Meek v Health and Disability Commissioner [2016] NZHC 1205 (7 June 2016)

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UNDER	the Health and Disability Commissioner Act 1994
IN THE MATTER	of an application for review under the Judicature Amendment Act 1972
BETWEEN	STUART MEEK Applicant
AND	HEALTH AND DISABILITY COMMISSIONER Respondent

Hearing:	10 December 2015
Counsel:	Applicant in Person R E Schmidt-McCleave and S J Royal for Respondent
_Judgment:	_{7 June 2016}

[1] Mr Meek suffers from depression and anxiety. He also has a deep sense of grievance that a range of public agencies have not responded properly to his needs. Mr Meek was living in Christchurch at the time of the earthquakes. He is particularly aggrieved at what he sees as EQC’s inadequate response to his position.

[2] Mr Meek has complained to the respondent, the Health and Disability Commissioner (the Commissioner), on numerous occasions. The Commissioner, quite sensibly in my view, has – as relevant here – recognised three specific

conducted a preliminary assessment, including referring the complaint to the local

[3] In these judicial review proceedings, Mr Meek argues that the Commissioner has not responded properly to his complaints. He seeks a wide range of relief, much of which is outside the jurisdiction of the Commissioner and this Court. Having said that, I am satisfied this Court does have jurisdiction to consider Mr Meek’s core complaint and, in its discretion, relief.

[4] In 2009, when he was living in Christchurch, Mr Meek contacted the police. The police were concerned for his safety. Mr Meek was taken to psychiatric emergency services, and a suicide assessment was undertaken. At that time Mr Meek’s behaviour was seen, in effect, as a way of asking for help. He was not considered to be a suicide risk.

[5] Mr Meek moved to Wellington in 2011. He contacted the Capital & Coast’s mental health services contact centre (Te Haika)¹in August 2011. Mr Meek was not considered to need mental health services and was referred to his GP.

[6] By March 2013 Mr Meek had come to the attention of police in the Wellington area. He had apparently written to a number of politicians, stating that he would kill himself if he did not get further assistance. The police referred Mr Meek to his GP. Mr Meek’s GP referred him to Te Haika, for an outpatient assessment.

[7] The assessing clinician noted that Mr Meek seemed to consider his letters as a legitimate expression of his frustrations. Mr Meek was assessed as having no intent to act on his threats. Nor did he meet the criteria for mental health assistance. The clinician advised that, if Mr Meek wrote similar letters in the future, the police

¹Capital & Coast provides mental health services through a number of units with different names.

Te Haika is a contact centre and central initial referral point, and operates from Capital &

[8] In June 2012, after he had called various agencies leaving messages he was going to kill himself, Mr Meek was visited by police at his home. The police found him living in “absolute squalor”. The police took Mr Meek to the local police station, and called Te Haika’s crisis assessment and treatment team (CATT). Arrangements were made for Mr Meek to contact the Salvation Army and a Citizens Advice Bureau for support. CATT contacted Mr Meek’s GP, who advised he would continue to treat Mr Meek.

[9] On 20 June 2012 Mr Meek was arrested for threatening to kill Mr Gerry Brownlee MP. When spoken to by police he threatened to blow himself up, to blow up Parliament and to go on a shooting rampage. He was again referred to Te Haika. He was admitted to respite care and assessed. He was released from that care on

not regarded as requiring psychiatric assistance at the time, but he needed a care manager to help him engage with social welfare agencies.

[10] On 26 October 2012 Mr Meek was treated in the Emergency Department (the ED) of Wellington Hospital. He had cut his wrist. He again said he wanted to kill himself. Mr Meek was again admitted to respite care. He was discharged on

[11] Mr Meek’s first complaint to the Commissioner was about the treatment he received from CATT during that respite care and previously.

[12] Mr Meek continued to self-harm and threaten or attempt suicide. Mr Meek would be taken by emergency services (police and ambulance) to the ED. He would be treated by that department. The ED would typically refer Mr Meek to CATT or KCMHT.³It is the approach taken by CATT and KCMHT to Mr Meek’s self-harming and threatening suicide that is the focus of his complaints. That approach was reflected in a number of management plans prepared for Mr Meek’s

[13] From Mr Meek’s perspective, that approach is best understood by reference to an interim management plan prepared on 5 December 2013 (the IMP).⁴As relevant, that plan reads:

Stuart is 41 years old. He came to our area from Christchurch after the earthquakes where he continues to feel aggrieved by the whole process. Initially he caused consternation in the community and he acted out rather than talked out his distress. He threatened to jump off buildings and to cut himself, sending photographs of those cuts to various agencies including the Parliamentary secretary. What was of particular concern was how Stuart settled when he felt that he was contained and supported by others rather than believing that he could contain and support himself. He found his few days in [Rimutaka] Prison and the use of what he described as a suicide jacket and community police visits who often share a Kebab with him particularly helpful. The difficulty is that these approaches are not sustainable, and nor do they develop independence.

Stuart was referred to various health services and whilst he often didn’t turn up, when he turned up with us, he has been pleasant, speaks calmly and is respectful. ...

At present, Stuart has been offered regular weekly work with his Psychiatrist, Dr [A]. It is in this forum that helpfully Stuart can begin to understand a recurring pattern of acting rather than talking about his genuine difficulty and distress. As a result Stuart can begin to approach his goal of living more independently.

Between these weekly sessions, Stuart may have contact with the police, ambulance, his GP, the CAT team, ED and Pathways. Each agency has their own procedures and protocols which they are required to follow. Accordingly these suggestions may not be easily translatable to different agencies. However they are offered from the perspective of Kapiti mental health input and are orientated around being able to contain and support ourselves.

We feel that in the first instance, Stuart cares for his own injuries. Should he need to be seen by the GP or the ambulance, his injuries are attended to in a matter of fact way but without socialising. At this stage in therapy, Stuart may misunderstand such kindness as caring, but ultimately it promotes a reliance on others rather than himself.

The Police are in a particularly difficult situation when Stuart is acting out in front of them. The matter is further complicated should Stuart’s charges escalate to the point that he is returned to [Rimutaka] Prison. This only reinforces the notion that he is unable to support and contain himself. I do not have an easy solution for this dilemma. However as with any member of our community, and a spirit of wanting to develop Stuart’s independence through personal difficulties, he should be charged for any offence he may commit in the same way any of us might expect to be charged.

⁴I was provided with a series of similar documents, dated respectively 22 March 2013, 1 October

2013, 7 November 2013, 5 December 2013, and 24 May 2014. Those documents took a variety of forms: for example reflecting particular special assessments or plan reviews.

From a mental health perspective, we see deliverable self harm as communicative rather than lethal. In order to avoid reinforcing unhelpful behaviour, and unless there is a significant deviation from Stuart’s usual patterns, he should be attended to by ED and discharged home. He does not need to be seen by CATT as the nature of his difficulties are familiar. If Stuart presents at a time when public transport is not available, he might wait in the Whānau room or waiting room at ED until trains and buses are running again. Although it might seem hard, taxi chits and lifts home only reinforce that acting out is without consequence. The way to avoid this is for Stuart to stop self harming and to bring his distress to therapy.

[14] Mr Meek considers it unacceptable that KCMHT would, for example, discourage police from sharing a kebab with him, discourage the emergency services from socialising with him and discourage the ED or the police from helping him to get to his home (which was in Waikanae – north of Wellington) when he does self-harm and receive treatment from the ED.

[15] As already noted, Mr Meek’s first complaint was triggered by, but not limited to, the treatment he received from CATT whilst he was on respite care in late October 2012.

[16] In his complaint Mr Meek said CATT did not care about him at all, so he had refused to take his medicine and had walked out of the respite care about midnight. He went on to complain about the way CATT had interacted with him over time. He said that when he had self-harmed or attempted suicide CATT declined to attend on him. Other times, when they had attended, no effective treatment had been provided. As a result, Mr Meek said he had ended up in prison, facing charges of threatening to kill. If he had been given proper support, that would not have happened.

3 December 2012. As requested by the Commissioner, a copy of Mr Meek’s clinical

Following the appointment Mr Meek’s care was discussed with other members of the multi-disciplinary team. The team felt there was no clear reason for Mr Meek to be followed up by mental health services as his mental health needs continued to be met by his GP together with the other supports he was receiving.

Having undertaken an assessment of the available information, I have decided, in accordance with section 38(1) of the Health and Disability Commissioner Act 1994, to take no further action on your complaint. Any further action by this Office is unlikely to help advance matters.

It appears that at times you have been ambivalent about your desire to receive help from the Mental Health Team. It is difficult therefore to reach conclusions that the care provided has been inadequate or to determine the connection between the care provided by the DHB and the criminal charges you then faced.

[20] Mr Meek complained again to the Commissioner on 27 December 2013. He said that during the previous two months he had, on 70 occasions, been attended to by police or had had to go into hospital because he was self-harming. On every occasion when mental health services were called, he was seen for a short period of time and told he was good to go home. He noted he was now facing criminal charges. On the day he was charged, mental health services had been called three times but did not attend.

[21] In referring that complaint to Capital & Coast the Commissioner, in addition to seeking an explanation of the support then being provided to Mr Meek, also raised the specific issue of assessment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHA).

various interactions with its services, including that he had a case manager, saw a

Capital & Coast consultant psychologist on a weekly basis and had a “navigator” to help him access services and supports. It noted Mr Meek could ring during working hours to talk to his care manager and could access Te Haika’s 24/7 mental health contact centre outside those times.

[23] Capital & Coast advised that, in general terms, assessment under the MHA would be counter-productive to the overall treatment plan for Mr Meek, which was psychologically based. It referred, however, to a recent incident. On 5 January 2014

Mr Meek had been sectioned under the MHA. He had been rescued after he had run into the sea at the mouth of the Waikanae River, which was then swollen and rough due to recent storms. He was admitted to an acute assessment ward for five days. He had been discharged at the end of that period, as he was no longer considered a danger to himself.

[24] On 20 March 2014 the Commissioner wrote to Mr Meek. He summarised Mr Meek’s complaint, the response he had received from Capital & Coast, and recorded his decision in the following terms:

I acknowledge that you feel the charges laid against you are unjustified, and that you believe this is a direct result of a failure on the part of [Capital & Coast]. However, having reviewed [Capital & Coast’s] response, along with the information on file, I consider that the care provided to you has been reasonable. Therefore, I have made a decision, in accordance with s 38(1) of the Health and Disability Commissioner Act 1994, to take no further action on your complaint.

[25] Another perspective on events during this period can be found in a judgment of this Court allowing Mr Meek’s appeal of a conviction for wilful damage.⁵That conviction followed events on 2 December 2013, which Simon France J described in these terms:

[3] On the day in question Mr Meek called the Police and said he intended to commit suicide. The police came. He prevented their entrance, and cut himself. Eventually order was restored. Mr Meek was arrested as he had threatened police with a weapon. The police contacted the Crisis Assistance Treatment Team (CATT) as Mr Meek wanted to meet with them. Familiar with his case, the CATT considered it unnecessary and counter-productive, and declined to attend.

[4] Mr Meek was released and sent home. He self-harmed again and was taken to A&E, whereupon he again asked to meet with the CATT. This was again refused and the decision taken to discharge him. Mr Meek was agitated and angry about this. He misbehaved within the hospital and then on leaving the building punched a wall several times, causing a hole. It is this damage that is the subject of the conviction.

[5] All this occurred on 2 December 2013. In January Mr Meek was compulsorily admitted for five days for assessment. On February 11 he appeared to answer the charges against him. It seems that for a period, including the day of sentencing, Mr Meek had legal representation. Counsel had obtained considerable information which had been provided to the Court. Mr Meek had also written a letter in apparent anticipation of a sentencing, but advises that he always intended to dispute the charge. However, before the case was called, Mr Meek had a disagreement with his lawyer. He says it was about wanting to defend the charge. By the time of appearance he was acting for himself. In the interim he had left the Court, self-harmed, called the police and been collected and returned to the Court cells to await that appearance.

[11] The appeal is accordingly allowed. In the circumstances, and bearing particularly in mind Mr Meeks’ mental unwellness at the time and the fact that no penalty was imposed in relation to the conviction, I do not consider it necessary to remit the matter for rehearing. Accordingly, the guilty plea having been entered in circumstances giving rise to a miscarriage, and a retrial being undesirable, pursuant to s 233 of the Criminal Procedure Act 2011, I set aside the conviction and direct an acquittal be entered.

[27] Mr Meek’s third complaint to the Commissioner was dated 25 April 2014. It followed an incident on 16 April that year, where Mr Meek had again self-harmed.

[28] Mr Meek complained that whilst the ED doctors had started the paperwork that night to have him compulsorily assessed under the MHA, when he was seen by mental health services the decision was made that such an assessment was not required. He had stayed overnight in the hospital, but had been sent home the next day with no money and no way of getting home. He had to walk to the railway station. On his way there, he self-harmed again by unpicking his sutures. He was taken back to the hospital, treated again, and released. On that occasion it took him two hours to walk to the train station. The police gave him a train ticket to help him get home.

[29] In its response to the Commissioner, Capital & Coast set out a narrative of events that, whilst more detailed and whilst (quite properly) putting those events into context, in a factual sense reflected the terms of Mr Meek’s complaint. Capital & Coast did, however, assert that – contrary to what Mr Meek had said – he had been offered a taxi chit on at least one occasion to get home. As is obvious, in this judicial review proceeding I am not in a position to resolve such disputed questions of fact.

[30] Capital & Coast also explained, as is very clearly recorded in the IMP, that when Mr Meek was admitted to the ED following self-harm attempts, he was to be released to make his way home once he had been medically treated. There were people who Mr Meek could contact and he was seeing his specialist doctor on a regular basis.

[31] On 1 July 2014 the Commissioner responded to Mr Meek’s third complaint. As before, he summarised that complaint and Capital & Coast’s response, and then recorded his decision in the following terms:

While I am sympathetic to your experiences, I have been provided with two very different versions of events by you and the DHB. I am inclined to accept the DHB’s version, which is supported by the contemporaneous entries in the clinical notes. As such, I consider there have been no departures from the expected standard of care.

I understand that a Partnership Plan has been implemented between you and Dr [A]. This involves nine goals for you to work towards. I note that these involve: finding appropriate ways to access services, undertaking to find your own way home when you present to the Emergency Department, and attend your weekly sessions with Dr [A]. I strongly encourage you to work towards achieving these goals, as they have been made with your best interests in mind.

Having reviewed all the available information, I have decided, in accordance with section 38(1) of the Health and Disability Commissioner Act 1994, to take no action on your complaint.

[32] The communications treated by Capital & Coast as three distinct “complaints” were, as I have already explained, only a small part of Mr Meek’s ongoing communications with the Commissioner. Over time, those communications were becoming increasingly abusive. For example, the day after he received the

Commissioner’s response to his third complaint, Mr Meek emailed in the following

THEY HAVE NEVER FOLLOWED UP THE NEXT DAY ARFTER ANY SELF HARMING EVEN NOT EVEN A PHONE CALL AND YOU ACCPT THIS SHIT BECUASE ITS NOT BEED DONE TO YOU I WOULD EVEN DO A LIE DETECTOUR TEST WOULD THEY FUCK USE PEACES OF SHIT YOUR THE LAST STEPT TO HELP PEPLOE ME BUT YOU JUST A FUCKEN WROTEN AS THE REST OF THIS COUNTRY BETTER OF DEAD WHICH IS WHERE ILL END UP AS I HAVE HAD A GUITS FULL OF THIS SHIT

[33] These proceedings were commenced on 8 July 2015. In the period from September 2014 to June 2015 Mr Meek continued to contact the Commissioner. He repeated his complaints. He noted further the instances of self-harm when, he said, ED staff had wanted him to be compulsorily assessed but CATT or other services had declined. He complained in bitter terms about KCMHT staff. On occasions, the Commissioner responded encouraging Mr Meek to consider seeking additional KCMHT input. The Commissioner also directly contacted KCMHT to advise of his concerns for Mr Meek’s safety.

[34] On 24 September 2015 I heard and dismissed an application by the Commissioner for the strikeout of Mr Meek’s application for judicial review or, if unsuccessful, for security for costs. In a judgment given on that date I concluded:⁶

[9] In the meantime, Mr Meek advises that he has an appointment with a new care team on 8 October. I have encouraged Ms Schmidt-McCleave, whose assistance I acknowledge, to see whether some form of meeting might be able to be arranged between a representative of the Commissioner and Mr Meek so that the substance of Mr Meek’s complaint could be addressed. Legal proceedings are time-consuming and taxing. I would encourage Mr Meek to take a practical approach to the resolution of this claim.

[35] By the time I heard Mr Meek’s application for review in December 2015 the Commissioner had filed an affidavit, recording contact with Mr Meek following the release of that judgment. That affidavit recorded that the Commissioner had endeavoured to arrange a meeting with Mr Meek, with his treatment provider present

_{for support. The Commissioner had contacted the person who he had been
told was}

Mr Meek’s treatment provider (Dr B). He had been unsuccessful in getting Dr B to attend such a meeting. It would appear that at the 8 October 2015 appointment, according to Dr B, Mr Meek had become upset and left before it was finished. Dr B doubted the productivity of the Commissioner meeting with Mr Meek.

[36] The Commissioner subsequently arranged for a meeting to take place with Mr Meek. Prior to that meeting, Mr Meek advised the outcomes he wanted, including the Commissioner considering fining the police, ambulance services and Wellington Hospital, and taking disciplinary action and criminal charges against two of the medical professionals involved.

[37] That meeting was held on 6 November. The Commissioner and Mr Meek agreed that the Commissioner would telephone Dr B to arrange a further appointment with Mr Meek to complete the meeting that Mr Meek had walked out on. The Commissioner attempted to contact Dr B. He did not respond. Dr C did on his behalf. The Commissioner prepared the following file note of his conversation with Dr C:

The Commissioner spoke to Dr [C] this morning. Dr [C] advised that the DHB would be sending a letter to Mr Meek shortly outlining next steps regarding his care. The Commissioner and Dr [C] agreed that HDC would send a letter to Mr Meek today on the terms outlined in the attached letter, and would let the mental health service know that the letter had been sent.

Since our meeting, we have contacted the Capital & Coast DHB mental health service. They have advised that they will write to you shortly, and I encourage you to cooperate with their suggestions.

[39] Between the strikeout hearing and 10 December 2015, Mr Meek continued to communicate with the Commissioner. Some of those emails were addressed to the Judge who would be hearing the judicial review. I did not receive those. The tone of

those communications was very much as it had been before: Mr Meek had been ill- treated. The treatment plans were cruel. He considered he had no reason to live and that he might as well kill himself.

[40] At the hearing on 10 December 2015, Mr Meek addressed the Court with dignity and restraint. He focused on the two issues of particular concern to him. First, the Commissioner had not given him an opportunity to comment on the responses to his complaints that the Commissioner had received from Capital & Coast. He did not consider that those responses were factually accurate. Secondly, he reiterated the core of his complaint as to his treatment by KCMHT over time: that is, KCMHT’s failure to engage with him, and its policy that any medical response to his instances of self-harm and suicide attempts should be limited to what was medically necessary, were cruel and improper. It is therefore on those issues that I will focus.

[41] For the Commissioner, Ms Schmidt-McCleave helpfully focused on those two matters, and addressed me as to the legal framework under which the Commissioner operates and, in particular, the nature of his preliminary assessment procedures. The Commissioner, she submitted, had properly considered and responded to all of Mr Meek’s complaints. The record demonstrated that proper process, and also that Mr Meek was at all relevant times under the active care of Capital & Coast, and KCMHT in particular.

[42] At the end of the hearing, I asked to be provided with a copy of the medical notes Mr Meek had provided to the Commissioner when he met with him on

6 November. I have read and carefully considered those notes, which included in particular copies of Te Haika’s file regarding its interactions with Mr Meek and notes prepared by the ED of its treatment of Mr Meek. I have also read and carefully considered all of the other material provided in the affidavits filed by the Commissioner, and by Mr Meek himself.

[43] The long title to the Health and Disability Commissioner Act 1994 (the Act)

An Act to promote and protect the rights of health consumers and disability services consumers, and, in particular,—

(a) to secure the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights; and

(b) to provide for the appointment of a Health and Disability Commissioner to investigate complaints against persons or bodies who provide health care or disability services; and to define the Commissioner’s functions and powers; and

[45] The Commissioner promulgated the Code as of 1 July 1996. The Code has subsequently been reviewed on a number of occasions. The rights of consumers of health and disability services that the Code recognises include the rights to be treated with respect, to dignity and independence and to services of an appropriate standard.

[46] Section 14 of the Act sets out the functions of the Commissioner. As relevant, they include:

(da) to act as the initial recipient of complaints about health care providers and disability services providers, and to ensure that each complaint is appropriately dealt with:

(e) to investigate, on complaint or on the Commissioner’s own initiative, any action that is or appears to the Commissioner to be in breach of the Code or, in the case of conduct that occurred before the enactment of the Code, in breach of certain disciplinary standards:

(f) to refer complaints, or investigations on the Commissioner’s own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

(g) subject to section 15(2), to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches might be resolved and further breaches avoided:

[47] Section 31 of the Act gives any person the right to complain orally or in writing to the Commissioner alleging that any action of a healthcare or disability services provider is or appears to be in breach of the Code. As can be seen, Mr Meek’s complaints assert breaches of those rights.

(1) As soon as reasonably practicable after receiving a complaint, the Commissioner must make a preliminary assessment of the complaint to decide—

(a) whether to take 1 or more of the following courses of action: (i) to refer the complaint to an agency or person in

(2) The Commissioner must promptly notify the complainant and the health care provider or the disability services provider to whom the complaint relates of the Commissioner’s preliminary assessment.

[49] Sections 34 and 36 provide for the referral of complaints to health and disability services providers or agencies or, where more appropriate, the Human Rights Commissioner, the Chief Ombudsman, or the Privacy Commissioner for investigation by those persons. Where the complaint is referred to a health or

disability services provider, that person must keep the Commissioner informed as to

the progress and completion of its “consideration or examination” of the complaint.⁷

[50] Following a preliminary assessment, the Commissioner may also refer the complaint to a health and disability services consumer advocate.⁸Section 27 of the Act requires the Commissioner’s Director of Advocacy to procure advocacy services. Subject to the Act, advocacy services operate independently of the Commissioner.⁹Where a complaint is referred to an advocate, the role of the advocate is to represent or assist the person alleged to be aggrieved for the purposes of endeavouring to resolve the complaint by agreement. An advocate must provide the Commissioner with a report on the outcome of the referral.¹⁰

[51] Section 38(1) specifically gives the Commissioner the discretion, after completing a preliminary assessment, to decide to take “no action or, as the case may require, no further action” on the complaint where the Commissioner considers any action or further action is unnecessary or inappropriate. Section 38(2) provides for particular matters which the Commissioner may take into account in reaching a “no action” decision. Those matters are:

(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:

(d) whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:

(e) whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.

[52] Where the Commissioner makes such a decision he must advise the complainant and relevant healthcare providers of his decision and the reasons for it.

[53] The power of the Commissioner himself to undertake investigations is provided by s 40:

(1) The Commissioner may decide to investigate any action of a health care provider or a disability services provider if the action is, or appears to the Commissioner to be, in breach of the Code.

[54] Section 41 requires the Commissioner to notify both the complainant and the relevant health services provider where he decides to investigate a matter. He must, when doing so, give the details of the complaint to the provider and advise the provider of its right to provide a written response in relation to the complaint within

[55] Section 45(2) of the Act enumerates the actions the Commissioner may take if he concludes that any action the subject matter of an investigation was in breach of the Code. These include reporting his reasons, and any recommendations, to the relevant provider, or relevant authorities and professional bodies, or referring a matter to the Director of Proceedings for consideration as to whether the Director should herself participate in disciplinary proceedings (s 47) or bring proceedings before the Human Rights Review Tribunal (s 50).

[56] Section 44 provides that the Commissioner may not refer a matter to the Director for consideration of proceedings unless the relevant person has been given an opportunity to comment on that proposed referral.

[57] Within that scheme, the Commissioner’s submission was that, following a preliminary assessment, any decision to take no further action was a highly discretionary one. It was one made by the Commissioner within an area of particular

expertise. It is not the role of this Court, therefore, to subject such a decision to overly intensive review.

[58] More specifically, the Commissioner submitted that it was only when he decided to investigate a complaint that he was required to give the complainant notice of that fact. Further, even in a formal investigation, there was no legislative requirement to go back to a complainant. The Act focuses on the “fair, simple, speedy and efficient resolution of complaints”. That overarching principle counted against a procedurally intensive approach to the resolution of complaints, particularly at the preliminary assessment phase.

[59] As the Commissioner expressed it, he had limited resources, capacity and time and must be trusted (as the Act did) to properly “triage” complaints coming before him. In doing so, he would, pursuant to his function of gathering information to assist him in carrying out his functions under the Act,¹¹request a response from the relevant health provider for the purposes of making his preliminary assessment. In making his assessments in Mr Meek’s case, he had in his discretion considered Capital & Coast’s various written responses.

[60] More generally, the overall submission for the Commissioner was that, whilst Mr Meek was undoubtedly a vulnerable health consumer who had been engaging with various agencies, responsibility for his ongoing clinical needs could not, as a matter of fact and of law, fall at the Commissioner’s door.

[61] I do not agree that the essence of Mr Meek’s complaints was that responsibility for his ongoing care was the Commissioner’s. My assessment is that, in particular as presented at the hearing, the core of Mr Meek’s challenge to the Commissioner is that the Commissioner had not properly investigated his complaints. Mr Meek expressly characterised those complaints as being that he had not been accorded the rights the Code guaranteed. In a judicial review sense, that is

[62] The Act gives the Commissioner a central role in ensuring compliance by health services providers with the Code. The Commissioner’s powers of investigation himself, referral to other responsible bodies for investigation and, finally, referral to the Director for the consideration of proceedings, are at the heart of that role. Within that scheme, the requirement to undertake preliminary assessments, and the discretion having done so to take no further action, is – I recognise – an important way of ensuring the “simple, speedy and efficient” resolution of complaints relating to infringements of rights under the Code. By the same token, however, the first requirement is that the resolution of complaints be fair.

[63] Context plays a large part in determining the requirements of fairness or natural justice. The preliminary assessment procedure is just that: preliminary. The inclusive factors in s 38(2), and the fact that a preliminary assessment precedes any investigation, suggest that many preliminary assessments may be made by reference to the complaint itself and what the complaint on its face says of the “circumstances of the case”. That is not to say that I consider the Commissioner procedurally in error when he seeks information from the subject of a complaint in the process of making his preliminary assessment. My conclusion on that point reflects the wording of s 38(1) that a “no further action” decision may be made “at any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself)”. On the other hand, the scheme of the Act overall would appear to be that the Commissioner will only investigate, in a formal sense, following a preliminary assessment.

[64] The point, I suggest, is that the Commissioner should not go too far when he “triages” complaints. That comment is a response to the Commissioner’s very general “highly discretionary” proposition, rather than to the actions he took in response to Mr Meek’s complaints. The greater the extent of the Commissioner’s inquiry into the circumstances of a complaint as part of a preliminary assessment, in my view the more likely it will be that the resulting factual context may result in the rules of fairness and natural justice giving rise to an obligation to consult with the complainant before making that preliminary assessment.

[65] Whilst, after careful consideration, I have concluded that that point was not reached here there are, nevertheless, two aspects of the approach taken by the Commissioner that are of some concern to me.

I note your comments about the manner of the CATT team members who visited you at Te Whare o Matatini on 29 October 2012. The DHB has not commented on this issue, and as you may well appreciate, it is difficult for me to resolve these types of matters, as without substantive evidence, it is very difficult to prefer one party’s version of events.

[67] It is not clear to me that the Commissioner is in a position to take a “no further action” decision following a preliminary assessment when he has been unable to resolve a factual matter which is important to the complaint.

[68] Secondly, when communicating with Capital & Coast in May 2014, following Mr Meek’s third complaint, the Commissioner specifically asked that “the staff involved are made aware of this complaint and provide input into your response”. It is not clear to me that ED staff were ever spoken to or given an opportunity to provide their perspective to the Commissioner. The ED records, moreover, do – at times – record reservations with KCMHT’s recommended approach to Mr Meek’s presentation in ED when he self-harms. Mr Meek’s third complaint referred, in particular, to circumstances that had occurred on Wednesday

16 April. On that day two staff members recorded in the department’s clinical records concerns about discharging Mr Meek when physically fit to leave the department. Te Haika had been contacted by ED. ED had advised that Mr Meek would need an acute assessment. KCMHT had responded by faxing Mr Meek’s plan to ED and noting that, when Mr Meek attends with self-harm, he could go home without CATT review “under his own steam”. An ED staff member recorded:

[69] Again, Te Haika advised that no assessment was needed as KCMHT had advised that the IMP provided the appropriate response. Another staff member then recorded:

[X] took a call from CATT ... but no answer called CATT and talked to [Y] and explained that I know Sturart and have interviewed him. He says that no one cares about him and wants to die, will self harm again [and] has no reason to live. CATT says that according to the team plan they will not see him

I do not think this is safe or makes clinical sense and was told by CATT to call police who will get him and call CATT

I asked her what the point of that would be if they will not see him but she was insist[e]nt that this is what should be done.

[70] Clinical notes contained in the file provided to me after the judicial review hearing record more recent, similar, circumstances. There were further instances of self-harm and attendance by Mr Meek at ED in September 2014. The following notes were made at that time by ED staff:

Pt states he is actively suicidal. States he wants help and intends to jump in from of a bus if we don’t help him. No self cutting tonight. States he took 7 of his sleeping pills last night.

[KCMHT] contacted and they state that he is to be discharged according to the unilateral care plan in place by them without any further evaluation.

I advised that this is not a care plan that anyone in the ED has signed off on and not one that I am comfortable following. Especially in light of the fact that pt has escalated these attempts in self cutting to the point he has had to go to theatre for repair and been transfused. Pt is clearly at risk of harm to himself.

7.5mg zopiclone tabs outside ED and presented to the front desk. Tabs ingested about 2pm. No alcohol, denies taking other meds. Says still feels the same.

Suggested that if within normal presentation pattern CATT will talk to Stuart on the phone and not see him in person, that once medically cleared he should be discharged and find his own way home.

On the last occasion I personally saw Stuart he was saying he would kill himself if discharged – CATT reluctant to see – discharged Stuart and he went to the supermarket across the road purchased a knife and cut his arm significantly – requiring transfusion and complex closure. (emphasis added)

Not yet formally agreed by ED but I do not think this is a necessary component of the plan as it is a mental health team decision as to what the best long-term management of Suarts presentations are. (As for any patient with a plan if the ED clinicians believe the presentation is significantly different from Stuarts usual presentations then we would insist on review by CATT or Stuarts team prior to d/c)

Current presentation appears consistent with Stuarts previous pattern – MH team believe best plan in this case is d/c without formal MH assessment and are aware this means accepting a small but real short term risk in favour of trying to mitigate the long term risk to Stuart and improve his overall MH.

[72] As Mr Meek asserted, therefore, it is the case that ED staff considered a mental health assessment was necessary on a number of occasions where Te Haika, CATT and KCMHT did not. Moreover, ED staff, on what I acknowledge was a limited number of occasions, expressed substantive disagreement with the release aspects of Mr Meek’s IMP.

[73] I acknowledge that KCMHT was, of course, the body responsible for providing mental health services to Mr Meek, and was interacting with him on a regular basis. That staff of ED on a particular instance may not have fully appreciated the complex background to Mr Meek’s presentation, nor the history of his assessments and the current arrangements for his treatment by KCMHT, is understandable. But that is not to say that the Commissioner would not, in those circumstances, have expected to be told of those concerns, including the perspectives of the ED staff involved, and how – from the perspective of all the relevant medical professionals – those concerns had been resolved. I think that was unfortunate, especially since the Commissioner had initially recognised the need for ED staff to make their comments.

[74] Nor would it appear the Commissioner asked the local police, or other emergency assistance agencies involved, for their views on Mr Meek’s circumstances. I think that would have been helpful. These agencies were often involved in Mr Meek’s care, as the IMP reflects.

[75] I am satisfied, however, that no formal declarations or orders for relief are called for. But the narrative I have set out, and the observations I have recorded, reflect my concern – albeit as a “lay person” in a medical sense – with what would appear to be Mr Meek’s obvious suffering.

[76] I say at once that the record shows that the Commissioner and his staff shared that concern.

[77] One of the ways in which the Commissioner can respond to a complaint is to refer it to an advocate. I think such a referral would, in Mr Meek’s circumstances, have been of potential benefit. Whether, given his complex personality and mental health issues, a positive outcome would have been produced is not something I can comment on.

[78] Mr Meek has recently returned to the South Island. On 28 April 2016, and given the undesirably long time it has taken me to finalise this judgment, I asked counsel for the Commissioner and Mr Meek to provide any updating information that might be relevant. For his part, Mr Meek emailed the Court, indicating that his problems (from his perspective) continued as before.

[79] In the circumstances, I recommend to the Commissioner that he give active consideration to referring Mr Meek’s situation to an advocate and that, in doing so, he ask that the advocate speak to the full range of health professionals who are or have been involved in responding to Mr Meek’s circumstances.¹²He should similarly ask that advocate to speak to emergency services, in particular the police,

_{that have been and are involved with him. It would be particularly
helpful for that}

¹²Section 33(3) allows the Commissioner to “revise” preliminary assessments.

advocate to speak to the local police who dealt with Mr Meek when he was in Wellington, to obtain their perspective on the circumstances that have given rise to Mr Meek’s complaints.

[80] I note finally that it was unhelpful that, when approached by the Commissioner in response to the remarks I made in dismissing the Commissioner’s strikeout application, staff of Capital & Coast declined to attend the meeting the Commissioner proposed. The referral of Mr Meek’s circumstances to an advocate would, I hope, provide the basis for a more engaged response by those staff, recognising their expertise as mental health specialists and the expert perspective they have on what all acknowledge is the distressing way Mr Meek’s mental health

High Court of New Zealand Decisions

Meek v Health and Disability Commissioner [2016] NZHC 1205 (7 June 2016)

High Court of New Zealand

Meek v Health and Disability Commissioner [2016] NZHC 1205 (7 June 2016)