Ashley Peacock case: Door 'wide open' to take health authorities to court

The treatment of Ashley Peacock has been found to breach torture conventions. Photo / Mark Mitchell

A leading human rights lawyer says the door is now "wide open" for an autistic patient to take health authorities to court, after the man's treatment was found to breach torture conventions.

Chief Ombudsman Peter Boshier labelled the living situation of mental health patient Ashley Peacock "cruel, inhuman or degrading treatment or punishment" in a Crimes of Torture Act report released on Friday.

Ashley, 37, has been living in a tiny, isolated wing of a rehabilitation unit managed by the Capital & Coast District Health Board for five years, allowed outside for an average 90 minutes a day.

He sleeps in a 10m square seclusion room with just a mattress and a urine bottle, and can be locked in for long periods - despite repeated recommendations he should be transitioned to community care.

Dave and Marlena Peacock with a portrait of their son Ashley Peacock, who has been kept locked up in Porirua's Regional Rehabilitation Unit Tawhirimatea for over 10 years.

Lawyer Tony Ellis said the ombudsman's latest declaration meant there was "plainly" a civil case to be made under the Bill of Rights Act if the family decided to take one.

However, in an interview with the Herald, Judge Boshier said he was hoping those in power would do what was needed for Ashley without legal action.

"It is a difficult case. But the nature of society is that we have people who are complex. We have to rise to the challenge. That's the measure of a society that acts with humanity," he said.

After Judge Boshier first declared Ashley's treatment in breach of the Convention of Torture, in April, Capital & Coast District Health Board accepted the report without argument.

Following interest from the Herald last month, it sought leave to give extra feedback, highlighting his complex needs and tendency towards violent outbursts.

In a press release on Friday, it said the media had "overstated" Ashley's level of seclusion.

Associate health minister Sam Lotu-Iiga agreed, and said it was important to take the health board's feedback into account. He said he had been reassured Ashley was being cared for "in the best way possible".

Judge Boshier said he disagreed the situation had been misreported.

"Our reporting is meticulous. Our Crimes of Torture Act inspectors are the experts in this. What we have done is accurate and what [the Herald] have done has been accurate," he said.

"I have listened to what the response from health board was and I think it's a little precious. A more helpful response would be to acknowledge the problem and do something about it."

Judge Boshier is planning to meet with Ashley's parents, Dave and Marlena Peacock, later in the month.

What does the law say?

• New Zealand has ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

• Several organisations are designated to prevent and monitor the convention, including the Ombudsman, which has Crimes of Torture Act inspectors to inspect places of detention - including secure mental health facilities.

• They are empowered to make recommendations to the government aimed at strengthening protections, improving treatment and conditions, and preventing torture or ill-treatment.

• The New Zealand Bill of Rights Act 1990, also includes the right not to be subjected to torture or cruel treatment.