Searching for answers: The lawfulness of searches in mental health facilities

Abstract

This paper discusses the legal implications of carrying out searches on patients who are subject to in-patient orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The paper considers the possible lawful grounds for carrying out the searches, including s 41 of the Crimes Act 1961, the common law justification of necessity, patient consent and an implied power to search. The paper concludes that there are no lawful grounds that are likely to apply to empower non-urgent or routine searches. The paper then considers the legal implications of the searches, including a detailed discussion of whether the searches may be breaching s 21 of the NZBORA. The paper concludes that legislative change is required in order to provide the mental health sector with greater clarity about the lawfulness of searches in mental health facilities.