P v Auckland District Health Board

JurisdictionNew Zealand
CourtHigh Court
JudgeHINTON J
Judgment Date16 Jun 2015
Neutral Citation[2015] NZHC 1339
Docket NumberCIV-2015-404-001234

[2015] NZHC 1339

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001234

IN THE MATTER of an application for a writ of habeas corpus

BETWEEN
P
Applicant
and
Auckland District Health Board
Respondent
Appearances:

P, Applicant in person

R Reed as Amicus Curiae

H Ifwersen for Respondent

Application for a writ of habeas corpus authorising the applicant's immediate release from the custody of the District Health Board (DHB) — the applicant had been admitted as a compulsory in — patient following an application for assessment under s8 Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA) and the issuing of a notice under s11 MHA (Further assessment and treatment for 5 days) — at the end of the five day assessment period, applicant was detained by DHB pursuant to s13 MHA, on the basis that he was required to undergo assessment and treatment as an inpatient for a further 14 day period — applicant said he did not suffer from a mental disorder — whether it was appropriate to issue a writ of habeas corpus or whether the statutory regime under the MHA should apply.

The issue was: whether it was appropriate to issue a writ of habeas corpus or whether the statutory regime should apply.

Held: In considering whether the detention was lawful under s14(1) Habeas Corpus Act 2001 (if the defendant fails to establish … detention of the detained person is lawful, the High Court must grant … a writ of habeas corpus), the Court had to inquire into matters of fact and law claimed to justify the detention and was not confined in that inquiry to the correction of jurisdictional errors. The question of whether someone was lawfully detained or not had to be determined as at the date of the hearing, not at some earlier date, so that if for example in the case of a mental health patient there had been an invalidly issued certificate but the position had been remedied by the time of the hearing, there would be no invalidity on the ground of the earlier certificate.

It would be a rare or exceptional case where the Court would engage with an issue as to whether a person was mentally disordered, to justify a writ of habeas corpus. Habeas corpus would rarely be the “appropriate procedure” in such a case. This was because the Mental Health Act provided for a specialised statutory process, including specific procedures for inpatients to challenge the basis of their detention. Also a challenge to the existence of “mental disorder” would very rarely be capable of determination in such a summary jurisdiction.

The Mental Health Act provided for a detailed and staged process of assessment and treatment. At each point in that process there was an inquiry as to whether the person was, or remained, mentally disordered and of the desirability of compulsory assessment and/or treatment. There were broadly two periods of assessment before a decision was made as to whether a compulsory treatment order was sought. That order had to be obtained from a Family Court or District Court Judge and the patient could oppose that order at a defended hearing. At any stage during the first and second periods of compulsory assessment and treatment, prior to the making of an application to the District Court, the patient could apply under s16 Mental Health Act for a review by the Court. P made such an application to the District Court, which was declined.

The process followed by the ADHB complied with the detailed procedures set out at s11 — s14 Mental Health Act. Section 113(2) provided that every notice under s11 or s13 was sufficient authority to admit the patient to the hospital and to take all reasonable steps to detain the patient in the hospital during the period of assessment and treatment to which the applicable notice related. It was not appropriate to go behind the certificates on the question of lawfulness. The clinical findings supported the s12 certificate and showed reasonable grounds for believing at the date of the certificate that the proposed patient was mentally disordered in terms of s2 Mental Health Act and that it was desirable that the patient be required to undergo further assessment and treatment.

Application for habeas corpus decline.

JUDGMENT OF HINTON J

Introduction
1

I heard this matter on 10 June 2015 and delivered a brief judgment later that day, with reasons to follow. These are the reasons.

2

Mr P is currently a compulsory in-patient at Te Whetu Tawera Unit (“TWT”) at Auckland Hospital. TWT is a mental health facility.

3

On 8 June 2015 Mr P filed an application for a writ of habeas corpus authorising his immediate release from the custody of the Auckland District Health Board (“ADHB”), which is in charge of TWT.

4

The issue for this Court on a habeas corpus application is whether the respondent can satisfy the Court in terms of s 14(1) of the Habeas Corpus Act 2001, that Mr P's detention as an in-patient is lawful. If it cannot, Mr P must be released.

Background
5

On 29 May 2015 an application was made for Mr P's assessment pursuant to s 8A of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“Mental Health Act”) supported by a medical certificate signed by Dr McKinnon pursuant to s 8B of the Mental Health Act. A notice was issued to Mr P pursuant to s 9 of the Mental Health Act requiring him to attend an assessment examination.

6

Following Mr P's assessment examination Dr Chandni prepared a clinical report for the Director of Area Mental Health Services.

7

Still on 29 May 2015, Mr P was admitted to TWT pursuant to a Certificate of Preliminary Assessment issued by Dr Chandni. The certificate states that there are reasonable grounds for believing that Mr P is mentally disordered and that it is desirable that he be required to undergo further assessment and treatment.

8

A notice was then issued pursuant to s 11 of the Mental Health Act requiring Mr P to undergo a five day period of assessment and treatment at TWT. This was also completed by Dr Chandni on 29 May 2015. This notice required Mr P to be assessed and treated by Dr Jansen (his responsible clinician) for five days from 29 May 2015 until 3 June 2015.

9

At the end of the five day assessment period, on 3 June 2015, Mr P was detained by ADHB pursuant to s 13 of the Mental Health Act, on the basis that he was required to undergo assessment and treatment as an inpatient for a further 14 day period to end on 17 June 2015.

10

This is the current basis of Mr P's detention as an inpatient. The supporting documents include:

  • (a) A s 12 certificate of further assessment which concludes that there are reasonable grounds for believing that Mr P is mentally disordered and that it is desirable that he be required to undergo further assessment and treatment.

  • (b) A clinical report form dated 3 June 2015 signed by Dr Jansen which accompanied the certificate of further assessment, which states that the reason for assessment and treatment is that Mr P poses a serious danger to the health or safety of himself or other persons.

11

In summary, Mr P is still in the second period of assessment and treatment (i.e. the 14 day period). This expires on 17 June 2015.

12

On 17 June 2015 Mr P's responsible clinician will assess Mr P for the purpose of considering whether he is fit to be released from compulsory status, or not.

13

If he is not considered fit for release then Dr Jansen will have to make an application to the Court for a compulsory treatment order pursuant to s 14(4) of the Mental Health Act. A Judge will determine the application following a full hearing, at which a patient is entitled to be heard and represented.

14

Finally, in terms of background, I note that on 3 June 2015, Mr P made an application to have his condition reviewed by a Family Court Judge under section 16of the Mental Health Act. A report from a second health professional (a registered nurse) was issued on 4 June 2015. The s 16 application was considered and declined by Judge Singh on 5 June 2015.

Application for writ of habeas corpus
15

On 8 June 2015 this application for a writ of habeas corpus was filed. On receipt, the application was referred to Ellis J as the Duty Judge and on that same day her Honour directed that the application was to be set down for a half day hearing within the next three working days (as required by s 9 of the Habeas Corpus Act) and also directed that arrangements be made for the appointment of an amicus curiae.

16

The matter was then scheduled for a half-day hearing before me on Wednesday 10 June 2015.

17

Arrangements were made for Ms Rachael Reed to be appointed as amicus and I (and I am sure Mr P) am grateful for her assistance, particularly at such short notice. Ms Reed spoke to Mr P both before and during the hearing and he consented to her setting out the issues for him and assisting with progress of the hearing.

18

After filing this application, there were strong indications that Mr P was not sure of the application he had made (he had not instigated it) and did not want to proceed with it. These were recorded in an affidavit of Dr Jansen and in a memorandum of Ms Free. However, Mr P came to Court accompanied by ADHB staff and said...

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