B v Auckland District Health Board

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson J
Judgment Date20 Dec 2010
Neutral Citation[2010] NZCA 632
Docket NumberCA849/2010

[2010] NZCA 632

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, Harrison and Stevens JJ

CA849/2010

Between
B
Appellant
and
Auckland District Health Board
Respondent
Counsel:

B O'Callahan and A Bali for Appellant

A M Adams and Z R Johnston for Respondent

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.

At issue was whether the HC erred in failing to determine whether the s10 certificate was unlawful or invalid.

Held: There might be exceptional cases where an application for a writ of habeas corpus was an appropriate means of addressing a complaint of unlawful detention under Part 1 MHA. Given the nature of applications under the MHA however, its statutory mechanisms would, in normal circumstances, be much more efficacious and appropriate ( Sestan v Director of Area Mental Health Services). This was not a case where the matters at issue were “properly susceptible to fair and sensible summary determination” ( Manuel v Superintendent of Hawkes Bay Regional Prison). Since the s10 certificate had been issued, the process of assessment and treatment had moved on substantially. Any assessment of its validity would involve a significant factual assessment that would not be confined to the material available at the time the s10 certificate was issued, given the amount of material generated since. Further, there were more appropriate and effective remedies available to B under the MHA which could have been utilised at an earlier stage of the process.

Appeal dismissed.

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...

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3 cases
  • A v Auckland District Health Board
    • New Zealand
    • High Court
    • 22 October 2014
    ...has been examined on a number of subsequent occasions thereafter. 1 2 3 Habeas Corpus Act 2001, s 14. B v Auckland District Health Board [2010] NZCA 632 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767. [11] Further, I note the evidence bef......
  • B v Auckland District Health Board
    • New Zealand
    • Court of Appeal
    • 20 December 2010
    ...THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT IS PERMANENTLY PROHIBITED. IN THE COURT OF APPEAL OF NEW ZEALAND CA849/2010 [2010] NZCA 632 BETWEEN B Appellant AND AUCKLAND DISTRICT HEALTH BOARD Respondent Hearing: 20 December 2010 Court: Randerson, Harrison and Stevens JJ Counsel: B O......
  • P v Auckland District Health Board
    • New Zealand
    • High Court
    • 16 June 2015
    ...B v Auckland District Health Board HC Auckland CIV-2010-404-7978, 15 December 2010 at [41]; upheld in B v Auckland District Health Board [2010] NZCA 632, [2011] NZFLR There is a further, overarching, right to apply to the High Court under s 84. That type of inquiry appears to be broad-rangi......