AN (SC 24/2017) v BUPA CARE SERVICES (NEW ZEALAND) LIMITED [2017] NZSC 49

AN (SC 24/2017) v BUPA CARE SERVICES (NEW ZEALAND) LIMITED [2017] NZSC 49 [12 April 2017]NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL ANDPROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDINGMUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURT ACT 1980.FOR FURTHER INFORMATION, PLEASE SEEHTTPS://JUSTICE.GOVT.NZ/FAMILY/ABOUT/RESTRICTION-ON-PUBLISHING-JUDGMENTS.IN THE SUPREME COURT OF NEW ZEALANDSC 24/2017[2017] NZSC 49BETWEEN AN (SC 24/2017)ApplicantAND BUPA CARE SERVICES (NEWZEALAND) LIMITEDRespondentCourt: Elias CJ, OʼRegan and Ellen France JJCounsel: Applicant in personP W Le Cren and C E J Deans for RespondentJudgment: 12 April 2017JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The application for leave to allow the publication of the applicant'sname and identifying particulars is dismissed.C There is no order for costs.____________________________________________________________________REASONSIntroduction[1] AN suffers from dementia. She resides in a rest home pursuant to orders madeby the Family Court under the Protection of Personal and Property Rights Act 1988on 17 August 2016.1 The orders also provide that her caregivers may seek policeassistance to transport AN to return her to the rest home. The orders restrict visits toAN in the rest home to times approved by the manager of the rest home. Finally, theorders provide that the manager's consent is required before AN can leave the homefor trips or overnight stays.[2] AN made an application to the High Court for a writ of habeas corpus underthe Habeas Corpus Act 2001 in relation to the orders.2 In a judgment delivered on17 March 2017, Downs J dismissed the application.3 The Judge considered AN'sdetention was lawful4 and that habeas corpus was not the appropriate procedure forconsidering AN's complaints.5 AN seeks leave to appeal directly to this Court againstthe judgment of Downs J.Grounds of application[3] AN's proposed appeal would focus on the orders which give the manager ofthe rest home the ability to seek police assistance in transporting her and give themanager some control over visiting times and trips or overnight stays outside of therest home (orders 3 and 4).[4] AN wishes to argue that orders 3 and 4 are illegal because their effect is toauthorise detention which is in breach of her rights under the New Zealand Bill of1 Hewgill v DN and AN FC Manukau FAM-2016-092-007, 17 August 2016. The orders alsorevoked the enduring power of attorney appointing AN's husband as attorney.2 The current orders were proceeded by interim orders which, with one change in relation to visitors,reflect the current orders. The interim orders were considered by the High Court in the context ofan application for habeas corpus in [AN and DN] v Chief Executive Officer Counties ManukauDistrict Health Board [2016] NZHC 277. An appeal from that decision to the Court of Appealwas struck out: AN v Counties Manukau District Health Board [2016] NZCA 226, [2016] NZFLR468. Leave to appeal from that decision was declined: AN (SC 56/2016) v Counties ManukauDistrict Health Board [2016] NZSC 74 and an application for recall dismissed: AN (SC 56/2016)v Counties Manukau District Health Board [2016] NZSC 78.3 N v Bupa Care Services (New Zealand) Ltd [2017] NZHC 499 [N v Bupa (HC)].4 Permitting refusal to grant the writ under s 14(1) of the Habeas Corpus Act 2001. The Judge notedthat "detention" was defined "broadly" in s 3 of the Habeas Corpus Act: at n 1.5 A separate ground to refuse to grant the writ under s 14(1A)(b).Rights Act 1990. She also questions the absence of any reference to the provisions inthe Protection of Personal and Property Rights Act authorising orders 3 and 4. Finally,AN alleges orders 3 and 4 give control to someone who is not subject to due process.Our assessment[5] No exceptional circumstances have been raised which would justify an appealdirect to this Court.6 In any event, the criteria for leave in s 74 of the Senior CourtsAct 2016 are not met. We make the following points.[6] First, there is nothing in the information before us to challenge the legality ofAN's ongoing confinement in the rest home. As Downs J said, the complaint "is notreally about the legality of [her] detention"; rather it is about other matters such as herability "to have visitors whenever she pleases".7[7] Second, the Protection of Personal and Property Rights Act provides for rightsof appeal to the High Court under s 83 and for review under s 86.8 Alternatively,judicial review may provide an avenue of redress. Accordingly, if AN wishes tochallenge the extent of the orders made there are other, more appropriate, avenues todo so than by habeas corpus.9 AN has not utilised these remedies.10[8] Finally, as counsel for the respondent submits, if AN is concerned about hercare there are other mechanisms available to her such as via complaint to the Healthand Disability Commissioner.6 Senior Courts Act 2016, s 75.7 N v Bupa (HC), above n 3, at [8].8 The orders made require that the District Health Board must apply to the Court for a review of theorders before 17 August 2019. Unless the Court decides on a review to continue the orders theywill expire on that date.9 Counsel for the respondent notes that s 10(4) of the Protection of Personal and Property RightsAct 1988 enables the court to make other orders "as may be necessary or expedient to give effect,or better effect, to the personal order". The Law Commission expressed some doubts as to theability to coerce compliance via personal orders in its report on Protections Some DisadvantagedPeople May Need (NZLC R80, 2002) at [18].10 Downs J said an appeal had been lodged in the Family Court but abandoned: N v Bupa (HC),above n 3, at [10].Name suppression[9] Orders suppressing the identification of AN have been made in relatedproceedings. AN filed in this Court an application for publication of her name. Shesays name suppression is a form of discrimination against her disability. In response,the respondent filed an application asking this Court to continue name suppression.[10] Based on AN's "condition and presentation" at the hearing in the High Court,Downs J expressed doubts whether AN knew what she was signing when she signedthe application for habeas corpus.11 A similar question arises in relation to herunderstanding of the application for publication. That said, in any event, we aresatisfied that ongoing suppression is appropriate. That is consistent with the approachreflected in s 80 of the Protection of Personal and Property Rights Act which providesthat ss 11B–11D of the Family Court Act 1980 apply to this case. AN meets thedefinition of "vulnerable person" in s 11D. Publication of her name is prohibitedexcept with leave of the Court.Result[11] The application for leave to appeal is dismissed. We refuse to grant leave toallow publication of AN's name and identifying particulars.[12] The respondent seeks costs. Given AN's circumstances, we decline to makean order for costs.Solicitors:Claro, Christchurch for Respondent11 At [5].