Carroll v Chief Executive of the Southern District Health Board
[2021] NZHC 2953
•2 November 2021
NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992, ANY REPORT OF THIS
PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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NAME AND IDENTIFYING DETAILS OF THE APPLICANT ARE ANONYMISED
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2021-412-000101
[2021] NZHC 2953
BETWEEN STACEY JUNE CARROLL
Applicant
AND
CHIEF EXECUTIVE OF THE SOUTHERN DISTRICT HEALTH BOARD
First Respondent
AND
THE FAMILY COURT AT DUNEDIN
Second Respondent
CIV-2021-412-000102 BETWEEN
SOUTHERN DISTRICT HEALTH BOARD
Applicant
AND
STACEY JUNE CARROLL
Person in respect of whom the application is made
Hearing: 15 October 2021 (By way of telephone conference) Appearances:
A J Douglass for Stacey June Carroll
A N Lane for Southern District Health Board
P J Gunn for The Family Court at Dunedin (excused part way through the telephone conference)Judgment:
2 November 2021
| Reissued: | 1 February 2022 |
CARROLL v CHIEF EXECUTIVE OF THE SOUTHERN DISTRICT HEALTH BOARD [2021] NZHC 2953 [2
November 2021]
REASONS JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 November 2021 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] On the afternoon of 13 October 2021, two separate applications in relation to the same person were filed in the High Court:
(a)The first was an application for:
(i)a writ of habeas corpus brought by Ms Carroll, who said she was detained unlawfully under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (Mental Health Act); and, in the alternative
(ii)a request that her detention be reviewed by the Family Court under s 84 of the Mental Health Act.1
(b)The second was an application brought by the Southern District Health Board (SDHB) seeking an urgent order revoking a compulsory treatment order made in respect of Ms Carroll under s 30 of the Mental Health Act (the s 30 order).
1 It is common ground that this part of the application is no longer pursued, which is why counsel for the Family Court was excused from the teleconference on 15 October 2021.
[2] It appears that the two applications were prepared independently, albeit there were communications between counsel for Ms Carroll, Ms Douglass, and counsel for the SDHB, Ms Lane, before the applications were filed as to the best way to address a problem which had arisen as to the legality of the s 30 order. The SDHB’s application was filed and then served on Ms Douglass literally minutes before she filed the application on behalf of her client for the writ of habeas corpus.
[3] The application for a writ of habeas corpus explained that Ms Carroll had been admitted to Wakari Hospital for compulsory assessment under the Mental Health Act. However, she then applied for review of her compulsory status under s 16 of that Act. On 25 August 2021 the s 16 application was heard by Judge Emma Smith and the Judge determined that Ms Carroll was fit to be released from compulsory status. However, following the hearing, the SDHB and, it appears, Ms Carroll’s lawyer, mistakenly thought that the Judge had found Ms Carroll was not fit to be released from compulsory status. Her responsible clinician then applied for a s 30 order pursuant to s 14(4) of the Mental Health Act. A s 30 order was made by consent in the Dunedin Family Court on 6 October 2021.
[4] All parties are agreed that there was no jurisdiction for the SDHB to file its application for a s 30 order, given Ms Carroll had been released from compulsory status on 25 August 2021. However, in the opinion of the responsible clinician, Ms Carroll continues to manifest an abnormal state of mind characterised by a disorder of mood, and requires ongoing inpatient treatment.
[5] Although the SDHB accepted there was no jurisdiction to have sought the s 30 order, it did not consider Ms Carroll’s proposed application for either a writ of habeas corpus or an enquiry under s 84 of the Mental Health Act would appropriately address the legal problem which arose. Both of those courses of action would only result in Ms Carroll’s release or discharge from hospital. Neither would revoke the s 30 order which was made without jurisdiction. For that reason, the SDHB sought that the Court, in its inherent jurisdiction, revoke the s 30 order. This would regularise the position and ensure there was no impediment to a new compulsory assessment process commencing.
[6] Having read the application and the memoranda of counsel, I agreed the obvious course of action was to revoke the s 30 order, relying on this Court’s inherent jurisdiction. In a minute I issued within half an hour of receiving the two applications, I made the following order on the understanding that both Ms Carroll and the SDHB agreed it was appropriate to do so:
… I revoke the order under s 30 of the Mental Health Act which was made, in error, by the District Court on 6 October 2021.
[7] I indicated in my minute that I thought that order would resolve the balance of the applications. However, I reserved leave to the parties to revert to the Court if it did not.
[8] Ms Douglass reverted to the Court. She said that she “concurs with the outcome of the decision at paragraph [6] that the Court has jurisdiction to revoke the order under s 30 of the Mental Health Act”. However, she maintained this Court must still determine the application for a writ of habeas corpus under s 14 of the Habeas Corpus Act 2001. She submitted that the SDHB had failed to establish that Ms Carroll’s detention was lawful and therefore the High Court had to, as a matter of right, grant the writ of habeas corpus.
[9] In the course of a lengthy telephone conference convened on the morning of 15 October 2021, I agreed to do this, albeit I saw no urgency to do so given the s 30 order had been revoked and there was no longer an argument that Ms Carroll was being unlawfully detained under the Mental Health Act. Ms Douglass disagreed. She said the Court was bound to issue a decision on the application for a writ of habeas corpus promptly.
[10] Given Ms Carroll’s insistence on an urgent results decision, I issued one on the same day.2 In it I declined to issue the writ of habeas corpus saying:
[4]The application for a writ of habeas corpus is declined. I consider:
(a)Section 14 deals with circumstances as they stand at the time the application for a writ of habeas corpus is considered. At this point in time, there is no dispute that Ms Carroll is
2 Carroll v Chief Executive of the Southern District Health Board [2021] NZHC 2773.
lawfully detained at [Wakari] Hospital and so there is no requirement to issue a writ of habeas corpus ordering her release.
(b)If I am wrong in that assumption, and the writ can issue in respect of a past unlawful detention, I consider this is a circumstance where, if the detention was unlawful (and I note the SDHB asserts Ms Carroll remained in hospital voluntarily) it falls within s 14(1A)(b) where an application for the issue of a writ of habeas corpus would not be the appropriate procedure for considering the allegations made by the applicant.
[11]I now provide my full reasons for declining to issue the writ.
The Mental Health Act
[12] The application is made in the context of the Mental Health Act. This is legislation which prescribes the circumstances and conditions under which a person may be subjected to compulsory psychiatric assessment and treatment. Because the Mental Health Act enables individuals to be detained, sometimes against their will, it contains a number of protections and safeguards.
[13] The starting point is that an application to have a person assessed for compulsory treatment under the Mental Health Act can only be made where it is believed the individual may be suffering from a “mental disorder”.3 That is defined in s 2 of the Mental Health Act as:
… an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it–
(a)poses a serious danger to the health or safety of that person or of others; or
(b)seriously diminishes the capacity of that person to take care of himself or herself;
[14] When an application is made to have a person assessed for compulsory treatment under the Mental Health Act, the proposed patient undergoes a preliminary assessment examination.4 The findings are then recorded in a certificate issued under
3 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 8.
4 Section 9(1).
s 10 of the Mental Health Act. If the certificate records that the health practitioner has “reasonable grounds for believing that the proposed patient is mentally disordered and that it is desirable that the proposed patient be required to undergo further assessment and treatment”,5 a further assessment must be arranged by the health practitioner.6 The health practitioner can direct that the patient be admitted to, and detained in, a specified hospital for a period of up to five days for this assessment.7 If, at the end of this period, the responsible clinician certifies there remain reasonable grounds for believing the patient is mentally disordered and that further assessment and treatment is required,8 there follows a further period of assessment and treatment which can last up to 14 days.9
[15] Before the end of this second period the responsible clinician must provide a “certificate of final assessment” under s 14. If the responsible clinician considers the patient is not fit to be released from compulsory treatment they must, at that point, apply to the District Court for the making of a compulsory treatment order.10 While the application for a compulsory treatment order awaits determination by a Judge, the patient remains liable for assessment and treatment for a further period of 14 days.11
[16] At any time during the first two periods of assessment, the patient can apply to the District Court for review of his or her condition under s 16. If, as a result of the s 16 review, the Judge is satisfied the patient is fit to be released from compulsory treatment, the Judge must order the patient’s release.12 There is, at that point, no further jurisdiction to detain the individual for assessment and treatment.
[17] When an application has been made to the Court for a compulsory treatment order under s 14(4), that application is considered in accordance with pt 2 of the Act. If the Judge is satisfied the patient is fit to be released from compulsory status they must order the patient’s release forthwith.13 If that does not occur, then there are
5 Section 10(1)(b)(ii)
6 Section 11(1).
7 Section 11(2)(b).
8 Section 12(1)(b)(ii).
9 Section 13(1).
10 Section 14(4).
11 Section 15(1).
12 Section 16(5).
13 Section 18(5).
further provisions contained in pt 2 that enable evidence to be called,14 and reports to be prepared,15 and which then set out a number of matters for the Judge to consider before deciding whether to make a compulsory treatment order. If the patient is not mentally disordered, the Judge must order the patient be released forthwith.16 If the patient is mentally disordered, the Judge must determine whether it is necessary to make a compulsory treatment order.17 If a compulsory treatment order is required, the Judge must consider whether that is to be a community treatment order or an inpatient order.18
[18] As can be seen from the above brief summary, compulsory assessment and treatment of a person who is considered to be mentally disordered occurs in a staged process, with provision for independent review by a District Court Judge at each stage. If the Judge is satisfied the patient is fit to be released from compulsory status, the patient must be released, and if fresh concerns arise about the extent of their mental disorder, the statutory process must begin afresh.
Background
[19] While the essential facts have already been outlined, an affidavit was filed by Ms Christine Lynch, a Dunedin barrister, who was acting for Ms Carroll at the relevant times. The following background is taken from that affidavit and the documents Ms Lynch produced:
(a)Ms Carroll has a history of bipolar affective disorder with several previous admissions to hospital. Her illness is complicated by her misuse of psychoactive substances.
(b)On 9 August 2021 Ms Carroll was admitted to Wakari Hospital for compulsory assessment under the Mental Health Act.
14 Sections 20 and 23.
15 Section 21.
16 Section 27(2).
17 Section 27(3).
18 Section 28.
(c)On 20 August 2021 Ms Carroll lodged an application under s 16 of the Mental Health Act for review of her condition by a Judge.
(d)On 25 August 2021 the s 16 application was heard by Judge Smith. The hearing occurred by video link due to the COVID-19 alert levels in place at the time. However, Ms Lynch did attend the hearing by video link, along with the Ms Carroll, her responsible clinician, and another health professional.
(e)At the hearing, the Judge recorded that Ms Carroll had made the application on the basis that she now had “increased wellness and insight” and would “remain as an inpatient voluntarily until Friday” (being two days later when the period of assessment and treatment expired) and “thereafter would consent to a s 29 community treatment order”.19 While Ms Carroll’s responsible clinician was concerned about her likely non-compliance with medication and inability to abstain from alcohol and drugs, he thought she could be given the opportunity to return to a community placement.
(f)The Judge agreed that, while Ms Carroll had a serious mental disorder, she could be released from the requirement for assessment and treatment, and granted the s 16 application. However, the SDHB did not receive a formal record of this decision until after an inpatient s 30 order was made.
(g)In the interim, matters proceeded on the mistaken assumption that Ms Carroll had not been discharged from the Mental Health Act and the responsible clinician applied for a s 30 order shortly after the s 16 hearing.
(h)Following the review hearing on 25 August, Ms Carroll voluntarily remained in the ward until Friday 27 August when she returned to the
19 As recorded in the Judge’s minute authenticated on 5 October 2021.
community. However, Ms Carroll’s condition deteriorated over the weekend and she was returned to ward 9B early the following week.
(i)An inpatient s 30 order was made by consent in the Dunedin Family Court by Judge Flatley on 6 October 2021.
(j)When Judge Smith’s minute was received on 8 October 2021 recording she had granted the s 16 application, it became clear that the correct procedures had not been followed and the inpatient s 30 order had been made in error.
(k)When that was explained to Ms Carroll on 11 October 2021, she instructed her lawyers to take any necessary steps to “challenge the validity of the order”.
[20] Ms Carroll’s responsible clinician, however, maintains she requires inpatient treatment and, with the s 30 order revoked, will invoke the preliminary assessment and treatment phases of the Mental Health Act afresh, because of ongoing concerns for her welfare.
[21] It is clear from the reports of the responsible clinician and the second health professional, which were prepared in September and October, that home leave was unsuccessful and, had Ms Carroll not been released under s 16, a s 30 order was appropriately made. By way of example, the report from a second health professional dated 5 October 2021, which was filed in support of the s 30 order being made, says:
… [Ms Carroll] has presented as elevated, thought disordered with pressured speech and is at times highly agitated and aggressive towards staff and co- peers, often threatening to harm and kill them. She has exhibited inappropriate sexual behaviours toward male patients and appears to have minimal insight into her behaviours and the associated risks.
Home leave was unsuccessfully trialled, as she reportedly had used cannabis, subsequently presenting as agitated and elevated in mood, she was located by police and returned to ward 9B.
This current presentation indicates that [Ms Carroll] has an abnormal state of mind as evidenced by her mood disorder – elevated mood, disorganised and intrusive behaviour, and her impaired judgment and limited insight into her behaviour also poses as a risk to herself and others.
The application
[22] Ms Carroll’s application for habeas corpus is based on the submission that she was unlawfully detained at Wakari Hospital pursuant to an invalid s 30 order which ought not to have been made once she had been released from the Mental Health Act assessment and treatment regime by virtue of Judge Smith’s decision on her s 16 application.
[23] The Habeas Corpus Act recognises the importance of being able to resort to the Court to seek relief from unlawful detention and sets up a framework by which such applications can be dealt with on an urgent basis. That framework has been complied with in this case. The application was considered urgently and addressed by immediately revoking the s 30 order.
[24] If the applicant can show they are being detained, the Habeas Corpus Act requires the defendant (in this case the SDHB), to establish that the detention of the detained person is lawful.20 If that is not established, the normal course is that the High Court must grant a writ of habeas corpus ordering the release of the detained person.
[25] However, the Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the applicant is lawful, if the Court is satisfied that “an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant”.21
[26] In the present case, the issue of whether Ms Carroll was “detained”, that is, whether there was any “form of restraint of liberty of the person”22 at the time the application was made is confused by what appears to be her voluntary decision to stay at the hospital. While there was, as all acknowledged, no jurisdiction to proceed to make a s 30 order, Ms Carroll’s lawyer advised the Judge at the s 30 order hearing that Ms Carroll “was agreeable to remain at Wakari Hospital for a further week in the hope that she would be discharged from the ward and the inpatient [s 30 order] would at
20 Habeas Corpus Act 2001, s 14(1).
21 Section 14(1A)(b).
22 As defined in s 3 of the Habeas Corpus Act.
that point become a s 29 community treatment order.” Counsel for the SDHB said that if Ms Carroll agreed to remain at Wakari Hospital, she cannot have been detained in that period.
[27] However, I consider it more likely than not that both Ms Carroll’s consent to the making of the s 30 order, and her expressed willingness to remain at Wakari Hospital, were offered in the context of a belief, albeit erroneous, that the s 16 application had been unsuccessful and she was still subject to the procedures of the Mental Health Act. For these reasons, I consider Ms Carroll was unlawfully detained between 6 and 12 October.
[28] However, on 13 October 2021 I revoked the s 30 order. From that point forward, Ms Carroll either agreed to stay at the hospital voluntarily, or was detained pursuant to a fresh decision to use the compulsory assessment and treatment procedures under the Mental Health Act.
[29] While an application for habeas corpus is made when it is believed the applicant is unlawfully detained, if the applicant is released in the period between the application and the hearing, the usual course is that the proceedings are discontinued, except perhaps where there is a live issue remaining such as costs. As the authors of The Law of Habeas Corpus say “the writ will not be issued simply in order to inflict a penalty where it is shown that the illegal detention … has ceased”.23 I am satisfied that at the point I considered the application for a writ of habeas corpus, there was no unlawful detention, and no order was required. Indeed, the issue was moot.
[30] In the event I am wrong in determining that the application should be considered in light of the circumstances as they prevail when the application is heard (as opposed to when the application is made), I am satisfied this is a case where the application for a writ of habeas corpus was not the appropriate procedure for considering the allegations by the applicant.
23 Judith Farbey, R J Sharpe and Simon Attrill The Law of Habeas Corpus (3rd ed, Oxford University Press, Oxford, 2011) at 204.
[31] Ms Carroll’s real complaint was that a s 30 order was made when there was no jurisdiction to do so.24 However, there seems no doubt that at the time the s 30 order was made, and subsequently, her responsible clinician and others considered it appropriate that she be subject to inpatient treatment. Indeed, with legal advice, she consented to the s 30 order being made, and acknowledged that she needed to remain as an inpatient for a period of time before being suitable for release. It seems her mental health issues are still of sufficient concern that a fresh assessment and treatment process is being initiated. In those circumstances, what was required was not release from detention through a writ of habeas corpus, but a regularising of the legal framework in which Ms Carroll was detained. That was achieved by my decision to revoke the s 30 order so that there could be certainty that the compulsory and treatment process could start afresh.
[32] Put simply, the real issue was not that Ms Carroll was being inappropriately detained at Wakari Hospital because she was not mentally disordered, but that the legal jurisdiction for that detention was in question. The position was regularised by my decision to revoke the s 30 order and, under s 14(1A)(b) of the Habeas Corpus Act, that was the more appropriate procedure for addressing Ms Carroll’s concerns. Indeed, that appeared to be what she instructed her lawyer to achieve.
[33]For all these reasons, I declined the application for a writ of habeas corpus.
Costs
[34]As discussed with the parties, I reserved the issue of costs.
[35] If, as the SDHB asserts, it advised Ms Carroll that the most appropriate course of action was to seek an order revoking the s 30 order, and that it proposed to pursue this on an urgent basis, my preliminary view is that costs should lie where they fall. Furthermore, the confusion which led to the s 30 order being made was not solely that of the SDHB, but was shared by Ms Carroll and her lawyer.
24 Indeed her instructions to her lawyer expressly relate to challenging the validity of the s 30 order.
[36] However, should any party not accept that proposal, memoranda on costs can be filed by the party seeking costs. Any such application is to be filed within 10 working days of the date of this decision, with any response in a further 10 working days, and any reply within a further five working days.
[37]Costs will be determined on the papers unless I need to hear from the parties.
Solicitors:
Claro, Wellington Bligh Law, Dunedin
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