B v Waitemata District Health Board
[2013] NZHC 852
•10 April 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-351 [2013] NZHC 852
UNDER the Judicature Amendment Act 1972, Part
30 of the High Court Rules, the New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908 and the Common Law
IN THE MATTER OF an action for judicial review and declarations
BETWEEN LANCE JEREMY BOLER Applicant
ANDWAITEMATA DISTRICT HEALTH BOARD
Respondent
Hearing: 10 April 2013
Counsel: R K Francois for Applicant
P W Le Cren for Respondent
M Headifen for Intended Applicant, G W Judgment: 10 April 2013
Reasons: 22 April 2013
REASONS FOR JUDGMENT OF KATZ J
Counsel/Solicitors:
Mr R K Francois, Barrister Auckland
Mr J Coates/Mr P Le Cren, Claro Law, Wellington
Mr M Headifen, Barrister, AucklandMr K Nally, Barrister and Solicitor, Auckland
Mr W Simpson, Solicitor, Papakura, Auckland
BOLER V WAITEMATA DISTRICT HEALTH BOARD HC AK CIV-2013-404-351 [10 April 2013]
Introduction
[1] These proceedings seek (amongst other things) to challenge, by way of judicial review, the legality of the Waitemata District Health Board’s (“WDHB”) smoke free policy in its mental health facilities. A substantive hearing has been scheduled for 20 and 21 May 2013.
[2] On 10 April 2013, I delivered an oral judgment in relation to three interlocutory applications filed by the applicant, being:
(a) an application to join Jensina Steele, a retired nurse, to the proceedings as an applicant in both a personal capacity and in a representative capacity for Mr W, a mental health patient;
(b)an application to join Ms B, also a mental health patient, to the proceedings as an applicant; and
(c) an application to consolidate these proceedings with other proceedings, involving the same counsel but a different applicant, which raise largely similar issues.
[3] I granted the application to join Ms Steele in her personal capacity (by consent) but declined the application for an order allowing her to also appear in a representative capacity for Mr W. I declined the application to join Ms B to the proceedings. I granted the consolidation application (by consent). I subsequently made directions as to the ongoing conduct of the proceedings, in particular directions relating to which causes of action were to be heard at a substantive hearing scheduled for 20 and 21 May 2013, and which causes of action were to be adjourned to a subsequent hearing.
[4] I now give my reasons for those decisions.
[5] A Judge may, at any stage of a proceeding, order that the name of a person be added as a plaintiff because that person “ought to have been joined” or “the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding”.1
[6] The number of persons named or joined as parties to proceedings must be limited, as far as practicable, to:2
(a) Persons whose presence before the Court is necessary to justly determine the issues arising; and
(b) Persons who ought to be bound by any judgment given.
[7] There must also be a common right of relief, for example in relation to the same transaction or enactment.3
Application to join Ms Steele to the proceedings
[8] The applicant applied to join a retired nurse, Jensina Steele, to the proceedings in her personal capacity. That was not opposed and I ordered her joinder accordingly.
[9] The applicant also applied to join Ms Steele in a resentative capacity, in order to “assert the rights of an incapacitated patient she nursed for two years at the Waiatarau Acute Admission Unit in West Auckland.” The patient concerned is Mr W.
[10] On 28 September 2011, Kieran Nally (an Auckland lawyer) was appointed by the Family Court to act as Mr W’s welfare guardian under s 12 of the Protection of
Personal and Property Rights Act 1988 (“PPPRA”).
1 High Court Rules, r 4.56(i)(b).
[11] His powers extend to “all aspects of the personal care and welfare of [Mr W]”. Mr Nally has also been appointed administrator of Mr W’s property under s 11 of the PPRA.
[12] The application to join Ms Steele to the proceedings as a representative of Mr W was strenuously opposed by both the respondent (the WDHB), and Mr Nally, on behalf of Mr W.
[13] An incapacitated person is defined in the High Court Rules as meaning a person who by reason of physical, intellectual or mental impairment, whether temporary or permanent is:4
(a) Not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or
(b)Unable to give sufficient instructions to issue, defend, or compromise proceedings.
[14] It was not in issue that Mr W, a patient in WDHB’s Waiatarau Acute Inpatient Unit, is an incapacitated person in terms of this definition. He has Huntington’s disease and as a result suffers from a mental impairment. That impairment is such that he is not capable of understanding the issues on which his or her decision will be required and he appears to be unable to give sufficient instructions to issue, defend, or compromise proceedings. His lack of capacity is evidenced by the fact that a welfare guardian has been appointed for him.
[15] An incapacitated person must be represented by a litigation guardian in any proceeding unless the Court orders otherwise.5 This would clearly not be an appropriate case in which to “order otherwise”. For an incapacitated person to pursue complex judicial review and NZBORA proceedings such as these it would be essential that they be represented by a litigation guardian.
(a) A person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); or
(b) A person who is appointed under r 4.35 to conduct a proceeding.
[17] Accordingly the definition expressly recognises the possibility of a person being authorised under “an enactment” to conduct proceedings on behalf of an incapacitated person. The most obvious enactment under which this may arise is clearly the PPPRA. The question that arises is whether a welfare guardian who is appointed in relation to all aspects of the personal care of a person is authorised to conduct proceedings on their behalf.
[18] In Norton v Bradley7 Judge Cooper accepted that the public trustee who was appointed as a welfare guardian and manager of the property of Ms Norton was able to sue the defendant to recover money she had given to the defendant. I note in that case that the litigation guardian (the Public Trust) sued the defendant in spite of Ms Norton herself giving evidence that she did not want the money back. Nevertheless Ms Norton’s guardian clearly saw it in her best interest to pursue recovery of the money she had given the defendant.
[19] Miller J in JE v Capital and Coast District Health Board8 examined the issues of litigation guardian. He stated:9
For these reasons I am not prepared to appoint JE. I observe that she has not been appointed a welfare guardian for S. If she were, she presumably could rely on paragraph (a)(i) of the definition of litigation guardian in the High Court Rules. Unless and until she obtain such appointment, I conclude that a litigation guardian for S must be independent of both parents.
6 Ibid, r 4.29.
7 Norton v Bradley DC Rotorua CIV-2011-063-000350, 9 November 2012.
8 JE v Capital and Coast District Health Board HC Wellington CIV-2009-485-1106, 19 June
2009.
9 At [43].
[20] I accept the careful and comprehensive submissions of WDHB and Mr Nally to the effect that a welfare guardian under the PPPRA is a person authorised to conduct the proceedings on behalf of an incapacitated person, provided:10
(a) The substance for the proceedings relate to that person’s care and
welfare; and
(b)The welfare guardian’s authority extends to all aspects of the person’s care and welfare or explicitly includes authority to represent the incapacitated person in proceedings.
In my view Mr Nally meets these criteria and accordingly is, for present purposes, the litigation guardian of Mr W.
[21] The Court may appoint a litigation guardian under r 4.35 only where the incapacitated person in question does not already have a person authorised by an enactment to conduct proceedings in their name or on their behalf. However, Mr W does have such a person, his welfare guardian, Mr Nally. There is therefore no jurisdiction to appoint a further litigation guardian.
[22] Mr Nally has decided that it is not appropriate for Mr W to participate in these proceedings. Ms Steele has filed an application in the Family Court under the PPPRA for a review of Mr Nally’s decision as welfare guardian not to consent to Mr W’s involvement in these proceedings, which has been scheduled for hearing. That is the appropriate forum to resolve the issue of whether Mr Nally’s decision is right or wrong. Against that background, the present application appears, at least to some extent, to be a collateral attack on the jurisdiction of the Family Court.
[23] Finally, I note that even if I did not have jurisdictional concerns I would not have granted the joinder application on its merits. It is hard to see any basis on which Mr W is a “necessary” party. In my view Mr W’s involvement in the proceedings will not add in any material respect to the Court’s consideration of the
case. The legality of the smoke-free policy will be tested regardless of Mr W’s
10 Protection of Personal and Property Rights Act 1988, ss 18(2) and 19(1); J E v Capital and
Coast District Health Board HC Wellington CIV-2009-485-1106, 19 June 2009.
involvement. The proceedings have been on foot for some time and are scheduled for substantive hearing next month.
[24] Further, given that Ms Steele has been joined in her personal capacity I would have had serious reservations about her ability to dispassionately and objectively represent Mr W’s interests in the litigation, which could potentially diverge from her own. It is clearly preferable that Mr W’s litigation guardian be someone entirely independent of the current parties or their counsel. Mr Nally is such a person. Mr Nally has deposed as to his rapport with Mr W’s family and Mr W himself. He has no conflict of interest with Mr W in relation to these proceedings.
[25] I further note that Dr Patton (Clinical Director of WDHB’s Adult Mental Health Services) deposes that Ms Steele did not have a particularly special or close relationship with Mr W, over and above that of a nurse involved in his care. I note also that Mr W’s mother is opposed to his involvement in these proceedings.
[26] For all of these reasons I concluded that Ms Steele should not be appointed as litigation guardian for Mr W and that she should not be granted leave to act for him in a representative capacity in these proceedings.
Ms B Joinder Application
[27] Ms B is presently a patient in WDHB’s Taharoto Adult Mental Health Inpatient Unit. WDHB opposes her joinder on the basis that Ms B is not competent to instruct counsel or consent to the issue of proceedings.
[28] In December 2012 the Family Court made orders under the PPPRA appointing Ms B’s sister, Ms N, as her welfare guardian and property manager. In doing so the Family Court determined that Ms B lacked capacity to make decisions in relation to relevant aspects of her care and welfare. Ms N’s authority extends to her sister’s day to day care, medical treatment in place of residence, but not the conduct of litigation. Presumably litigation was not contemplated at the time the order was made.
[29] Dr Walton, a consultant psychiatrist, prepared a report dated 21 March 2013, in which he stated:
I believe [Ms B] was unable to comprehend the nature and effect of signing consent for release of her clinical notes [to counsel for the applicant]... She had a poor understanding of the nature of the legal proceedings ... I believe her ability to make a sound judgment in this matter, which is to make a reasonable decision; is impaired by reason of her cognitive deficit...her current health is fragile, she is easily distressed and her mental health maybe worsened by involvement in such proceedings...
[30] Ms N concurs that her sister lacks capacity to engage in these proceedings. She states in her affidavit:
[Ms B’s] mental instability is such that she would have no clear comprehension of what she was doing in swearing the affidavits.
[31] WDHB submitted that Ms B is an incapacitated person as defined in r 4.29. Although Mr Francois did not agree, he was not able to point to any evidence to counter the clear evidence before the Court which indicates that she is an incapacitated person. Accordingly her involvement in these proceedings would require appointment of a litigation guardian. There is no application before me to appoint such a person.
[32] Mr Francois frankly acknowledged that the evidence in support of joinder of Ms B was not strong. He said that he is not currently able to see her as the staff responsible for her care will not let him meet with her. They have informed him that Ms B does not wish to see him. Mr Francois confirmed that he did not have any “current instructions” from Ms B but he “did not want to give up”. On the other hand he said he did not want to drive a wedge between her and her sister, who is her welfare guardian and therefore considers himself to be somewhat “in a bind”.
[33] In summary, Mr Francois did not pursue the joinder of Ms B with any real vigour, but did not wish to formally abandon it.
[34] In my view, Ms B’s involvement in these proceedings is neither necessary nor appropriate and the appointment of a litigation guardian is therefore not required. If it had been necessary, her sister Ms N, who is her welfare guardian, would have been
the obvious appointee. I note, however, that Ms N is vigorously opposed to Ms B’s
participation in these proceedings.
[35] In any event Ms B’s involvement would add little to the Court’s consideration of the issues at stake and would, it appears, be likely to be detrimental to her mental health.
[36] For all of the above reasons, I declined to join Ms B as a plaintiff to these proceedings.
Consolidation Application
[37] The applicant sought to consolidate these proceedings with a separate proceeding involving Ms Cunningham as applicant. WDHB consented to the consolidation application, subject to specific terms (which were aimed at protecting the substantive fixture scheduled for 20 and 21 May 2013).
[38] I was satisfied that the consolidation application is appropriate, on the basis that common questions of law arise in both proceedings. In particular, both proceedings are brought by mental health patients of the WDHB and challenge (through judicial review) the legality of WDHB’s smoke free policy in its mental health facilities. Both proceedings are largely identical with respect to the grounds for review. Further, both Mr Boler and Ms Cunningham are represented by the same counsel. Consolidation of the proceedings will ensure that all outstanding proceedings on this issue can be heard and determined together. This will maximise the efficient use of judicial resources.
[39] I directed, however, that only certain causes of action in the two proceedings were to proceed to trial on the scheduled 20 and 21 May hearing date, with the remaining causes of action being adjourned to a subsequent hearing date.
[40] The first to sixth (inclusive) causes of action in Ms Cunningham’s amended statement of claim essentially mirror the grounds for review advanced by Mr Boler in his substantive claim against WDHB (excluding his seventh cause of action). It is
therefore appropriate that the Court determine these matters together as part of the hearing on 20 and 21 May 2013.
[41] There are, however, three causes of action (seventh, eighth and ninth) in Ms Cunningham’s amended statement of claim which differ significantly from the remaining causes of action in her proceedings and also in the Boler proceedings. These causes of action will likely require viva voce evidence and it would be unlikely that they could be ready for trial on the current scheduled hearing date of
20 and 21 May 2013. I therefore directed that those causes of action, together with
the seventh cause of action in Mr Boler’s proceedings, were not to be heard on
20 and 21 May 2013, but to be adjourned to a later date. In particular:
(a) Ms Cunningham’s seventh cause of action relates to her right to consult a lawyer in private. WDHB submitted that this cause of action is not amenable to judicial review and that, prima facie, it is a claim alleging a breach of the New Zealand Bill of Rights Act. In any event, it is unrelated to the substantive claims before the Court on 20 and 21 May 2013. Further, there are evidential issues involved in this cause of action that will require viva voce evidence. It is therefore not appropriate for this cause of action to be heard together with the other claims being heard on 20 and 21 May 2013.
(b)Ms Cunningham’s eighth cause of action challenges the responsible clinician’s decision to prescribe the drug olanzapine. WDHB submitted that this is also not a decision that is open to judicial review. This claim also raises clear evidential issues in respect of which viva voce evidence may be required and is unrelated to the other substantive judicial review claims to be determined on 20 and
21 May 2013.
(c) Ms Cunningham’s ninth cause of action mirrors the seventh cause of action in Mr Boler’s statement of claim. That is, both Mr Boler and Ms Cunningham seek compensation under the New Zealand Bill of Rights Act. By agreement between the parties, recorded in a Minute
of Woolford J dated 6 March 2013, Mr Boler’s seventh cause of action
will not be advanced at the substantive hearing on 20 and 21 May
2013. It is therefore appropriate that the identical cause of action in
Ms Cunningham’s statement of claim also be adjourned to a later date
for hearing.
Conclusion
[42] For all of the above reasons I made the following orders in my judgment of
10 April 2013:
(a) The application to join Ms Steele as an applicant in her personal capacity is granted, by consent;
(b)The application for Ms Steele to be appointed as litigation guardian for Mr W and/or to represent Mr W in the proceedings in a representative capacity is declined; and
(c) The application to join Ms B as an applicant is declined;
(d)The application to consolidate these proceedings with the proceedings brought by Ms Cunningham11 is granted.
[43] In addition I made the following directions as to the ongoing conduct of the proceedings:
(a) The first to sixth (inclusive) causes of action in Ms Cunningham’s amended statement of claim are to be heard together with Mr Boler’s substantive claims (excluding his seventh cause of action) on 20 and
21 May 2013.
(b) The seventh (right to consult a lawyer in private claim), eighth
(olanzapine claim) and ninth (NZBORA compensation claim) causes
11 Cunningham v The Waitemata District Health Board CIV-2012-404-5040.
of action in Ms Cunningham’s amended statement of claim are to be heard together with the seventh cause of action in Mr Boler’s statement of claim (NZBORA compensation claim) on a date subsequent to the hearing currently scheduled for 20 and 21 May
2013. Those causes of action were adjourned for mention before the trial Judge on 20 May 2013, for the making of appropriate timetable
directions.
Katz J
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