Ellis v Counties Manukau District Health Board HC Auckland CIV 2004-404-007108

[2006] NZHC 826

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-007108

BETWEEN  PAUL ELLIS Plaintiff

AND  COUNTIES MANUKAU DISTRICT HEALTH BOARD

Defendant

Hearing:         1 November 2005, 6, 7 March 2006

Appearances: A C M Fisher and Z A Matheson for plaintiff

M G Ring Q.C. and A M Adams for defendant

Judgment:      17 July 2006

JUDGMENT OF POTTER J

Solicitors:           Brookfields, P.O. Box 240, Auckland

Meredith Connell, P.O. Box 2213, Downtown, Auckland

Copy to:             A C M Fisher, P.O. Box 1752, Shortland Street, Auckland

M G Ring Q.C, P.O. Box 105521, Auckland

ELLIS V COUNTIES MANUKAU DHB HC AK CIV 2004-404-007108  17 July 2006

TABLE OF CONTENTS

Introduction  [1] The facts    [5] Principles on strike out  [17] Procedural matters  [21] The pleadings  [24] First cause of action - negligence  [32] Duty of care – general approach  [38] Statutory framework

Mental Health (Compulsory Assessment &

Treatment) Act 1992  [40]

Initial assessment  [52] First period  [57] Second period  [65] Compulsory treatment order  [68] Section 16 procedure  [72] Observations on  the Act  [75]

Other statutory and regulatory provisions

New Zealand Bill of Rights Act 1990  [82] New Zealand Public Health & Disability Act 2000              [84] Health & Disability Commissioner (Code of Health

& Disability Services Consumers’  Rights)

Regulations 1996  [85]

Authorities  [89]

Australian authorities  [94] English authorities  [118] New Zealand cases  [130] Submissions re authorities:

Defendant’s submissions  [141]

Plaintiff’s submissions  [154]

Conclusions re duty of care issue

Proximity  [162]

Policy factors  [169]

Causation  [177] Witness immunity  [178] Second cause of action – Breach of statutory duty  [179]

Pleadings  [181] Sections 37 and 38  [186] Submissions  [187] Discussion and conclusions on statutory duty  [198]

Result  [208]

Introduction

[1]      In these proceedings the defendant, Counties Manukau District Health Board (“CMDHB”), applies to strike out a statement of claim brought against it by the plaintiff Paul Ellis as disclosing no reasonable cause of action.

[2]      The plaintiff pleads that he has suffered harm as a direct consequence of the negligence of the defendant.  Mr Ellis contends that it is just and equitable to impose on  the  CMDHB  a  common  law  duty  of  care  to  properly  assess,  treat  and,  if necessary,  detain  him against  his  wishes  to  prevent  him  from causing  harm  to himself and others.  The plaintiff also pleads breach of statutory duty.

[3]      CMDHB, while accepting that it owed the usual health professional/patient duties of care to Mr Ellis, says that essentially for policy reasons, these do not extend to the duty of care contended for by the plaintiff, to detain a patient against his express wishes.

[4]      Mr Ellis killed his father.  The circumstances which underlie the proceedings are undeniably tragic.  The issue on this strike out application is, however, whether the circumstances give rise to a private law right of action for damages by Mr Ellis against the defendant.

The facts

[5]      In a strike out application, the Court is to proceed on the basis that the facts pleaded in the statement of claim are true,  even  if the defendant  disputes them (Attorney-General v Prince & Gardner [1998] 1 NZLR 262).

[6]      The facts as pleaded in the proposed third amended statement of claim record that the plaintiff, Paul Ellis, is now a full-time patient at the Mason Clinic and is represented by his litigation guardian, Clive Richard Ellis.  He is married with two young children and prior to the events that led to this claim, he had worked as a tool maker at Fisher & Paykel for 18 years.  He earned around $70,000 a year.

[7]      The defendant at the material times was a Health Board established under the

New Zealand Public Health & Disability Act 2000.

[8]      During October 2001, the plaintiff’s family began to have concerns about his behaviour.  He is said to have been abusive and aggressive, particularly towards his father.  On 11 October 2001, Mr Ellis was examined by the CMDHB’s Crisis Team, who concluded that he needed to be admitted to an acute inpatient facility under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“the Act”).  This was because he seemed to be a risk to himself and others.  Early in the morning on

12 October 2001 the Crisis Team took Mr Ellis from his home to Tiaho Mai Mental

Health Unit at Middlemore Hospital.

[9]      At approximately 2 a.m, the plaintiff was examined by the Registrar, who found him to be delusional (having persecutory and referential beliefs) and experiencing auditory and visual hallucinations.   The Registrar considered that Mr Ellis lacked insight into his condition and his judgement was impaired such that he and others were at risk.  He was considered to be suffering from a brief psychotic episode of an unknown cause.

[10]     The Registrar concluded that Mr Ellis was “mentally disordered” under the

Act and admitted him for a 5-day period of compulsory assessment and treatment.

[11]     Before 3 a.m. that same morning, the plaintiff sought a review by a Judge under s 16 of the Act.  It was scheduled to begin at 12 noon but was brought forward to  11 a.m.    Due to  overcrowding  on  the  ward  and  a  lack  of psychiatrists,  the responsible clinician did not have time to assess the patient before 11 a.m, and no other staff did so.  No objection was made to the rescheduling.  No blood or urine samples were taken and the plaintiff’s family was not told of the review in time for them to attend.   On that morning, 12 October 2001, Tiaho Mai had eight patients more than its maximum capacity (53 instead of 45) and had just one psychiatrist on duty, when normally there would be three.

[12]     At the hearing, the Judge consulted with the responsible clinician and the primary nurse.  However, neither was able to provide a professional assessment or

informed opinion about the plaintiff’s condition.  The responsible clinician told the judge that the plaintiff’s condition could be due to social pressures that had reached an acute phase but was now over.   The clinician did not caution the Judge about releasing Mr Ellis.  The Judge then reviewed the plaintiff himself, and found him to be  cogent  and  coherent.    The  Judge  ordered that  Mr  Ellis  be  discharged  from compulsory status.

[13]     Before  leaving  the  hospital,  Mr  Ellis  agreed  to  be  examined  by  the responsible clinician.   Shortly before this occurred, the defendant’s Mental Health Act administrator told the responsible clinician that he could recommence the compulsory admission process (i.e. re-section the plaintiff) if, following the responsible clinician’s assessment, he concluded that the plaintiff was  “mentally disordered”.

[14]     The responsible clinician examined Mr Ellis and found he was experiencing some persecutory delusions, but no referential delusions and no hallucinations.  He considered the plaintiff’s judgment to be questionable but did not view him as a risk to himself or others.  He diagnosed the plaintiff as having a psychotic disorder, but did not find him to be “mentally disordered”.  At 1 p.m. that afternoon Mr Ellis was released as an outpatient (with his consent).  He was to begin a course of risperidone (an anti psychotic drug) and be referred to the defendant’s outpatient service, the Cottage.  The Cottage was asked to give him priority.   His family was not told of these developments.

[15]     From  14  October  to  24  October  2001,  the  plaintiff’s  family  repeatedly expressed their concerns about the plaintiff’s disturbing behaviour to the Cottage staff.   Staff from the Cottage advised the Police about concerns expressed by the family.  The plaintiff did not always take his medication as directed.  The plaintiff refused the Cottage’s telephoned offer of visiting him at home and the Cottage staff were not able to contact him by telephone after that.  The Cottage did not act on the information received from the plaintiff’s family.

[16]     On  26  October  2001,  the  plaintiff  attacked  and  killed  his  father  with  a baseball bat.  He was then admitted to the Mason Clinic where he was found to be

“clearly psychotic with delusions of reference and persecution as well as auditory hallucination”.   He was suffering from paranoid schizophrenia and was seriously mentally unwell.  The plaintiff has since been found not guilty of his father’s murder by reason of insanity.

Principles on strike out

[17]     The application to strike out is made under rules 186 and 447 of the High Court Rules.  The test under both rules is effectively the same and the principles are well established.  In relation to causes of action of the kind pleaded in this case they were stated by the Court of Appeal in Attorney-General v Prince & Gardner at 267 as follows:

It is only where, on the facts alleged in the statement of claim, and however broadly they are stated, no private law claim of the kind or kinds advanced can  succeed  that  it  is  appropriate  to  strike  out  the  proceedings  at  a preliminary stage.  And in that assessment the public policy considerations must be solidly founded in the relevant legislation, other relevant material, or the experience of the Courts.  In some cases aspects of policy may require the kind of analysis and testing of expert evidence, including evidence of economic and social analysis, that is available only at trial.  In other cases, policy considerations are patent.   They may be explicit or implicit in the relevant legislation.  They may be reflected in other areas of the law.  Or the Courts may feel the considerations are readily identifiable and capable of evaluation and need not be the subject of evidence to be tested at trial.

[18]     Similarly, the Court of Appeal recently said  in Attorney-General  v Body

Corporate No. 200200 CA30/05, 1 December 2005 at [50]:

In all cases the threshold for a strike out application is rigorous and the Courts are especially slow to strike out claims in negligence which assert novel duties of care; this in recognition of the factually sensitive nature of the inquiry and what will often be the need for evidence, including expert evidence, and the testing of such evidence in a trial setting.  In a proper case, however, a determination may be made on the existence of a duty of care on a strike out application.  The difficulty of the associated legal issues does not preclude the granting of the application.

[19]     Discussion of the principles relating to strike out applications in the English courts is also helpful.  In X and ors (minors) v Bedfordshire County Council [1995] 2

AC 633 Lord Browne-Wilkinson at 740 indicated that claims should not be readily struck out where the law is developing or the facts need to be ascertained:

Actions can only be struck out under R.S.C., Ord. 18, r.19 where it is clear and obvious that in law the claim cannot succeed.   Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts.   But I agree with Sir Thomas Bingham M.R. ante, p. 694B-D that there is nothing inappropriate  in  deciding  on  these  applications  whether  the  statutes  in question confer private law rights of action for damages: the answer to that question depends upon the construction of the statutes alone.

Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases.  There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist. But in other cases the relevant facts are not known at this stage. … if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered.

[20]     Counsel for both parties acknowledged that the plaintiff’s claim asserts a novel duty of care.  There is no New Zealand authority directly on point.  The Court must therefore proceed with caution in considering the application to strike out.  But where the Court can be satisfied that no private law claim can succeed, striking out may be appropriate.   It is a question of balancing the plaintiff’s right to have his claim tested at trial and the defendant’s right not to be exposed to the considerable costs and other adverse implications of being obliged to defend a claim which has no reasonable prospect of success.

Procedural matters

[21]     The defendant’s application to  strike out  was part-heard on 1 November

2005.   The hearing was resumed on 6 March 2006.   On 19 December 2005 the plaintiff filed a second amended statement of claim.   By memorandum dated 28

February 2006 counsel for the plaintiff foreshadowed a further amendment to plead a specific breach of statutory duty.   When the hearing resumed on 6 March 2006 a proposed third amended statement of claim was presented but not formally filed.  It replicates the second amended statement of claim and in addition includes the foreshadowed pleading.   Mr Ring Q.C. for the defendant took no objection to the amended pleadings which were addressed in submissions both written and oral, by both parties.  The Court would not want to strike out a claim which could succeed if

reformulated.  This judgment will therefore address the third amended statement of claim (“the statement of claim”), unless otherwise stated.

[22]     Initially Ms Fisher, counsel for the plaintiff, took issue with some references in the defendant’s submissions as being to facts not pleaded in the first amended statement of claim and genuinely in dispute.  Most of these matters were resolved by counsel. At the resumed hearing on 6 March 2006 Mr Ring advised the Court that from the defendant’s perspective the areas identified by the plaintiff as factually disputed, were of no moment in relation to the issues on this strike out application and were not relied on by the defendant.

[23]     However, the plaintiff in submissions maintained objection to the defendant’s characterisation of Mr Ellis in the period following his discharge from hospital as “failing or refusing to interact or co-operate”.   It was submitted that this was inappropriate and misconceived given that the plaintiff was at the relevant times seriously mentally unwell to the extent  that  he was  incapable of exercising  the necessary judgment to give consent or make rational judgments.   Counsel for the defendant  considered that  while that  might  be an  explanation  for  the  plaintiff’s behaviour, Mr Ellis’s actions in the relevant period as pleaded in the statement of claim, supported the description.   In the end, little turns on these competing perspectives.

The pleadings

[24]     The events in October 2001 give rise to two causes of action by Mr Ellis. The first is in negligence, the second is for breach of statutory duty.   There is no claim for misfeasance in public office.

[25]     As to the first  cause of action, the statement of claim pleads a series of specific duties of care said to be owed to the plaintiff, first by the defendant directly and secondly by the defendant as the employer of the individual officers and/or staff of the defendant who it is claimed owed specific duties of care to the plaintiff.  (The defendant accepts vicarious liability for the personnel it employs).

[26]     It is pleaded (at para 46) that the duties of care were owed to the plaintiff by virtue of:

(a)       The statutory duty on the defendant to provide public funding and personal health services pursuant to s 3 of the New Zealand Public Health and Disability Act 2000.

(b)       The statutory duty on the defendant to facilitate access to appropriate effective and timely  health services  pursuant to  s  3  of  the  New Zealand Public Health and Disability Act 2000.

(c)       The statutory duty on the defendant to provide assessment and/or treatment to the plaintiff after he had been compulsorily admitted to Tiaho Mai under s 11 of the Act.

(d)       The relationship which the defendant’s officers and staff had formed with the plaintiff in relation to his current health problems.

(e)       The custody  and  control  which  the  defendant  was  exercising  in relation to the plaintiff after he had been compulsorily admitted to Tiaho Mai.

[27]     It is then pleaded in respect of each of the specified duties that it has been breached and that (at paras 48/53):

Had it not been for all or any of the foregoing inadequacies in the systems and resources provided by the defendant, the plaintiff would not have been released into the community where his mental health was left to deteriorate unmonitored and without intervention, despite the family’s expressed concerns that he was or was becoming a risk to himself or others.   The ultimate result being that the plaintiff killed his father.

[28]     Damage to the plaintiff is pleaded in paras 54 and 55:

As a direct consequence of the defendant’s negligence to the plaintiff: (a) suffered a deterioration in his mental health;

(b)       was  charged  with  the  murder  of  his  father  (of  which  he  was acquitted on the grounds of insanity);

(c)       in early 2002, as his psychosis resolved, realised the full extent of his  actions  and  suffered  depression  and  post  traumatic  stress disorder;

(d)       despite  having  made  significant  progress  since  2003,  remains detained in the Mason Clinic since 26 October 2001; and

(e)       has suffered and will continue to suffer economic loss as a result of his detention at the Mason Clinic and his inability to work full time.

In the circumstances these outcomes were reasonably foreseeable and the defendant owed a duty of care to the plaintiff to avoid them.

[29]     The plaintiff claims general damages of $180,000, and for present and future economic loss (to be determined by an inquiry).

[30]     The second cause of action, which was not pleaded in the previous three versions of the statement of claim, is breach of statutory duty, specifically breach of ss 37 and 38 of the Act.  It is alleged (at para 62) that the relevant duly authorised officer appointed under the Act breached duties imposed on her by ss 37 and 38 of the Act during the relevant period, by failing to investigate or investigate adequately requests for assistance in relation to the plaintiff, and failing to decide whether the plaintiff needed to have a medical examination.  It is then pleaded (at para 64) that but for these failures the plaintiff would not have remained in the community, with the “ultimate result” that the plaintiff killed his father and is detained as a special patient.

[31]     It is claimed that the damage to the plaintiff, which is identical to that pleaded under the cause of action alleging negligence, was as a direct consequence of the duly authorised officer’s breach of her statutory duties.

First cause of action - Negligence

[32]     A negligence claim depends on the existence of a common law duty of care owed by the defendant to the plaintiff, the breach of which causes the plaintiff to suffer loss.

[33]     A common law duty of care can only be a duty to take reasonable care.  In this case there cannot be an absolute duty or absolute duties pleaded as owed by CMDHB to Mr Ellis, for example to:

Ensure that the standard “Clinical Report  Form” provided  to staff made proper provision for the entry of reasons why assessment and treatment was needed and why the plaintiff posed serious danger to the health and safety of himself or had some other serious dimunition of capacity for self care; (45(a) statement of claim).

Ensure that the maximum capacity of Tiaho Mai was not exceeded while the plaintiff was a patient at Tiaho Mai; (45(c))

Adequately train staff, institute appropriate systems, and supervise and monitor the effectiveness of such systems, to ensure that staff communicated adequately with the plaintiff’s family … (45(xi))

[Failed to] ensure that the plaintiff took his risperidone regularly and as directed. (52(f)(iv)

[34]     These allegations and others in similar vein, really focus on alleged breaches by CMDHB, i.e. they plead what should have been done.  They adopt the approach of “Reasoning backwards from the alleged negligence”, explained in Attorney- General v Body Corporate No 200200 at [43] to [46].  But the focus here must be on the alleged duty of care which must be found to exist before any alleged breaches of it, call for consideration.

[35]     The  plaintiff’s  case  under  the  cause  of action  in  negligence  depends  on establishing that it is just and reasonable to impose on the defendant a common law duty of care which the plaintiff does not explicitly plead but articulates in submissions:

The duty contended for is to properly assess, treat and take all steps to result in the detention of the plaintiff against his wishes,  to prevent  him from causing harm to himself or others.

[36]     This  duty  is  said  to  give  rise  to  duties  at  two  different  points  in  the chronology of the plaintiff’s interaction with the defendant:

a)       To detain Mr Ellis or keep him detained at the time of the hearing under s 16 of the Act; and

b)       To  recommence  the  compulsory  detention  procedure,  i.e.  to  “re- section” him immediately after he had been released as an outpatient and during the period he remained an outpatient (impliedly leading to his detention).

[37]     The  causative  mechanism  pleaded   is  that  the  specified  consequences

(deterioration in mental health, murder charge, depression and post traumatic stress

disorder, detention in the Mason Clinic and inability to work fulltime) are “a direct consequence of the defendant’s negligence”, which it is pleaded, resulted from Mr Ellis being released into the community and ultimately in his killing his father.

Duty of care – general approach

[38]     In Attorney-General v Prince & Gardner Richardson P stated at 268:

The issue is whether a claim in negligence may lie.  The ultimate question is whether  in  the light  of  all  the circumstances  of  the  case  it  is  just  and reasonable to recognise a duty of care by the defendant to the plaintiff.  That depends on consideration of all the material facts in combination.   It is an intensely practical question.   For almost 20 years, and drawing on Anns v Merton London Borough Council [1978] AC 728, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. That is not a simple question of foreseeability as between parties. It involves consideration of the degree of analogy with cases in which duties are already established and reflects an assessment of the competing moral claims. The second is whether there are other policy considerations which tend to negative or restrict – or strengthen the existence of – a duty in that class of case …

In determining whether any claim in negligence may lie, the first step is to summarise the material features  of the particular  legislation and  then  to assess those features in the social context along with any  other  relevant considerations.

[39]     Thus, in pursuit of the answer to “the ultimate question”, the two broad fields of inquiry are:

a)       Whether  there  is  a  sufficient  degree  of  proximity  or  relationship between CMDHB and Mr Ellis; and

b)       Whether there are other policy considerations which tend to negative, restrict or strengthen the existence of a duty of care in this class of case.

Statutory framework

Mental Health (Compulsory Assessment & Treatment) Act 1992

[40]     It is necessary to examine the statutory framework under which the CMDHB operates as a first step in the process of assessing whether in the course of exercising its public functions the alleged duty of care to the plaintiff arises.

[41]     In B v Attorney-General [2004] 3 NZLR 145 Lord Nicholls delivering the judgment of the Privy Council recently confirmed this approach at [13]:

Whether  the  manner  of  discharge  of  a  statutory  function  admits  of  a concurrent common law duty of care depends primarily upon the scheme and policies of the relevant legislation.  As noted by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739, the statutory framework within which the act or omission took place is a profoundly influential factor when deciding the existence and ambit of a common law duty.

[42]     In this case the primary focus is on the Act.  The long title states:

An Act to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment,  to  define  the  rights  of  such  persons  and  to  provide  better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder.

[43]     The   Act   is   directed  to   persons   who   require   compulsory  psychiatric assessment and treatment.  Voluntary patients are not subject to the Act.

[44]     At the heart of the Act is the definition of “mental disorder” in section 2:

Mental disorder, in relation to any person, means 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;-

and   mentally   disordered,   in   relation   to   any   such   person,   has   a corresponding meaning.

[45]     The Act establishes a framework for the assessment and treatment of persons who may be mentally disordered.  If as a result of the assessments made, a person is assessed as being mentally disordered, as a final step an application for a compulsory treatment order may be made to the District Court.

[46]     The  rights  of  a  proposed  patient  or  patients  in  relation  to  treatment,  in particular under s 11 of the New Zealand Bill of Rights Act 1990 “to refuse to undergo any medical treatment”, are specifically recognised in Part 5 of the Act which deals with compulsory treatment.

[47]     Section 57 provides generally:

A proposed patients or patient may refuse consent to any form of treatment for mental disorder, except as provided in this Part or in s 110A [which relates to sedation urgently required].

[48]     Exceptions to the general requirement for consent to treatment relate to the periods of assessment under ss 11 and 13 during which a patient is required to accept such treatment for mental disorder as a responsible clinician shall direct.

[49]     There are also specific provisions dealing with treatment while a patient is subject to a compulsory treatment order.  A patient is required to accept treatment as directed by the responsible clinician during the first month of the currency of the order.   Thereafter there are provisions that  respect  the patient’s right  not to  be required  to  accept  treatment  to  which  the  patient  does  not  consent,  except  in specified   circumstances   where   stringent   procedures   involving   review   by   an appointed psychiatrist have been followed.

[50]     Section 59(4) provides a general requirement that the responsible clinician shall wherever practicable seek to obtain the consent of the patient to any treatment even though treatment without consent may be authorised under the Act.

[51]     The Act prescribes a four stage process, starting with an initial assessment as to  whether  a  person  is  mentally  disordered,  and  concluding  with  a  compulsory

treatment order to enable the treatment of a mentally disordered person either as an outpatient or within a hospital.

Initial assessment

[52]     Under s 8 “anyone” who believes that a person may be suffering from a mental disorder  “may”  fill out  an application  form asking  the Director of Area Mental Health Services for an assessment of the person.   The application is made when the Director receives an application form which complies with s 8A, accompanied by a medical practitioner’s certificate under s 8B.

[53]     The Director “shall make” the necessary arrangements  for the “proposed patient” to undergo an assessment examination forthwith.    The assessment examination is to be conducted by a psychiatrist or some other medical practitioner who is not the medical practitioner who issued the initial certificate.

[54]     In the case of Mr Ellis the application was made by his father and he was brought to Middlemore Hospital by the Hospital’s Crisis Team for assessment.

[55]     After the assessment examination the medical practitioner is required to issue a Certificate of Preliminary Assessment giving his or her opinion either that the proposed patient  is not  mentally disordered or there are 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.   Mr Ellis was assessed as being mentally disordered.

[56]     If  assessed  to  be  in  the  former  category,  that  “person”  is  free  of  the requirements of the Act.

First period

[57]     If the proposed patient is found to be in the latter category then under s 11 the medical practitioner “must” require the patient to undergo further assessment and treatment throughout the “first period” which by definition in s 2, is a period of five

clear days.  The medical practitioner may direct that the patient be admitted to and detained in a hospital for the purposes of assessment and treatment during the first period.

[58]     Mr Ellis was admitted to Middlemore Hospital pursuant to this provision.

[59]     Every patient who is undergoing assessment  in the first or second period “shall be required” to accept such treatment for mental disorder as the responsible clinician directs (s 58).  This is an exception to the general provision in s 57 that a proposed patient or patients may refuse consent to any form of treatment for mental disorder except as specifically provided.   “Responsible clinician” in relation to a patient means the clinician in charge of the treatment of that patient.

[60]     If at any time during the first period the responsible clinician considers that the patient can continue to be assessed and treated adequately as an outpatient, the responsible clinician “must” direct discharge and implement outpatient assessment and treatment during the remainder of the first period.

[61]     If at any time during the first period the responsible clinician considers that a patient is fit to be released from compulsory status, the clinician “must” give written notice and the patient is released immediately from compulsory status.

[62]     Under s 11(7) the patient or an appropriate person on his behalf may apply to the Court to have the patient’s condition reviewed under s16.  Mr Ellis sought such a review approximately one hour after arriving at Middlemore Hospital.  As a result he was removed from the assessment and treatment processes in the first period.  I shall return to consider s 16 shortly.

[63]     Before the expiry of the first period, the responsible clinician is required to record his or her findings in a certificate of further assessment.  If the opinion is that the patient is not mentally disordered, the responsible clinician is required to direct that the patient be released from compulsory status forthwith.  Alternatively, if there remain reasonable grounds for believing that the patient is mentally disordered and it

is desirable that the patient be required to undergo further assessment and treatment, the second period of assessment and treatment is undertaken.

[64]     Section 12(7) provides that on receiving a copy of the certificate of further assessment the patient or named persons on his or her behalf may apply to the Court for review of the patient’s condition under s 16.

Second period

[65]     This is a period of 14 clear days from the date of the certificate issued before the expiry of the first period.  If the finding in the certificate of further assessment is that there remain reasonable grounds for believing that the patient is mentally disordered, the responsible clinician  must  require the  patient  to  undergo  further assessment and treatment throughout the second period.  Again, as in respect of the first period, assessment and treatment may be as an outpatient.   If the responsible clinician considers that outpatient treatment will not be adequate, detention of the patient may be directed for the purposes of assessment and treatment throughout the second period.

[66]     If at any time during the second period the responsible clinician considers that a patient is fit to be released from compulsory status, he “must” give written notice requiring the patient to be released immediately from that status.

[67]     If the responsible clinician is of the opinion that the patient is not fit to be released from compulsory status, before the expiry of the second period the responsible clinician must apply to the Court for a compulsory treatment order.

Compulsory treatment order

[68]     If  an  application  for  a  compulsory  treatment  order  is  made  the  patient remains liable to assessment and treatment for a further period of 14 days after the expiry of the second period.  A Judge may extend that 14 day period for a further period not exceeding one month.  But if the application is not finally determined by

the expiration of those two periods then the application “shall be dismissed” and the patient “shall be released” from compulsory status.

[69]     Compulsory treatment orders are heard and determined by the District Court, wherever practicable by a Family Court Judge.  The Court is required to determine whether or not the patient is mentally disordered.  If the Court considers the patient is not mentally disordered it shall order that the patient be released from compulsory status forthwith.  If the Court considers the patient is mentally disordered the Court is required to consider in all the circumstances of the case whether it is “necessary” to make a compulsory treatment order.

[70]     Compulsory treatment orders shall be community treatment orders “unless” the Court considers that the patient cannot be treated adequately as an outpatient.  In that case an inpatient order is to be made, which will require the continued detention of the patient in a specified hospital.

[71]     If at  any time during  the  currency of the  inpatient  order the  responsible clinician considers that the patient can be treated adequately as an outpatient the responsible clinician is required to direct the patient to be discharged from hospital (s  30(2)).

Section 16 procedure

[72]     During  the  first  and  second  periods  while  the  responsible  clinician  is responsible for the assessment and treatment of the patient, a separate process for review is available to the patient or a person on his or her behalf (welfare guardian, the applicant for assessment, the principal caregiver, usual medical practitioner, but not including the responsible clinician).  They may seek a review by the Court “at any time” during the first and second periods.

[73]     Where the application is a first application (as it was in the case of Mr Ellis who made the application himself), the Court must grant the application to hold a review and a Judge must examine the patient as soon as practicable.   As well as examining the patient, the Judge is required to consult with the responsible clinician

and with at least one other health professional involved in the case and may consult with such other persons as the Judge thinks fit concerning the patient’s condition (s 16(4)).

[74]     If the Judge is satisfied that the patient is fit to be released from compulsory status the Judge shall order that the patient be released from that status forthwith (s 16(5)).  Such an order was made by the reviewing Judge on the application of Mr Ellis.

Observations on the Act

[75]     At the Second Reading of the Mental Health Bill on 12 March 1992 Hon Katherine O’Regan, then Associate Minister of Health, stated that the Bill was the third  major  legislative enactment  in New  Zealand  this century pertaining  to the treatment of the mentally ill.  She said:

Attempting to strike the balance between the rights of patients and the rights of those who care for them is indeed the central dilemma of any mental health legislation. … The legislation is an attempt to strike that balance.

She observed that one of the key themes of the reforms was:

… the provision of treatment in the least restrictive environment; …

She further stated:

The Bill makes significant changes to the Mental Health Act 1969.   The three most significant changes relate to community treatment  orders,  the definition of mental disorder, and the reviews and appeals process.   Unlike the Mental Health Act 1969, which emphasised compulsory detention – I underline the word “detention” – the Bill is primarily concerned with assessment of the need for treatment.   If that is established, a decision   is made about whether treatment should be provided on an out-patient or an in- patient  basis.     For  out-patients,   that  important  option  for   providing community treatment order services offers greater opportunity for treating such patients in the least restrictive environment.

At the Third Reading in June 1992 Hon David Caygill, then Minister of Health, introducing the Bill, stated that the Bill would replace the Mental Health Act 1969 and that:

The most conspicuous change of emphasis in the Bill is towards increased concern for civil liberties.

…

The process  where a  person  becomes  liable to  compulsory  treatment  is staged.   The intention of that staged process is to reduce the duration of compulsory detention to a minimum.

(Parliamentary Debates (Hansard) Vol 485)

[76]     Accordingly, the Act provides a staged process of assessment and treatment to provide for persons who may be mentally disordered but to infringe only to the extent  necessary,  the  liberty  of  such  a  person.    This  approach  is  apparent  in provisions which impact at every stage of the process:

•   the emphasis given to the release of any patient from compulsory status if at any stage of the process the person is assessed as not being mentally disordered;

•   preference for outpatient over inpatient treatment at all stages.  In the case of a compulsory treatment order, it “shall” be a community treatment order “unless” the Court considers that the patient cannot be treated adequately as an outpatient. Only then can the patient be detained in a hospital and required to accept the treatment.   And  the patient  “must” be discharged  if  at  any time  during  the currency of the inpatient order, the responsible clinician considers the patient can be adequately treated as an outpatient;

•   the  requirement  for  any compulsory  treatment  order  to  be  made  within  the designated timeframe, failing which the patient “must” be released.;

•   the requirement for consent to treatment to be obtained wherever practicable

[77]     It relevant also to note the requirement for judicial determinations at critical points in the process.

[78]     First, if application for a s 16 review is made, a Judge must decide whether or not to grant the application (s 16(1C)).   The Judge is required to consult with the responsible clinician and at least one other health professional involved in the case,

but the decision to release or not, rests entirely with the Judge.   Neither the responsible clinician nor other health professional is authorised to seek a review. The ability to do so rests only with the patient or a person specified in s 10(4)(a) on his or her behalf.  Thus the review is initiated and the decision on review is taken independently of the responsible clinicians and health professionals.   That is consistent with the intent of the Act to protect the rights of persons who become subject to it and to compulsory status under it.

[79]     Second, a compulsory treatment order can only be made by a Judge.  While the responsible clinician must apply for the order, if of the opinion that the patient is not fit to be released from compulsory status, the decision whether or not to make the order, and the kind of order to be made (community treatment order or inpatient order), is for the Judge.

[80]     The Act provides no power for the responsible clinician to detain a patient except for the limited durations and purposes of the first and second periods.  Even when the Court makes a compulsory treatment order, it is not to be an inpatient order which involves detaining the patient in a hospital, unless outpatient treatment will not be adequate.   Treatment pursuant to an inpatient order “shall” be converted to outpatient treatment if the responsible clinician considers the patient can continue to be adequately treated as an outpatient.

[81]     No duty is imposed by the Act on the responsible clinician, or anyone, to make an application for assessment under ss 8 and 8A, or a further or subsequent application (i.e. to “re-section”).  There is power to do so under s 8, but no duty.  The responsible clinician’s power to apply for assessment under ss 8 and 8A is the same as that of any member of the public who believes a person is suffering from a mental disorder.

Other statutory and regulatory provisions

New Zealand Bill of Rights Act 1990

[82]     The rights of an individual affirmed by this Act which are relevant in the context of this case are:

•   Refuse medical treatment (s 11);

•   Freedom of movement (s 18);

•   Not be arbitrarily detained (s 22);

•   Be treated with humanity and  respect  for the inherent  dignity of the person

(s 23(5)).

[83]     I have previously referred to provisions of the Act, such as ss 57 and 58 which recognise and respect the right to refuse medical treatment.  The other rights are respected by the general focus of the Act, to interfere as little as possible and only to the extent necessary with the liberty of a patient or proposed patient.   The processes provided by the Act in relation to assessment, care and treatment reflect that any limitation on the liberty of an individual must be reasonable and “demonstrably justified”, as required by s 4 New Zealand Bill of Rights Act.

New Zealand Public Health & Disability Act 2000

[84]     This  Act  is  pleaded  in  para  46  of  the  statement  of  claim,  but  was  not specifically addressed in submissions for the plaintiff.  CMDHB is a District Health Board established under this Act.  Its objectives include promoting effective care or support for those in need of personal health or disability support services, and to uphold the ethical and quality standards commonly expected of providers of these services.  This Act addresses the provision generally of health and disability services for voluntary patients through publicly owned health and disability organisations.

Health  &  Disability  Commissioner  (Code  of  Health  &  Disability  Services

Consumers’ Rights) Regulations 1996

[85]     The Code states the rights of “consumers” (patients) to services that respect individual dignity and independence, are delivered with reasonable care and skill and in compliance with legal, professional, ethical and other relevant standards, minimise potential harm and optimise quality of life for the patient, and include information to enable informed choice to be made and informed consent to be given.

[86]     Services are not to be received by a patient unless the relevant  informed choice has been made or informed consent has been given except where any Act, the common law or the Code otherwise provides.

[87]     If a patient  has diminished competence, a provider  may provide services without first obtaining informed choice or consent, if this is in the best interests of the patient, reasonable steps have been taken to ascertain the patient’s views, and the provider  believes  on  reasonable  grounds  that  the  provision  of  the  services  is consistent with the informed choice of the patient.

[88]     None of these statutes and regulations is inconsistent with the Act.  The Act is the primary legislation which provides the statutory framework relevant in this case.

Authorities

[89]     The authorities referred to in submissions by the parties addressed the two broad  fields  of  inquiry  identified  in  [39]  above  (proximity  and  policy)  but particularly  the  issue  of whether  there  is,  in  any given  set  of circumstances,  a sufficient degree of proximity and relationship, to recognise a duty of care.

[90]     The defendant contended that in determining whether a duty of care exists in any given situation, the key factor is control.  In particular, the defendant’s right to control the conduct of the perpetrator of the harm so that, if acting non-negligently, the defendant had the legal and practical ability to prevent the harm from occurring.

Even then, there will be no duty to victims regarded as too remote, but that, it was submitted,  is  a  secondary  consideration  that  only  becomes  relevant  once  the necessary control exists.  Counsel noted that there is no common law duty to prevent a person from deliberately causing harm to another, regardless of how foreseeable that harm might be if the defendant did not take reasonable steps to prevent it.  So, Mr Ring submitted, to give rise to a duty of care, there has to be a right on the defendant’s part to control the person’s actions to a sufficient extent to prevent harm from occurring.

[91]     The defendant  accepted that  there  is  a  sufficient  degree  of proximity or relationship between CMDHB and Mr Ellis, in the sense that in the circumstances of this case he is not a member of the general public in relation to  CMDHB,  but contended that the proximity necessary to impose a duty of care could only arise if the key factor of control existed which, it was submitted, is a “threshold” issue.  Mr Ring was careful to differentiate the concept of proximity in the sense accepted by the defendant in this case, from the discussion in some of the decided cases which lump  together  “proximity  and  control”,  thus  treating  proximity  as  an  aspect  of control.  In that sense proximity was not accepted by the defendant in relation to Mr Ellis.

[92]     The plaintiff contended that the element of control is merely one way of establishing sufficient proximity between the parties and that the requirement for proximity sufficient to support a duty of care will also be satisfied when there is a special relationship between the parties.  It was submitted that in the circumstances of this case the defendant acquired the necessary level of control over the risk of harm and Mr Ellis as the potential perpetrator of harm, upon the plaintiff’s compulsory admission  to  the  hospital.    If  control  was  lost,  it  was  through  the defendant’s own negligence which cannot mean there was no duty of care in the first place.

[93]     It was submitted that the cases relied on by the defendant to support the submission that the necessary element of control was not present, are distinguishable because the key reason for the Court denying liability in each of those cases was the

lack of proximity between the plaintiff and the defendant, not the defendant’s level of control over the risk of harm.

Australian authorities

[94]     Both  parties  paid  particular  attention  to  Hunter  Area  Health  Service  v Presland [2005] NSWCA 33, which is factually very similar to the circumstances of this case. In Hunter the plaintiff was admitted as a voluntary patient  and later discharged  from  a  psychiatric  hospital.     Six  hours  after  his  release  into  the community he killed the fiancée of his brother.  He brought proceedings against the Health Service seeking damages for discharging and failing to restrain him and care for him, in circumstances where he was a risk to himself and others because of his mental health condition.  The Australian statute in issue was the Mental Health Act

1990.  Negligence was conceded by the Health Service.

[95]     The plaintiff was successful at trial and awarded damages.   The Supreme Court of New South Wales overturned the decision, Spigelman CJ dissenting on whether the Health Service owed Mr Presland a common law duty of care.

[96]     Spigelman CJ in his dissenting judgment identified the critical issue in the case as the scope of the duty of care, particularly whether it extended to encompass the effects of unlawful conduct.  He quoted at [10] from Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540:

[146]    The exercise or otherwise of a common law duty of care allegedly owed by statutory authority turns  on a  close examination  of  the terms,  scope and purpose of the relevant  statutory  regime.    The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances,   displays  sufficient  characteristics   answering  the criteria for intervention by the tort of negligence.

[147]    Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

. . .

[149]    An  evaluation  of   whether   a   relationship  between  a   statutory authority and a class of persons imports a common law duty of care

is necessarily a multi-faceted inquiry.  Each of the salient features of the relationship must be considered.   The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial.  It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute …

[97]     Spigelman CJ identified four matters of significance:

•   The purpose to be served by the exercise of the power;

•   The control over the relevant risk by the depository of the power;

•   The vulnerability of the persons put at risk; and

•   Coherence.

He considered that the factors entitled to weight in determining the scope of duty owed by the Health Service to Mr Presland were control and vulnerability.

[98]     On the issue of control he again referred to Graham Barclay Oysters at [14]

he stated:

The factor of control is a fundamental purpose in discerning a common law duty of care on the part of a public authority.

[99]     On vulnerability he stated at [19]:

The concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent.

[100]   He considered that the option of voluntary admission (because Mr Presland voluntarily sought treatment at the hospital and did not seek to leave), did not detract from the high level of control exercised by the Health Service and the high level of vulnerability exhibited by the respondent.   He held that there was a duty of care which extended to the exercise of the statutory powers in ss 18 and 21 (power to detain under s 18 when under s 21 “… no other appropriate means for dealing with

the person are reasonably available and that involuntary admission and detention are necessary”).

[101]   Spigelman CJ concluded at [95]:

Finally, I observe, how society treats its citizens who suffer from mental illness, particularly the criminally insane, is often a test of its fairness.  It is never easy to be fair where an innocent person has suffered as Ms Laws, and those who grieve her loss, clearly have.   The law must, however, insist on protecting the rights of people, even if they are unpopular.  Mr Presland was the instrument by which Ms Laws died.  However, by reason of his insanity, his acts were not such that his right to receive proper medical treatment should effectively be taken away without compensation.

[102] Sheller JA considered that that the statutory scheme did not point towards allowing damages because of a failure to detain, even where this was done negligently. The Mental Health Act 1990 allowed for detention of a person as a last resort only. Further, the imposition of such a duty might inhibit medical staff in the performance of their role. He considered that the duty, or indeed ability, of the Health Service to control the patient depended on the decision to detain him. Once detention was refused then the duty to control could not extend for some “indeterminate time” while Mr Presland was in the community. He said at [299]:

…  in  the present  case,  the  duty  to  control  or  indeed  ability  to  control depended upon a decision to exercise the power of detention.   Once that control was lost by the refusal to detain, it is difficult to see how a duty to control  extended for  some indeterminate time while the  plaintiff  was  at large.

[103]   The Judge then posed a hypothetical example, referring to Dr Nazarian, the medical superintended of the hospital in question, in whom resided the power to detain:

If, in the present case, instead of killing Ms Laws the plaintiff had come upon Dr Nazarian that night and killed or injured him Dr Nazarian’s estate or Dr Nazarian would by parity of reason, have been liable to compensate the plaintiff for the consequences of his detention as a result of the unlawful killing or assault upon Dr Nazarian.  In this case, identification of the nature of the harm suffered by the plaintiff points as a matter of common sense against the existence of a legal responsibility in the defendants for that harm.

[104]   Santow JA did not consider that control and vulnerability were determinative factors although both were present to some degree.  He held that the hospital did not

have full control over the risk that the plaintiff would kill or injure someone due to his mental state.  He felt it to be incongruous to bring an action for the plaintiff’s loss of liberty, due to an earlier failure to deprive the plaintiff of his liberty for a shorter time, and that temporarily detaining him might not have prevented him from causing harm to someone at a later date.  He emphasised that there was no compulsion under the statute to detain and that care was to be given in the “least restrictive environment”.  He also considered that to allow compensation to the plaintiff in the circumstances of the case would not accord with “community values”.  Although the plaintiff had a legal excuse for his actions he nonetheless committed an unlawful act in killing the fiancée of his brother.  He therefore concluded there was no common law duty created by the statute.

[105]   The defendant noted that all three judgments in Presland regarded control as an essential factor.   Mr Ring submitted that the difference between Spigelman CJ and  the  majority  Judges  was  in  their  treatment  of  the  Australian  statute.    He submitted that had the New Zealand statute been under consideration in Hunter, Spigelman CJ may have been persuaded to put the case “on the other side of the line” as did Sheller and Santow JJA,because there is no express power to detain in the New Zealand statute, as there is in s 20 of the Australian Mental Health Act (albeit expressed as a power of last resort).  He suggested that Spigelman CJ elevated the discretion to cause a patient to be detained vested in the medical superintendent by s 18 of the Australian statute where the subject of the exercise of the discretion was  mentally  impaired  and  vulnerable  which,  as  Mr  Ring  observed,  when  the exercise of the discretion is in issue “they usually are”.

[106]   Counsel also queried the statement of Spigelman CJ at [30] that the element of control is entitled to substantial weight but that the degree of control exercised by the medical practitioner over the relevant risk:

…  is  attenuated by the fact  that  the Act  makes  provision  for  voluntary admission.

He submitted there was no logical basis for a sliding scale.

[107]   Ms Fisher submitted that Hunter is distinguishable from the present case. First, there is an important factual difference: Mr Presland was never under the control of the hospital. He entered as an informal or voluntary patient, was never held compulsorily or detained and left the hospital without coming under its control at any stage. Accordingly, the hospital never had the necessary degree of control. Counsel submitted that Mr Presland’s status at all times as an informal, i.e. voluntary patient, was determinative of the majority’s decision, referring to the passage from [299] of the judgment of Sheller JA quoted above at [102]. In the case of Mr Ellis, CMDHB assumed responsibility for and control over Mr Ellis when it admitted him to the hospital under s 11(2)(b) of the Act.

[108]   Secondly, Ms Fisher submitted that the New Zealand legislation is different from the Australian counterpart which emphasises that detention should be a last resort.

[109] The relevant provisions of the Mental Health Act 1990 referred to in Hunter, are s 4(2) and s 20.  Section 4(2) provides:

It  is  the  intention  of  Parliament  that  provisions  of  this  Act  are  to  be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

(a)       persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; and

(b)       in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients or other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

Section 20 provides:

A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent  is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.

This provision was described by Sheller JA as imposing a duty not to admit to, or detain, or continue the detention in, a hospital of a person unless the medical superintendent is of that opinion.

[110]   I propose to make some preliminary observations on counsels’ submissions on Hunter.

[111] First, I do not consider that the factor of control can be, in any significant respect, predicated or determined by the status of the person or patient who is subject to the determination of the responsible authority. Mr Presland was brought into a hospital under the Hunter Area Health Service by the Police and then transferred to another hospital also under Hunter. Though his status was as an informal (voluntary) patient (who did not want to leave), the medical superintendent had the ability to cause him to be detained in the hospital under s 18(b) Mental Health Act

1990, if he considered it “proper to do so”.  In short, the hospital had the capacity to assert control over him if he was assessed as being mentally disordered.  It was the failure of the medical superintendent to issue the requisite certificate to detain him that was the alleged breach of duty.

[112]   In the case of Mr Ellis, like Mr Presland he was brought into the hospital by the Crisis Team (though in the case of Mr Ellis on the application of a  family member).  Following assessment he was detained under s 11(2)(b) during the first period (5 days) for further assessment and treatment.  But to continue to detain him, the responsible clinician had to pursue the processes in the Act through the second period and to a compulsory treatment order.  Otherwise his voluntary status revived. That is precisely what occurred as the result of the s 16 review procedure.  There is no  material  difference  between  the  capacity  to  assert  control  in  relation  to  an informal (voluntary) patient, and the capacity to assert control in relation to a patient with  temporary  compulsory  status  whose  voluntary  status  will  revive  at  the expiration of a specified period.  In both cases detention requires the exercise of a power to detain by the responsible authority.   In both cases, the alleged breach of duty is the failure to exercise the power to detain.

[113]   Secondly,  I  do  not  accept  that  the  distinction  advanced  by  the  plaintiff between the Australian Mental Health Act 1990 and the Act in New Zealand, in relation to detention as a last resort, is a valid distinction.  Section 4(2) and s 20 of the Australian Act expressly refer to care and treatment to be provided “in the least restrictive environment”.   Admission to or detention in hospital is not to be implemented unless “no  other care of a less restrictive kind” is appropriate and available.  In New Zealand the Act implicitly incorporates this concept.  It is inherent in the very processes required by the Act which protect the rights of the individual as a “person” and ensure that detention is indeed a measure of last resort.  In the section headed Observations on the Act ([75]-[81]) I have referred to the provisions of the Act  which  support  that  conclusion,  as  well  as  to  extracts  from  Hansard  which confirm Parliament’s intention and purpose in relation to the Act.

[114]   The plaintiff also  referred to  Chambers v Northern Coast Health Service [2005] NSWSC 893 principally for the observations on Hunter. That case concerned an application to extend the limitation period to bring a claim in negligence against the defendant Health Service. The Court expressed agreement with the submissions of the plaintiff that in so far as reliance upon the Mental Health Act 1990 as providing the basis for a cause of action in negligence was concerned, the question remained open.

[115]   The Court  had  previously  identified  that  in the  application  before  it, the plaintiff needed only “claim” to have a cause of action under the Limitation Act

1969 and it was sufficient that the subject of the claim raised a serious question to be tried.   The Court in Chambers was not called upon to consider in any detail the principles applied in Hunter, nor the decision of the Court of Appeal (which would have been binding on the Supreme Court), because of the nature of the application which required the plaintiff to raise only a serious question to be tried.  As the Court observed, it was not considering a strike-out  application by the defendant.   The observations in Chambers, must therefore be read as limited to their own context.

[116]   Counsel for the defendant placed considerable reliance on State of New South Wales v Godfrey [2004] NSWCA 113 where a prisoner escaped from a gaol run by the appellant. The escapee pointed a shotgun at an employee in a news agency and

demanded money.   She was 23 weeks pregnant and suffered nervous shock as the result of the robbery.  Eight days after the robbery she gave birth to a son, the second respondent.   He suffered disabilities brought about by his premature birth which, according to medical evidence, was precipitated by the robbery.  Reversing the Court of first instance, the Court of Appeal of New South Wales held that there was no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol.  The duty of a gaoler to prevent the criminal activity of an escaped prisoner was confined to the course of the escape, where control was still capable of being reasserted.

Spigelman CJ identified the Godfrey case as being in substance not about the ability to control the conduct of others but:

… about a duty not to lose control.

He referred to cases where the requisite degree of control had been found to impose a duty of care to prevent criminal acts, as being to situations in which a right to control was combined with the capacity to assert control.  He then stated at [51]:

In the present case after the escape there was no capacity to assert control or authority over [the escapee].

[117]   I agree that Godfrey provides strong support for the defendant’s contention that control, or the capacity to assert control, is a key factor in determining whether a duty of care exists.

English authorities

[118]   The Court of Appeal in Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 considered an appeal from a decision declining to strike out the plaintiff’s claim in circumstances which have factual similarities with those in this case and also in Hunter.  The plaintiff had a history of mental illness and had been detained as the result of an order under s 3 of the Mental Health Act 1983.  Under the 1983 Act the Health Authority was under a duty to provide after-care services for the plaintiff and a psychiatrist  employed by  it  was designated as  the  plaintiff’s responsible medical officer.   The plaintiff was discharged about a month after his

initial detention but his treatment as an outpatient proved unsuccessful as he failed to attend appointments.  Some three months after his release he stabbed a man to death in a sudden unprovoked attack.  He was charged with murder but pleaded guilty to manslaughter on the grounds of diminished responsibility and was ordered to be detained  in a  secure  hospital.    He  subsequently  brought  an  action  for  damages against the Health Authority claiming that it had negligently failed to treat him with reasonable professional care and skill.   It was alleged that the responsible medical officer had failed to ensure that he was assessed before the date on which he killed the victim and that if he had been assessed he would either have been detained or would have consented to become a patient, and therefore would not have committed manslaughter.

[119]   The Health Authority applied to strike out the plaintiff’s claim as disclosing no cause of action on the grounds that:

a)       It was based on the defendant’s own illegal act which amounted to the crime of manslaughter; and

b)       It arose out of the Health Authority’s statutory obligations under s 117 of the 1983 Act and those obligations did not give rise to a common law duty of care.

[120]   On appeal the Court held in favour of the Health Authority on both grounds. On the first ground (which is not significant in relation to this case), it was held that the  plaintiff’s  plea  of diminished  responsibility did  not  remove  liability  for  his criminal act.  He had to be taken to have known what he was doing and that it was wrong.

[121]   On the second ground, duty of care, the Court held that it would not be fair, just and reasonable to impose a common law duty of care on the Health Authority. After analysing the relevant provisions of the Mental Health Act 1983 the Court referred  with  approval  to   Lord  Browne-Wilkinson  in  X   &  ors  (minors)  v Bedfordshire County Council at 747 that the character of such duties required:

Exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

[122]   The Court in Clunis further stated at 191:

The question of whether a common law duty  exists  in parallel with the authority’s statutory obligations is profoundly influenced by the surrounding statutory   framework   …   the   statutory   framework   must   be   a   major consideration in deciding  whether  it  is  fair and reasonable for  the local health authority to be held responsible for errors and omissions of the kind alleged.  The duties of care are, it seems to us, different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of such treatment the local health authority may be liable.

[123]   The Court concluded that the plaintiff could not establish a cause of action arising from a failure by the defendant health authority or the responsible medical officer to carry out their functions under s 117 of the Mental Health Act, nor that it would be fair or reasonable to hold the defendant responsible for the consequence of the plaintiff’s criminal act.

[124]   In Clunis the statutory duty of care  in  issue was the duty of the Health Authority to provide after-care services to a patient discharged from hospital, which it was alleged, extended to a duty to assess and detain.  The duty of care alleged by Mr Ellis is in respect  not of after-care services (at  which stage Mr Ellis was a voluntary recipient of the defendant’s services) but rather a common law duty to assess  and  detain  prior  to  release  and  a  further  duty  to  re-section  and  detain following release under s 8 of the Act.

[125]   In Home Office v Dorset Yacht Co Limited [1970] AC 1004 (HL) a duty was found to exist where escaped borstal detainees damaged the property of a third party, namely yachts moored nearby, the decision turned on a special relationship found to exist on the one hand between the prison officers and the borstal boys who were in their custody, and on the other hand between the prison officers and the owners of the yachts moored near the encampment. They were seen as a small group of persons who were identifiably at risk.

[126]   Since the Dorset Yacht case numerous cases have limited the situations when such a duty of care can be found.  In Hill v Chief Constable of West Yorkshire [1988]

2 All ER 238 the House of Lords upheld the striking out of a claim by the parent of a woman killed by a serial murderer. The plaintiff argued that the Police were obliged to use all reasonable care and skill in arresting the offender and had failed to do so. Dorset Yacht was distinguished on the basis that the offender  was never  in the custody of the Police and that the plaintiff’s daughter was just one of a large number of possible victims in contrast to the small at risk group which could be readily identified in Dorset Yacht.

[127]   The principle in Hill was affirmed in a recent decision of the House of Lords in Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489 (overturning the Court of Appeal) where the surviving victim of a racist attack in which his friend was murdered brought an action seeking damages against the Police. He claimed that he had suffered personal injury (aggravation of post-traumatic stress disorder), in consequence of the negligence of the Police in the manner in which they investigated the murder, which damage it was claimed, was reasonably foreseeable. The Court reaffirmed the “core principle of Hill’s case” in denying any legal duty of care on the Police towards the victims and witnesses. It was held that the prime function of the Police was the preservation of the Queen’s peace and a retreat from the principle that no duty of care lay to individual members of the public in relation to that Police function, would have detrimental effects for law enforcement. Lord Steyn observed at [31]:

It is true, of course, that the application of the Hill principle will sometimes leave citizens, who are entitled to feel aggrieved by negligent conduct of the police, without a private law remedy for psychiatric harm.   But domestic legal policy, and the Human Rights Act 1998, sometimes compel this result.

[128]   In Osman v Ferguson [1993] 4 All ER 344 the Court of Appeal allowed an appeal against a decision declining to strike out the statement of claim as disclosing no reasonable cause of action. A teacher had begun to harass a student at the school where he taught. He was eventually dismissed following complaints of property damage from the student’s family, and told a Police Officer that his dismissal was so distressing for him that he might do something insane. The Police were notified of increasingly worse behaviour by the former teacher. Eventually the former teacher

broke into the plaintiff’s home, killed the plaintiff’s father and wounded the plaintiff. It was accepted by the Court of Appeal that the plaintiff and his family had been exposed to a risk from the former teacher over and above that of the public, such that it was arguable that a very close degree of proximity amounting to a special relationship  between the plaintiff and the Police Officers existed.    However, on public policy grounds the Court found against the plaintiff holding that this was a “plain and obvious case” falling squarely within a House of Lords decision (Hill). The plaintiffs’ claims were struck out.

[129]   In Palmer v Tees Health Authority [1999] 1 Lloyd’s Rep. (Medical) 351 the offender had been released from the defendant’s hospital where he had been an inpatient.   About a year following his release while he remained an outpatient, he murdered a four year old girl.  While in hospital he had advised that he had sexual feelings towards children and would murder a child following his discharge.   The victim’s mother, on her own behalf and on behalf of the victim’s estate, claimed that there was a duty of care on the defendant not to have released the offender, or to have recalled  him.    It  was held  that  the crucial factor  was the  absence  of any relationship between the defendant Health Authority and the plaintiff.  The proximity requirement was not satisfied for a duty of care to be established.

New Zealand authorities

[130]   In Hobson v Attorney-General [2005] 2 NZLR 220 Heath J determined that there was no duty of care by a probation officer to victims of William Bell, a parolee who re-offended and struck out the claim of the plaintiff, the husband one of the murder victims of Bell, based in negligence (though considering that a claim for misfeasance in public office could proceed if properly repleaded). Heath J found that the scheme of the Parole legislation militated against duties owed to individuals and suggested duties of a public nature. He also found that proximity could not be established as it was not possible to differentiate logically between those persons who were working at the place where the plaintiff’s wife was killed, from people living and working in the vicinity of those premises.

[131]   Mr Ring submitted that Heath J put the issue of control into the proximity basket when he referred to State of New South Wales v Godfrey at 20-28 where Spigelman CJ emphasised the degree of control that could be exercised by a particular person over another in determining whether a duty ought to be imposed. Heath J observed that in doing so Spigelman CJ linked the degree of control capable of being exerted by the person against whom breach of duty is alleged, to the principle that generally, a person will not be liable for the criminal conduct of a third party.

[132]   Counsel for the plaintiff submitted that the absence of proximity to provide a sufficient nexus between the probation officer and the plaintiff is the straightforward ratio  of the  decision.    The  plaintiff  accepted  that  the  Court  will  not  expose  a defendant to indeterminate liability by imposing a duty to family or the world at large.

[133]   Since the hearing in this case, the judgment of Heath J has been upheld on appeal in relation to striking out the cause of action in negligence, but the Court of Appeal held that the cause of action which alleged misfeasance  in public office should also be struck out: Hobson & Couch v Attorney-General CA74/05, CA238/05

17 May 2006.

[134]   The  appeal was  also  concerned  with  causes  of action  pleaded  by  Susan Couch who was a surviving victim of the attacks by William Bell.   She was a member of the staff at at the RSA Club where Bell had previously been employed and at which he murdered three people and severely injured Ms Couch to the point where he left  her for  dead.   The  majority of the Court  (William Young P  and Chambers J) considered that the claims of both Mr  Hobson and Ms Couch  for negligence and misfeasance in public office must be struck out.   Hammond J considered it would be premature to strike out Ms Couch’s claim in negligence on a lack of duty basis.  He considered that in her case the requirement of proximity could be satisfied because she was working in an enterprise to which Mr Bell had turned his attention and she was one of his direct victims while he was under supervision of the Corrections Department as a parolee.  Further, the injuries suffered by her were both tangible and intangible and of a character well recognised by the law (at [79]).

[135]   The Judges generally approached their consideration of whether a duty of care existed by considering first the degree of proximity or relationship between the parties, and secondly, other wider policy considerations.  In dealing with proximity considerations William Young P distinguished the Dorset Yacht case as being in the category of case where the defendant had physical control over the offender:

… a consideration that I see as very important. (at [117])

[136]   While expressing real doubts that the relationship between the Department of Corrections  and  Mr  Bell  and  Ms  Couch’s  status  as  a  work-mate  gave  rise  to sufficient proximity, William Young P was satisfied that in any event policy considerations rendered the claim of Ms Couch untenable.

[137]   In the mental health context is the case of S v Midcentral District Health Board (No 2) [2004] NZAR 342. S and P were both psychiatric patients of the defendant health board. P was an inpatient on leave; S was an outpatient. P raped S. P sought exemplary damages for negligence and public law compensation. The claim was struck out by a Master but allowed on appeal in respect of the negligence cause of action. William Young J (as he then was) said at [44]:

In this situation the institution would have had the ability to control the whereabouts of its patients (both potential offenders and potential victims) and thus the ability to increase or reduce the risk that its vulnerable patients faced.  It would also, of course, be far better placed than the potential victims to recognise and address the dangers which they faced.

He continued at [45]:

If the manner in which the defendant provided mental health services meant that  women  outpatients  were  or  might  be  brought  into  contact  with potentially dangerous sexual offenders, the conclusion that the defendant owed those women outpatients an obligation to take reasonable precautions to protect them from harm is pretty obvious, at least to me.

[138]   He observed that the fact that both P and S were outpatients affected the degree to which the defendant health board had the ability to take precautions but this was a question of degree primarily relevant to the ability to establish negligence, which did not affect the underlying existence of a duty of care.

•   Third, persons who are mentally disordered or mentally unwell are particularly vulnerable and implicitly reliant on the exercise of reasonable care and skill by those responsible for carrying out functions under the Act.

[171]   However, there are strong counterveiling considerations.  They include:

•   Health professionals could become unduly defensive if continually faced with the spectre of exposure to common law claims in negligence.

•   The duty of care contended for – to detain against the patient’s express wishes – could cut  across the duties of the responsible clinician to  the  mental health patient, both as a health professional and in terms of the Act.  It would introduce “incoherence to the law by being inconsistent  with the  impartial exercise of discretion under the Act”: Hunter v Presland at [368] per Sheller JA.

•   Other remedies are available.  The Court of Appeal referred to these in Attorney- General v Prince & Gardner:

There are other systems of accountability for performance by social workers of their professional responsibilities and for maladministration of the department.  Standard public law remedies apply in respect of the exercise of statutory powers.  Departments are subject to ministerial and parliamentary oversight.  Social workers are subject to departmental disciplinary regimes.

Other  remedies available to  the plaintiff  include a  complaint  to  the  Health  and Disability Commissioner of a breach of the Code of Health and Disability Consumers’ Rights with potential disciplinary proceedings against the health practitioners and civil claims before the Human Rights Review Tribunal for breach

of the Code.  Damages are available in the Tribunal for pecuniary loss, loss of any benefit, humiliation, loss of dignity, and injury to the feelings, up to $200,000 (or greater if the Tribunal sees fit to refer the matter to the High Court).

[172]   The doctrine of ex turpi causa has featured in a number of the judgments under consideration.   In Hunter v Presland there were shades of concern in the judgment of Santow JA but all Judges agreed that the doctrine should not apply to defeat a civil claim. Spigelman CJ said at [78]:

The significance of moral culpability in determining the weight to be given to unlawful conduct is clearly established on the authorities.  Where, as here, a person has been held not to be criminally responsible for his or her actions on the grounds of insanity, the common law should not deny that person the right to a remedy as a plaintiff.   In such a context the unlawfulness of the conduct is not entitled to weight in a multifactorial analysis.

[173]   In the context of this case, I agree.  Mr Ellis was held not guilty by reason of insanity of killing his father.   He has been acquitted of criminal responsibility for that act.  This is not a factor which should be taken into account.

[174]   Finally,  I  return  to  the  words  of  Lord  Browne-Wilkinson  in  X  and  ors (minors) v Bedfordshire County Council, cited with approval in Clunis (refer [121] above) that it would require:

Exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

[175]   Far from stating in clear statutory language Parliament’s intention that health professionals subject to the Act  should  have  imposed  on them a  duty to  detain mentally disordered persons against their will, the Act provides a statutory scheme including a carefully staged process to ensure that detention is a last resort, to be ordered only when necessary, and only when the patient cannot be adequately treated in the community, i.e. as an outpatient.

[176]   Accordingly I  conclude that  it  is not  just  or equitable to  impose  on  the defendant a common law duty of care to detain Mr Ellis against his wishes.   The cause of action in negligence must fail.

Causation

[177]   Submissions were addressed to me on this difficult issue.  Given my finding on the duty of care issue, I do not need or propose to address it.  I observe, however, that it is an entirely factual inquiry which it is premature to seek to determine on a strike-out application.

Witness immunity

[178]   Nor  am I  required  to  address  the  defendant’s  argument  that  at  the  s 16 hearing the responsible clinician was a witness and entitled to witness immunity, so that any claim based on what he said to the Judge at the hearing could not succeed.

Second cause of action - Breach of statutory duty

[179]   The law does not recognise careless performance of a statutory duty as an independent tort.

[180]   The Court of Appeal stated in Attorney-General v Carter [2003] 2 NZLR 160 at 172:

[41]     In X and ors (minors) v Bedfordshire County Council [1995] 2 AC

633 the House of Lords held that there was no such cause of action

as negligent breach of statutory duty.   If the statute itself creates a duty to take care, a breach of that duty will result in a breach of statutory duty simpliciter, not a negligent breach of statutory duty. At pp 730-731 Lord Browne-Wilkinson, who delivered the leading speech, said:

Private law claims for damages can be classified into four different categories. Viz: (A) actions for breach of statutory duty  simpliciter   (i.e.   irrespective   of   carelessness);   (B) actions  based  solely  on  the  careless  performance  of  a statutory duty in the absence of any other common law right

of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office, i.e.  the  failure  to  exercise,  or  the  exercise  of,  statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.

. . .

[43]      We respectfully agree with this  approach.    It  is  consistent  with, indeed the logical culmination of, a developing trend to place increasing emphasis on the terms of relevant legislation when, in a common law negligence case, that legislation is central to the relationship between the parties.   The trend of authority has also regarded the legislative environment as informing the duty of care question rather than as providing an alternative basis upon which a claim for negligence might be maintained.   As noted above, a negligence claim  can  logically  be  brought  as  one  for  breach  of statutory duty only if there is a statutory duty to take care.

Pleadings

[181]   The plaintiff pleads in the statement of claim as an alternative or additional cause of action:

(57)      At all material times, Judith Catherine Dorn was a Duly Authorised Officer  (“DAO”)  appointed  by  the  Director  of  Mental  Health Services pursuant to s 93 of the Act, and employed by the defendant at The Cottage.

(58)      Pursuant to s 37 of the Act, the DAO was required to act as a ready point of contact for anyone in the community who had any worry or concern about any aspect of the Act or about services available for those who were or may be suffering from mental disorder; and, at the request of anyone, was required to provide all such assistance, advice and reassurance as may be appropriate in the circumstances.

(59)      Pursuant to s 38  of the Act,  if the DAO received a  request  for assistance, she was required to:

(a)      Investigate  the  matter  to  the  extent  necessary  to  satisfy herself:

(i)        that  the  concern  expressed  by  the  maker  of  the request was genuine; and

(ii)       that there were reasonable grounds for believing that the person to whom the request related may be suffering from a mental disorder; and

(b)       Decide, on reasonable grounds, whether or not the person needed to have a medical examination in the patient’s own interests or the interests of any other person; and

(c)       If the person needed to have a medical examination, take specified steps as set out in the Act to ensure it occurred.  In particular, if the DAO decided the person was in need of an urgent medical examination, either for his own interests or the interests of any other person, she was required to try to get a medical practitioner to examine the person, with a view to issuing a certificate under s 8B(4)(b) of the Act.   Once such a certificate is issued, the DAO was required to assist someone else to make an application under s 8A, or, apply herself if nobody else was willing to do so.

(60)      The DAO was not required to comply with the requirements above if the person, who was the subject of the request, had been examined by  a  medical  practitioner  within  the  72  hours  before  the  DAO received the request for  assistance and had received a  certificate issued under s 8B(4)(b).

[182]   Paragraph 61 details repeated requests for assistance to the duly authorised officer made by the plaintiff’s family between 9 and 18 October 2001.

[183]   Breaches of duty are pleaded at paragraph 62:

(62)      At all material times from 12 October 2001 to 18 October 2001, the DAO failed to investigate or to investigate adequately the matters relating to the requests  for  assistance,  to the extent  necessary to satisfy herself that the concerns expressed were genuine and that there were reasonable grounds for believing that the plaintiff might be suffering from a mental disorder.  (particulars follow)

(63)     The DAO did not, in relation to any of the requests for assistance pleaded above, decide whether or not the plaintiff needed to have a medical examination (either urgently or non-urgently) in  his  own interests or the interests of any other person.

(64)      But for all or any of the foregoing failures by the DAO, the plaintiff would have been examined by a medical practitioner and been compulsorily assessed and treated.  He would not have remained in the community where his mental health was left to deteriorate unmonitored   and   without   intervention,   despite   the   family’s expressed concerns that he was or was becoming a risk to himself or others.  The ultimate result being that the plaintiff killed his father and now remains detained as a special patient.

[184]   The damage which is claimed as a direct consequence of the duly authorised officer’s breach of her statutory duties is the same as that pleaded in negligence:

(a)      suffered a deterioration in his mental health;

(b)       was  charged  with  the  murder  of  his  father  (of  which  he  was acquitted on the grounds of insanity);

(c)       in early 2002, as his psychosis resolved, realised the full extent of his  actions  and  suffered  depression  and  post  traumatic  stress disorder.

(d)       despite  having  made  significant  progress  since  2003,  remains detained in the Mason Clinic since 26 October 2001; and

(e)       has suffered and will continue to suffer economic loss as a result of his detention at the Mason Clinic and his inability to work full time.

[185]   The relief claimed is also identical to that claimed in the first cause of action, i.e. general damages of $180,000 and for present and future economic loss (to be determined by an inquiry).

Sections 37 and 38

[186]   Sections 37 and 38 of the Act appear in Part 3 under the heading Advice and assistance.  They relevantly provide:

37.      Advice and assistance of general nature

So far as practicable, duly authorised officers shall act as a ready point of contact for anyone in the community who has any worry or concern about any aspect of this Act, or about services available for those who are or may be suffering from mental disorder; and, at the request of anyone, they shall provide all such assistance, advice, and reassurance as may be appropriate in the circumstances.

38.      Assistance when person may need assessment

(1)       Anyone who believes that a person may be suffering from a mental disorder may at any time request the assistance of a duly authorised officer.

(2)       The duly authorised officer who receives the request must – (a)       investigate  the  matter  to  the  extent  necessary  to

satisfy himself or herself -

(i)        that the concern expressed by the maker of the request is genuine; and

(ii)      that   there   are   reasonable   grounds   for believing  that  the  person  to  whom  the request relates may be suffering from a mental disorder; and

(b)      decide, on reasonable grounds, whether or not the person   needs   to   have   a   medical   examination urgently  in  the  person’s   own   interests   or   the interests of any other person.

(3)       if the duly authorised officer decides that the person needs to have a medical examination, but not urgently, he or she must –

(a)       arrange,   or   assist   in   arranging,   for   a   medical practitioner to examine the person with a view to issuing a certificate under section 8B(4)(b); and

(b)       once such a certificate is issued, assist someone else to apply under section 8A for assessment of the person, or apply himself or herself if nobody else is willing to apply; and

(c)       arrange   for   an   assessment   examination   to   be conducted under section 9.

(4)       If the duly authorised officer decides that the person needs to have a medical examination urgently, he or she must –

(a)       try  to  get  a  medical  practitioner  to  come  to  the person to examine him or her with a view to issuing a certificate under section 8B(4)(b); and

(b)       if a medical practitioner is available to come to the person, take all reasonable steps to ensure that the medical practitioner is able to examine the person, including calling for police assistance under section

41; and

(c)       if no medical practitioner is available to come to the person, try to get the person to go willingly to a medical practitioner; and

(d)       if the person refuses to go willingly to a medical practitioner, take all reasonable steps to –

(i)       take the person to a medical practitioner, including calling for police assistance under section 41; and

(ii)      ensure that the medical practitioner is able to examine the person,  including  calling  for police assistance under section 41; and

(e)       once a certificate is issued under section 8B(4)(b), assist someone else to apply under section 8A for assessment of the person, or apply himself or herself if nobody else is willing to apply; and

(f)       arrange   for   an   assessment   examination   to   be conducted under section 9.

. . .

Submissions

[187]   The defendant contended that if the pleading was amended to include this further cause of action the plaintiff would only have added another cause of action which was patently untenable.

[188]   The defendant referred to Rowan v Attorney-General [1997] 2 NZLR 559 at

570 for the essential elements of a cause of action for breach of statutory duty.  That case concerned the duty of the Crown under s 40 Public Works Act 1981 to offer back to the original owner land compulsorily acquired.  Smellie J stated at 570:

To succeed on such a cause of action the plaintiff must not only establish that the statute imposes a mandatory duty, but also that it is of a kind which is enforceable by a personal damages action.  Furthermore, the plaintiff must show that he or she has suffered the kind of loss or “mischief” which the statute was intended to prevent.

A consideration of the authorities shows that a statutory duty will be enforceable by personal action if:

(i)        It is for the benefit of a limited class of person; and

(ii)       Parliament intended to confer a right of action on members of that class.

Authority  for  the  above  statements  is  to  be  found  in  both  the  United Kingdom and New Zealand.   In Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441 it was established that an action for damages does not automatically lie upon breach of every statute: the question is whether the legislature intended the Act to confer a civil right of action for its breach. See also R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 AC 58 at 159 per Lord Bridge of Harwich.

The authorities  recognise that  the purpose and  scope of  the statute,  the mischief it was designed to remedy and the circumstances in which it was passed, are all relevant.  The leading case now appears to be X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The main judgment of the House of Lords was given by Lord Browne-Wilkinson who recognised that the protection or benefit of a limited class of the public is a necessary precondition of liability (see p 731).

His Lordship went on to say that a private law cause of action will arise:

… if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.

Then a little later:

If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there  is  no  method  of  securing  the  protection  the  statute  was intended to confer.

Obviously  the “class  test”  is  particularly  important  when  it  is  a  public authority which is charged with performance of statutory duty. …

Although historically there has been reluctance in the past to impose liability on public authorities for failing to carry out statutory duties, the main reason for  that  seems  to  have been  the “floodgates”  argument.    Demonstrably, however, s 40 of the Public Works Act is not susceptible of that concern.

[189]   The defendant analysed the essential elements for a cause of action for breach of statutory duty from the judgment in Rowan as follows:

a)       The statute imposes an express and mandatory duty – not a statutory discretion;

b)       The duty is of a kind enforceable by private action for damages;

i)        For the benefit of a limited class of person; and

ii)        Parliament intended to confer a common law right of action on members of that class.

iii)       The breach caused the plaintiff to suffer the kind of loss which the statutory duty was intended to prevent.

[190]   The defendant submitted that:

a)       The duties relied on in the plaintiff’s pleading are not for the benefit of a limited class of persons which include the plaintiff, i.e. persons who are actually mentally disordered, or suspected of being mentally

disordered.   Sections 37 and 38 are not expressed to be for such a class of persons and there are no words from which that implication can be reasonably derived.   Section 37 provides for duly authorised officers to act as a:

… ready point of contact for anyone in the community …

and to provide assistance, advice and reassurance:

… at the request of anyone.

Similarly s 38 provides for “anyone” who believes another person may be suffering from a mental disorder to request assistance from the duly  authorised  officer.    It  was  submitted  that  ss  37  and  38  are intended for the assistance of the community at  large and are not directed to mentally disordered persons.

b)       The duties in ss 37 and 38 are not enforceable by a private action by a mentally disordered person.  Not every breach of statute law confers rights to sue on those aggrieved.   A breach of statutory duty is actionable in the Court only if Parliament  so  intended: Gregory v Rangitikei District Council [1995] 2 NZLR 208 per McGechan J at

225.   It was submitted that in the absence of an express statutory direction in the Act  it was again necessary to look at the implicit Parliamentary intention.   This, it was submitted, is the provision for the assessment and treatment of mentally disordered persons in the least restrictive environment.   Thus even when mentally disordered persons are subject to the Act they are to be kept in the community as much as possible.  It was submitted, therefore, that it is “particularly implausible” to suggest that from ss 37 and 38 should be derived a Parliamentary intention that a mentally disordered person should be entitled to claim common law compensation for not being detained as the result of the exercise of duties under the Act.

[191]   The defendant also submitted that the availability of alternative remedies, in particular through the Health and Disability Commissioner, tells against an intention

to provide civil remedies under the Act.  It was submitted that it was inconceivable that Parliament intended by ss 37 and 38 to create a statutory duty to prevent the plaintiff from suffering the kind of loss he claims, i.e. damages and economic loss as the result of his lawful incarceration following the murder of his father.

[192]   The plaintiff submitted that the duties in ss 37 and 38 are intended to ensure the protection and benefit of a limited class of the public, namely, those who may be suffering from a mental disorder.  It was submitted that the focus of ss 37 and 38 are on the person who may be suffering from mental disorder and that such an interpretation is consistent with the purposive approach of s 5(j) of the Acts Interpretation Act.

[193]   It was further submitted that the stated purpose of the Act:

… to define the rights of such persons and to provide better protection for those rights …

indicates that it is for this limited class of the public that the protection or benefit of the Act applies, including the duties in ss 37 and 38.

[194]   The plaintiff submitted that the Act is not for the benefit of the community as a whole and that the defendant asserted wrongly that the Act has a purely “public” nature, relying on the reference in s 37 to  “anyone in the community”.   It was submitted that the focus of ss 37  and  38  is on those  who  are  suffering  mental disorder, that that focus is a private one and restricts the scope of the Act considerably.

[195]   The plaintiff referred to the focus for the relevant amendments which were made to the Act in 2000 (including ss 37 and 38).  That focus was to ensure that the concerns of family members are elevated to be reflected in specific statutory duties imposed by ss 37 and 38.  The amendments to the principal Act included the duties on  duly  authorised  officers  to  do  something  about  family  concerns  because Parliament   recognised   the   direct   cause   or   link   between   failure   by   health professionals to act on expressed family concerns and the loss suffered by mentally disorders persons as a result (Mr Ellis in this case).  It was submitted that it is not

consistent with Parliament’s imposition of the duties in ss 37 and 38 to suggest that no cause of action can lie for a breach of such duties.  Ms Fisher submitted that there must be a consequence for failure to comply with the mandatory duties required by ss 37 and 38.

[196]   It was then submitted that while the Act does not impose a remedy or penalty for breach of such duties, nor does it specifically exclude civil liability of a duly authorised officer (in contrast to the specific exclusion from civil liability for  a member  of  a  Review  Tribunal  inserted  by  s  108A  in  the  2000  amendment). Reference was also made to s 122 of the Act which protects persons, including a duly authorised  officer,  from criminal responsibility  if  acting  in  good  faith  and without culpable ignorance or negligence on a notice given under ss 9, 11 or 13 of the Act or a compulsory treatment order.  This, it was submitted, suggests a greater likelihood of a damages action having been intended.

[197]   Further, because the statute provides no other remedy for its breach and the Parliamentary intention is to protect a limited class of persons (the mentally disordered), that indicates that there may be a private right of action since otherwise there would be no method of securing the protection the statute was intended to confer.

Discussion and conclusions on statutory duty

[198]   In Chapter 8 of The Law of Torts in NZ (4th  ed) Stephen Todd (General Editor) (2005), Professor John Burrows states that this is one of the law’s less certain areas:

In any topic that  avowedly depends  on  construction  of  legislation,  it  is unwise to expect firm principles. (at 8.2.05)

[199]   He approves the approach of Heath  J  in  Hobson  v  Attorney-General,  to interpret the statute to ascertain whether Parliament intended to create a private law remedy as well as to confer public duties, and that other factors can only assist and ought only to be considered if Parliament’s will is not clear from the express words used in the part, read in the light of the purpose of the statute.

[200]   The long title to the Act is set out in [42] above.  Its focus is to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment.  It also seeks to define the rights of those persons and to provide better protection for those rights.  To achieve these purposes, duties are imposed by the Act on professionals within the mental health system who are responsible for dealing with persons who are mentally disordered or are suspected of being mentally disordered.   These persons include clinicians, responsible clinicians, and duly authorised officers.

[201]   A duly authorised officer by definition in s 2:

… means a person who, under s 93, is authorised by the Director of Area Mental Health Services to perform the functions and exercise the powers conferred on duly authorised officers by or under this Act.

[202]   Under  s  93  the  Director  of  Area  Mental  Health  Services  is  required  to designate and authorise sufficient health professionals to perform at all times the functions and exercise the powers conferred on duly authorised officers by the Act within the area of that Director.  By s 93(4) persons designated as duly authorised officers  are  required  to  carry  out  their  duties  under  the  Act  under  the  general direction of the Director of Area Mental Health Services.

[203]   While the scheme and purpose of the Act is to provide for the assessment and treatment of persons suffering from mental disorder and also to ensure protection for their rights, the Act does not confer rights on such persons.  Rather it recognises and establishes duties on those who are responsible for the assessment and treatment of mentally disordered persons, to ensure that their rights are protected.   The Act is concerned with caring for mentally disordered persons in a way that will both protect their rights and at the same time provide protection for the community.

[204]   Duly authorised officers are part of the overall statutory scheme to ensure these purposes.  They are to be pursuant to s 37 a “ready point of contact for anyone in the community …”.  By s 38 they are to respond to “anyone” who may at any time request their assistance in relation to a person who may be suffering from mental disorder.  Under s 38, in responding to such a request, a duly authorised officer is required  to  investigate  and  to  decide  on  reasonable  grounds  upon  appropriate

medical intervention “in the person’s own interests or the interests of any other person”.  Consistent with the scheme of the Act and with the protection of the rights of the person believed to be mentally disordered, the consent and co-operation of that person are to be sought, but the duly authorised officer is authorised to take all reasonable steps to ensure that the processes of the Act may be invoked in cases where that is required.

[205]   The duties imposed on a duly authorised officer under ss 37 and 38 are, I consider, entirely consistent with the general scheme and purpose of the Act.  While seeking to protect the rights as an individual of the person believed to be mentally disordered, ss 37 and  38  do  not  confer  on that  person any rights nor  give any indication that rights are intended to be conferred or reserved whether at common law or otherwise.

[206]   The  duties  of  a  duly  authorised  officer  arise  in  response  to  expressed concerns from someone in the community.  They detail a process to be undertaken by the duly authorised officer towards invoking the processes under the Act which will lead, if appropriate, to an application being made under s 8A for assessment of the person believed to be mentally disordered.  They do not give a duly authorised officer any right to detain such a person, but simply to invoke a process, that under ss 8 and 8A of the Act, which is available to “anyone” in the community.

[207]   These are essentially public duties to be performed with due regard for the rights of the  person  subject  to  the  exercise  of  the  duties  imposed  on  the  duly authorised officer.  The duties are to investigate and then to exercise a discretion as to steps to be taken.  Two sets of responsibilities, to the public and to the patient, go hand in hand.   But ss 37 and 38, while imposing statutory duties upon the duly authorised officer, do not  create duties that  are enforceable by private action  in damages by a mentally disordered person.

Result

[208]   The application of the defendant is granted.   Both causes of action in the statement of claim will be struck out.