AB v Auckland District Health Board
[2020] NZHC 756
•17 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-472
[2020] NZHC 756
IN THE MATTER of an application for Habeas Corpus BETWEEN
AB
Applicant
AND
AUCKLAND DISTRICT HEALTH BOARD
Respondent
Hearing: 20 and 23 March 2020 Appearances:
Applicant in person 20 March 2020
AJF Perkins QC for Respondent 20 and 23 March 2020
Judgment:
17 April 2020
JUDGMENT OF DUFFY J
This judgment is delivered by me on 17 April 2020 at 4:00pm pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Solicitors/Counsel:
AJF Perkins QC, Auckland
AB v AUCKLAND DISTRICT HEALTH BOARD [2020] NZHC 756 [17 April 2020]
[1] The applicant is currently being detained in a psychiatric ward at Auckland City Hospital (the hospital) pursuant to s 13 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act). On 18 March 2020, he made an application under the Habeas Corpus Act 2001 challenging this detention. The Auckland District Health Board (ADHB), which is the statutory body responsible for the hospital, opposed the application.
[2] When the applicant first applied under the Habeas Corpus Act he was detained under s 13 of the Mental Health Act and was in the process of being assessed for compulsory detention and treatment under s 14 of that Act. He first appeared before the Court at 2.15pm on Friday 20 March 2020 representing himself. The hearing was adjourned to the following Monday because he had insufficient time to consider the ADHB’s submissions and evidence in support of the detention. The reason for this was because he had absented himself from the ward where he was detained and therefore had no access to the material the ADHB had filed.
[3] When the hearing resumed at 10am on Monday 23 March 2020 the applicant did not appear in person. I was informed by counsel for the ADHB that after the hearing on Friday the applicant had not returned to the hospital and was still absent.
[4] The applicant had been in telephone contact with the Registry and he sought to attend the hearing by cell phone. Attendance by cell phone was beginning to occur because of the rapidly changing responses to the Covid 19 virus, which three days later led to the Court being closed except for urgent business. However, a telephone connection with the applicant could not be maintained. At the time there was heavy cell phone traffic and it may not have been his fault that the connection kept breaking down. Ultimately the hearing had to proceed in his absence.
[5] I was satisfied there was no proper basis for finding the detention of the applicant under the compulsory treatment provisions of the Mental Health Act was unlawful. Accordingly, I declined the application for habeas corpus. My reasons for doing so now follow.
Relevant Law
[6] Because the applicant could seemingly absent himself at will from the psychiatric ward to which he is assigned my first concern was whether he was being detained in a way that would invoke the Habeas Corpus Act.
[7] However, the Habeas Corpus Act defines “detention” broadly so as to include “…every form of restraint of liberty of the person.”1 The statutory regime under the Mental Health Act provides for compulsory treatment of the mentally ill and makes those persons subject to restraint both in terms of where they live and the treatment they receive. The applicant’s ability to exit the confines of the psychiatric ward where he was being treated and so to avoid the practical effect of his present detention did not weaken its legal effect. Accordingly, I was satisfied that he was detained in terms of the Habeas Corpus Act.
[8] In principle, persons detained under the Mental Health Act can challenge their detention by way of Habeas Corpus to secure their release should the detention be found to be unlawful. 2 However, it is not often that it will be the correct forum for the challenge. This was recognised by the Court of Appeal in Sestan v Director of Area Mental Health Services3 and later affirmed by that Court in B v Auckland District Health Board:4
[20] We agree with the Judge that there may be cases of an exceptional nature where an application for a writ of habeas corpus is an appropriate means of addressing a complaint of unlawful detention under Part 1 of the Act. However, we endorse the conclusions of this Court in Sestan v Director of Area Mental Health Services (above) to the following effect:
[89] Because of the nature of the jurisdiction, it is almost inevitable that there will at time be some variance or deviations from strict statutory requirements. It is important to view any non-compliance in the round rather than from a blinkered focus on isolated provisions which ignore the statutory context.
1 See Habeas Corpus Act 2001, s 3 at “detention”.
2 B v Auckland District Health Board [2011] NZAR 135 (CA) at [20].
3 Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767 (CA).
4 B v Auckland District Health Board [2011] NZAR 135 (CA).
[90] We do not accept that whenever it is demonstrated that there is any degree of non-compliance with a specific provision the only consequence will be the total invalidity of all subsequent actions. The Court must assess what happened, why it happened and how it happened, remembering that the protection of a vulnerable person, and potentially the community, is at the heart of the legislative framework.
[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 a 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.
Discussion
[9] In the present case the applicant sought to challenge the assessment that he is mentally ill and should be subject to the Mental Health Act’s compulsory treatment regime.
[10] Under pressure of time and in trying circumstances when Auckland City Hospital and the Courts were having to respond to the Covid 19 pandemic, the respondent helpfully provided the Court with a full account of the legal procedures and steps that the respondent has taken to advance the applicant’s progress along the various stages of the Mental Health Act’s compulsory treatment regime. I carefully considered the two affidavits filed by the psychiatrist responsible for treating the applicant and the attachments annexed thereto.
[11] The evidence filed by the respondent informed me that the applicant has a long standing mental health condition that first manifested after a serious mountain bike accident in March 2010 where he sustained brain damage. There has been some difference between his medical practitioners as to whether his current condition is the result of neurological injury or mental illness. However, the majority consider he now
suffers from a mental illness. His medical history since the injury is consistent with mental illness.
[12] He most recently came to the attention of the health system when he presented at an accident and emergency clinic with an injury to his arm. His conduct on that occasion was of concern to the medical personnel treating him. The report records that on 1 March 2020 he was elevated, talkative and delusional. He had stabbed his left forearm with a glass and required plastic surgery. On 2 March 2020 he was reported to be elevated with pressured speech and thought disorder including saying he would kill a man who had raped his wife. He said he had killed seven people recently but would not provide details. The report then sets out his psychiatric history, which goes back to 2010.
[13] The respondent’s evidence establishes that from 2 March 2020 various steps were taken under the Mental Health Act, including his detention between 3 March 2020 and 8 March 2020 under a notice issued pursuant to s 11 of the Mental Health Act. This notice enabled the respondent to detain the applicant and require him to undergo a five day assessment and treatment as an inpatient. During this time, on 5 March 2020, the applicant applied to have his condition reviewed by a Family Court Judge under s 16 of the Mental Health Act. As part of this process a report from a second health professional was obtained.
[14] On 6 March 2020, Judge Sinclair declined to allow the review application on the ground she was not satisfied that the applicant was fit to be released from compulsory inpatient assessment and treatment. This remained the position until 20 March 2020 when the then order for detention expired and the statutory process required the respondent to determine whether the applicant should be released from further detention or an application be made for a compulsory treatment order, the latter of which occurred.
[15] Following the hearing on Friday 20 March 2020, the psychiatrist responsible for the applicant’s care at Auckland City Hospital completed the necessary steps in the applicant’s psychiatric assessment and determined that an application should be made to the District Court under s 14(4) of the Mental Health Act for a compulsory treatment
order. This step meant that pursuant to s 15(1) of the Mental Health Act the applicant remained liable to assessment and treatment under the s 13 notice that was given to him earlier. Application for a compulsory treatment order triggers a statutory process which places the application before a District Court Judge for consideration. The applicant will then have an opportunity under this process to challenge the making of such an order.
[16] As previously noted, the applicant sought to challenge the assessment that he is mentally ill by way of an application under the Habeas Corpus Act. However, the respondent’s evidence informed me that there is a proper basis for considering the applicant to be mentally unwell to the point where he should remain subject to the statutory regime of the Mental Health Act, and for the question of his continued detention under compulsory treatment orders to be determined under that regime.
[17] Given the nature of the challenge raised by the applicant, the applicant’s circumstances fall within the type recognised in Sestan v Director of Area Mental Health Services as something to be dealt with under the Mental Health Act rather than by habeas corpus. The underlying reason being that the Mental Health Act is the more appropriate manner to challenge detention as various protective mechanisms and checks and balances have been built into that statutory framework to fulfil the aim of protecting the rights of people who may be mentally disordered.5 Put another way, the alternative mechanisms under the Mental Health Act have been specifically designed to allow persons to challenge their “mentally disordered” status through a procedure that pays adequate respect to the rights of that person as well as their protection and the protection of the public. Due to the nature and speed at which an application for habeas corpus must be determined, these protective features are absent and as a result the mechanisms in the Mental Health Ac twill be more “efficacious and appropriate”,6 and will better serve the interests of the applicant.
[18] I carefully considered the material the applicant has filed in support of his application. There was nothing in that material that provided a basis to challenge the clinical and statutory assessments made by the respondent’s clinicians and other health
5 Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767 (CA) at [88].
6 Above at [91].
professionals who had participated in the statutory process relevant to the applicant. Further I noted that some of the relief the applicant sought, such as access to medicinal cannabis oil, monetary compensation and orders that persons refrain from defaming him, are outside the scope of the Habeas Corpus Act.
[19]Accordingly, for all of the above reasons I dismissed the application.
Duffy J
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