Nicholas Jones is a New Zealand Herald political reporter.

Use of seclusion and restraints met clinical standards, says Crown lawyer

Crown lawyers said the case was about the Bill of Rights Act, which guaranteed that care would not fall below current minimum standards. Photo / File
Crown lawyers said the case was about the Bill of Rights Act, which guaranteed that care would not fall below current minimum standards. Photo / File

The treatment of intellectually disabled men including restraint and seclusion met clinical standards, a Wellington High Court has been told.

Crown lawyer Dale La Hood has delivered his closing statement in response to the claims of three men, who are suing the Government for a declaration of ill-treatment and upwards of $100,000 each.

La Hood said the case was not about establishing what might be "ideal" or "aspirational" in terms of the men's care. It was instead about the Bill of Rights Act, which guaranteed that care would not fall below current minimum standards.

It had not, he said.

Through their lawyer Dr Tony Ellis, the men allege they have suffered a raft of ill-treatment over a number of years and while in secure psychiatric care.

The five defendants - the Attorney-General, the District Inspector, the Mental Health Review Tribunal and Waitemata DHB and Capital & Coast DHB - all deny the claims.

Today, La Hood said the applicants' case had "morphed" from one that contained numerous and specific allegations of ill-treatment, to one that was broadly about systemic issues.

A number of witnesses during the hearing who are highly-regarded health professionals had delivered extensive evidence about the treatment of the men, La Hood said, and they were "unshaken" in cross-examination that the men received treatment that met clinical standards at the time.

Another independent witness who looked in detail at the case concluded the men received "very good" care, despite the complexities and challenges their care posed.

While one health professional had acknowledged there were times that a service received by one of the men was "finding its feet", this had impacted mostly on staff, some of whom were injured and received black eyes during interactions with patients.

La Hood said each applicant had or continues to pose "serious danger" through "a propensity to seriously assault others".

The men needing compulsory care was a fact relevant to how they were treated, he said, and there appeared to be an admission in the applicants' case that their detention was lawful.

"The fact of their detention is a reality that each of the clinicians who were treating them had to deal with.

"These clinicians are not just professionals, but dedicated and caring professionals who are truly focused on the best interests of the applicants."

While it had been argued by Ellis that patients in forensic mental health facilities had the right to have sex and arrange visits from partners or sex workers, La Hood said clinicians had been clear that allowing sex increased the risk of abuse.

The men have name suppression. Their allegations include unnecessary and prolonged use of manual restraints and solitary confinement, a lack of therapy and basic human rights.

The men all have intellectual disability issues, and two are autistic. They were all committed as special patients after coming before the courts on violence charges around 15 years ago, when they were found unfit to plead.

Two of the men remain in secure care, with another living in a residential rehabilitation service home.

The legal action was arranged with the help of their litigation guardian, Colin Burgering, who works for the Justice Action Group.

A litigation guardian is authorised to conduct proceedings in the name of, or on behalf of, an incapacitated person or minor.

Ellis is due to give his closing address later today or tomorrow.

At the beginning of the hearing in July, he outlined concerns about the men's treatment, including the use of restraints and seclusion, a lack of therapy and that rights such as the ability to make phone calls were removed as a form of punishment.

The men were treated differently because of their intellectual disability, Ellis said, and were detained indefinitely, with their special patient status reviewed on an ad hoc basis, without criteria for terminating continued detention being provided to the men.

The length of detention as a special patient is disproportionate to the gravity of alleged offending, Ellis said - it exceeds the maximum penalty for the charge had the men been fit to plead.

A number of European countries took into account the length of imprisonment special patients would have been subject to, had they been fit to plead.

The case is before Justice Rebecca Ellis.

- NZ Herald

Get the news delivered straight to your inbox

Receive the day’s news, sport and entertainment in our daily email newsletter


© Copyright 2016, NZME. Publishing Limited

Assembled by: (static) on production apcf04 at 25 Oct 2016 18:54:16 Processing Time: 735ms