ABSTRACT
This chapter will consider the circumstances in which elderly persons may be considered arbitrarily detained in secure rest home care, when they lack the capacity to consent to it. Under human rights principles, detention can be considered arbitrary when it is not clearly authorised by law; it is not governed by a clear determining principle; or it is not governed by a fair process.
These principles can be used to assess the adequacy of particular jurisdictions’ laws governing detention of the elderly. In this chapter, the adequacy of New Zealand’s laws is assessed in this manner, particularly against the requirement that all forms of detention of the elderly be clearly authorised by law, and be governed by a fair process, to avoid arbitrariness. Certain aspects of elderly people’s detention under the common law of necessity, and under New Zealand’s adult guardianship (or mental capacity) legislation, are found wanting in this regard. Recommendations are made for reform of the law to prevent arbitrary detention occurring in these circumstances, especially compliance with the minimum standards of procedural fairness required by human rights law.
