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Judge Peter Boshier has released reports on five secure acute mental health units, after assessing them earlier this year.
Wellington Hospital's mental health unit used seclusion rooms as bedrooms because of over-capacity, while the Waitakere Hospital unit was using its intensive care room as long-term accommodation for a patient.
Judge Boshier said it is a breach of a UN convention and he's naming and shaming the units for a reason.
He also alerted Parliament, the Healthy Ministry and DHBs about his findings.
"You just can't contain someone in the intensive care unit of a facility like this for five months, in the way in which it occurred. It's just not right. It's not acceptable. It's not humane," Judge Boshier told Checkpoint.
"We've talked time again about the need for mental health facilities in New Zealand to operate in a better way. And now we're beginning to get more terse, more strident, and say that there needs to be change in some of these facilities.
"It's time now particularly in relation to those where we've made recommendations up until now, and they've been accepted but not implemented. What is the Ombudsman to do, but to be increasingly requiring of accountability?
"Otherwise I think the public will lose confidence in the fact that we can achieve. We've got to be able to keep the public's confidence that we really do need to change."
At the Waitakere Hospital mental health unit, a patient was "cooped up, contained, almost detained for five months," in the intensive care unit, he said.
"It's just not a facility ever built for this length of time. By the way, it's not just that particular patient that we centered on. There was another patient in the acute unit, not in ICU but the acute unit, who had been there for 344 days. That's nearly a year.
"And the reason? Because seemingly they don't have their act together in putting in place good transition into the community. And that's what we should be trying to aim for with our mental health patients - socialising them back into normality in the community," he said.
"These are not prisoners who some might think should be taught a lesson. These are people that could be friends or relatives of ours, who through no fault of theirs need mental health intervention.
"In [Te Whare o] Matairangi in Wellington, our objection there which gave rise to a further breach was that they were routinely putting patients in seclusion rooms, instead of bedrooms, and places like TV lounges, and so on, where there is no privacy.
"Cardboard receptacles were being used as toilets, when some other facilities manage to do proper ensuiting in a safe, secure and dignified fashion.
"The problem is that there was the ability in some of these rooms, particularly the rooms being used for seclusion, for passers-by just to see the most private things that people were doing," he said.
"To provide balance, when we looked at one in Timaru called Kensington and Tumanako in Whangarei, both acute units … particularly in Timaru, Kensington was the exemplar. I just wish that those that aren't getting it right could look to those who are and learn and improve and change.
"It's at the moment a lottery. If you are unfortunate to be unwell in some parts of the country. You get 'grade C' services and if you're fortunate to be in other areas you get 'grade A'.
"How is it that some facilities get it right, and shine the light and do it properly, so that someone who goes into a mental health facility who's unwell feels, because of the dignity, that life is worth living, and that they want to change.
"There are ways in which you can keep the patient safe and others safe by proper managing. If we are going to have seclusion rooms, there should be tight management, short stays, and a real emphasis on a therapeutic outcome not a punitive one."
Capital and Coast DHB responds
In a statement, Capital & Coast DHB and the Mental Health, Addictions & Intellectual Disability Service welcomed the Chief Ombudsman’s report.
"The DHB and MHAIDS acknowledged the Ombudsman’s findings in regards to their unit - Te Whare o Matairangi (TWOM) - and also provided clarity on a number of issues outlined in the report.
"TWOM has 30 bedrooms plus two additional rooms which are able to be used for seclusion or sensory modulation when absolutely necessary," said MHAIDS general manager Nigel Fairley.
"During periods of high occupancy, these rooms can be used in a non-restrictive way to accommodate and support clients appropriately and safely to prevent time spent in a less safe environment – such as an ED or uncontained community setting.
"We also recognise that work is needed to address TWOM’s high occupancy, while also understanding that high occupancy is a national - rather than regional - issue indicative of increasing demand on acute mental health services across the country.
"MHAIDS has made significant progress on implementing the Ombudsman’s previous recommendations, including ensuring safe staffing levels and mix of disciplines, ongoing staff training and upskilling, and providing appropriate access to a phone.
"MHAIDS also acknowledges challenging factors that have affected other recommendations such as pressure from nationally-increasing demand on mental health services and ongoing discussions around whether, or how best to, implement a recommendation to the greatest effect.
"MHAIDS works hard to strike a balance between supporting and treating clients with complex conditions, while ensuring the safety and protection of other vulnerable clients and staff.
"We welcome the recommendations, and a significant amount of work is underway to address the issues identified. We thank the Chief Ombudsman for his recommendations and remain committed to improving outcomes for our clients."
Waitematā DHB responds
In a statement, Waitematā DHB said: "We value the Ombudsman’s independent feedback to assist us in providing care that is safe and consistent with our legal obligations.
- The DHB is working with external agencies to minimise the need for service users at Waiatarau with high and complex needs and/or intellectual disabilities to be at the unit long-term.
- Complex case reviews for extended stays.
- Increased reviews by lead psychologist of plans to assist with management of difficult behaviour.
- The introduction of a more streamlined complaints process at Waiatarau, including complaint forms being well-advertised and accessible to service users on the Unit, and their whānau."