Gordon v Attorney-General
[2022] NZCA 245
•13 June 2022 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA130/2022 [2022] NZCA 245 |
| BETWEEN | SARAH GORDON |
| AND | ATTORNEY-GENERAL |
| Court: | Brown and Katz JJ |
Counsel: | I H V Reuvecamp for Applicants |
Judgment: | 13 June 2022 at 2:30 pm |
JUDGMENT OF THE COURT
A The application to transfer is declined.
B There is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
The applicants have filed a proceeding in the High Court challenging the interpretation of certain provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) and also the way that the Ministry of Health implements that Act. The applicants seek to transfer that proceeding to this Court, pursuant to s 59(1) of the Senior Courts Act 2016.
A proceeding can only be transferred to this Court if the circumstances of the proceeding are exceptional.[1] One of the examples of exceptional circumstances given in the Act is that the party to the proceeding intends to submit that a relevant decision of this Court should be overruled.[2] The applicants submit that this proceeding meets that criterion.
[1]Senior Courts Act 2016, s 59(2).
[2]Section 59(3)(a).
If the exceptional circumstances threshold is met, this Court then has a discretion as to whether to order the transfer. The Act sets out a number of mandatory considerations (see [16] below) that the Court must have regard to when exercising that discretion.[3]
Background
[3]Section 59(4).
The first applicant, Ms Gordon, is a mental health services consumer with an illness of a nature which, she says, places her at threat of compulsory assessment and treatment under Act. The second applicant, Mr Newton-Howes, is a psychiatrist. He assesses patients and is a clinician in charge of patient treatment under the Act.
The Act was enacted thirty years ago now, in 1992, to redefine the circumstances in which, and the conditions under which, persons may be subjected to compulsory psychiatric assessment and treatment.[4] The Ministry of Health acknowledges that time has moved on since the Act was enacted, and that aspects of the legislation are likely inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Ministry is therefore currently reviewing the Act. The Government has committed to the Act’s repeal and replacement with new legislation, due to be introduced at the start of 2023.
[4]Mental Health (Compulsory Assessment and Treatment) Act 1992, long title.
The applicants, however, do not wish to await the outcome of the current law reform process. They are concerned that it may be some time until the replacement legislation is enacted. The rights of mental health consumers, they believe, will continue to be breached in the interim. Further, it is their hope that a decision of this Court will help inform the law reform process.
The applicants plead five causes of action, seeking declarations under the Declaratory Judgments Act 1908, the Judicial Review Procedure Act 2016, and NZBORA, to the general effect that:
(a)First, if a patient has the decision-making skills or mental capacity to make decisions about assessment and treatment relating to their mental health:
(i)they should not be required to undergo compulsory treatment;
(ii)no compulsory treatment order should be made in respect of them; and
(iii)they must be considered fit to be released.
(b)Second, ss 59 and 60 of the Act, which provide that patients subject to a compulsory treatment order shall, subject to certain exceptions, only receive treatment if they have consented to it, should be taken as referring to “informed consent”.
(c)Third, a child or young person under the age of 16 years may give valid and effective consent to medical treatment if they have decision‑making skills or mental capacity to make the decision in question.
(d)Fourth, advance directives (a directive indicating the type of treatment a patient wishes to receive if they experience an episode of mental distress and are unable to communicate their preferences) are legally binding and take precedence over decisions made under the Act.
(e)Fifth, there is insufficient evidence that compulsory treatment orders are effective or benefit patients subject to them.
Is the “exceptional circumstances” threshold met?
The applicants submit that the circumstances of this proceeding are exceptional because, in support of the first of their five causes of action, they intend to submit that an aspect of this Court’s decision in Waitematā Health v Attorney-General should be overruled.[5]
[5]Waitematā Health v Attorney-General [2001] NZFLR 1122 (CA).
In Waitematā Health a full bench of this Court considered whether a person (in that case “H”) who was subject to a compulsory treatment order under the Act must be released if found to be not “mentally disordered” within the meaning of the Act.[6] The issue turned on the meaning of the definition of “fit to be released from compulsory status” in s 2 of the Act, which provides as follows:
fit to be released from compulsory status, in relation to a patient, means no longer mentally disordered and fit to be released from the requirement of assessment or treatment under this Act
(emphasis added)
[6]Mental Health (Compulsory Assessment and Treatment) Act, s 2(1).
In the High Court it was held that the definition contained two requirements, first that a person no longer be mentally disordered within the meaning of the Act and, second, that they were fit to be released from the requirement for compulsory treatment.[7] On appeal, this Court accepted H’s submission that the language of the definition and the scheme and purpose of the Act required those who were not mentally disordered to be released from compulsory treatment. The phrase “and fit to be released…” did not pose an additional requirement:[8]
The only sensible conclusion is that the intention behind the word “and” as the link between the concepts of “no longer mentally disordered” and “fit to be released …” is to convey the consequential meaning “and therefore”. The effect of the definition is that a patient is fit to be released from compulsory status if, and only if, that patient is no longer mentally disordered.
[7]Waitematā Health v Attorney-General, above n 5, at [54], referring to Attorney-General v Moroney [2001] 2 NZLR 652 at [63]–[65].
[8]At [122] per Tipping J.
The High Court finding that there was a second step to the test was rejected. Once a person is no longer mentally disordered, they are fit to be released from compulsory status. No additional requirement of fitness needed to be satisfied, because the Act does not authorise assessment and treatment of those who are not mentally disordered, as defined.[9]
[9]At [61]–[65], [74] and [79]–[80].
The applicants seek to challenge this Court’s interpretation of “fit to be released from compulsory status” in their first cause of action. They do not advocate, however, for the more restrictive interpretation accepted by the High Court (which placed an additional obstacle in the path of mental health patients seeking release). Rather, they wish to advance an interpretation that is less restrictive than the interpretations that found favour in both the High Court and this Court. They seek a declaration under the Declaratory Judgments Act that:
[A] patient must be considered “fit to be released” under the [Act] if the patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health.
This would, in effect, require the Court:
(a)to interpret “and” in the definition of “fit to be released from compulsory status” as “or” (an interpretation expressly rejected in Waitematā Health[10]); and
(b)to interpret the second part of the definition — “fit to be released from the requirement of assessment or treatment under this Act” — as being automatically met where a patient “has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health”.
[10]At [95] and [122].
The submissions filed by the respondents do not engage with the issue of whether the “exceptional circumstances” threshold is met, but instead focus solely on factors relevant to the exercise of the Court’s discretion. We take this as an implicit acknowledgement by the respondents that the exceptional circumstances threshold is met, at least in relation to the first cause of action.
We are satisfied that the exceptional circumstances threshold is met, in relation to the first cause of action (only), because the applicants intend to submit, in support of one of the declarations sought in that cause of action, that this Court’s decision in Waitematā Health should be overruled. It is therefore necessary to consider whether the Court should exercise its discretion to order the transfer of the proceeding.
Should the Court exercise its discretion to order the transfer of the proceeding?
It does not automatically follow from a finding that the exceptional circumstances threshold is met that a proceeding should be transferred to this Court.[11] Rather, if the threshold requirement is met, this Court must then exercise its discretion as to whether to order a transfer, taking into account the mandatory considerations in s 59(4) of the Senior Courts Act, namely:
(a)the primary purpose of the Court of Appeal as an appellate court:
(b)the desirability of obtaining a determination of the proceeding in the High Court and a review of that determination on appeal:
(c)whether a full court of the High Court could effectively determine the question in issue:
(d)whether the proceeding raises a question of fact or a significant question of fact:
(e)whether the parties have agreed to the transfer of the proceeding:
(f)any other matter to which regard should be had in the public interest.
[11]Borrowdale v Director-General of Health [2020] NZCA 156, (2020) 25 PRNZ 184 at [9].
A recent example of the discretion being exercised against a transfer is Borrowdale v Director-General of Health, a judicial review proceeding which attacked the validity of the lockdown orders made in response to COVID-19. Kós P noted that even if the circumstances attending a proceeding are exceptional, it does not follow that it should be removed to this Court. The Court still had to be persuaded that in all the circumstances a transfer was the better course to follow.[12]
[12]At [9].
Here, the applicants submit that the discretion should be exercised in favour of a transfer for the following key reasons:
(a)The proceeding raises issues of considerable public importance and is aimed at enhancing the human rights of people in psychosocial distress, pending more substantive law reform.
(b)A decision from this Court is likely to inform the current law reform process, which is intended to replace the Act with new legislation.
(c)New legislation is likely to be at least 18 months away. It is of the utmost importance that a more human rights consistent interpretation and application of the Act is followed pending the enactment of new legislation.
The applicants acknowledge that their remaining four causes of action can be determined without Waitematā Health being overruled. They submit, however, that it would be inefficient to split the proceeding, and that the entire proceeding should therefore be transferred to this Court. While it is open to the Court to transfer part of the proceedings only, such a course is unusual and generally undesirable.[13] It would give rise to inefficiencies in this case. The entire proceeding should therefore be transferred.
[13]Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1981] 1 NZLR 614 (CA) at 616, as cited in Vector Ltd v Transpower New Zealand Ltd (2000) 14 PRNZ 240 (HC) at [47].
The Attorney-General and the Director-General of Health oppose a transfer of the proceeding. They say this proceeding does not need to be determined urgently. A transfer to this Court is unnecessary, would be inefficient and would cut across the policy development process that is underway. Moreover, given that the Government has recognised the rights-inconsistencies in the Act, this Court does not need to reiterate that inconsistency. Although one cause of action seeks to overturn Waitematā Health, the appropriate course is for the High Court to hear this claim once and as a whole. Splitting the case would cause inefficiencies. Moreover, this Court should not be deprived of a fully reasoned High Court decision, particularly when there may need to be evidence as to what sort of regime would be more rights-consistent, as well as evidence from interested parties.
In our view, a transfer of the proceeding to this Court is not appropriate, largely for the reasons identified by the respondents. The primary function of this Court is as an appellate court. This Court would be assisted by a fully reasoned decision of the High Court. The issues raised in the proceeding are wide-ranging. There may be a need for discovery, as well as a need to hear evidence and cross-examine witnesses. Third parties may wish to intervene. Interlocutory applications may need to be heard and determined. Such processes can more efficiently and effectively be undertaken in the High Court than this Court.
The parties differ as to whether there is a particular need for urgency. However, if there is, there is no reason why the proceeding could not be heard urgently in the High Court.
It is also relevant that only one of the five causes of action, and one of the 15 or more declarations and/or directions sought in the proceeding, appears to directly engage with the correctness of this Court’s decision in Waitematā Health. It would not be efficient, however, to transfer the first cause of action only to this Court. Further, in relation to the declaration that directly engages with Waitematā Health, the applicants seek, in the alternative, a declaration of inconsistency with NZBORA. Such relief is not precluded by the decision in Waitematā Health.
It is also directly relevant to the exercise of our discretion that the Act is currently being reviewed by the Ministry, and that the Government is committed to introducing new legislation that appears likely to address a number of the concerns raised by the applicants. A comprehensive policy review process is apparently being undertaken. The applicants, in addition to seeking to effect change through their current proceeding, will no doubt have an opportunity for input into that process.
In conclusion, for the reasons outlined, we have not been persuaded that this proceeding is one that should be transferred to this Court.
Should costs be awarded against the applicants?
In the event that their transfer application is unsuccessful, the applicants submit that the Court ought to exercise its discretion under r 53F(e) and/or (g) of the Court of Appeal (Civil) Rules 2005 and refuse to make an order of costs. They submit that the proceeding concerns matters of public interest. They note they have been granted a fee waiver and have applied for protective costs orders if the transfer application succeeds.
Pursuant to r 53F(e) the Court may refuse to make an order for costs if the appeal concerns a matter of public interest and the party opposing costs acted reasonably in the conduct of the appeal. The applicants advise that they bring these proceedings in their personal capacities, with no direct personal benefit to themselves. The proceeding is self-funded and brought entirely in the public interest. Declarations are sought relating to fundamental human rights. Legal representation is being provided on a pro bono basis. The applicants submit that an award of costs in these circumstances will impede access to justice and the representation of the public interest.
The respondents’ submissions are silent on the issue of costs. We take it from that that the respondents do not fundamentally disagree with the various matters raised by the applicants in this context.
We accept that the applicants are bringing this proceeding in the public interest, and not for their own personal benefit. They have acted reasonably in the conduct of this application. It is appropriate in the circumstances that no order for costs be made.
Result
The application to transfer is declined.
There is no order as to costs.
Solicitors:
Vida Law, Wellington for Applicants
Crown Law Office, Wellington for Respondents