Abstract
About 5,800 people with dementia and other neurological disorders are detained in secure residential dementia care in New Zealand. About 37% are detained under one of the provisions of the Protection of Personal and Property Rights Act 1988. Many of the remaining 63% are detained under no particular form of lawful authority or justification, although some social workers and staff in dementia units regard Right 7(4) of the HDC Code, or the common law doctrine of necessity as a default justification in the absence of any other authority. This situation would be unacceptable if these facilities were detaining those convicted of crimes or suffering from severe mental illness. Older people with dementia are no less vulnerable yet are accorded lesser legal protection.
This thesis describes the legal authorities and justifications most commonly used in New Zealand and asks whether or not they conform to the principle of legality when authorising or justifying detention; and whether they conform to ideas about procedural propriety when invoked to detain this very vulnerable group of people.
It concludes that at least some aspects of the implementation of the PPPR Act do not conform to the principle of legality, and that the procedures used are inadequate to protect the rights of people with dementia, particularly those detained with the consent of Enduring Attorneys for personal care and welfare; and those detained under Right 7(4) of the HDC Code and the common law doctrine of necessity. Large numbers of people are therefore arbitrarily detained in residential dementia care in New Zealand.
The processes and procedures used in other common law jurisdictions are considered and the final part of this thesis contains suggestions for new legislation governing the detention of people with dementia, which better acknowledges and protects their rights.