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CASE STUDY:
Achieving compensation
and redress for breach of rights
Two health and disability service providers
agreed to pay compensation to the
estate of a 43-year-old female consumer
unlawfully detained in a secure dementia
unit for more than a year. The Human
Rights Review Tribunal made declarations
against the two providers for failures of
care and breaches of the woman’s rights.
The consumer (who has since died) had
a complex history that included severe
psychological trauma, depression and
alcohol abuse. Admitted to hospital in
May 2007 in a confused state, she was
assessed as not having the capacity to
make decisions about her own care. It
was decided that an application should
be made for a court order to place her
in an appropriate residential facility. The
application was prepared but never fi led
with the Court.
In August 2007 the consumer was
discharged from hospital and placed by a
needs assessment and service coordination
service (NASC) in a secure dementia
unit caring mostly for older people. She
understood she was legally required to
live there. She was assessed by the NASC
three times over the following ten months,
and on each occasion she expressed her
wish to leave the dementia unit and to live
somewhere more suitable.
At various times she clearly expressed her
frustration at having to live in the dementia
unit, and was recorded as being unhappy
and increasingly depressed about her
situation. In an email to another clinician in
June 2008 one doctor wrote “I would agree
with her perspective that where she is,
is worse than a prison.”
In August 2008 the Community Alcohol
and Drug Service discovered there was
no court order and therefore no legal
requirement for the consumer to remain
in the dementia unit if she did not wish
to be there. Over the following two
months arrangements were made for the
consumer’s transition and she left the
dementia unit in October 2008.
The Director of Proceedings brought claims
on behalf of the consumer’s estate against
the NASC and the operator of the dementia
unit in the Human Rights Review Tribunal.
The Tribunal made orders by consent of
the parties that the NASC had breached
the consumer’s rights by failing to provide
services in a manner that respected her
dignity and independence, failing to
provide services with reasonable care and
skill, and failing to cooperate with other
providers to ensure quality and continuity
of services. The operator of the dementia
unit was also found to have breached her
rights by failing to provide services with
reasonable care and skill.
The Human Rights Review Tribunal’s
decision is available at
http://www.nzlii.org/nz/cases/
NZHRRT/2012/
25
CASE STUDY