Liberty safeguards – filling the Bournewood gap

  1. International and domestic human rights law affirms the right to freedom from arbitrary detention. As identified, New Zealand has a Bournewood gap that is not filled by the MH(CAT) Act and its accompanying safeguards. There is a broad range of settings where the State is involved with the provision of health and social care to people who lack capacity and are unable to consent or object to their care and living arrangements. Examples include: informal psychiatric patients who are not under the MH(CAT) Act; older adults who may be discharged from hospital into care, including secure dementia units and/or ongoing residential care with various levels of restrictions; those adults who do not wish to leave their home for more institutionalised care; or people with learning disabilities who have supported living arrangements in the community but have substantial restrictions placed upon their liberty. In these circumstances, the people concerned are under the continuous supervision and control of those who care for them and are not free to leave: the acid test for when safeguards are needed in Cheshire West.

  2. The Bournewood gap exists in New Zealand because there are no specific legal safeguards that apply to these situations of detention. Reliance on the common law doctrine of necessity – as is often the case in New Zealand – was rejected by the ECtHR in HL v United Kingdom as an inadequate basis for the ongoing detention or monitoring of situations where people are deprived of their liberty. Neither the court procedures currently available under the PPPR Act (personal orders or the appointment of a welfare guardian) nor Right 7(4) of the HDC Code are designed to be effective in identifying deprivations of liberty in advance of a person’s detention. Nor do they provide ongoing monitoring of a person’s detention to ensure that such decisions are the least restrictive option and are made in their best interests. While the interface with the current mental health legislation will need to be addressed, the MH(CAT) Act is not the proper place for the necessary legal safeguards to be located, as it is intended to serve a more limited purpose – authorising and regulating compulsory psychiatric treatment.

  3. The English response to its human rights obligations – enacting the DoLS regime – could be seen as an excessive response to the problem of providing a mechanism to safeguard the interests of people who lack capacity. It has been said: “A sledgehammer must not be used to crack a nut.”524 There are also aspects of the English legislation, both the MCA and the MHA, which are specific to their legal framework and would not apply in New Zealand.525 Plus there is the different population size and different cultural context in which the English law is formed, and the need for the UK to comply strictly with the ECHR. Nonetheless, England has filled the Bournewood gap and other comparable jurisdictions have taken steps in that direction.526

524 Moonen v Film and Literature Board Review [2000] 2 NZLR 9 (CA) Baragwanath J, at 14.

525 For example, the system of informal patients under the MHA, s 131(1); the guardianship regime under the MHA to determine residence of some patients under the Act, and that people with learning disabilities come within the MHA.

526 The Victorian Law Reform Commission (VLRC) recommended for example, the introduction of a new a three-person collaborative authorisation process (the person in charge of the residential facility, a medical practitioner and the person’s health decision-maker) limited to deprivations of liberty for persons in residential care who lack capacity to consent to restrictive living arrangements that are imposed for their own health or safety. The VLRC recommendations were prior to Cheshire West and the broadening of the scope of DoLs and these particular recommendations have not as yet been acted upon. See also the Mental Capacity Bill, recently passed in Northern Ireland. Above, Chapter 1C Overview of the MCA. There is provision for additional safeguards for “serious interventions” and authorisations for deprivation of liberty (Chapter 4 of Mental Capacity Bill (NI)).

  1. The Victorian Law Reform Commission (VLRC)527 also undertook a review of the law governing restrictions on liberty, including restraint policies in residential care facilities.528 There are two striking features of this review: firstly, the extent to which the review found that other countries have extra-judicial processes for appointing substitute decision-makers where no other person is available;529 and secondly, that Australia, Canada, and England and Wales, all have a publicly-appointed person (such as a public advocate),530 or a public body or agency (such as a Public Guardian)531 available for this purpose, or to manage this process. By comparison, in New Zealand there is no network of public advocates, and no Public Guardian’s office, to produce a substitute decision-maker when no other candidate steps forward. There is currently a need for independent welfare guardians, as evidenced by the establishment of volunteer community trusts.532 In addition, where a person’s capacity is already impaired, substitute decision-makers cannot be appointed through an extra-judicial process, but only through the Court.

  2. The English experience demonstrates that the key concern is not whether, but how deprivation of liberty safeguards are provided and how far the revised scheme should extend.533 The expanded interpretation of the concept of deprivation of liberty by the UK Supreme Court in Cheshire West means that under the MCA these safeguards are needed for many more people in care homes and hospitals, as well as in community settings such as foster care placements, than had previously been understood. The starting point for policy makers in New Zealand, however, is to accept the need, in principle, to fill the Bournewood gap, and then to consider how widely detention should be interpreted and to respond appropriately within the New Zealand context.

  3. The number of people in supported residential or hospital care is likely to grow quite substantially in New Zealand as the community ages and life expectancy increases. It is an ongoing challenge to devise sufficiently flexible and efficient care as well as practical legal safeguards for people likely to need support in deciding where they will live, especially where restrictions are placed on their liberty, even if for their own welfare.

  4. There needs to be a concerted policy and legislative response that reflects the importance of personal liberty and freedom of movement, set within the wider review of mental capacity legislation. Subordinate legislation or guidelines alone would not be sufficient or effective to ensure that an adequate legal framework exists to protect the interests of this vulnerable group. Along with better provision for supported decision-making, proper legal safeguards for people who lack capacity and are deprived of their liberty are urgently required for New Zealand to comply with its obligations under arts 12(4) and 14 of the CRPD.

527 See Australian Law reform in Chapter 2A above.

528 The VLRC released a background paper of legislative schemes regulating deprivation of liberty in residential care settings in the UK, Queensland, Ontario, British Columbia and the Yukon: http://www.lawreform.vic.gov.au/sites/default/files/Guardianship_final_report_background_paper_deprivation_of_liberty_safeguards.pdf.

529 Powers of Attorney Act 1998 (Qld), s 63; Health Care Consent Act (SO) 1996 c 2, sch A; Health Care (Consent) and Care Facility (Admission) Act (RSBC) 1996, c 181; Care Consent Act (SY) 2003 c 21, sch B, s 12(1)(c).

530 Queensland, Victoria, Western Australia and South Australia all have an Office of the Public Advocate to aid in implementing guardianship legislation.

531In Ontario, the Public Guardian has a wide ranging role in protecting the rights and interests of mentally incapable adults (https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/overview.php). Office of the Public Guardian under the MCA (England and Wales) (https://www.gov.uk/government/organisations/office-of-the-public-guardian/about). See Chapter 1C Overview of MCA.

532 For example, the Otago Welfare Guardians Trust and the Wellington Welfare Guardians Trust, http://welfareguardians.nz/.

533Law Commission, above n 199 at 31.

  © 2020 Alison Douglass