A v Auckland District Health Board
[2014] NZHC 2619
•22 October 2014
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-002718 [2014] NZHC 2619
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for Habeas Corpus
BETWEEN
A Applicant
AND
AUCKLAND DISTRICT HEALTH BOARD
Respondent
Hearing: 22 October 2014 Appearances:
Applicant in Person
R Reed as Amicus
A M Adams and D J Collins for RespondentJudgment:
22 October 2014
Reasons:
23 October 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 23 October 2014 at 4.45 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Copy to: Applicant
R Reed, Auckland
A v AUCKLAND DISTRICT HEALTH BOARD [2014] NZHC 2619 [22 October 2014]
[1] At the conclusion of the hearing on 22 October 2014 I advised Mr A (as he was leaving the Court) that I was satisfied he was lawfully detained and his application for habeas corpus was declined with reasons to follow in writing. These are the reasons.
Background
[2] Mr A is currently detained under the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT) as an inpatient at Te Whetu Tawera (TWT), Auckland District Health Board’s (ADHB’s) acute adult inpatient mental health unit. On 20 October 2014 Mr A filed a “memorandum of an application for habeas corpus”. The matter came before the Duty Judge, Duffy J, on
20 October. The Judge directed the appointment of an amicus and set the application down to be heard at 2.15 pm on 22 October.
[3] Ms Reed was able to accept appointment as amicus. I thank her for her very helpful and thorough submissions prepared at short notice.
[4] Mr A came to Court accompanied by ADHB staff. When the case was called at 2.15 pm Mr A advised he had only been at Court since 2.00 o’clock and had not an opportunity to read all of the material filed by Ms Reed and the ADHB’s counsel. I stood the matter down until 3.30 pm to enable Mr A to read the material and to discuss matters with Ms Reed.
[5] When the Court resumed I heard from the amicus and counsel for the ADHB first, then Mr A. I heard the parties in that order to assist Mr A to understand the issues the application raised. Towards the conclusion of the hearing (approaching
5.00 o’clock) Mr A expressed dissatisfaction with the process and chose to leave the Court and return to the hospital. As he was doing so I advised him of the outcome of his application.
The application
[6] In his application Mr A raises the following matters:
(a) he has been detained in the hospital since 22 September 2014;
(b)he does not believe he suffers from a mental disorder or illness and does not meet the criteria to be under the Mental Health Act.
(c) the detention is against his will and breaches his rights under the New
Zealand Bill of Rights Act, Human Rights Act and “many other” Acts;
(d)the process of committing him was malicious and vindictive (he also suggested the hearing was malicious);
(e) the doctors had used wrong or false certificates and processes;
(f) he believed he had been committed as a means of punishment and torture. He says he has been unable to get any leave or access to the community and has been unable to send letters;
(g) he is in a hostile environment;
(h)his religious beliefs and dietary supplements were not met and he could not practise his religious obligations and cultural needs;
(i) he has suffered physical and psychological harm; and
(j)his right not to be subjected to neglect and ill treatment has been breached.
[7] There is a degree of overlap between the various grounds raised. As Ms Reed observed, the grounds can really be summarised as:
(a) he does not suffer from a mental disorder or illness sufficient to meet the criteria under the Act;
(b) the detention has breached his rights under the New Zealand Bill of
Rights Act, Human Rights Act and the MHCAT;
(c) the process of his assessment and treatment has been undertaken in a malicious and vindictive way.
Discussion
[8] The issue for this Court is whether the respondent ADHB can satisfy the Court that Mr A’s detention as an inpatient 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
[9] Mr A’s principal complaint is that he is unlawfully detained because he does not suffer from a mental disorder or illness that would justify his detention. In his words nothing has been “scientifically proved” to that effect. However it will be a rare or exceptional case where the Court will engage with that issue on an application for habeas corpus. In B v Auckland District Health Board2 the Court of Appeal endorsed its previous conclusion in Sestan v Director of Area Mental Health Services, Waitemata District Health Board to the following effect:3
[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 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 MHCAT will, in normal circumstances, be much more efficacious and appropriate. …
[10] Mr A produced documents to the Court to support a submission that he was first wrongly examined in November 2002 as a result of a mix up between the refugee resettlement agency and Capital Health. He says the request was directed at a relative, FF with a date of birth of 2 November 1979, rather than him. However even if that were so, it is irrelevant. Mr A accepted he had been medically examined in November 2002. He has been examined on a number of subsequent occasions
thereafter.
1 Habeas Corpus Act 2001, s 14.
2 B v Auckland District Health Board [2010] NZCA 632 (CA).
3 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1
NZLR 767.
[11] Further, I note the evidence before the Court of the most recent examination of Mr A is as follows:
[Mr A] is a 35 year old Somalian male who looks his stated years. He is tall and of a medium build. He is dressed in casual clothes. He is alert and co- operative in reviews. He looks tense, often intimidating, confrontational and argumentative. He is irritable, dismissive and usually keeps to himself. He is guarded, particularly when discussing the microchip he believes is inside his head. He maintains intense eye contact throughout. There is no evidence of psychomotor retardation. He describes his mood as “alright”; his affect is dysphoric, restricted and congruent to content. His speech is of normal rhythm, rate and volume. His thoughts are linear, logical and goal directed. He expresses persecutory delusions (someone implanted a microchip in his head for research purposes; he is being followed and is under surveillance; at times there are hints of passivity phenomena – being controlled by the microchip). At times he also expresses delusions of reference (a nurse coughed and he knew it was about him; “that bitch [the nurse] has been laughing all day on purpose, it’s all a game”). He misinterprets cues. His judgement is impaired, and he has no insight into his illness.
[12] Mr A’s other complaints as to breaches of his rights follow from the consequences of the detention and his status as inpatient. Mr A has filed no evidence to support his alleged breaches of his rights or “malicious” or “vindictive treatment and torture”. During the course of the hearing he showed a number of photographs of himself at various dates in mid 2000 following his dealings with police and other authorities. As I told Mr A at the time those were not relevant to the Court’s determination of the current habeas corpus application. The additional matters he seeks to raise are not susceptible of resolution on a habeas corpus application which
is directed at the substantive issue of lawful or unlawful detention.4
[13] I return to the issue of the lawful basis for the detention of Mr A.
[14] At the time Mr A made his application for habeas corpus he was directed to be admitted and detained in the TWT for the purposes of an assessment and treatment under s 12(1)(b)(ii) of the MHCAT. On 21 October he was finally assessed and an application was made to the District Court for a compulsory treatment order. As a result, and by s 15(1) of the MHCAT Mr A is liable to assessment and treatment in the terms of the notice given under s 13(1) for a period of 14 days. That period expires on 4 November 2014.
[15] However it is also necessary to review the process which has led to the issue of the recent certificates and directions made under the Act.
[16] The starting point is s 113 of the MHCAT. That section provides the authority for the person in charge of the hospital service (the Chief Executive) to admit and detain patients under the provisions of the MHCAT. Importantly for present purposes s 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. Further, every inpatient order made in respect of a patient 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 for which the order is in
force.5
[17] The next step is to go back to the process which led to the issue of the ss 13 and 14 certificates and the application for a compulsory treatment order in the present case. Dr Bensemann, the director of Area Mental Health Services for the Auckland region has provided evidence of Mr A’s prior treatment and current status.
[18] As noted, Mr A has been the subject of a number of assessments and treatment from November 2002 on. It is not, however, necessary to go back further than 2010. An indefinite extension of a compulsory inpatient treatment order was issued on 11 June 2010 under s 34 of the MHCAT. Later that year, on 9 December
2010, his status was changed from inpatient to community treatment under s 30(2) of the MHCAT.
[19] Mr A’s current change in status to inpatient was initiated on 23 September
2014. On that date a notice under s 29(3)(a) of the MHCAT was issued which directed Mr A be treated as an inpatient for a period of 14 days (to expire on 7
October 2014).
[20] On 7 October 2014 a further notice, this time under s 29(3)(b) of the MHCAT
was issued to Mr A directing him to undergo reassessment in accordance with ss 13
and 14 of the Act. As a consequence of that direction the community treatment order ceased to have effect and ss 13 to 15 and 17 to 27 of the MHCAT applied (with necessary modifications) to the reassessment.6
[21] As he was entitled to7 Mr A has applied to the District Court to have his status reviewed under s 16 of the MHCAT. The applications were considered and declined on 3 October 2014, 14 October 2014 and 17 October 2014.
[22] Section 13 of the MHCAT provides authority for the responsible clinician to direct that Mr A be admitted to and detained in a specified hospital for the purposes of assessment and treatment. The appropriate direction was given on 7 October
2014. The statutory date for this second period of assessment and treatment period to expire was 21 October 2014.
[23] On 21 October 2014 an application for compulsory treatment order was made under s 14(4) of the MHCAT. That followed the responsible clinician recording in a final certificate that Mr A was not fit to be released from compulsory status. Section
15 of the MHCAT confirms that, pending determination of the application for a compulsory treatment order, Mr A remains liable to assessment and treatment in accordance with the terms of the notice given under s 13(1).
[24] My review of that rather tortuous chain of process in this case satisfies me that Mr A was lawfully detained at TWT at the time of his application for habeas corpus and remains lawfully detained at this time in accordance with the relevant provisions of the MHCAT.
[25] The appropriate process for the review of Mr A’s current mental state is at the hearing to determine the application for the compulsory treatment order. That hearing will be before a Family Court Judge as provided for under s 18 of the MHCAT. That hearing is to take place on Friday, 24 October 2014.
[26] As noted, the other issues that Mr A raises, such as the alleged breach of Bill of Rights arise out of his detention. They are not matters that this Court can address
6 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 29(4)(b).
7 Section 29(4)(c).
on a habeas corpus application. A number of them appear to be incidents of his authorised detention.
Result
[27] For the above reasons the application for habeas corpus was declined.
Costs
[28] 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.
Venning J
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