3C: NEW ZEALAND – IMPLICATIONS OF THE BOURNEWOOD GAP

Identifying the Bournewood gap in New Zealand

64. The case law under the ECHR and the MCA is highly relevant and likely to be influential in New Zealand courts due to the similarity in the principles – drawn from international and domestic laws – that protect the right not to be arbitrarily detained in Europe and New Zealand.⁴⁸² New Zealand is not a party to the ECHR, but the European jurisprudence is highly relevant to interpretation of the equivalent liberty rights that are guaranteed by the international human rights instruments to which New Zealand is a party; plus the English common law backdrop to such liberty rights – in the tort of false imprisonment and writ of habeas corpus – has been imported into New Zealand common law.
    
    
65. It is possible that a similar case to Bournewood could arise in New Zealand, under s 22 of the NZBORA. This is a similar provision to art 5 of the European Convention. In fact, a case concerning informal detention in a dementia unit has already arisen as a complaint under the HDC Code.
    
    
66. In Taikura Trust,⁴⁸³ Ms A, a 43-year-old woman with a complex history of mental illness and alcohol abuse, was held in a secure dementia unit for almost a year, against her will, without legal authority. Although initially she had been admitted to hospital appropriately, having been assessed as not having the capacity to make decisions relating to her care and welfare, the hospital incorrectly assumed that a personal order under the PPPR Act had been obtained from the Court that covered her care. Despite expressing a wish for a more suitable placement, Ms A was effectively detained for over a year in this dementia unit, against her wishes and contrary to her needs. Moreover, despite her capacity changing over time, she was not reassessed.
    
    
67. The Health and Disability Commissioner found there was a failure to provide appropriate care, to Ms A under Right 4 of the HDC Code. Regardless of whether there was a court order placing Ms A in the dementia unit, it was still a breach of her right to receive proper care for the healthcare providers not to take the steps to reassess her capacity and address her inappropriate placement in the dementia unit. The case went to the Human Rights Review Tribunal, where the two Auckland service providers who were responsible agreed to pay compensation to Ms A’s estate (as she had subsequently died after her release from unlawful detention).⁴⁸⁴
    
    
68. Right 7(4) of the HDC Code,⁴⁸⁵ based on the common law principle or doctrine of necessity,⁴⁸⁶ was not specifically relied upon to justify Ms A’s detention in Taikura Trust. Ms A’s initial admission to hospital for care was perhaps defensible on that basis, but her ongoing detention was not. The principle of necessity imposed a clear obligation on the staff, which was not met, to ensure the provision of secure care continued to be in her best interests. Furthermore, even when Ms A objected to her longer-term care, no independent review process was activated, particularly none involving a court or tribunal. Obtaining a retrospective PPPR Act order would not have addressed the problem of there being a lack of safeguards that are intended to operate in advance of the person’s detention or, in this case, Ms A’s ongoing detention. This case therefore illustrates the existence of the Bournewood gap in New Zealand.

⁴⁸² Butler and Butler, above n 397 at 95: “Reference to decisions of the ECtHR has been relatively frequent in New Zealand case law and this level of citation and consideration of European Cases is likely to be maintained as New Zealand courts continue to draw on decisions of the United Kingdom courts deciding cases under the Human Rights Act 1998 (UK), which incorporates much …of the European Convention into UK law.”

⁴⁸³ HDC Opinion 08HDC20957 Auckland District Health Board, Taikura Trust, Aranui Home and Hospital Ltd (Trading as Oak Park Dementia Unit) (3 November 2010). The Commissioner’s opinion and the case before the Human Rights Review Tribunal did not expressly address the right not to be arbitrarily detained under s 22 of the NZBORA.

⁴⁸⁴ The Tribunal made declarations against Taikura Trust and Aranui Home and Hospital Limited (trading as Oak Park Dementia Unit) for failures of care and breaches of Ms A’s rights by failing to provide services in a manner that respected her dignity and independence and failing to provide services with reasonable care and skill. This case has been referred to by many commentators and was raised by Dr Katie Elkin (Associate Commissioner, Health and Disability Commission) to Alison Douglass regarding this research project (18 August 2014). Director of Proceedings v Taikura Trust – Needs Assessment and Service Co-ordination Service HRRT No. 024/2011 [2012] NZHRRT 3 (22 March 2012) Director of Proceedings v Aranui Home & Hospital Ltd – Rest Home HRRT No. 025/2011 [2012] NZHRRT 4 (22 March 2012).

⁴⁸⁵ HDC Code, Right 7(4) is set out in full in Appendix C Legislation and International Human Rights Conventions and is also discussed in Chapter 5 Best Interests and Chapter 6 Research on People who Lack Capacity.

69. Right 7(4) of the HDC Code is a pragmatic response to the need for everyday decision- making, and for common sense decisions to be made on a short-term basis, for people who, for a range of reasons, are unable to consent to their healthcare. Martin has suggested that Right 7(4) is best seen as a set of protections for consumers who cannot consent to treatment.⁴⁸⁷ In more strictly legal terms, however, the so-called right provides a defence for health practitioners to HDC Code liability, rather than a safeguard for people who lack capacity and are unable to consent.⁴⁸⁸ It does not provide procedural protections, or an independent review process, for people who lack capacity on an ongoing basis, concerning decisions such as sedation, forcible restraint, or use of coercion in their detention, whether compliant or not, or concerning decisions about their living arrangements or their forcible transport to a place of residence.
    
    
70. There will be many instances where the lawfulness of a person’s initial detention in care would be clearly justified under the principle of necessity but the original reasons for their detention may cease to be valid if their condition changes. Their ongoing detention may then become a disproportionate response to the situation, and a breach of s 22 of the NZBORA.⁴⁸⁹ Moreover, under New Zealand law, the precise situations in which providers may rely on Right 7(4), or must, instead, seek a court order, are not fully clear. In practice, it seems that providers tend not to risk relying on Right 7(4) alone in more contentious cases, such as where a family dispute exists about where to place an older family member, where the person strenuously objects to the proposed arrangements (particularly their admission to a secure dementia unit), and where there is no obvious family member or friend available who is concerned about the person’s long-term interests. In those cases, therefore, more formal legal arrangements may be sought. As a result, providers’ conduct in this regard may be inconsistent and idiosyncratic.⁴⁹⁰

71. The lack of legal safeguards to protect the liberties of people with impaired capacity is therefore a major issue for health and disability providers, including clinicians and social workers, particularly those working with people with dementia who are in some form of secure or locked residential care.
    
    
72. There are also people with milder forms of dementia who may retain some degree of capacity or understanding but, with time, their dementia can expect to progress and their reasoning will deteriorate to the extent they will become unable to contribute to decision-making to any great extent. Furthermore, the “compliant” (or “non-dissenting”) person with dementia may not actively object to their placement, even if it does involve detention, but they may not be able to give meaningful consent to it. Whether detained in a secure dementia unit or in lower levels of hospital or residential care, they will face ongoing care decisions and financial questions concerning their care in circumstances where they are not capable of making, and in some circumstances participating in, decisions affecting them.
    
    
73. The case studies below, based on real situations, demonstrate the problems encountered when people who lack capacity are placed in residential care or supported living arrangements, and there is no adequate legal process for oversight or review of restrictions on their liberty. In all three cases the people would meet the “acid test” for deprivation of liberty: they are under the continuous supervision and control of those caring for them and not free to leave.⁴⁹¹

⁴⁸⁶ See Chapter 5 Best Interests and a discussion of a history of the declaratory jurisdiction and the doctrine of necessity. Re F (Mental Sterilisation) [1990] 2 AC 1. In England, the common law doctrine of necessity as established in Re F and refined in subsequent case law has largely been superseded in relation to acts of care and treatment by Mental Capacity Act 2005 ss 5 and 6.

⁴⁸⁷ Martin, above n 389.

⁴⁸⁸ Although a defence in its own right, Right 7(4) is subject to clause 3. This provides that healthcare providers will not be in breach of any of the rights in the HDC Code if they have taken ‘reasonable actions in the circumstances”. This would include taking into account the urgency of the required treatment and resource implications.

⁴⁸⁹ Zaoui, above n 407 at [175].

⁴⁹⁰ Anecdotally, and in the writer’s experience, there are inconsistent approaches by DHBs as to whether they will rely on Right 7(4) or seek a court order under the PPPR Act, in these circumstances in the absence of a court order.

⁴⁹¹ Cheshire West, above n 7.

74. Mrs A⁴⁹² is a 78-year-old woman who is brought to the hospital after her neighbours found she had fallen over outside her house. She is treated for delirium secondary to infection, but during the course of admission it becomes clear that she has an underlying dementia of at least a moderate degree. In the medical ward she is agitated, wanders, and resists care. On one occasion she flees the ward, apparently concerned that she is in imminent danger. She is subsequently admitted to the psychogeriatric inpatient unit under the MH(CAT) Act.
    
    
75. Mrs A settles on the ward, but remains at risk of falls and wandering. A visit by staff to her home reveals stockpiled prescribed medication and that she has been incapable of looking after herself or the house. Nevertheless, she now wants to return home without care, although discussions with her establish that she has little real appreciation of her mental and physical problems and the risks associated with them. Mrs A’s family agrees that, on discharge from hospital, she will need residential (and most likely dementia) care. Mrs A has not executed an EPOA and, as is often the case, the facility to which she will go therefore requires a court order to be in place to authorise her admission when she cannot consent to her care.

76. Mrs A’s circumstance is a common scenario for people with dementia for whom residential care is proposed as part of their care. Even if Mrs A had an appointed attorney under an EPOA, or a welfare guardian, these decision-makers are not necessarily well equipped to navigate the admission or placement process on her behalf, and they may have a conflict of interest concerning the decision to admit her to residential care as their own personal situation may be significantly affected, for better or worse, by that decision. They are not necessarily well placed, therefore, to determine whether admission to residential care is in her best interests. Moreover, even if the Court is involved in ordering Mrs A’s admission, and considers whether a less restrictive intervention is available, a court has limited ability to exercise ongoing oversight of the implementation of a “one-off” personal order of that kind.⁴⁹³
    
    
77. The health services, in this situation, are often caught in a dilemma, between wishing to discharge someone from a busy hospital ward (to prevent “bed blocking”), and taking the time and expense to seek orders from the court. Going to court may incur delays and may seem to impose an ongoing responsibility to see the court process through to its conclusion, some months later, even though by then the person’s care will have been transferred to another provider.⁴⁹⁴ The HDC Code requires health and disability services to be of an “appropriate standard of care”, in a manner appropriate to a person’s needs, that optimises their quality of life and with cooperation between providers.⁴⁹⁵ Practices, therefore, as to when and how to use the court process, vary across DHBs, along with the extent to which DHBs expect their clinicians to rely on Right 7(4) of the HDC Code instead of getting an order from the court.⁴⁹⁶

⁴⁹² Case study provided by Dr Mark Fisher, consultant psychiatrist, Mental Health Services for Older People, Middlemore hospital, Counties Manukau DHB.

⁴⁹³ An interim personal order can be for up to 6 months and extended again for a total of 12 months, followed by a final order for a maximum of 12 months: Protection of Personal and Property Rights Act 1988, ss 10, 14 and 17.

⁴⁹⁴ Under s 7 of the PPPR Act, a wide range of people, including health professionals, social workers and managers of institutions can apply for interim personal orders, as can family members. There are a range of orders that may be obtained under s 10 of the PPPR Act, a “placement order” under s 10(1)(e) requires: ”that the person be provided with living arrangements of a kind specified in the order”. See Chapter 1B Overview of the PPPR Act and Appendix C New Zealand Legislation.

⁴⁹⁵ HDC Code of Rights, Right 4 (3), (4) and (5). Right 4 (5) provides: ”Every consumer has the right to co-operation among providers to ensure quality and continuity of services.”

⁴⁹⁶ In some regions, significant delays are experienced in progressing applications under the PPPR Act for a s 10 placement order. The Auckland DHB for example, is undertaking a PPPR Act project with the goal of streamlining the PPPR process to enable in-patients to be moved to long term accommodation as quickly as possible. There are often extended lengths of stay for patients in Auckland Hospital requiring PPPR applications before they can be discharged. There were many factors identified in causing the delays, including clinicians’ understanding and confidence with capacity assessments and PPPR applications, and with long delays in the Family Court. The scope of this project is the Older Persons Wards and General Medical wards but there are also concerns across community and mental health teams. (Email communication from Lisa Swann, project leader, Auckland DHB 19 February 2016 and Interview with Wayne Campbell, social worker and advanced clinician, Auckland DHB, 23 February 2016).

78. Mrs D lives at home in squalor.⁴⁹⁷ Community professionals, including her GP, have expressed concerns about her severe cognitive decline. She lives alone, with her adult daughter being her main caregiver, although it is suspected the daughter abuses her mother. Mrs D has poor mobility and there are concerns about her personal care and nutrition (there is no food in the fridge). Mrs D has refused to let the community psycho-geriatric team enter her home, and neither a capacity nor a needs assessment has been undertaken.⁴⁹⁸

79. It is not uncommon for older adults to live at home in relatively isolated circumstances with no-one to act for them.⁴⁹⁹ In this situation where persuasion may not be possible, clinicians may have to decide whether to use the compulsory assessment procedure under the MH(CAT) Act to admit them into care.⁵⁰⁰ Very often, the person has a family, but the family is fractured and unable to make the necessary application under the PPPR Act for a personal order, or they are unwilling or unable to pay a lawyer to do so.⁵⁰¹ There are added complications where there is an abusive relationship, or family conflict, or sizable assets involved.
    
    
80. A court order – during its life – allows a facility to care for someone in a secure environment, but getting the person to that facility, from their home, can be difficult and involve coercion. It can involve a person being uplifted from their home, being transported against their will, and then being detained in the new environment. This situation is a very different dynamic to where a person has already left their home and has been admitted to hospital for medical care.

81. Mr G⁵⁰² is 31 years of age. He has severe autism spectrum disorder, and, although he is unable to verbally communicate, his psychologist says his level of intellectual function is unable to be accurately assessed. He became increasingly difficult to manage at home during his teenage years and now lives in a different town to his parents. He lives alone, but is supported with 24-hour one-on-one staffing by a community trust in a rented house. His welfare guardian is a former carer who has maintained a good relationship with him, and, although moving to another city, has kept in regular contact with his current carers.⁵⁰³

⁴⁹⁷ Case study from Phil Sunitsch, Social Worker, Mental Health Services for Older People, Southern DHB.

⁴⁹⁸ Compare this case study with a case in the COP, Re AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5, Baker J, where a breach was found when the local authority failed to take appropriate steps to ensure any deprivation of liberty had been suitably authorised prior to removing AJ from her home and placed in care. See also A Primary Care Trust v P and Ors [2009] EW Misc 10, Hedley J.

⁴⁹⁹ Email communication from Phil Sunitsch, social worker, Mental Health Services for Older People, Southern DHB (19 May 2015 and 31 March 2016).

⁵⁰⁰ The legal criteria for mental disorder in s 2 of the MH(CAT) Act under the second limb is that the mental disorder (as defined) either(a) poses a serious danger to the health or safety of that person or others; or (b) seriously diminishes the capacity of that person to take care of himself or herself.

⁵⁰¹ A person does not need to have a lawyer to make a Court application and some assistance may be available from the Family Court office however, where the applicant is unrepresented the Court-appointed lawyer to represent the person subject to the application is often put in the position of providing assistance at least to make sure all the relevant information is before the Court.

⁵⁰² The writer represented Mr G in the Family Court for the purpose of the appointment of his welfare guardian (Family Court reference suppressed).

⁵⁰³ Mr G is very fortunate in this respect because there are many people in his situation who do not have a welfare guardian and there is no public guardian or advocate that can fulfil this role other than voluntary welfare guardian trusts.

82. Mr G poses significant management difficulties. He is at risk of harming himself directly, if unsupervised, through, for example, severe bites to himself, or indirectly, by running out on to the road, and being hit by traffic. To manage his behaviour, his liberty is severely restricted through the use of locks, including deadlocks on his bedroom windows and bedroom door in the house. ⁵⁰⁴

83. Mr G is completely dependent upon the community trust that cares for him and has limited contact from his welfare guardian. While the welfare guardian is involved with significant decisions with respect to his care, there is no ongoing oversight of the restrictions on his liberty, or the restraints, that are necessary to manage his care. There is only the trust’s own care plan, including a risk assessment. On occasions, there has been tension between the welfare guardian’s views on suitable restrictions and the community trust’s understandably risk-averse approach to managing his care.⁵⁰⁵ Mr C is receiving excellent care, but in fact he is subject to greater physical and psychological isolation and restrictions on his liberty than would be the case for some people with an intellectual disability detained with court orders under the IDCCR Act.⁵⁰⁶

84. A complicating factor in all these cases is the needs assessment process and the extent to which such assessments determine the level of care that a person will receive, and correspondingly, the level of restriction imposed on their liberty. A “needs assessment” refers to a clinical assessment (often of an older person or a younger adult with disabilities) to determine their level of functioning and the level of funding they require, in the provision of long-term DHB-funded disability support services. It is usually conducted by the Needs Assessment and Service Coordination service (NASC)⁵⁰⁷ and occurs around the time a decision is made to discharge a person from hospital or move them to alternative living arrangements. It may effectively determine whether they need secure dementia care or hospital level care, or whether they can remain in their own home with support.⁵⁰⁸
    
    
85. The needs assessor considers the person’s mental health and cognitive impairment when assessing their level of functioning, but the process does not purport to be a legal assessment of a person’s capacity for decision-making. The particular NASC can be either a contracted external agency or a department within a DHB, the latter giving rise to the perception, if not the possibility, of a conflict of interest.⁵⁰⁹

⁵⁰⁴ Compare this case study with A Local Authority v PB and P [2011] EWHC 2675 (COP), Charles J, where it was determined it was in P’s best interest to remain living in a supportive care regime rather than be returned home to his mother, given P’s high level of needs.

⁵⁰⁵ For example, there was a period when Mr G “trashed” his flat in response to deadlocks being put on his windows and door to his bedroom. The welfare guardian considered this behaviour entirely predictable and an inevitable consequence of placing further restrictions upon him.

⁵⁰⁶ In this case, the disparity between the high level of restrictions whilst under a PPPR Act order compared to the potential for a lower level of detention for compulsory care under the IDDCR Act was observed by the lawyer, the psychologist, the GP, and by the Family Court Judge who made the welfare guardian order.

⁵⁰⁷ See M Duggal “Health Services for Older People: the role of District Health Boards” in Diesfeld and McIntosh, above n 228 at 207. Ministry of Health 2014/15 Service Coverage Schedule (23 December 2013). Responsibility for providing long-term disability support services to older people devolved to the DHBs from the Ministry of Health in October 2003 by the Health Sector Transfers (Provider Arrangements Order 2003).

⁵⁰⁸ In 2003, the Ministry of Health released best practice guidelines for the assessment processes of older people. New Zealand Guidelines Group Assessment Process for Older People (NZGG, Wellington, 2003) https://www.health.govt.nz/system/files/documents/publications/assess_processes_gl.pdf.

⁵⁰⁹ The NASC are not accountable as providers under the HDC Code as they do not fall within the definition of “disability services” under the Health and Disability Commissioner Act 1994 and therefore are not subject to complaints under the HDC Code. In 2009, former Commissioner Paterson recommended the NASC be included in this definition among other changes to the Act, but these changes were not expressly supported by the current Commissioner Hill’s 2014 review of the Act and HDC Code: New Zealand Law Society submission on the 2014 review of the Health and Disability Commissioner Act and HDC Code, 17 February 2014. http://www.lawsociety.org.nz/__data/assets/pdf_file/0012/75999/l-HDC-Act-and-Code-Review-17-02-14.pdf.

86. While the MH(CAT) Act and the PPPR Act are overlapping regimes, they serve different purposes and operate differently.⁵¹⁰ Incapacity to consent to treatment is not required for a person to be subject to the MH(CAT) Act, yet some people are subject to both laws in the course of receiving healthcare, or regarding their living arrangements. An international review has highlighted that there may be at least a third of all patients in healthcare settings, and 45 percent patients in psychiatric settings, who do not have capacity for decision-making.⁵¹¹ When considering how legal safeguards for deprivation of liberty might work, it is therefore important to address the interface between these two regimes.
    
    
87. Under the MH(CAT) Act, where a person has been certified by two doctors as meeting the complex statutory definition of “mental disorder”, a person can be detained, and assessed, and treated by a psychiatrist (referred to as their responsible clinician).⁵¹² Then, after about a month’s assessment, an application can be made for them to be placed under a compulsory treatment order (CTO) – either an in-patient or community order − provided they continue to meet the relevant criteria. The MH(CAT) Act covers only “treatment for mental disorder”, but it authorises various forms of restraint, including detention in order to keep the person safe and to make sure they are receiving the treatment and investigations deemed necessary.⁵¹³
    
    
88. Whether undergoing assessment, or receiving treatment under a CTO, the person has recourse to a number of legal protections under the MH(CAT) Act.⁵¹⁴ They can challenge their detention (or their compulsory status) before a court while undergoing assessment;⁵¹⁵ the CTO itself must be made (and be reviewed after six months) by the Family Court,⁵¹⁶ after a hearing, and they can apply periodically to the Mental Health Review Tribunal to be discharged from a CTO if it is made indefinite by the Court.⁵¹⁷ A particular concern about the operation of the MH(CAT) Act and relevant to the issue of ongoing detention under this legislation, is the extensive use of the indefinite form of compulsory patient status, when these CTOs are renewed a second time, about a year after the initial order is made. These indefinite orders, and the small numbers of patients who apply to the Tribunal for discharge from them, are described as “a defining feature of the Act” and it is suggested they should be abolished.⁵¹⁸
    
    
89. A person can only be placed under a CTO by the court and they can be provided with legal representation (although many people are not legally represented for this process). Their legal status and detention is kept under oversight by District Inspectors, who have an ombudsman-type role, and are independent of care providers.⁵¹⁹ There is also provision for regular review of their legal status by the responsible clinician to ensure they still meet the criteria for detention (or compulsory status) whether detained under an in-patient or an community CTO under the MH(CAT) Act. Sometimes the MH(CAT) Act is used to enforce detention and management of a person with dementia in a residential facility, by placing them under an in-patient order and then placing them on leave, with a specified condition of their leave being that they reside in residential care and comply with mental health treatment.⁵²⁰
    
    
90. In New Zealand, there is no obvious legal obligation to place compliant, “non-dissenting” patients under this regime established by the MH(CAT) Act. The upshot is that such patients – who may nevertheless be under the continuous supervision and control of those caring for them and are not free to leave – do not have adequate access to an independent process that reviews the necessity for that form of supervised care. These were the exact circumstances that led to the major legal developments in England, specifically the enactment of the DoLS regime.

⁵¹⁰ As observed by Atkin and Skellern, given the two Acts deal with the same people and similar issues, “it is a little surprising that the disparity is so great and the gaps so obvious”, B Atkin and A Skellern, ‘Adults with Incapacity: the PPPR Act” in Dawson and Gledhill, above n 92 at 347.

⁵¹¹ Lepping, Stanly and Turner, above n 29.

⁵¹² Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2. The legal criteria for mental disorder in s2 of the MH(CAT) Act under the second limb is that the mental disorder (as defined) either(a) poses a serious danger to the health or safety of that person or others; or (b) seriously diminishes the capacity of that person to take care of himself or herself.

⁵¹³ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 28.

⁵¹⁴ Specific rights are listed in Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 63A − 75.

⁵¹⁵ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 12(12).

⁵¹⁶ Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 14(4) and 18.

⁵¹⁷ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 79.

⁵¹⁸ Dawson and Gledhill, above n 92 at 22. This feature of the MH(CAT) Act was also criticised in the UN Committee’s concluding observations on New Zealand in respect of the CRPD: ODI, above n 261 at 3 [22]. See also recent media attention concerning the case of Ashley Peacock and the ongoing use of seclusion while under an indefinite CTO, raising concerns about how deprivations of liberty are assessed and monitored under the MH(CAT) Act: K Johnston, New Zealand Herald, “Autistic man locked in isolation for five years: he’s had everything stripped from him”, 7 June 2016. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11648771

⁵¹⁹ Mental Capacity Act 2005, ss 94 − 99. District Inspectors are not advocates for patients under the MCA but are described as the “the watchdogs of patients’ rights”. However, they have no jurisdiction over informal patients who are not subject to the MCA. See K Thom, K Prebble “District Inspectors: Watchdogs of Patients’ Rights” in Dawson and Gledhill, above n 92 at 131.

⁵²⁰ The “detention” in a rest home while on “leave” under 31 and 30(2)(b), could be challenged as s 113 of the MH(CAT) Act only expressly authorises the detention of those under in patient orders in “hospital”.

91. A further aspect to the human rights framework in New Zealand is the national monitoring mechanism for places of detention carried out by a number of government agencies including the Human Rights Commission and the Ombudsman. These mechanisms give effect to New Zealand’s obligations under the United Nations Optional Protocol for the Convention Against Torture (OPCAT).⁵²¹ Until now, this monitoring has mainly focused on prisoners in correction facilities, and on people detained under the IDCCR Act and the MH(CAT) Act.
    
    
92. The most recent monitoring report under the OPCAT has expressed concern that there are many situations in which people are deprived of their liberty that are not currently monitored.⁵²² This includes detention in facilities approved by substitute decision-makers, such as detention in locked aged-care facilities, dementia units, compulsory care facilities, community-based homes and residences for disabled persons. Currently, an estimated 138 aged-care providers in New Zealand with locked facilities potentially fall within the scope of OPCAT. The report recommends that the Government review the scope of the OPCAT mandate in New Zealand and identify ways to address the gaps in its monitoring of places of detention.
    
    
93. A further report in 2014 by the United Nations Working Group on Arbitrary Detention expressed concerns about the protection gaps in New Zealand’s legal framework that exist for older persons in care settings. This report refers to the PPPR Act and the HDC Code as “the only pieces of legislation that are loosely relevant in this context”, and:⁵²³

    It is clear that these laws do not set out sufficiently detailed processes by which persons lacking legal capacity may become subject to detention.

⁵²¹ Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 18 December 2002, entered into force 22 June 2006). OPCAT establishes a dual system of preventive monitoring, undertaken by international and national monitoring bodies. The international body, the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), periodically visits each State Party to inspect places of detention and make recommendations to the State. At the national level, independent monitoring bodies called National Preventive Mechanisms (NPMs) are empowered under OPCAT to regularly visit places of detention, and make recommendations aimed at strengthening protections, improving treatment and conditions, and preventing torture and ill-treatment.

⁵²² Human Rights Commission (2014) Monitoring Places of Detention: Annual report of activities under the Optional Protocol to the Convention Against Torture (OPCAT), 2013–2014. www.hrc.co.nz. at 45 noted that, “People detained in these facilities potentially are vulnerable to ill-treatment that can remain largely invisible.”

⁵²³ United Nations Human Rights Council (2014) Report of the Working Group on Arbitrary Detention A/HRC/30/36/Add.2 at [88].