B v Auckland District Health Board
| Jurisdiction | New Zealand |
| Judge | Ellis J |
| Judgment Date | 15 December 2010 |
| Docket Number | CIV-2010-404-7978 |
| Court | High Court |
| Date | 15 December 2010 |
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-7978
UNDER
the Habeas Corpus Act 2001
B O'Callahan for the Applicant
A M Adams and C L Campbell for the Respondent
RESERVED JUDGMENT OF Ellis J
This judgment was delivered by me on 15 December 2010 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
B has been detained at Te Whetu Tawera (a mental health facility that is attached to Auckland Hospital) pursuant to the Mental Health (Compulsory Treatment and Assessment) Act 1992 (“the MHA”). She challenges the legality of that detention and seeks a writ of habeas corpus.
Although the named respondent in the application was the Director of Area Mental Health Services it is now agreed that the appropriate respondent (being the detaining body) is the Auckland District Health Board (the ADHB).
The (notice of) application was filed on Friday 3 December 2010. It was placed in the Duty Judge List on Monday 6 December 2010. As recorded in my minute of that date, there was considerable discussion at that time about the relationship between the application for habeas corpus and a pending application for a compulsory treatment order in relation to B which was scheduled to come before a Family Court Judge on Thursday 9 December. The upshot of that discussion was that the habeas corpus application was set down to be heard on Monday 13 December and it was on this basis that the substantive application came before me on that day.
The essential focus of B's habeas corpus application was that her initial detention (which occurred on 10 November 2010) 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. While B now accepts that she was at that time suffering from an “abnormal state of mind” as required by the first part of the statutory definition of “mental disorder”, she says that there was no evidence that could reasonably lead to the conclusion that the second part of the statutory definition was met, namely the conclusion that her abnormality of mind was such that either:
a) B posed a serious danger to her own health or safety or to the health and safety of others; or
b) it seriously diminished B's capacity to take care of herself.
It is accepted by both B and the ADHB that no issue arises as to the first aspect of this part of the definition but rather that it is the second aspect (seriously diminished of capacity for self care) that was relied on by the responsible clinician in B's case. In that respect Mr O'Callahan submitted that the determination made by the relevant clinicians as to B's seriously diminished capacity for self care was flawed both as a matter of fact and as a matter of law, there apparently being some controversy in the Courts below as to whether such a determination is to be made on a subjective or an objective basis.
The ADHB opposes B's application. Essentially it says that:
a) The detailed statutory scheme governing the compulsory assessment and treatment of mentally disordered persons, and in particular the numerous statutory avenues for both internal and external review and reconsideration of a patient's status, militate against the use of the habeas corpus jurisdiction in cases such as the present.
b) Habeas corpus is also an inapt remedy because the challenge to the basis upon which B was detained involves a factual contest. As well, the application of the statutory test for mental disorder to the (contested) facts necessarily involves questions of medical expertise and judgment, such matters also being unsuitable for determination in a summary way. Similarly (ADHB says) a habeas corpus application is a forum that is ill suited to hearing and determining nuanced issues of law of the kind sought to be advanced by Mr O'Callahan as to the interpretation of the definition of ?mental disorder.
c) To the extent a habeas corpus analysis can properly be applied in the present case the correct focus must not be on the justification for, or legality of, B's initial detention but rather on the statutory basis on which she is presently detained. Thus it would be not only appropriate but necessary for the Court to consider any relevant matters that have come to light subsequent to B's initial detention and relied on by the relevant clinician when making his later assessment.
As to the argument summarised at [6]a) above, there is no absolute bar to a habeas corpus application in the context of the MHA and nor did the ADHB attempt to contend otherwise. That argument therefore requires consideration in the specific context of B's case and will be the subject of further discussion below.
However I have no hesitation in accepting the submission recorded at [6]b). While I understand and record that B disputes the truth of some of the information provided by others to the clinicians who made the impugned decision(s), that dispute is not a matter with which I can engage in an application such as this. The absence of appeal rights from the grant of a writ of habeas corpus similarly militates against any foray into contentious legal areas.
Accordingly (and on the assumption that this point is reached) any consideration of the factual basis for B's detention will necessarily be predicated solely on my acceptance of the existence, if not the veracity, of the information relied upon by the clinicians at the relevant time(s). And in terms of any consideration of legal issues, such consideration will similarly be confined to an inquiry as to whether that information was capable of constituting “reasonable grounds” for the clinicians' belief that B had a seriously diminished capacity for self care.
As to the argument summarised at [6]c), the authorities seem to me clearly to support the ADHB's contention that it is the present basis for B's detention that requires scrutiny. 1 In that respect I record that although B's application was not pleaded in that way, Mr O'Callahan did address the later “live” decision in argument. That said, however, 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.
It is from the starting points outlined above that the remainder of this judgment proceeds.
The long title of the MHA describes its purpose as being:An Act to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment, to define the rights of such persons and to provide better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder.
Assessment under the MHA is a staged process. However, 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. Because it is critical to both the operation of the relevant provisions and to B's application it is useful to set out the s 2 definition of “mental disorder” in full:
Mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it-
(a) Poses a serious danger to the health or safety of that person or of others; or
(b) Seriously diminishes the capacity of that person to take care of himself or herself;-and mentally disordered, in relation to any such person, has a corresponding meaning:
An initial application for assessment of a proposed patient may be made by any person under ss 8 and 8A. That assessment, which involves examination of the proposed patient, occurs under s 9 and results in a certificate of preliminary assessment being issued under s 10. That certificate records the decision that is made on what is at that point the critical issue, namely whether there are reasonable grounds for believing the proposed patient is mentally disordered and that further assessment and treatment is desirable. As I have said, it is on this stage of the process that B's application was principally focused.
If a certificate under s 10 is issued to the effect that there are reasonable grounds for believing that the proposed patient is mentally disordered, then “yes” 11permits an initial five day period of compulsory assessment and treatment. At the end of that period there is a further assessment, resulting in a further certificate that is issued under s 12. Again, the critical issue at that stage is whether there are reasonable grounds for believing that the patient is mentally disordered and whether further assessment and treatment it desirable.
If the answer given in the certificate to those questions is “yes” then s 13 authorises a second, 14 day, period of compulsory assessment and treatment. Towards the end of that period a certificate of final assessment is required to be issued. The focus of that certificate is whether the patient is “fit to be released” from compulsory status. The s 2 definition of “fit to be released” is:
Fit to be released from compulsory status, in relation to a patient, means no longer mentally disordered and fit to be released from the requirement of assessment or treatment under this Act:
If the responsible clinician's view is that the patient is not ?fit to be released?, an application to...
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