B v Auckland District Health Board

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 20 December 2010
• Neutral Citation: [2010] NZCA 632
• Docket Number: CA849/2010
• Court: Court of Appeal
• Date: 20 December 2010

Between

B

Appellant

and

Auckland District Health Board

Respondent

[2010] NZCA 632

Court:

Randerson, Harrison and Stevens JJ

CA849/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court decision dismissing an application for habeas corpus. Appellant was initially detained under s10 Mental Health (Compulsory Treatment and Assessment) Act 1992 (“MHA”) (certificate of preliminary assessment) and then under s13 MHA (further assessment and treatment for 14 days). An application under Part 2 MHA (compulsory treatment orders) for a compulsory treatment order was due to be heard the next day and had been made before the application for a writ of habeas corpus was sought. The application for habeas corpus was made primarily on the grounds that the initial detention under s10 was unlawful because there was no factual basis on which to believe the appellant was “mentally disordered” — whether the High Court erred in failing to determine whether the s10 MHA initial detention was unlawful or invalid.

Counsel:

B O'Callahan and A Bali for Appellant

A M Adams and Z R Johnston for Respondent

JUDGMENT OF THE COURT

• A The appeal is dismissed.

• B Costs are reserved. Memoranda may be filed in terms of paragraph [24] hereof.

• C Publication of the name or identifying particulars of the Appellant is permanently prohibited.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1 The appellant, Ms B, appeals against a judgment delivered by Ellis J in the High Court at Auckland on 15 December 2010 1 dismissing her application for habeas corpus. Ms B had contended that she was unlawfully detained by the Auckland District Health Board under the Mental Health (Compulsory Treatment and Assessment) Act 1992 (the Act).

2 The focus of the application before the High Court was that Ms B's initial detention under s 10 of the Act was unlawful because there was no factual basis upon which the relevant clinician could have had reasonable grounds to believe that she was “mentally disordered”, 2 an essential foundation for a certificate of preliminary assessment under s 10 of the Act.

3 A certificate under s 10 is the first step in a staged process under Part 1 of the Act enabling the compulsory assessment and treatment of a patient within strictly limited timeframes. Depending on the result of this process, the patient may be found to be fit for release from compulsory treatment status or an application may be made for a compulsory treatment order under Part 2 of the Act.

4 The appeal was brought on for hearing at short notice for two reasons. First, an application under the Habeas Corpus Act 2001 must be given precedence over all other matters before the Court. 3 Secondly, an application has been made under s 14 of the Act for the making of a compulsory treatment order under Part 2 of the Act. That application is to be heard in the District Court tomorrow.

Brief background facts

5 Ms B is 22 years of age. On 9 November 2010, one of her relatives applied for an assessment under s 8A of the Act on the ground that it was believed she was

suffering from a mental disorder. On the same day, a consulting psychiatrist issued a certificate under s 8B of the Act supporting the application for assessment

6 The following day, 10 November 2010, Dr Marcos Melese assessed Ms B and issued the certificate of preliminary assessment under s 10 of the Act. This stated there were reasonable grounds to believe Ms B was mentally disordered and that it was desirable that she be required to undergo further assessment and treatment. Under s 11 of the Act Ms B was admitted to and detained in Te Whetu Tawera, a mental health facility attached to Auckland Hospital. The purpose of her detention under that section was to enable her further assessment and treatment for “the first period” under the Act, a period of five days.

7 The clinical report associated with the certificate under s 10 was relatively brief. It described Ms B's mental state and family history of schizophrenia and went on to state that there was evidence of diminished capacity of care as she “has not been eating properly, not attending University and not socialising”. We do not have before us the full material which was before the High Court but we were informed that there was some additional affidavit evidence from Dr Melese supporting the basis on which he issued the certificate under s 10.

8 After the initial five day period, Ms B's responsible clinician, Dr John Anderson, assessed her and completed a certificate under s 12 of the Act, stating there were reasonable grounds to believe she was mentally disordered and it was desirable that she be required to undergo further assessment and treatment. On the same day, Dr Anderson required that Ms B undergo a further 14 day period of assessment and treatment under s 13 of the Act.

9 On 29 November 2010, Dr Anderson completed a certificate of final assessment under s 14(1)(b) and issued a certificate under that section stating that, in his opinion, Ms B was not fit to be released from compulsory status. As he was obliged to do under s 14(4), Dr Anderson then applied for a compulsory treatment order under Part 2 of the Act.

10 The application for a writ of habeas corpus was not sought until 3 December 2010, more than three weeks after Ms B was initially detained on 10 November and after three successive assessments of whether she was fit to be released. During that time, Ms B generally declined to co-operate with those responsible for her care and, although District Inspectors lodged two applications on her behalf during that period for a review of her condition by a Judge under s 16 of the Act, those applications were withdrawn on Ms B's instructions.

The Judge's decision

11 After a full day's hearing in the High Court, Ellis J issued a careful and thoughtful decision declining Ms B's application. She accepted a submission made by the respondent Board that the focus of her inquiry should be on the basis for Ms B's detention at the time of the High Court hearing which, at that stage, was pursuant to the certificate under s 14 of the Act. In response to Mr O'Callahan's submission that the validity of Ms B's detention depended upon the earlier certificates issued (and, in particular, the validity of the s 10 certificate) the Judge said: 4

… I accept that any scrutiny of the basis upon which B is presently detained may require consideration of any earlier detention decision(s), particularly if, as a matter of fact or law, those decisions formed any kind of platform for the later one.

12 The Judge went on to say that assessment under Part 1 of the Act is a staged process and that, at each point in that process, there is an inquiry as to whether the subject person is, or remains, mentally disordered and of the desirability of compulsory assessment and/or treatment.

13 The Judge also noted that a patient may apply for review by a Judge...