P v Auckland District Health Board
| Jurisdiction | New Zealand |
| Judge | HINTON J |
| Judgment Date | 16 June 2015 |
| Neutral Citation | [2015] NZHC 1339 |
| Docket Number | CIV-2015-404-001234 |
| Court | High Court |
| Date | 16 June 2015 |
IN THE MATTER of an application for a writ of habeas corpus
[2015] NZHC 1339
CIV-2015-404-001234
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
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.
P, Applicant in person
R Reed as Amicus Curiae
H Ifwersen for Respondent
JUDGMENT OF HINTON J
I heard this matter on 10 June 2015 and delivered a brief judgment later that day, with reasons to follow. These are the reasons.
Mr P is currently a compulsory in-patient at Te Whetu Tawera Unit (“TWT”) at Auckland Hospital. TWT is a mental health facility.
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.
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.
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.
Following Mr P's assessment examination Dr Chandni prepared a clinical report for the Director of Area Mental Health Services.
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.
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.
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.
This is the current basis of Mr P's detention as an inpatient. The supporting documents include:
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(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.
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(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.
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.
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.
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.
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.
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.
The matter was then scheduled for a half-day hearing before me on Wednesday 10 June 2015.
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.
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 he wished his application to proceed.
At the outset of the hearing, Mr P advised that he had not had an opportunity to read all of the material filed by ADHB and requested until 11 am to do so. I stood the matter down to enable Mr P to read the balance of the documents and to discuss matters further with Ms Reed. He had talked to Ms Reed also the day before.
When the Court resumed, which by the time Mr P had read all of the material was approximately 11.15 am, I heard first from counsel for the ADHB, then Ms Reed as amicus, and then Mr P. I heard the parties in that order because the burden is on the ADHB and because I considered it would assist Mr P to understand the issues the application raised. Mr P agreed with that course of action.
Mr P's application for a writ of habeas corpus sets out three grounds:
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(a) he is unlawfully detained;
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(b) he is not a threat to himself or others; and
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(c) the interests of justice demand his immediate release.
Ms Reed said Mr P's position was in essence that he does not suffer from a mental disorder or illness sufficient to meet the criteria under the Mental Health Act, as presumably determined by the physicians signing the various certificates under the Act.
Mr P did not file any evidence in support of his application but he did give oral evidence. In essence, he confirmed what was set out as his position at paragraph 6 of Ms Reed's submissions:
Mr [P] says that he went to the police station on 29 May 2015 to ask for a phone number for his daughter [S] who lives in Auckland. He was worried for her safety as he cares for her. However he was detained from that point when he says all he was doing was showing concern for his daughter. He considers that as a result of that simple inquiry he has been treated in an unfair, unreal and illogical way. He has now been detained for 10 days and treated in an uncivilised way as his very rights and freedoms have been undermined by his detention. He is feeling good and is not a threat to his own or anyone else's safety.
Mr P also said he felt he had been...
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