Chapter 3 – Liberty Safeguards

Chapter 3 is in four sections:

  1. The human rights framework for assessing whether a person who lacks capacity is deprived of their liberty.

  2. The case law in England and under the European Convention on Human Rights (ECHR) that exposed the “Bournewood gap” and led to the development of the Deprivation of Liberty Safeguards (DoLS).

  3. Identifying the Bournewood gap in New Zealand.

  4. Options for law reform to “plug the gap” with legal safeguards for deprivations of liberty – referred to in the recommendations in this report as “liberty safeguards”.
Introduction
  1. The major legal issue that emerged from reform of the English mental capacity law has been the need to provide legal protections for people who both lack capacity to consent or object to their healthcare and living arrangements, and are effectively detained. Detention that affects the liberty of people who lack capacity (referred to as “deprivations of liberty” in human rights conventions) is concerned with the fundamental human right not to be arbitrarily detained. Such liberty rights are guaranteed by the International Covenant on Civil and Political Rights 1966 (ICCPR),380 the United Nations Convention on the Rights of Persons with Disabilities (CRPD),381 the European Convention on Human Rights (ECHR),382 and the New Zealand Bill of Rights Act 1990 (NZBORA), as well as having long been protected by the common law.

  2. People who lack capacity may face substantial restrictions on their liberty and freedom of movement, not only when they receive treatment in a secure hospital unit, but also when they live in a residential care facility or in supported living arrangements in the community. Liberty and freedom of movement are values of fundamental importance in our society, yet currently in New Zealand there is no guaranteed legal process governing this loss of liberty for people who lack capacity. There is a process for people detained in psychiatric facilities under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act), some of whom may lack capacity. However, there is no guaranteed process for reviewing the need for detention of other people who may be detained in a range of healthcare and living environments, who are not subject to involuntary treatment under the mental health legislation.

  3. The House of Lords’ decision in the Bournewood case in 1999,383 and the decision of the European Court of Human Rights (ECtHR) in HL v United Kingdom in 2004,384 exposed a gap in the legal protections that cover the detention of compliant people who lack the capacity to object, which became known as the “Bournewood gap”. In HL v United Kingdom, the ECtHR found that a man who had been informally admitted to a psychiatric hospital in England had been deprived of his liberty when the staff exercised complete control over his freedom of movement. This deprivation of liberty was not “lawful” and breached art 5(1) of the ECHR as there was inadequate protection against the arbitrariness of his informal admission. Article 5(4) of the ECHR therefore required that he have guaranteed access to an independent review process concerning the lawfulness of his detention.

  4. In 2007, the UK Parliament responded to this decision – so closing the Bournewood gap – by amending the Mental Capacity Act 2005 to create the Deprivation of Liberty Safeguards (DoLS) regime.385 This was intended to create a suitable process governing such deprivations of liberty. It would only be mandatory to follow this process, however, when a person was deprived of their liberty in terms of art 5(1) of the ECHR.386 Then the decision of the United Kingdom Supreme Court, in Cheshire West387 in March 2014, gave a broad interpretation to the range of situations in which people were to be viewed as deprived of liberty under the MCA. This meant that the process required by DoLS would have to be applied to many more people in care homes and hospitals, as well as in community settings such as foster care placements.388

  5. In view of these significant developments, which almost paralysed the operation of these safeguards under the mental capacity law in England, it is surprising how little attention has been given to this issue in New Zealand – in regards to detention of people who lack capacity but are not under the MH(CAT) Act.389 The Bournewood gap and the ongoing developments in England raise important questions for New Zealand about the positive obligations on the State to provide oversight and legal protections for those who lack capacity and are effectively detained, independent of the standard of care or quality of living arrangements provided to them. Or, to put it another way: in the absence of legal safeguards, is there a significant gap in our law to protect detained people who lack capacity, where the State is involved with the provision of their health and social care? If so, how should New Zealand fill this gap in a review of its law?

  6. Many people who lack capacity to make decisions about their accommodation arrangements – either those in residential care or those who are about to be discharged from hospital and admitted into care – have made no legal provision anticipating their loss of capacity. So they do not have a legally authorised person appointed under an enduring power of attorney (EPOA), or an appointed welfare guardian, who has the power to consent or object to decisions authorising their detention in relation to their living arrangements. Even if they do, or if court orders are obtained, the PPPR Act is not designed to provide ongoing oversight of their detention or restrictions on their liberty.

380 ICCPR, art 9. The NZBORA expressly affirms New Zealand’s commitment to the ICCPR and requires all statutes to be construed consistently with these rights if possible.

381 CRPD, art 14. The main international human rights instruments to which New Zealand is a party that are relevant to mental capacity law are referred to in Chapter 2A. The key provisions of the CRPD, ICCPR and the ECHR are set out in Appendix C.

382 European Convention on Human Rights (opened for signature 4 November 1950, entered into force 3 September 1953) (“European Convention” or “ECHR”), art 5.

383 Bournewood, above n 5.

384 HL v United Kingdom, above n 4.

385 MCA, ss 4A and 4B, Schedules 1A and A1. The new legislative scheme was inserted into the Mental Capacity Act 2005 (England and Wales) by the Mental Health Act 2007, which came into effect in 2009. See Chapter IC summary of ongoing law reform.

386 Section 65(4) of the Mental Capacity Act provides: “In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention”.

387 Above n 7.

388 The Bournewood case, Cheshire West and the Deprivation of Liberty Safeguards are discussed in more detail below.

389 J Dawson “The Law of Emergency Psychiatric Detention” (1999) 2 New Zealand Law Review 275-303; A Douglass “Implications of the Treatment of Incompetent and Vulnerable Patients” (presentation to the Medical Law Conference, Wellington, 18 April 2011); A Martin “Who Decides in Hard Cases? The Boundaries of Competency and Consent” (presentation to HDC Medico-Legal Conference, Wellington, 18 October 2012); S Nightingale and I Reuvecamp “Regulating the Detention of Mentally Incapacitated Adults Not Subject to the Mental Health Act” in Dawson and Gledhill, above n 92 at 163.


  1. Where, in such situations, there is no-one to act on behalf of a person who lacks capacity, healthcare providers in New Zealand are often reliant upon the common law doctrine of necessity, expressed through Right 7(4) of the HDC Code, to provide a legal justification for their confinement. This justification is based on the assumption that decisions about the effective detention of a person who lacks capacity can simply be made in their best interests by healthcare professionals, without any independent oversight of those decisions being required – an assumption that has been rejected by the ECtHR.

  2. The rights restricted by deprivation of liberty highlight the vulnerability of people who lack capacity and who are at risk of abuse, neglect and exploitation.390 There are also legal risks for those working in the health and disability sector. These concern the extent to which providers of health and disability services might breach their duty of care to people by detaining them without legal authority or, indeed, for not detaining them when it is required to provide them with adequate care (including potentially breach of statutory objectives or duties),391 the prospect of criminal liability for insufficient care,392 and the potential for breach of professional standards.393 Importantly, the lack of safeguards against deprivation of liberty poses practical and ethical challenges for people who work with this vulnerable group and recognise that the current legal framework is inadequate to best promote and protect the autonomy of those for whom they care.394

  3. This chapter sets out the human rights framework for assessing when a person who lacks capacity has been deprived of their liberty, and for giving effect to the central guarantee that any detention should not be arbitrary. It outlines the meaning of the Bournewood gap, the effect of the DoLS regime, and subsequent case law in England under the MCA and the ECHR. Then it identifies the existence of a similar gap within New Zealand’s legal framework and the problems encountered in practice due to the lack of adequate protections for people in these circumstances. It identifies the reasons why New Zealand should “plug the gap” and recommends the development of appropriate legal safeguards.

390 See for example, T Baker “Legal Protections and Remedies for Elder Abuse, Neglect and Exploitation” in Diesfeld and McIntosh, above n 228 at 477.

391 See for example, ss 22 and 23 of the New Zealand Public Health and Disability Act 2000. The objectives and functions of DHBs include: ”to promote effective care or support for those in need of personal health or disability support services” and “to promote the inclusion and participation in society and independence of people with disabilities”, and “to monitor the delivery and performance of services.”

392 See for example, Crimes Act offences: s 151 - a duty in respect of vulnerable adults to provide necessaries and protect from injury; s 195 - ill-treatment or neglect of child or vulnerable adult; and s 195A - a failure to protect a child or vulnerable adult.

393 This chapter highlights some of these legal risks however its focus is on the legal protection needed for people who lack capacity and is not an analysis of the civil and criminal liability of public (DHBs) and private providers (residential care facilities, for example). Chapter 1B provides an overview of the relevant laws in New Zealand.

394 More than any other aspect of this legal research project, the inadequacies of Right 7(4) of the HDC Code as a safeguard and the difficulties with the using the court process under the PPPR Act for the placement and living arrangements of people who lack capacity, have been raised with the writer.

  © Copyright 2017 Alison Douglass