Carter v Capital and Coast District Health Board

[2017] NZHC 2398

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 TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2017-485-754

[2017] NZHC 2398

BETWEEN

JOHN HOWARD CARTER

Applicant

AND

CAPITAL AND COAST DISTRICT HEALTH BOARD

Respondent

On the Papers
Judgment:	29 September 2017

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 18 September 2017 John Howard Carter (the applicant) filed what purports to be an application under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act).

[2]The application sought a judicial inquiry under s 84 of the MHCAT Act.

[3]Section 84(1) provides that a Judge:

CARTER v CAPITAL AND COAST DISTRICT HEALTH BOARD [2017] NZHC 2398 [29 September 2017]

… may whenever the Judge thinks fit, … make an order directing a district inspector … visit and examine any person who the Judge has reason to believe is being detained in a hospital as a patient and to inquire into and report on such matters relating to that person as the Judge thinks fit.

[4]    The application filed by the applicant specifically refers to s 84(2) of the MHCAT Act. That section provides that a Judge may, whether or not any order  under s 84(1) has been made:

… make an order directing the responsible clinician to bring any person who is being detained as a patient in the hospital before the Judge in open court or in chambers for examination …

[5]    For the sake of completeness s 84(3) provides that if on examination a Judge decides that the person is detained illegally in the hospital as a patient or that the person is fit to be discharged the Judge may order that person to be discharged.

[6]    The applicant does not make the application in respect of himself or any member of his family.   He purports to make the application in respect  of  Mr  L,   Mr M, an unidentified “Taiwanese woman” and “any other patients willing to join this application who have a common interest in it” and “the three ward 27 inpatients who have expressed an interest in the subject matter of this application as well as in and outpatients who would come under the category of ‘poor and needy’” but not the “class of in and outpatients commonly known as psychopaths who do pose a proven genuine danger to the public good”.

[7]    The applicant variously describes himself as the friend, advocate and “legal beagle” of the various individuals in respect of whom he has brought the application.

[8]    The application also indicates that the applicant feels aggrieved at having been “arbitrarily banned from the ward by the head nurse following a meeting including CCDHB lawyers …”.

[9]Other relief sought by the applicant is:

… the Court to order Dr Forbin to bring Mr M before it to give him an opportunity to reply to his accusations against him and question Dr Forbin as to whether or not he can produce any scientific proof that there is such a thing as ‘schizophrenia’ and that the drugs he is giving Mr M to treat it actually work …

[10]   From the information supplied by the applicant it appears that Mr L now been discharged.

[11]   In respect of Mr M the applicant filed a two page report prepared by Dr Mor Forbin a consultant psychiatrist at Te Whare O Matairangi (Recovery Unit) of Wellington Regional Hospital. The report was dated 12 September 2017 and addressed to the presiding Judge of the Family Court. The relevant parts of the  report conclude that Mr M has had a relapse of his psychotic illness and that “treatment of his mental disorder remains necessary as he is [sic] still significantly holds delusional thoughts”.

[12]   The report concludes with a recommendation that “an inpatient compulsory treatment order should be considered” and that “… treatment in the community may become possible within the next 2-4 weeks if current improvement  continues”. There is no indication of Mr M’s current status.

The law regarding Part 18 applications

[13]   Applications under s 84 of the MHCAT Act are dealt with under Part 18 of the High Court Rules.¹

[14]   Rule 18.4 requires that the proceedings are commenced by a statement of claim accompanied by an application for directions as to service and representation under r 18.7.

[15]In relation to the application for directions as to service r 18.7(2) says:

The plaintiff must apply to the Court without notice for directions as to service or for any orders for representation that may be required.

[16]Rule 18.7(3) provides:

In support of the application, the plaintiff must provide (by affidavit or otherwise) the information that may be necessary to enable the Court to decide what persons or classes of persons are interested in, or may be adversely affected by, the relief sought by the plaintiff and by what means

1      High Court Rules 2016, r 18.1(b)(xii).

the interests of each such person or classes of persons may be adequately represented.

[17]   Section 84 of the MHCAT Act provides that a Judge of the High Court may of his or her own motion “or on the application of any person” either:

(a)direct a district inspector to visit and examine any person who the Judge has reason to believe is being detained in a hospital as a patient and to inquire into and report on such matters relating to that person as the Judge thinks fit; or

(b)to direct the responsible clinician to bring any person who is being detained as a patient in a hospital before the Judge for examination.

[18]   If the Judge is satisfied that the person is detained illegally or that the person is fit to be discharged (other than if the person is a special patient or is legally detained for some other cause) the Judge may order that the person be discharged.²

[19]   Perhaps appreciating the informality of his “application” the applicant submits that:

… as compulsory treatment orders made by the Family Court Act 1980 are in contention here, and as the purpose of the Family Court Rules 2002 at r 3 is “to make it possible for proceedings in Family Courts to be dealt with-

(a)as fairly, inexpensively, simply, and speedily as is consistent with justice; and

(b)in such a way as to avoid unnecessary formality; and

(c)in harmony with the purpose and spirit of the family law Acts under which the proceedings arise” strict adherence to legal form is not required.

Analysis

[20]   The application does not comply with the requirements of Part 18. Even though the application relates to compulsory treatment orders the High Court Rules as opposed to the Family Court Rules apply.

2      Mental Health (Compulsory Assessment and Treatment) Act 1992, s 84(3).

[21]   The application does not adequately identify exactly whom it is said to relate to. Only two individuals are identified by name and one of them appears to have been discharged in the interim.

[22]   The only identified individual who may possibly still be in hospital is Mr M. At least as at 12 September 2017 his treating psychiatrist indicated that he was suffering from a psychotic illness justifying an inpatient compulsory treatment order.

[23]   As well as the requirements of Part 18 not having been met, the applicant did not pay the required filing fee when he lodged the application. By a document dated 18 September 2017 he sought a waiver of the obligation to pay the filing fee.

High Court Rules 5.35A

[24]   HCR 5.35A provides that, if a Registrar believes that, on the face of a proceeding tendered for filing, that proceeding is plainly an abuse of the process of the Court, that the Registrar may refer it to a Judge for consideration under r 5.35B.

[25]   Rule 5.35B provides that if a Judge to whom the Registrar refers a  proceeding under r 5.35A is satisfied that the proceeding is plainly an abuse of the process of the Court, the Judge may make an order or give directions as to disposal of the proceeding including striking the proceeding out.

[26]   Rule 5.35B(3) provides that if a Judge makes an order pursuant to r 5.35B without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

[27]   Rule 5.35B(4) provides that a copy of the Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party.

Analysis

[28]   These proceedings are misconceived. In order to discharge any person pursuant to s 84(3) of the MHCAT Act a court has to be satisfied that the person is

either detained illegally in a hospital as a patient or is fit to be discharged from a hospital.

[29]   Part 18 of the High Court Rules stipulates that those seeking to invoke s 84 of the MHCAT Act need to follow a particular process. That is to ensure that the Court has before it appropriate information upon which it can make an informed decision as to whether or not the criteria in s 83 are met.

[30]   The documentation filed does not plead that any individual has been detained illegally and neither does it assert that any individual is fit to be discharged from the hospital. On that basis it cannot succeed.

[31]   Although there does not seem to be any requirement that an application under s 84 need be made by a lawyer, the documents filed must meet minimum legal requirements. Here there is not even any indication that those on whose behalf the application has purportedly been brought have authorised that or are even aware of it.

[32]   The MHCAT Act provides a detailed regime for civil commitment under the Mental Health Act.³ Other than the supervening jurisdiction given by s 84 of the MHCAT Act, the procedure in relation to review of compulsory treatment orders is dealt with by the District Court or Family Court.⁴

[33]   There is no provision in either the MHCAT Act or the High Court Rules for representative or class actions being brought on behalf of groups of unnamed people. In an application under s 84 of the MHCAT Act, the focus is very much on the circumstances of the individual or individuals to whom the application relates.

[34]   The present application appears to be motivated not by any view that Mr M is being detained illegally or is fit to be discharged, but appears to be founded on the applicant’s views of the efficacy of certain types of anti-psychotic or other

3      See P Skegg and R Paterson Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at 14.2.

4      Ibid, at 15.8 which notes the High Court’s powers under s 84, its entitlement to entertain a writ of habeas corpus and its judicial review function.

medication and the view that “[p]atients don’t want drugs but love and understanding

…”. An application to the High Court under s 84 is not an appropriate mechanism to advance such theories.

[35]   Rule 5.35B(3) permits the Court to strike this proceeding out without giving the person who filed the proceeding an opportunity to be heard. This section also requires I notify the applicant of his right to appeal against the decision. This right  of appeal to the Court of Appeal must be filed within 20 working days of this decision.

[36]   In terms of r 5.35A I am satisfied that these proceedings are an abuse of the process of the Court and pursuant to r 5.35B(2)(a) I strike them out.

[37]   I also direct that a copy of this decision be served on the Capital and Coast District Health Board.

[38]   I direct that the Court file in this matter is not to be searched by any person without the permission of a High Court Judge.

Churchman J