Seclusion in Mental Health: A Bill of Rights Analysis

Abstract

Seclusion has been adopted for decades in mental health facilities in New Zealand to manage patients that are aggressive or exhibiting otherwise disturbing behaviour. Medical evidence proves that seclusion is not conducive to treatment and causes further psychological damage to patients. The recent case on Ashley Peacock, an autistic mentally unwell man who was secluded for eight years, attracted significant public attention and placed pressure on health authorities to improve seclusion standards. Using the test formulated by the Court of Appeal in Moonen v Film and Literature Board of Review, this paper establishes that seclusion is inconsistent with s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA) that protects against cruel and disproportionately severe treatment. Furthermore, seclusion cannot be justified in a free and democratic society per s 5 of NZBORA. There are clear alternatives to seclusion that are more therapeutic but still achieve Parliament’s objective of protecting others from harm. To bring seclusion more in line with NZBORA, this paper suggests the legislation can be reformed to define minimum standards of seclusion rooms and minimum entitlements for patients. Ultimately, this paper concludes that the Government must prioritise developing a more rights-consistent seclusion in all DHBs.