AW v Minister of Health

[2024] NZHC 583

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-713

[2024] NZHC 583

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

AW

Applicant

AND

THE MINISTER OF HEALTH

First Respondent

AND

THE ATTORNEY-GENERAL

Second Respondent

On the Papers

Counsel:

D A Ewen and B H Woodhouse for Applicant

A Powell, K M Anderson and K K C Efondo for Respondents

Judgment:

18 March 2024

JUDGMENT OF ISAC J

Introduction

[1]    The applicant, AW, is a special patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act). His status as a special patient can only be changed by the Minister of Health under s 33(3) of CPMIP Act. Section 33(3) is engaged when, amongst other matters, the Mental Health Review Tribunal recommends that a special patient’s status be changed.

[2]    Following a review in 2022, the Tribunal recommended AW’s status should be changed. On 6 April 2023, the then of Associate Minister of Health declined to change the applicant’s status as a special patient. The status decision is recorded in a briefing

AW v THE MINISTER OF HEALTH & ANOR [2024] NZHC 583 [18 March 2024]

provided  by  the  Director  of  Mental  Health  to   the  Associate  Minister  dated   16 March 2023.

[3]    On 10 November 2023, the applicant commenced judicial review proceedings against the respondents. In AW’s fourth ground of review, he contends the Associate Minister applied the wrong legal test when making the status decision. In particular, the applicant says the Associate Minister was incorrectly advised by the Director that, before she could change the applicant’s status, she would need to be satisfied the Tribunal had convincingly argued the applicant’s condition no longer required him to be managed as a special patient. The applicant says as a result of acting on this incorrect advice, in declining to change the applicant’s status, the first respondent acted unlawfully.

[4]    The first respondent has recently made concessions in relation to the fourth ground of review. Despite this, AW wishes to pursue his first, second, fifth and sixth grounds of review as pleaded in his amended statement of claim of 19 January 2024. Counsel filed a joint memorandum of 15 March 2024 seeking orders by consent:

(a)quashing the relevant decision and remitting it to the first respondent for fresh consideration; and

(b)for a one-day hearing to be held on 14 May 2024 solely to hear the first and second grounds of  review  (with the hearing time allocated  on  15 May 2024 for this proceeding no longer needed).

[5]This judgment deals with the question of relief.

Legal and factual setting

[6]    A person who is detained as a special patient after being acquitted on account of insanity can have their status as a special patient changed or discharged under s 33 of the CPMIP Act. The Minister has statutory power under s 33(3) to direct that change or discharge.

[7]    The consideration and possible exercise of the Minister’s power in s 33(3) is triggered when a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, to the effect that the detention of the special patient is no longer necessary to safeguard the patient’s own interests and the safety of the public or the safety of a person or class of persons.

[8]The exercise of the Minister’s power in s 33(3) involves two stages:

(a)first, on receipt of the certificate, the Minister must consider whether, in the Minister’s opinion, the special patient’s continued detention is no longer necessary to safeguard the relevant interests;1

(b)second, if, in the Minister’s opinion, detention is no longer necessary to safeguard the relevant interests, the Minister must make a direction that the special patient be held as a patient (subject to a compulsory treatment order)2; or

(c)that the special patient be discharged.3

[9]    In making a decision under s 33(3)(a) the Minister must have regard to any report from the Director.4

[10]   The Minister of Health now concedes it is unclear from the record that the Associate Minister applied the correct legal test when making the status decision. Indeed, the record does not make clear what legal test the Associate Minister applied. Further, the Associate Minister placed significant weight on the applicant’s history as a victim of sexual abuse while lacking evidence before her identifying its relevance to the legal test in s 33(3). The first respondent now concedes that the Associate Minister:

1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 33(3)(a).

2 Section 33(3)(b)(i).

3 Section 33(3)(b)(ii).

4 Section 33(4A).

(a)may not have had sufficient probative evidence to support her decision in relation to the applicant’s history as a victim of sexual abuse;

(b)may not have had regard to all relevant information in relation to the applicant’s history as a victim of sexual abuse; and

(c)may have taken into account an irrelevant matter.

Consideration

[11]   The first respondent accepts that the record of decision indicates the Associate Minister was advised to apply the wrong legal test. Nor does the record of her decision identify the legal test that she applied.

[12]   In addition, the first respondent accepts the Associate Minister was wrong to place weight on AW’s need for treatment following his disclosure of sexual abuse when she did not have information relevant to the issue. Finally, it is accepted that the weight placed on AW’s history as a victim of sexual abuse may have resulted in the Associate Minister taking into account an irrelevant consideration for the purpose of s 33(3) of the CPMIP Act.

[13]   Having considered the matters set out in counsel’s joint memorandum, I am also satisfied that it is appropriate to grant the relief sought. By consent I make the following orders:

(a)Pursuant to section 16(2) of the Judicial Review Procedure Act 2016, the decision of the Associate Minister, made on 6 April 2023, declining to change the applicant’s legal status as a special patient under s 33(3) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, is set aside.

(b)Pursuant to section 17(3) of the Judicial Review Procedure Act 2016, the Minister of Health (or his delegate) is directed to reconsider whether to change the applicant’s legal status as a special patient under s 33(3) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

(c)Pursuant to r 10.15 of the High Court Rules, the first and second grounds of review will be heard by the Court in a separate one-day hearing on 14 May 2024 (with the time allocated on 15 May for this proceeding no longer needed).5

(d)The directions of 15 December 2023 are amended by deleting the requirement to file a common bundle of documents by 2 April 2024.

(e)Leave to apply is reserved.

Isac J

Solicitors:

Ord Legal, Wellington for Applicant Crown Law, Wellington for Respondent

5The applicant seeks to have the first and second grounds of review heard at a separate one-day hearing on 14 May 2024, with the fifth and sixth grounds of review to be argued at a subsequent hearing (which may or may not be necessary depending on the Court’s determination of the first and second grounds of review).