Restricted patients in New Zealand: A failed social experiment with a hybrid form of civil/forensic compulsory mental health treatment.

INTRODUCTION: In 1992, New Zealand's mental health legislation created the distinct concept of a 'restricted patient' - effectively creating a pathway into forensic patient status, but via the civil committal process, without the patient passing through the criminal justice system en route. This regime was aimed at civilly committed patients who present "special difficulties" because of the danger they pose to others. It remains in force but has attracted little scrutiny. OBJECTIVE: This paper traverses the background to restricted patient status, and the legal regime, before describing and analysing, in anonymous form, the circumstances of all those declared to be restricted patients, and their outcomes, since the regime began. It then considers the continuing appropriateness of this legal regime in light of contemporary human rights principles. METHODS: We reviewed the records of every person placed under restricted patient status since the legislation came into force over a nearly 30-year-period. RESULTS: New Zealand's restricted patient status is rarely used. Only eight people have been subject to such orders (seven male, median age 45 years at the making of the order). All had a history of violent offending and had previously been forensic patients. None re-offended after becoming a restricted patient, but they spent longer as compulsory inpatients than patients unfit to stand trial or not guilty by reason of insanity. There is no evidence they were uniquely dangerous. The legal criteria, namely, that the person presented with "special difficulties", are unclear and have been interpreted differently by the judiciary. They have sometimes included the risk of inadequate care being provided by mental health services. CONCLUSION: Given the rarity with which restricted patient status has been used in New Zealand, the subsequent evolution and development of forensic services providing alternative pathways through care, and its problematic human rights aspects, we would not recommend equivalent restricted patient provisions to other countries. We suggest this hybrid form of civil/forensic compulsory mental health treatment is a form of arbitrary detention and incompatible with human rights norms. It should be omitted from New Zealand's next Mental Health Act.

"Loss of Dignity" in Claims for Damages for "Humiliation, Loss of Dignity and Injury to Feelings" in the Human Rights Review Tribunal of New Zealand.

The Human Rights Review Tribunal of New Zealand recently determined that it has the power to award damages for loss of dignity in cases where the person whose rights have been breached does not have the mental capacity to understand that this is the case, or the impact of that breach on their dignity. In defining the meaning of dignity, determining how to assess its loss (by way of an objective rather than subjective test) and categorising the nature of damages for loss of dignity as vindicatory rather than compensatory, the Tribunal broke new ground. However, after analysing the Tribunal's decision, and considering relevant case law, this article concludes that the Tribunal's decision was flawed, and that the legislation only allows for the award of compensatory damages. Legislative change would be required to expand the scope of remedies available to include vindicatory damages.