You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2001 >>
[2001] NZBORARp 6
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Mental Health (Compulsory Assessment and Treatment) Amendment Bill (Consistent) (Section 23(5)) [2001] NZBORARp 6 (4 March 2021)
Last Updated: 17 March 2021
4 March 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Mental Health
(Compulsory Assessment and Treatment) Amendment Bill
Purpose
- We
have considered whether the Mental Health (Compulsory Assessment and Treatment)
Amendment Bill (the Bill) is consistent with the
rights and freedoms affirmed in
the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 22589/1.7). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 23(5) (right to be treated
with humanity and respect). Our
analysis is set out
below.
The Bill
- The
Bill amends the Mental Health (Compulsory Assessment and Treatment) Act 1992
(the Act) to improve the protection of individual
rights, the safety of patients
and the public, and enable a more effective application of the Act.
- The
amendments:
- enable
a family member, caregiver or other person concerned with the welfare of the
proposed patient to be present by audio or visual
link when the purpose of an
assessment examination and the requirements of the written notice are explained
to the proposed patient;
- eliminate
indefinite treatment orders, and allow a compulsory treatment order, that is
further extended after a 6-month extension,
to be extended for 12-months only;
and
- minimise
the risk of harm to special patients1 or the public by
permitting the use of restraints and force on special patients, on a
case-by-case basis, when transporting2
them.
- The
Bill also addresses technical drafting issues and makes amendments relating to
the COVID-19 pandemic.
1 ‘Special patient’ is defined
in s 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act
1992.
2 ‘Transport’ is defined to include
escorting a special patient to and from a vehicle.
Consistency of the Bill with the Bill of Rights Act
Section 23(5) – Right to be treated with humanity and respect
- Section
23(5) of the Bill of Rights Act affirms that everyone who is deprived of liberty
shall be treated with humanity and with respect
for the inherent dignity of the
person.
- There
is a lack of domestic case law regarding the application of the s 23(5) right.
Previous cases on this right have largely arisen
from a context of imprisonment,
but academic commentators have argued that it applies to persons deprived of
liberty “for whatever
reason and by whatever means,” including under
mental health legislation.3
- Section
23(5) is breached by state conduct that is less reprehensible than a breach of
s 9 (freedom from torture, or cruel, degrading
or disproportionately severe
treatment), but is still unacceptable in New Zealand society.4
Section 23(5) captures conduct that lacks humanity but falls short of
cruelty, conduct that is demeaning, and/or conduct that is clearly
excessive in
the circumstances but not grossly so.5 Whether s 23(5)
has been breached will require a court to consider a wide range of factors and
circumstances in an individual case.
- At
times ‘special patients’ are to be transported for the purposes of
Part 4 of the Act and to allow them to attend court
and Parole Board
appearances. A small number of patients will pose a risk to the safety of
themselves and/or the public because of
their prior offending behaviour while in
treatment as a special patient, including escape attempts and assaultive
behaviour. However,
the Act does not permit the use of restraint or force when
transporting those patients. Clauses 9 and 11 of the Bill are intended
to
address the gap in the legislation.
- Clause
9 inserts new section 53A which sets out a framework in which restraints and
force can be used when transporting a special
patient. The new s 53A authorises
a special patient custodian6 to enter into an agreement
with a government agency for the provision of safe transport of the special
patient. The agreement must
include a transport management plan which permits
the use of restraints and force. Such an agreement can only be entered into with
the prior written approval of the Director of Mental Health (which is to be
given on a case-by-case basis).
- The
use of force is authorised by cl 11. This clause amends s 122B by making it
clear that a person permitted to restrain a transported
special patient or use
any other force under the new s 53A may use such force as is reasonably
necessary in the circumstances.
- These
provisions prima facie limit the right that everyone who is deprived of
liberty shall be treated with humanity and with respect for the inherent dignity
of the person.
- Ordinarily
a provision found to limit a particular right or freedom may nevertheless be
consistent with the Bill of Rights Act if
it can be considered reasonably
justified in terms
3 Andrew Butler and Petra Butler, The
New Zealand Bill of Rights Act: A Commentary (2ed) (LexisNexis NZ Limited,
2015) at [20.5.16].
4 Taunoa v Attorney-General [2007] NZSC 70,
[2008] 1 NZLR 42.
5 Taunoa v Attorney-General, above n 4.
6 ‘Special patient custodian’ means a
person who has custody of a special patient under the Mental Health (Compulsory
Assessment
and Treatment) Act 1992.
of s 5 of that Act. The s 5 inquiry asks whether the objective of the
provision is sufficiently important to justify some limitation
on the right;
and, if so, whether the limitation is rationally connected and proportionate to
that objective and limits the right
no more than reasonably necessary to achieve
that objective.7
- The
Bill is intended to improve the protection of individual rights, the safety of
patients and the public, and enable a more effective
application of the Act. We
consider that this is a legitimate objective and sufficiently important to
justify some restriction on
the s 23(5) right.
- Currently,
the Act does not permit the use of restraints and force when transporting
special patients who are considered to be a risk
to themselves and the public;
the new s 53A intends to reduce this risk. Enabling a special patient custodian
to enter into an agreement,
which allows the use of restraint and force, for the
provision of safe transport of a special patient is rationally connected to
the
objective of maintaining patient and public safety.
- We
consider that the use of restraints and force for the provision of safe
transport limits the right not more than necessary and
is proportional to the
objective because:
- approval
for the use of restraints and force is to be made on a case by case basis and
prior approval, as part of a transport management
plan, must be obtained from
the Director of Mental Health. Decisions made under the new s 53A must be made
in accordance with guidance
which will be issued by the Director- General of
Health. Decisions and guidance must also comply with the Bill of Rights
Act;
- the
use of force, in respect of the patient, must be reasonably necessary in the
circumstances. This requires the use of force to
be reasonably necessary in the
circumstances as the intervener reasonably believed them to be. The Court of
Appeal in R v Rosso noted that while there is an element of subjectivity
(for example, there must be an actual belief), the test is
objective.8 The purpose of the force will be to
restrain the special patient and to ensure their safe transport. Accordingly, we
believe the threshold
to be appropriate in the context of the purpose of the
force;
- if
force is used, the circumstances in which the force was used must be recorded as
soon as practicable, and a copy of the record
must be given to the Director of
Area Mental Health. The Ministry of Health’s Guidelines to the Mental
Health (Compulsory Assessment and Treatment) Act 1992 provide guidance for
the current reporting requirements when force is used under s 122B. The
Guidelines also note that any force deemed
to be excessive may be liable for
criminal responsibility.9 We consider this to be
adequate safeguard to ensure the power is not exercised unreasonably or
excessively; and
7 Hansen v R [2007] NZSC
7 [123].
8 R v Rosso [2011] NZCA 79 at [12]. R v
Rosso sites R v Guay [2008] NBCA 72, 337 NBR (2d) 252 where a similar
worded Canadian provision was considered. At [25] the majority said that the
objective part of the test required
consideration of whether the
intervener’s belief that force was necessary “was reasonable on the
basis of the situation
as he perceived it”.
9 Ministry of Health Guidelines to the Mental
Health (Compulsory Assessment and Treatment) Act 1992 (2020) at 128 –
129.
- treatment
of special patients is monitored by the independent
mechanism10 as part of the monitoring of compliance
with the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
and the Optional Protocol.
- As
a result, we consider that the Bill’s transport of special patients
provisions are consistent with the requirements that
persons detained be treated
with humanity, and with respect for their inherent dignity. We therefore
conclude that the Bill appears
to be consistent with s 23(5) of the Bill of
Rights Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
10 The independent mechanism
is made up of the Human Rights Commission (Central National Preventive
Mechanism) and four National Preventive
Mechanisms tasked with monitoring
detention facilities: the Independent Police Conduct
Authority, the Inspector of Service Penal Establishments, the Office of the
Children’s Commissioner and the Office of the Ombudsman.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2001/6.html