feedback forms). This information is also available to patients’ families and advocates, who can initiate complaints on behalf of clients. Simple complaint forms are made available to initiate complaints. Evidence about the WDHB’s complaints management policy and process was given by Dr Skipworth. Evidence about the CCDHB’s complaints policy and process was given by Mr Fairley.
District Inspectors
[94] I have mentioned District Inspectors already. They are barristers and solicitors appointed under either the IDCCR Act or the MHCAT Act, or both.61
They provide independent legally mandated oversight of the general operations of
forensic Units such as Haumietiketike and Pōhutukawa. They are tasked with
60 RIDCA Central v VM [2011] NZCA 659.
61 All IDCCR Act District Inspectors are also authorised under the MHCAT Act (although the opposite is not true).
ensuring that patients are advised of their rights, and that complaints are investigated and acted upon where required.
[95] In the case of patients detained pursuant to the MHCAT Act District
Inspectors have the following general functions:
(a) provision of information and checking of documentation;
(b)ensuring that throughout the assessment process the proposed patient or patient is aware of his or her rights and is able to facilitate an early review of his or her detention if appropriate;
(c) attendance at Court or MHRT hearings concerning patients;
(d)visiting and inspecting (at least monthly) each of the hospitals and services in their region in which a patient is being assessed or treated under the Act; and
(e) investigating and resolving complaints about breaches of rights relating to care and treatment under the Act.
[96] Section 95 of the Act provides that they have all the powers of a Commission of Inquiry.
[97] And as I have already mentioned, if, after a six month review, the responsible clinician certifies that the patient is not fit to be released from compulsory status and the patient or their family disagrees, the District Inspector can facilitate the referral of the case to the MHRT.62 The District Inspector also has a power to refer the case to the MHRT in certain circumstances even if the patient does not wish such a
referral to be made.63
62 Section 76(9) and (10).
63 Section 76(11).
[98] District Inspectors have an almost identical role under the IDCCR Act, except that their power to investigate breaches of rights is slightly more limited (and there is no right of review by the MHRT).64
The Mental Health Review Tribunal
[99] The MHRT provides oversight of the status of patients subject to the
MHCAT Act. The Tribunal’s functions include:
(a) deciding whether patients are fit to be released from compulsory status;65
(b) making recommendations about the status of special patients;66
(c) considering the status of restricted patients;67
(d) investigating complaints about breaches of patient rights;68
(e) appointing the psychiatrists who give second opinions about patient treatment;69
(f) appointing the psychiatrists who decide whether electro-convulsive treatment is in the interests of patients.70
The Health and Disability Commissioner
[100] The Health and Disability Commissioner receives and investigates complaints of breaches of the Code. As I have said, all patients detained in the Units are Health and Disability Services Consumers. Services must be provided to them consistently with the Code unless those rights are expressly overridden by either the
MHCAT Act or the IDCCR Act.
64 IDCCR Act, Part 7, Subpart 1.
65 MHCAT Act, s 79.
66 Section 80.
67 Section 81.
68 Section 75(4).
69 Section 59(2)(b).
70 Section 60(b).
[101] If, on a complaint by a consumer, the Commissioner finds that his or her rights under the Code have been breached, he or she may refer the provider to the Director of Proceedings,71 who has responsibility for pursuing cases in either the Health Practitioners Disciplinary Tribunal (if the subject of the complaint is a registered health practitioner) or the Human Rights Review Tribunal.72
The Ombudsman/NPM
[102] In 2007, the New Zealand Government ratified the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT’s objective is to establish a system of regular visits by an independent national body to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. In New Zealand the designated independent body (called the National Preventive Mechanism or NPM) for hospitals and secure facilities is an Ombudsman holding office under the Ombudsmen Act 1975.
[103] The NPM’s functions, in respect of places of detention, include:73
(a) to examine the conditions of detention applying to detainees and the treatment of detainees; and
(b)to make any recommendations it considers appropriate to the person in charge of a place of detention:
(i)for improving the conditions of detention applying to detainees;
(ii) for improving the treatment of detainees; and
(iii)for preventing torture and other cruel, inhumane or degrading treatment or punishment in places of detention.
71 Health and Disability Commissioner Act 1994, s 45(2)(f).
72 Section 49.
73 Crimes of Torture Act 1989, s 27.
[104] An NPM can visit, at regular intervals or at any other time any place of detention for which it is designated. Ms Daysh gave evidence that the Ombudsman conducts announced or unannounced inspections of facilities. In the course of those inspections, the Ombudsman will often meet with patients and he also has a “watching brief” in relation to certain specific patients. As well, family members may raise concerns directly with the Ombudsman.
[105] When an NPM visit is in prospect, the Inspector may request some information beforehand and request that other information be provided at the time of the visit.
[106] At the commencement of each site visit, there will normally be a meeting with the manager of the unit, or that person's delegate, during which the Inspector will indicate how the visit should proceed. During the visit, informal interviews and discussions will be undertaken with staff and one or more of the patients, and a tour of the facility, preferably in its entirety, should take place.
[107] Because of the wide scope of issues which may be considered by the NPM, it is sometimes not possible to address them all during each visit. Visits may therefore focus on specific geographical areas or rooms, certain kinds of facilities or on the documentary record.
[108] Visits will be followed by a report which will include findings and recommendations (if any) aimed at improving the treatment and conditions of detention of persons deprived of their liberty. Implementation of any recommendations will be closely monitored.
[109] It is relevant to the present case that both Haumietiketike and the Pōhutukawa
Units have, from time to time, been audited by the Ombudsman in her role as NPM.
[110] On 30 September 2008 an Inspector visited the Haumietiketike Unit. The
Inspector:
(a) found no evidence that the patients in the unit had been subjected to torture or any other cruel or inhuman treatment; and
(b)was satisfied that there were adequate systems and processes in place to ensure clients detained within the unit were not subjected to cruel, inhuman or degrading treatment or punishment. The Ombudsman had no recommendations to make.
[111] On 23 January 2014, an Inspector visited the Haumietiketike Unit again. The
Inspector’s findings can be summarised as follows:
(a) the interactions observed between staff and patients were respectful, encouraging and appropriate;
(b)patients in the Unit have no problems communicating with family and friends, either during a visit or through the telephone/mail;
(c) patients have access to daily fresh air;
(d)there is a comprehensive activities programme for both individuals and groups;
(e) most clients appear to spend a considerable amount of time out of the
Unit;
(f) there seemed to be no issues with the complaints system and patients are able to contact the District Inspectors directly;
(g) generally, seclusion and restraint paperwork was of a good standard; (h) there are adequate bathroom facilities in the Unit;
(i) patients have access to clean bedding and clothing;
(j) there were no complaints about the quality or quantity of food; and
(k)there was no evidence that any patient had been subject to any actions amounting to torture in the six months preceding the visit.
[112] Issues identified as needing addressing were:
(a) the use of seclusion rooms as bedrooms;74
(b)not all staff were up to date with their restraint training refresher course; and
(c) although the Unit was clean and tidy, it was looking a little tired in places, especially the de-escalation area.
[113] The Pōhutukawa Unit was the subject of an inspection in 2012. The subsequent report by the Ombudsman recorded that:
(a) there was no evidence that any patients had been subject to torture or cruel, inhuman or degrading treatment in the six months preceding the visit;
(b)the Inspectors had no issues of concern arising from the use of seclusion and restraint in the Unit;
(c) there were no written complaints for the Unit in the six months prior to the visit;
(d) the standard of record keeping in the Unit was good;
(e) the Unit was highly organised, clean, tidy and well maintained;
(f) the Inspectors had no concerns with the level of outdoor exercise care recipients could access;
74 The evidence (which I accept) was that this comment related to two particular patients, neither of whom are applicants in these proceedings. He said that those arrangements were in response to very particular difficulties encountered with those patients and, at the time of the report’s publication, alternative accommodation had been found and the patients had been relocated.
(g)there was a great activities programme which patients could utilise if they wished;
(h) primary health care services were available to all patients;
(i)there was a “positive feel” to the place with some very enthusiastic staff trying to make a difference, in what could sometimes be described as very difficult circumstances.
[114] The Ombudsman had no recommendations to make, but noted that an information booklet/pamphlet about the Unit would be useful for the patients, families and visitors.
The Human Rights Commission
[115] The Human Rights Commission has a specific role to ensure that the human rights of those with disabilities are respected and maintained. Like the Ombudsman, the Human Rights Commission is one of the three “independent mechanisms” charged with monitoring and reporting on the implementation of the CRPD.75 The Commission’s role is to promote the rights of people with disabilities and to actively monitor and report on compliance with the Convention. This work is led by the Disability Rights Commissioner.
Standards, audits and guidelines
[116] General standards for health and disability support services are made by the Minister of Health under s 13 of the HDSSA. The HDSSA promotes the safe provision of health and disability services through the promulgation of standards and an associated certification and audit process. The minimum content of standards is not specified, but the Act does authorise certain forms of standard (for example, statements of appropriate outcomes, technical specifications for equipment, and
minimum staffing requirements).76 The Minister is required to commence a review
75 The other being the New Zealand Convention Coalition (a national group of disabled people’s
organisations).
76 HDSSA, s 21.
of the standards no later than four years following their introduction or amendment or, in the absence of amendment, from the date the previous consultation began.77
[117] The New Zealand Health and Disability Services (Core) Standards (the Core Standards) deal with everything from the condition of the physical facilities, to management structures and processes, consumer rights, reporting requirements, medication management, staff training and nutrition and fluid management.
[118] For example Core Standard 3.6 provides:
Standard 3.6 Consumers receive adequate and appropriate services in order to meet their assessed needs and desired outcomes.
… The criteria required to achieve this outcome shall include the
organisation ensuring:
3.6.1The provision of services and/or interventions are consistent with, and contribute to, meeting the consumers’ assessed needs, and desired outcomes.
3.6.2Appropriate links are developed and maintained with other services and organisations working with consumers and their families.
3.6.3The consumer receives the least restrictive and intrusive treatment and/or support possible. (MHA)78
3.6.4The consumer receives safe and respectful services in accordance with current accepted good practice, and which meets their assessed needs, and desired outcomes.
3.6.5The consumer receives services which: (MHA) (a) Promote mental health and well-being;
(b) Limit as far as possible the onset of mental illness or mental health issues;
(c) Provide information about mental illness and mental health issues, including prevention of these;
(d) Promote acceptance and inclusion;
(e) Reduce stigma and discrimination. This shall be achieved by working collaboratively with consumers, family/whanau of choice if appropriate, health, justice and social services, and other community groups.
77 Section 24.
78 MHA means the standard applies only to mental health and addictions services.
[119] The Core Standards require that the Units in which the applicants have resided be certified by the Ministry of Health as complying with the standards, and each Unit is audited against them on a regular basis. Audits are also conducted to ensure compliance with the. Ministry of Health’s service standards. The Ministry’s audits can be with or without notice. Certification audits must occur at least every three years.
[120] Other relevant Standards promulgated under the HDSSA include the Health and Disability Services (Restraint Minimisation and Safe Practice) Standards, which specifically deals with all forms of restraint and seclusion. I address these in more detail later in this judgment.
[121] The MHCAT Act and the IDCCR Act also make provision for the promulgation of guidelines and standards:
(a) the Director-General of Health may promulgate standards and guidelines under s 130 MHCAT Act and s 148(1) IDCCR Act; and
(b)the Director-General must ensure that guidelines relating to the use of seclusion and prescribing of medication for care recipients are promulgated under s 148(2) IDCCR.
FACILITIES FOR OFFENDERS WITH INTELLECTUAL DISABILITIES
[122] Ms Medlicott explained that, historically, many people with mental health, physical or intellectual disabilities were cared for in large institutions. In places such as Seacliff near Dunedin, patients lived in communal wards with 40 or more people sleeping in one dormitory, sharing communal clothes, and often having baths in open bathing rooms. Those who lived in such places were often there for decades, and many remained there for their entire lives. She said that while many of the staff working in the institutions provided clinical care and support that was of a good quality at the time, there were undoubtedly others who did abuse and “dominate” those who were in their care.
[123] Ms Medlicott also spoke about related concerns over the frequent use of restraint and seclusion in such institutions, particularly before the 1950s, due to the unavailability of psychotropic medications (the first antipsychotic medication, Chlorpromazine, was not discovered until the end of 1951). Although, from that point on the benefits of such medications in treating the symptoms psychosis were recognised, their less desirable side-effects also led to their significant use for the
(d) And as to the thoroughness of the review process:
… So basically what will happen is that when a review is due a care co-ordinator will appoint a specialist assessor for the purpose of that review. That specialist assessor may or may not have done a review for that client previously, so if they haven’t met them before they will go and meet with them and introduce themselves. They will spend quite a period of time with that client but some clients don’t like to spend long times with people, some of them are more comfortable than others. They’ll sit there, they’ll often talk with their families, families will often come to a review meeting as well, or a welfare guardian might also attend that meeting and then they will, the specialist assessor will leave that meeting, they will go away and collect a lot of data from the service, like incident reports, they’ll talk with family members or staff members in relation to any incidents that have occurred and they may ask to meet with the client again, it depends on how well they know that person and then they’ll draft their report for the Court.
[793] Dr Duncan also gave evidence about the other, less formal reviews of patients which occur on a daily, weekly and monthly basis. He said:
… people are being seen more often than once every six months and … every time the responsible clinician sees them they’re meant to consider whether the person still meets the definition for mental disorder. The intensity of follow up will be dependent on the clinical condition and in the case of inpatients one would expect the responsible clinician to be seeing the person every week or more frequently.
Failing to provide a review by an independent judicial body of the lawfulness of the applicants’ continued detention
[794] Again, there is no evidentiary basis for this allegation. Review and appeal rights involving the MHRT, the Family Court and the High Court exist under both the IDCCR Act and the MHCAT Act. There is nothing whatsoever to suggest that the applicants have been prevented from exercising those rights. Mr Burgering raised no concerns in that regard.
[795] The evidence was that each of the applicants has, in fact, exercised his right to go to the MHRT on occasion. By way of example only:
(a) On 20 May 2004, the Tribunal found in respect of Mr M that:
… it is necessary that the Applicant remain a special patient. Essentially, that is because whilst the Applicant's current condition is settled, he remains highly susceptible to becoming unsettled should the right circumstances not prevail and when he is unsettled he presents as a serious and immediate risk to the safety of others. In short, the protections to the public that special patient status affords are highly relevant in this case. It is also the Tribunal's view that special patient status continues to benefit the Applicant at this stage.
(b) On 23 November 2004, the Tribunal found in relation to Mr C that:
As will be apparent from the narrative outlined previously in this decision there is more than sufficient evidence to persuade the Review Tribunal that [Mr C] is properly detained pursuant to a Compulsory Treatment Order.
(c) On 13 December 2005, the Tribunal noted in relation to Mr S that:
[Mr S’s] history of dangerousness has been documented elsewhere and will not be repeated on this occasion. Suffice to say that it is the view of the Tribunal that the Applicant's abnormal state of mind gives rise to serious dangerousness to the safety of others. In this regard, it is appropriate to take account of the Applicant's innate aggression. In other words, the Applicant's personality compounds the dangerousness which results from his illness. So too does the Applicant's intellectual disability compound the dangerousness, because the Applicant is less able to develop appropriate social responses when stressed.
[796] The Tribunal’s 29 March 2007 decision in relation to Mr S is the subject of the seventh cause of action and has been discussed in more detail above.
[797] The applicants were present at the Tribunal hearing on all the above occasions and were always legally represented.205 On most occasions they also had an advocate in attendance.
[798] There was also evidence about reviews conducted by the Family Court in respect of each applicant, in accordance with the legislation.
205 Although in Mr C’s case the Tribunal noted:
It had been agreed at the teleconference held prior to the hearing, that in view of [Mr C’s]
disability and attention span, he would not be present during the course of the hearing.[Mr C] met with the Tribunal briefly and then happily went off to have lunch with the other
patients in the unit.
[799] Again, by way of example, an application to extend Mr M’s compulsory care order was heard in the Family Court at Manukau in front of Judge Adams. Fourteen people made formal appearances at that hearing, including Paul Gruar as lawyer for Mr M, Asta Osbourne of the Justice Action Group, Mr Singh as Mr M’s Support Person; and Mr M’s Care Co-ordinator, his Care Manager, the Unit Manager, his Social Worker, a Psychiatrist and the District Inspector.
[800] Judge Adams noted out the outset “a couple of things that are very impressive” about the application process. Then he said:
The other thing I want to say that is impressive is the depth of professional experience and wisdom that has been brought to bear in a mater like this. Looking around the room there is a body of professional fire power that is very significant and that makes me acknowledge that this matter is being treated seriously and I think very responsibly by the professionals involved.
[801] The Judge went on to note:
Another thing that has not changed much is the risk assessment, which continues to be a high risk for dangerousness on recent presentation and that is the other area that the statute is mainly concerned about. Put starkly, it is [Mr M’s] future against the risks to the community because discharge without changes in behaviour predictably mean that some member or members of the community will directly suffer.
[802] The Judge continued:
I do feel considerably assisted by the depth of professionals who have participated in treatment, providing information and, in particular, those who have assessed. Also, of course, there is the typically thorough report of Dr Duff, which is expressed in sympathetic terms for [Mr M’s] predicament but unflinchingly in terms of the statutory provisions.
[803] The Judge was “heartened that, despite the minimal changes that have been made, there is a rigorous professional hopefulness in the approach expressed through Ms McClintock’s submissions for RIDCA and in Dr Duff ’s report”. On that occasion, the Judge made a variety of recommendations and extended Mr M’s compulsory care order for a period of 12 months.
[804] An example relating to Mr S involves a hearing at the Family Court in Wellington on 14 September 2007 in front of Judge Grace. Mr S was represented at the hearing by Mr Bott. Judge Grace found:
[16] The evidence in this case satisfies me that [Mr S] does meet the criteria in that he does suffer from a disorder of cognition and that he does suffer from a disorder of volition and that it is intermitted and that it is of such a degree that it poses serious danger to the safety of others. It is therefore necessary to make a compulsory treatment order.
[17] The next issue there is whether or not that order should be an inpatient order or a community treatment order. The Act makes it clear that the emphasis should be on a community treatment order unless the patient cannot be adequately treated within the community. The circumstances of this case make it abundantly clear in my view that Mr S cannot be adequately treated in the community. He has in the past been subject to orders making him a special patient. He has been discharged in the past, but there have been relapses and he has been readmitted to either the special patient status or has been detained in a hospital unit.
Failing to advise the applicants of their right to obtain a second opinion from a medical practitioner in respect of the medical assessment
[805] The evidence was that the applicants are advised of their rights, including the right to obtain a second opinion, as part of the process of unit induction. There is no evidence the respondents failed to meet the duty to keep the applicants informed of their rights under s 64 MHCAT and s 49 IDCCR. And as a matter of fact second opinions were sought on occasion.
Failing to review interrogation rules, instructions, methods and practices, and arrangements for the custody and treatment of Special Patients or Care Recipients, in breach of Article 11 CAT
[806] This pleading replicates the wording of Art. 11 of the Convention Against
Torture, which provides that:
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
[807] No issues about “interrogation rules, instructions, methods and practices” arise in the present case. The many and varied mechanisms whereby the custody and treatment of the applicants while detained is or can be systematically reviewed have been dealt with elsewhere. And as I have recorded earlier above, the conditions of
the applicants’ detention have been specifically monitored by reference to the
Convention Against Torture by the Ombudsman with no relevant concerns identified.
Failing to give the applicants their NZBORA rights prior to undertaking any medical assessment which forms the basis of their continued detention
[808] This allegation is based on a misapprehension that is dealt with in more detail in the ninth cause of action. Put simply, the regular medical assessments and reviews have never formed the basis for the applicants’ detentions and NZBORA rights are not therefore engaged. Without exception, they have been detained by order of the Court.
Failing to provide applicants with the right to be heard either in person, or through legal representation during the “proceedings” determining their continued detention
[809] This allegation is based on the same misapprehension as the previous one.
[810] To the extent that it can be seen as relating to legal representation in the Family Court (ie the place where orders about continued detention are actually made) the evidence was overwhelmingly that the applicants were not only legally represented but had numerous other support persons present. I have referred above to the number of people present on Mr M’s behalf at a hearing in front of Judge Adams. And Dr Barry-Walsh gave evidence that he could not recall ever being involved in an application for a compulsory treatment order where the patient did not have legal representation. Moreover, he said:
… if they didn't I would have been concerned and would have contacted the
District Inspector and others to see whether we could facilitate that.
Failing to provide the applicants with legal representation in respect of the medical assessments
[811] This particular suffers from the same underlying misapprehension as the previous two.
Failing to provide the applicants with written and/or verbal reasons for their continued detention
[812] This contention is contradicted by the evidence which is that at the completion of each six monthly clinical review, Certificates of clinical review and assessment reports containing such reasons are provided both to the applicants and other specified persons in accordance with the requirements of the MHCAT Act and the IDCCR Act. The six monthly Certificates of clinical review identify the legal justification for a patient’s continued detention and the assessments are discussed with patients by staff, by District Inspectors, and if they wish, their lawyers.
Failing to provide the applicants with the criteria for termination of their continued detention
[813] The starting point is that criteria justifying the applicants’ continued detention are set out in the relevant statutes and relate risk and to public safety. The criteria are necessarily regularly addressed in the form of the six monthly certificates and reports just mentioned.
[814] At a more meaningful and concrete level, however, the criteria are addressed through the clinical assessments and the treatment plans developed for each patient which are discussed with them. The evidence reveals that staff talk continually with the applicants in order to develop and implement plans which address any barriers to less restrictive forms of detention. In that way each patient is made aware of the issues and behaviours he needs to address in order to be able to transition into the community, and is provided with tools to do so. This is most strikingly evident in Mr M’s case, where he ultimately succeeded in meeting the relevant “criteria” and was discharged from compulsory care.
Failing to provide an effective and confidential complaints procedure
[815] I have spoken about the complaints procedures earlier in this judgment. No specific confidentiality issues have been raised. No concerns were expressed by Mr Burgering in this respect. The one specific allegation relating to Mr S’s complaint about sexual abuse has already been addressed at length above.
[816] The evidence that was given by the respondents’ witnesses about the complaints processes does not support the contention that the processes are not used, do not work or are not sufficiently independent.
[817] Again, by way of example only:
(a) Ms Daysh said of the CCDHB’s process that:
… part of what happens in orientation is that people are told that if they're not happy about something that they have the ability to make a complaint. We keep a record of complaints. So clients will fill this out but more often they'll sit with their care worker and have them help. Some of them have advocates who will sometimes come in and make them make a complaint about a particular aspect and then we have a log of all of the complaints made.
(b) In terms of the independence of the process, Ms Daysh continued:
… each unit might manage this differently but if we just assumed for the sake of your argument that the person they wanted to complain about is their care worker, the person who works with them the most, then it is unlikely that they would say to the care worker. They would very likely say that to somebody else and that other person would independently engage in a process of investigating that. The person who they’re complaining about would not be involved in that complaint process.
(c) Similarly, Dr Duff gave evidence about patients’ understanding and
use of the complaints process at Pōhutukawa Unit:
The internal complaints process is very well known to all the service users and very well used by all of the service users. In the first instance – and there’s also a poster on the wall that details the different pathways and steps for an internal complaint as well as an external complaint. So in the first instance we say – so on each shift there’s a named member of staff assigned to each person on the unit. We say in the first instance raise it with the person who’s assigned to you for the day. If you’re not comfortable with them or you don’t get the answer you want, raise it with the nurse in charge. If you don’t get the answer you want or you’re not satisfied with that, raise it to the unit manager or to the care manager or to the consultant. So that’s the kind of pathway for raising complaints internally.
[818] Witnesses also gave evidence about the use of District Inspectors as a conduit for complaints (in accordance with their statutory functions). That evidence included that:
(a) Contact with a District Inspector is usually part of the admission process:
… soon after their admission a District Inspector will come and introduce themselves. Rather than type their names, the clients themselves … will normally ask, “What’s his phone number?”
(b) Ms Daysh gave evidence that:
… District Inspectors are in facilities significantly more than twice a year. … not only are they there in their official capacity as District Inspector, but they are often more casually in services because they attend there for meetings. Clients know who their District Inspectors are and they’ll certainly engage in conversations with them, casually or formally, but something that happens on a reasonably regular basis is that clients will ask to speak to the District Inspector and some clients are more self-advocates in this respect.
(c) Ms Daysh explained that the regular presence of District Inspectors at the Units was particularly valuable because it provided patients who might not actively seek to make a complaint or raise a concern with an opportunity to raise such matters on an ad hoc basis.
(d) Dr Duff spoke about the importance of District Inspectors and the
Pōhutukawa Unit:
… every care recipient is assigned a District Inspector. The list of contacts for the District Inspectors are displayed around the unit. Because of the nature of the quite restricted practices that we inevitably have at this level of this care and service, we are very conscious of the need to ensure that people do have easy access to District Inspectors for independent advice and support, to raise complaints, to externalise issues where they have concerns. So our District Inspectors will be very frequently contacted either by telephone or to come in to visit. They will often have consistency over a number of years with the District Inspector and will know them very well…
(e) In terms of day to day contact between patients and District
Inspectors, Dr Duff said:
Yes they do have a lot of contact with District Inspectors. It would be unusual for a week to go by without anybody having contact with the District Inspector from the unit, very unusual. Whether that’s by telephone or, so the District Inspectors … would commonly come to review meetings or to visit pre-hearings or just to double check that
there isn’t anything that’s happening. District Inspectors just being visible on the unit as well, we find is helpful because some people who might not think to make contact with the District Inspector, if one’s walking through the unit quite a few people might then say, oh, well can I have a word as well and can I have a word as well so luckily we’ve had very good District Inspectors who have been prepared to not just wait until they’re called but to be highly accessible and highly visible within the unit.
[819] It is also open to patients to access the Health and Disability Commissioner but it appears that none of the applicants has availed himself of those services.
Failing to provide procedural safeguards for the Applicants’ liberty
[820] It is not entirely clear what is intended by this allegation. But to the extent it means that there are insufficient opportunities for reviewing whether the applicants should continue to be detained or that complaints procedures are inadequate I have dealt with it above. To the extent it is an attack on the statutes authorising their detention it is not clearly pleaded. Those statutes provide, in any event, a very large number of procedural safeguards.
Breach of Articles 12, 13, 14, and 15 of the Convention on the Rights of Persons with Disabilities
[821] The pleaded Articles are:
(a) Article 12 – equal recognition before the law; (b) Article 13 – access to justice;
(c) Article 14 – liberty and security of person; and
(d)Article 15 – freedom from torture or cruel, inhuman or degrading treatment or punishment.
[822] All the issues raised by this pleading have been dealt with elsewhere in this judgment and I do not discuss them further.
Breach of Right 10 in the Code of Health and Disability Services Consumer
Rights (Right to Complain)
[823] This has been dealt with above.
TWELFTH CAUSE OF ACTION – TOTALITY
[824] I have noted above that in Taunoa the Courts held that even in the absence of a finding that specific incidents or conduct constituted a breach of s 23(5) it was possible that a breach could be found when the totality of those incidents or conduct is considered. But that is not this case. I have found no breach of the law or of any relevant standard. Indeed, in my view the three applicants have been treated with respect and as individuals throughout; each has had his own particular strengths, needs and difficulties recognised. While there have undoubtedly been improvements in the care they have received over the span of the claims, that is not because staff were delivering sub-standard care at the early stages. It is a function of the available facilities, changes in clinical thinking and, most of all, an ever-developing understanding of each of the applicants and how best to help them overcome the particular impediments they have faced.
[825] In my view this cause of action adds nothing to the earlier ones.
SUMMARY
[826] I summarize my findings in relation to the key aspects of the applicants’
claims below.
Litigation guardian
[827] All aspects of the claim which purport to challenge the requirement in the High Court Rules for the applicants to have a litigation guardian are the subject of an earlier decision by Ronald Young J and are for that reason res judicata.
First, third and thirteenth causes of action – sexual assault of Mr S in 1999/2000
[828] Based on the District Inspector’s findings at the time I accept that Mr S was
assaulted by another patient (JC) on three occasions in late 1999 and early 2000. I
am, however, unable to find that those assaults or the CCDHB’s handling of them
constitute a breach of the NZBORA. More particularly:
(a) there is no evidence that the DHB knew of, or were recklessly indifferent to, a serious and immediate risk to Mr S from JC and no basis for a finding that s 9 was breached;
(b)while, on the known facts, the s 23(5) protective duty owed to vulnerable detainees is engaged here, there is (15 years on) insufficient evidence for me to form a view about whether the DHB breached that duty;
(c) once the assaults had been disclosed the DHB responded appropriately (by ensuring that JC and Mr S were kept apart and by notifying the District Inspector) and supported Mr S to make a decision about whether to go to the Police or to refer the matter to a District Inspector;
(d)the District Inspector also supported Mr S appropriately through that decision-making process;
(e) there is no evidence that any undue influence was brought to bear in the course of that process;
(f) there were, in any event, sound clinical reasons for not involving the Police or initiating a prosecution. In particular it is unlikely that a criminal prosecution would have been a beneficial process for Mr S or led to a more satisfactory resolution, given that JC would almost certainly have been found unfit to plead or stand trial; and
(g) the District Inspector’s investigation was thorough, timely and
impartial, and supported Mr S.
Fourth cause of action – rehabilitation
[829] I am of the view that:
(a) there has been no failure to provide the applicants with appropriate rehabilitative and therapeutic activities, let alone a failure that might constitute a breach of 23(5);
(b)there have been concerted and dedicated efforts to help the applicants move out of secure compulsory care. Those efforts are ongoing and have been successful in the case of Mr M and partly successful in relation to Mr S;
(c) there has been no denial of visits, telephone calls, correspondence or contact with advocates or lawyers, except temporarily and where clinically justified; and
(d)the decisions to cancel leave following Mr M’s AWOLs were not in breach of s 25(3) or made to punish him. Rather they were rational and necessary responses to the risk he posed and reflective of the WDHB’s legal obligations at the time.
Fifth cause of action – sexual relationships
[830] No breach of ss 9 or 23(5) is established in relation to sexual matters. More particularly I find:
(a) the “no sex” policy in the Units is necessary in order to keep patients
(and staff) safe;
(b)the no sex policy is clear and well understood, despite it not being in writing;
(c) sex and relationship education is offered in the Units when considered clinically necessary and wider education about relationships and
appropriate physical interactions also forms part of rehabilitative programmes;
(d)the fact that condoms are not made readily available is a rational extension of the no sex policy and justifiable on that basis;
(e) masturbation in private is neither prohibited nor discouraged in the Units. While masturbation may, on occasion, be recorded when it is observed that is only for clinical or safety reasons; and
(f) the single occasion on which pornography was removed from Mr S’s room does not engage s 23(5) and, to the extent it engages (at a low level) the right to freedom of expression protected by s 14 of the NZBORA the removal was demonstrably justified.
Sixth cause of action – seclusion and restraint
[831] No breach of ss 9 or 23(5) has been established in relation to the use of seclusion and restraint:
(a) seclusion and restraint is not used as punishment but in response to a real and immediate risk posed to the safety of the patients themselves and to others;
(b)the risk of violence that has been posed from time to time by each of the applicants is real and significant. Indeed it is that risk which is the cause of their continued detention;
(c) although there are rare occasions which, in retrospect, staff have accepted could have been managed better, not one of the documented instances of seclusion and restraint has been shown to be unlawful or not warranted in terms of risk;
(d)there are numerous standards, guidelines and policies that regulate the use of seclusion and restraint and which emphasise minimisation of
those practices. Staff are trained in accordance with those guidelines and in the safe use of restraint and seclusion;
(e) behavioural strategies have been put in place specifically to minimise and manage the risk of violence from the applicants and (therefore) the need for their restraint and seclusion. The evidence was that these strategies have in fact decreased that need;
(f) record-keeping requirements provide for a high level of transparency in the use of restraint and seclusion, and allow for strict monitoring, both by external agencies, and by internal DHB bodies set up to implement strategies to reduce the incidence of restraint and seclusion;
(g)there was no evidence supporting any suggested use of chemical restraint;
(h)night safety procedures are put in place for sound operational (risk) reasons, although Ministry guidance on its use has, from time to time, been inconsistent and confusing;
(i)the absence of seclusion guidelines under s 148(2) of the IDCCR Act does not make the use of seclusion under s 60 of that Act unlawful, provided that it meets the criteria for initiation and termination set out in that section;
(j)seclusion under s 60 does not, in any event, arise on the facts of this case because only Mr M has ever been subject to the IDCCR Act and he was not secluded pursuant to it;
(k)procedures and polices ensuring safety during seclusion, which reflect and expand on the guidance issued for MHCAT Act seclusion, were in place at each DHB at all times;
(l) there is no discernible legal difficulty with the Ministry’s 1992
Guidelines for the Use of Seclusion; and
(m)the required four yearly reviews of the HDSSA standards on seclusion and restraint have, in fact, occurred.
Sixth cause of action – Mr S’ correspondence
[832] In my view:
(a) s 17 of the NZBORA (freedom of association) is not engaged by any restrictions on writing letters; and
(b)s 14 of the NZBORA does not require staff to take dictation from a patient and, in any event, the letter that Mr S wished to write to the Leader of the Opposition was in fact written and sent.
Seventh cause of action – MHRT decision
[833] The impugned MHRT decision does not evidence predetermination in any material sense. There were other avenues of redress available to Mr S.
Eighth cause of action – living conditions at “Porirua Hospital”
[834] No breach of s 23(5) is established. In particular:
(a) the applicants did not call any evidence of their own in support of the specific allegations made in the eighth cause of action;
(b)in terms of the physical environment at Haumietiketike, the regular audits, and oversight by the Ombudsman, provides assurance that standards are being met. That was confirmed by the Court’s own view of the Unit; and
(c) any limited intrusions on the applicants’ privacy, restrictions on personal belongings or access to sanitary facilities have been clinically justified and were relatively minor.
Ninth cause of action - discrimination and arbitrary detention
[835] The discrimination claim is not made out. In particular:
(a) the proposition that the CPMIP Act “diversion” regime contravenes
s 19 of the NZBORA was not properly argued; (b) in any event:
(i) “ordinary” prisoners are not the relevant comparator group;
(ii)the reason for the difference in treatment received by the applicants is not the prohibited ground of intellectual disability, but risk;
(iii)the regime benefits rather than prejudices those such as the applicants; and
(c) to the extent that the discrimination claim seeks to impugn acts done pursuant to and in accordance with the CPMIP Act (or the MHCAT Act) those acts were authorised by law and cannot be found to be discriminatory.
[836] Nor do I consider that the claims of arbitrary detention are made out:
(a) the detention of the applicants has at all times been authorised by statute and/or by the Courts. There is no basis for allegations of “executive” detention;
(b)there is a thorough and mandatory system for regularly reviewing the need for their continued detention;
(c) the basis for the applicants’ continued detention has in fact been regularly and systematically reviewed; and
(d)the applicants have extensive rights of review and appeal in relation to the outcomes of those reviews, which they have in fact exercised from time to time.
Tenth cause of action – medical care and consent
[837] There was no evidence to support the allegation that there has been inadequate provision of medical care to the applicants, let alone an inadequacy of such magnitude that s 23(5) has been breached. The example of a single medical error (when the wrong medication was administered to Mr C) was an isolated incident which was properly managed with no ill effects. And although it took some time to resolve all of Mr C’s dental issues there were many unavoidable reasons for those delays, including the need to obtain a Court order and Mr C’s own fear of dental appointments.
[838] In terms of consent to medical treatment under s 11 of the NZBORA:
(a) the relevant clinicians were well aware of the fluctuating levels of the
applicants’ capacity to consent and have acted accordingly;
(b)the applicants were always involved in decisions about their medical treatment regardless of their formal capacity to consent; and
(c) while on occasion treatment has been provided without consent, that has only ever been in emergency situations as authorised by statute.
Eleventh cause of action - periodic reviews
[839] In summary:
(a) there is no evidence of any failure regularly and periodically to review the applicants’ continued detention as required by law;
(b)oversight of their detention by the Courts has also been in accordance with the legislation;
(c) the allegation that there has been a failure to give the applicants their rights under NZBORA prior to undertaking, or to afford them the right to be legally represented at, any periodic medical review is based on a misunderstanding about the basis of their continued detention;
(d) The applicants’ continued detention is authorised by way of judicial process and they have, and have routinely exercised, such rights in that context;
(e) there has been no failure to provide the applicants with the reasons for their continued detention and no evidence that the clear statutory requirements in that regard have not been met;
(f) there is no evidence that the applicants have not been told or do not understand what must occur in order for them to be released from secure compulsory care; and
(g)there are effective and confidential complaints procedures in place which are, in fact utilised.
Twelfth cause of action – totality
[840] There is no evidentiary basis for a finding of breach of either ss 9 or 23(5) on a totality basis.
CONCLUDING REMARKS
[841] The short and more general point is that the three applicants have, throughout their time in compulsory care, received dedicated and compassionate care from dedicated and compassionate staff. It is accepted that, on occasion, certain things could have been done better. But the very real, albeit slow, progress made by each of the applicants, in his own way, speaks for itself.
[842] So it is, I think, important to record that I remain entirely unpersuaded that any one of the staff members who has cared for these three men over the years has ever been motivated by anything other than the men’s best interests. I have not before come across such a devoted group of medical professionals, committed to caring for, and improving the lives of those such as the applicants, often under difficult and dangerous circumstances.
[843] The claims are dismissed, for the reasons I have given.
Rebecca Ellis J
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