Mental Health Act (MHA):

• Individuals subject to the MHA have legal recourse to challenge their treatment and/or detention. They also receive oversight from District Inspectors to ensure they have their rights upheld. The office of District Inspectors is established by statutory authority under the Mental Health (Compulsory Assessment and Treatment) Act 1992, to ensure that people subject to compulsory assessment and treatment are advised of their rights, complaints of breaches of their rights are investigated and services are improved where required, in order for their rights to be upheld (Ministry of Health, 2003).

Protection of Personal and Property Rights (PPPR) Act (1988):

• Enduring Power of Attorney (EPOA): Section 103 of the Protection of Personal and Property Rights Act 1988 allows for an application to be made to the court for the review of a decision of an EPOA. However, the number of applications for review of the decisions of EPOAs are few and far between. In 2015, there were 16 such applications, with 12 in 2016 and 10 in 2017 (Human Rights Commission, 2018).
• Welfare Guardian – As with an EPOA, there is lack of monitoring once the orders are made. The court-appointed lawyer’s role ends at the time orders are made, and the court has no other involvement other than if a further application is made; or shortly before the orders expire, when the orders are the subject of a review. In terms of the use of the Court as a mechanism for reviewing the reasonableness of decisions made by welfare guardians and/or property managers, there were 25 such applications in 2017. This suggests that the Court is used infrequently to check the appropriateness of the actions of welfare guardians and/or property managers (Human Rights Commission, 2018).

The Code of Health and Disability Services Consumers’ Rights and the use of Right 7(4)

• There is no national consensus about the limits of right 7(4) leading to varying approaches adopted across the country by DHBs, Needs Assessment Service Co-ordination Agencies (NASC) and local residential care providers as to whether right 7(4) provides sufficient legal authority to provide long-term care and/or to detain a person in residential care.

As Iris Revuecamp notes “The regulatory controls [rely] for the most part, on the raising of concerns or complaints by the person themselves, or someone being available to do so on their behalf. This fails to take into account that many people who lack capacity to make decisions do not have people available to advocate on their behalf – making them particularly vulnerable to abuse and neglect in the absence of routine visits and monitoring by their families and/or friends, or, unfortunately, perhaps because of the care (or lack thereof) of their families and/or friends” (Human Rights Commission, 2018).

References:

Human Rights Commission. (2018). This is not my home: A collection of perspectives on the provision of aged residential care without consent. Auckland Human Rights Commission.

Ministry of Health. (2003). Guidelines for the Role and Function of District Inspectors appointed under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Available from: https://www.moh.govt.nz/notebook/nbbooks.nsf/0/043E82835A19A74D4C2568B500770432/$file/GuidelinesForTheRoleAndFunctionOfDistrictInspector.pdf.