Application of New Zealand Bill of Rights Act to those exercising powers
in s.122B of the Mental Health (C.A.T.)Act 1992
NEW ZEALAND BILL OF RIGHTS ACT 1990
PART 1 - GENERAL PROVISIONS
3. Application — This Bill of Rights applies only to acts done —
(a) By the legislative, executive, or judicial branches of the government of New
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
The term "acts done" in s.3 is broad, and includes omissions: R v Butcher and Burgess  2 NZLR 257. Nearly all criminal cases involve legislation, as such the Bill of Rights Act will apply. Law enforcement agencies, for example the police and mental health services would clearly fall within the ambit of 'government' (s.3(a)), or equally, as part of the executive branch of government; Adams on Criminal Law, at p. 1015. Those exercising powers that arise in s.122B(2) and (3) of the Mental Health Act would be caught by s.3 of the Bill of Rights Act. Those persons in s.122B(2) are ;
any person who retakes a patient subject to an inpatient order absent without leave (s.32(1) MHA).
'Duly Authorised Officer' ( see s.2 MHA) ( ss. 38(4)(d), 40(2), 50(4), 51(3), 53, 41(2)).
registered nurse (s.111(2)MHA).
'Director' (ss.50(4), 51(3), 53, ).
'Director of Area Mental Health Services' (s.2MHA) ( 50(4), 51(3), 53).
any person to whom the charge of the patient has been entrusted during the period of leave (50(4), 51(3), 53).
medical practitioner (ss.110C(2), 110C(1), 110A(2).
Police (ss.41(1), 41(2), 41(3), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(1), 110C(2)).
'person in charge'(s.2) of a 'hospital'(s.2) (s.113).
However, in s.122B(2) the above persons can only exercise the discretion to use reasonably necessary force in an emergency (s.122B(1) MHA). Of course 'emergency' is not defined in the MHA. As the use of force when excercising the powers in s.122B(2) is limited to emergency situations, the Bill of Rights may be read down, or in some cases not apply. Statutory interpretation is a very pragmatic process - therefore it is difficult to predict an outcome. Some of the rights in the Bill of Rights Act that are relevant are;
s.9 Right not to be subjected to torture or cruel treatment.
s.10 Right not to be subjected to scientific or medical experimentation.
s.11 Right to refuse medical treatment.
s.23(1) Everyone arrested or detained under any enactment shall be informed at the time of the arrest or detention of the reason for it (s.23(1)(a)
Shall have the right to consult and instruct a lawyer without delay and to be informed of that right (s.23(1)(b)).
Compare section 70 Mental Health (C.A.T.)Act 1992;
70 Right to legal advice
Every patient is entitled to request a lawyer to advise the patient on his or her status and rights as a patient, or any other matters on which persons customarily seek legal advice, and, if the lawyer agrees to act for the patient, he or she shall be permitted access to the patient upon request.
Bill of Rights Act continued;
s.22 Right not to be abitrarily detained.
s.23(5) Everyone deprived of liberty shall be treated with dignity and respect.
s.19 Freedom from discrimnation - prohibited to discriminate on ground of 'Psychiatric illness' ( s.21(1)(h)(iii) Human Rights Act 1993).
A civil damages remedy lies against the State for a breach of a provision in the Bill of Rights Act: Simpson v A-G [Baigent's case]3 NZLR 667.
Section 122A of the MHA states:
[122ACertain sections of Crimes Act 1961 apply to powers to take and retake
Sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), and 113A contain a power to take or retake a person, a proposed patient, or a patient. In respect of each of these powers, sections 30, 31, and 34 of the Crimes Act 1961 apply—
(a)As if the power were a power of arrest; and
(b)With any necessary modifications.]
Where the terms "justified" and/or "protected from criminal responsibility" appear in sections 30, 31, 0r 34 of the Crimes Act they will exclude certain civil actions, as "justified" means not guilty of an offence and not liable to any civil proceeding (s.2); "protected from criminal responsiblity " means not liable to any proceeding except a civil proceeding (s.2). Thus certain civil actions such as battery and false imprisonment would be prevented. The term "justified" may prevent an action for breach of the NZBORA. This commentary should be read in conjunction with s.39 of the Crimes Act, which provides:
39 Force used in executing process or in arrest
Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:
Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.
Section 39 is directed to the overcoming of resistance (see s.62 Crimes Act, liability for excessive force).
In a civil action before a jury, the question "what amount of force is reasonable in the circumstances?" is a question of fact for the jury and not a question of law for the Judge: Hayward v O'Keefe  1 NZLR 181, 191. Where excessive force has been used, the defence will be excluded entirely: R v Clegg  2 WLR 80 (HL). Where the defendant's purpose may have been to arrest as well as, or instead of, self-defence, each defence might need to be separately considered: R v Kelbie  Crim LR 802. For the burden of proof see Adams on Criminal Law, Brookers, 2002 edn. at CA 20.08. In Tocker v Police 21/12/93, Barker J, in the Hight Court, drew a connection between s.39 of the Crimes Act and s.23(5) NZBORA:
"Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person".
see further: Adams on Criminal Law, supra, at p. 132.
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