N v BUPA CARE SERVICES (NEW ZEALAND) LTD [2017] NZHC 499

N v BUPA CARE SERVICES (NEW ZEALAND) LTD [2017] NZHC 499 [17 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-000419[2017] NZHC 499UNDER the Habeas Corpus Act 2001BETWEEN NApplicantAND BUPA CARE SERVICES (NEWZEALAND) LIMITEDRespondentHearing: 17 March 2017Appearances: Applicant in personP Le Cren for RespondentJudgment: 17 March 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 17 March 2017 at 3.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Claro Law, Christchurch.Copy to: Applicant[1] This is an application for a writ of habeas corpus pursuant to the HabeasCorpus Act 2001. The application must be dismissed for reasons that will quicklybecome apparent.[2] Mrs N resides in a rest home at Wiri pursuant to orders made by the ManukauFamily Court under the Protection of Personal and Property Rights Act 1998. Mrs Nhas been a resident at the rest home since 24 February 2016. Mrs N suffersdementia. She has significant cognitive impairment. Hence the orders. Now a littlemore background.[3] In February 2016 the Counties Manukau District Health Board madeapplication to the Family Court for personal orders under the Protection of Personaland Property Rights Act in relation to Mrs N's care and welfare. On 22 Februarythat year, Judge Mahon made interim orders under that Act. Among other things,those orders required Mrs N to remain in secure care at the rest home. Visitors werepermitted between 10 am and 2 pm on weekdays unless the rest home's managerdecided otherwise.[4] The Judge made final orders on 17 August 2016—and following a hearing.The only material change to the orders was that visitors were permitted only at timesdecided by the manager. Mrs N's husband, Mr N, had held an enduring power ofattorney in relation to Mrs N's care and welfare. Judge Mahon revoked that poweron 17 August 2016.[5] The application for a writ of habeas corpus was filed on 13 March 2017. Theapplication appears to have been signed by Mrs N, but, given her condition andpresentation at the hearing, grave doubt attaches to whether she knew what she wassigning.[6] Mrs N did not appear to be sufficiently well to make submissions in supportof the application. Nor, for completeness, was it obvious Mrs N knew what wasgoing on. So, I permitted Mr N to advance submissions. Those submissions werewide-ranging, and notwithstanding my repeated invitation to Mr N to confine hissubmissions to the legality of Mrs N's detention. Mr N did submit Mrs N wasunlawfully detained. However, Mr N could not explain why the orders made byJudge Mahon on 17 August 2016 were other than decisive in connection with thelegality of Mrs N's detention.1[7] Section 10 of the Protection of Personal and Property Rights Act invests theFamily Court with a broad jurisdiction to make orders in relation to a person's careand welfare, and pursuant to s 10(1)(d) of that Act, the Family Court may direct a person to enter, attend at, or leave an institution specified in the order. The final orders in connection with Mrs N specifically refer to this provision, a copy of which were placed in evidence by the respondent.[8] In any event, Mr N's complaint is not really about the legality of Mrs N'sdetention at the rest home. Rather, it is that Mrs N is not being sufficiently cared for there, and that she should be able to have visitors whenever she pleases—or I infer,whenever Mr N pleases. These complaints, however, are not relevant to the legalityof Mrs N's detention or appropriately ventilated in connection with an applicationfor a writ of habeas corpus. An example may be illustrative. Mr N appears to allegeMrs N has been exposed to a penis, presumably of a resident, while at the rest home.If true, this is a matter for the Family Court in connection with the administration oforders affecting Mrs N's welfare and care; it is not a matter for the High Court in thecontext of an application for a writ of habeas corpus.[9] Consequently, not only am I satisfied Mrs N's detention is lawful,2 this is alsoa case in which the application for a writ of habeas corpus is not the appropriateprocedure for considering the allegations made by Mr N in relation to Mrs N.3[10] Nor is this the first time Mrs N's rest home placement has been challenged.Mr N sought a writ of habeas corpus in respect of Mrs N on 25 February 2016. Theapplication was dismissed by Thomas J in a comprehensive judgment the next day.4Mr N applied for a recall of that judgment. Her Honour dismissed that applicationon 1 March 2016. Mr N later sought a transcript of the hearing. The Judge declined1 That term is defined broadly by s 3 of the Habeas Corpus Act 2001.2 Habeas Corpus Act 2001, s 14(1).3 Habeas Corpus Act 2001, s 14(1A)(b).4 AN v Counties Manukau District Health Board [2016] NZHC 277.that application on 6 May 2016. Mr N then filed an appeal to the Court of Appeal. The Court of Appeal dismissed the appeal on the basis it was in substance an attempt to review the (then interim) orders made under the Protection of Personal andProperty Rights Act.5 Mr N then sought leave to appeal to the Supreme Court. ThatCourt declined leave on 1 July 2016.6 A final matter completes the narrative: Mr Nlodged an appeal to the Family Court in connection with the orders affecting Mrs Nbut then abandoned it. The obvious should be repeated: the Protection of Personaland Property Rights Act contains mechanisms to deal with the types of point Mr Nwishes to raise in connection with Mrs N's care and welfare. These include reviewpursuant to s 86 of that Act and an appeal pursuant to s 83 of the Act.[11] Mr Le Cren reserved the position of Bupa Care Services (New Zealand) Ltd, or Bupa, in relation to costs. That company operates the rest home. Costs are not normally awarded against an unsuccessful applicant for obvious reasons. But thereis an exception when the application forms part of "a series of manifestly unmeritorious and vexatious applications".7 I express no view on whether this (high) threshold is met.[12] One last matter. Mr Le Cren submitted the correct respondent in this case is Bupa and not Ms Hegh, the manager. To the extent this remains relevant, I agree.8The intituling reflects as much...Downs J5 AN v Counties Manukau District Health Board [2016] NZCA 226. Because the orders were theninterim, Mr Le Cren did not contend Thomas J's judgment was determinative of this application;see s 15 of the Habeas Corpus Act 2001.6 AN v Counties Manukau District Health Board [2016] NZSC 74.7 Manuel v Superintendent, Hawkes Bay Regional Prison [2006] 2 NZLR 63, (2005) 22 CRNZ 331 at [35].8 See High Court Rules, r 4.56. Ms Hegh is an employee of Bupa and the manager of the rest home, but Mrs N is ultimately detained by Bupa, not Ms Hegh. If Ms Hegh left, Mrs N would still be detained.