P v Auckland District Health Board [2015] NZHC 1339 (16 June 2015)

Last Updated: 18 June 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001234 [2015] NZHC 1339

IN THE MATTER	of an application for a Writ of Habeas Corpus
BETWEEN	P Applicant
AND	AUCKLAND DISTRICT HEALTH BOARD Respondent

Hearing:	10 June 2015
Appearances:	P, Applicant in person R Reed as Amicus Curiae H Ifwersen for Respondent
Judgment:	16 June 2015

_{JUDGMENT OF HINTON J}

This judgment is delivered by me on 16 June 2015 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

P v AUCKLAND DISTRICT HEALTH BOARD [2015] NZHC 1339 [16 June 2015]

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 16

of 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 he wished his application to proceed.

[19] 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.

[20] 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.

[21] Mr P’s application for a writ of habeas corpus sets out three grounds:

(a) he is unlawfully detained;

(b) he is not a threat to himself or others; and

(c) the interests of justice demand his immediate release.

[22] 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.

[23] 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.

[24] Mr P also said he felt he had been reasonably treated at TWT. He said there were a lot of people assisting him and he got fed well. However, he felt like he was stuck there. He said he could not go out for a walk or get fresh air. He acknowledged that his parents had come to take him out for lunch.

[25] Ms Reed advised that during her conversations with Mr P prior to the hearing, he was articulate, polite and asked rational questions. Mr P presented in a similar way at the hearing.

Discussion

[26] The Habeas Corpus Act does apply to a person detained under the Mental

Health Act, as is clear from prior decisions.

[27] Under s 14(1) of the Habeas Corpus Act a defendant has to establish that the detention of the detained person is lawful. In considering that issue the Court must inquire into matters of fact and law claimed to justify the detention and is not confined in that inquiry to the correction of jurisdictional errors.¹

[28] The question of whether someone is lawfully detained or not has 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.²

[29] The application for a writ of habeas corpus may be dismissed if it is not the

“appropriate procedure” for considering the allegations made by the applicant.³

[30] It will be a rare or exceptional case where the Court will engage with an issue such as whether a person is mentally disordered, to justify a writ of habeas corpus: Habeas corpus will rarely be the “appropriate procedure” in such a case. This is because, amongst other things, the Mental Health Act provides 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.

[31] In Sestan v Director of Area Mental Health Services, Waitemata District

Health Board, the Court of Appeal said:⁴

[91] A person in the position of Mr Sestan is entitled to seek habeas corpus, but where the critical issue is whether a person is mentally

¹ _{Habeas Corpus Act 2001, s 14(2).}

² Misiuk v The Chief Executive of the Department of Corrections [2010] NZCA 480; [2011] 2

_{NZLR 114 at [25].}

³ _{Habeas Corpus Act, s 14 (1A)(b).}

⁴ Sestan v Director of Area Mental Health Services Waitemata District Health Board [2007]

1 NZLR 767 (CA).

disordered there will be few circumstances in which it is the appropriate means of challenging or reviewing official action. By its nature, the speed with which an application must be determined and the limited opportunity there is for information to be put before the Court means that the mechanisms contained within the [Mental Health Act] will, in normal circumstances, be much more efficacious and appropriate. ...

[32] The Court of Appeal in B v Auckland District Health Board both reinforced its previous conclusion in Sestan and upheld the decision of Ellis J at first instance where her Honour said that:⁵

For all of the above reasons it would need, in my view, to be a very clear-cut case (akin perhaps to a case involving Wednesbury unreasonableness) before the habeus corpus jurisdiction could properly be utilised where the existence of a mental disorder is in dispute, even in cases brought at an early stage in the MHA process. What this means, I think, is that exceptions to the presumption against habeus corpus in the MHA context will arise only where fundamental issue is taken with the basis upon which the compulsory assessment and treatment process has been inflated and where it is alleged that the undisputed facts do not on their face disclose any reasonable grounds for concluding that the patient may be mentally disordered.

[33] As is apparent from the earlier review of the facts, the Mental Health Act provides for a detailed and staged process of assessment and treatment. At each point in that process there is an inquiry as to whether the person is, or remains, mentally disordered and of the desirability of compulsory assessment and/or treatment. There are broadly two periods of assessment before a decision is made as to whether a compulsory treatment order is sought. That order has to be obtained from a Family Court or District Court Judge and the patient can oppose that order at a defended hearing.

[34] 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 may apply under s 16 of the Mental Health Act for a review by the Court. As already noted, Mr P made such an application to the District Court, which was

_declined.

⁵ 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 454.

[35] There is a further, overarching, right to apply to the High Court under s 84. That type of inquiry appears to be broad-ranging and inquisitorial in nature. Section

84(3) provides:

If, on the examination of the person so ordered to be brought before the Judge, and on the evidence of any medical or other witnesses, the Judge is satisfied—

(a) That the person is detained illegally in the hospital as a patient; or

(b) That the person is fit to be discharged from the hospital,—

the Judge shall, unless the person is a special patient or is legally detained for some other cause, order that the person be discharged from the hospital forthwith.

[36] For both the first period of assessment and the second period of assessment a certificate has to issue stating that there are reasonable grounds for believing the proposed patient is mentally disordered and that it is desirable that the patient be required to undergo further assessment and treatment.

[37] Mental disorder is defined in s 2 of the Mental Health Act, as follows:

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:

[38] My review of the process that has been followed by the defendant in this case satisfies me that they have complied with the detailed procedures set out at ss 11-14 of the Mental Health Act. Section 113(2) provides that every notice under s 11 or s 13 is 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 relates.

[39] Further, although I agree with the view reached in earlier decisions that it is not appropriate to go behind the certificates on the question of lawfulness, I note the clinical finding of Dr Chandni on 29 May 2015 was as follows:

[Mr P] is a 30 year old male with intermittent contact with MHS in past. He has presented to the police with concerns re: his 20 year old who he alleged was kidnapped some years ago and he perceives her to be under threat. Currently [Mr P] presents as agitated, angry and frustrated, no insight, percutory (sic) delusions (+++), increasingly got loud and agitated. [Mr P] currently can be a potential threat to others as a consequence of his delusions. He has expressed to police that he may as well hang himself.

[40] This evidence which was dated only 12 days before this hearing and the other reports, provide support for the s 12 certificate, i.e. that there are reasonable grounds for believing at the date of the certificate that the proposed patient is mentally disordered in terms of s 2 of the Mental Health Act and that it is desirable that the patient be required to undergo further assessment and treatment.

[41] Another possible issue that arose during Mr P’s evidence was whether he had been given copies of the assessment certificates as is required under s 12(5) of the Mental Health Act. Mr P was uncertain about this. However, two witnesses for ADHB then confirmed that the requirements of s 12 had been met, and in particular that Mr P had been given copies of the certificates. I should add that I would not have considered a breach in this regard would amount to unlawful detention.

[42] The other issues that Mr P raised, such as not being given sufficient leave or being able to take walks outside, are, as Mr P will hopefully understand, not matters a Court can address on a habeas corpus application. Mr P’s assessment for a certificate of final assessment comes up on 17 June 2015. If an application is made to the Court for a compulsory treatment order, then there will be a hearing before a Family Court Judge as provided for in Part 2 of the Mental Health Act. If Mr P is ultimately the subject of a compulsory treatment order then I am sure the responsible clinicians will have as much regard as possible to Mr P’s wish for leave and exercise. I certainly entreat them to do so.

Result

[43] For the above reasons the application for habeas corpus was declined.

Costs

[44] I make no order for costs. I record again my appreciation to counsel for their assistance in preparing the information necessary for the Court to deal with this matter at short notice as is required. I particularly thank Ms Reed for her helpful submissions. I make an order for payment of her reasonable fee under s 99A of the Judicature Act 1908.

_{[45] I wish Mr P well.}

Hinton J