An v Bupa Care Services (New Zealand) Ltd

• Jurisdiction: New Zealand
• Judge: Elias CJ,O. Regan,Ellen France JJ
• Judgment Date: 12 April 2017
• Neutral Citation: [2017] NZSC 49
• Docket Number: SC 24/2017
• Court: Supreme Court
• Date: 12 April 2017

BETWEEN

AN (Sc 24/2017)

Applicant

and

Bupa Care Services (New Zealand) Limited

Respondent

[2017] NZSC 49

Court:

Elias CJ, O. Regan, and Ellen France JJ

SC 24/2017

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal directly from the High Court (HC) to the Supreme Court (SC) and to allow the publication of the applicant's name and identifying particulars — the applicant suffered from dementia — she resided in a rest home pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 — the orders also restricted visits to the applicant in the rest home to times approved by its manager and the manager's consent was required before the applicant could leave the home for trips or overnight stays (orders 3 and 4)— the applicant unsuccessfully applied to the HC for a writ of habeas corpus under the Habeas Corpus Act 2001 — whether the applicant had other, more appropriate avenues of redress to challenge the orders other than by habeas corpus — whether name suppression should be ongoing notwithstanding the applicant's wishes.

Counsel:

Applicant in person

P W Le Cren xsand C E J Deans for Respondent

• A The application for leave to appeal is dismissed.

• B The application for leave to allow the publication of the applicant's name and identifying particulars is dismissed.

• C There is no order for costs.

JUDGMENT OF THE COURT

REASONS

Introduction

1 AN suffers from dementia. She resides in a rest home pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 on 17 August 2016. 1 The orders also provide that her caregivers may seek police assistance to transport AN to return her to the rest home. The orders restrict visits to AN in the rest home to times approved by the manager of the rest home. Finally, the orders provide that the manager's consent is required before AN can leave the home for trips or overnight stays.

2 AN made an application to the High Court for a writ of habeas corpus under the Habeas Corpus Act 2001 in relation to the orders. 2 In a judgment delivered on 17 March 2017, Downs J dismissed the application. 3 The Judge considered AN's detention was lawful 4 and that habeas corpus was not the appropriate procedure for considering AN's complaints. 5 AN seeks leave to appeal directly to this Court against the judgment of Downs J.

Grounds of application

3 AN's proposed appeal would focus on the orders which give the manager of the rest home the ability to seek police assistance in transporting her and give the manager some control over visiting times and trips or overnight stays outside of the rest home (orders 3 and 4).

4 AN wishes to argue that orders 3 and 4 are illegal because their effect is to authorise detention which is in breach of her rights under the New Zealand Bill of Rights Act 1990. She also questions the absence of any reference to the provisions in the 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 subjectto due process

Our assessment

5 No exceptional circumstances have been raised which would justify an appeal direct to this Court. 6 In any event, the criteria for leave in s 74 of the Senior Courts Act 2016 are not met. We make the following points.

6 First, there is nothing in the information before us to challenge the legality of AN's ongoing confinement in the rest home. As Downs J said, the complaint “is not really 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 rights of 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 to challenge the extent of the orders...