H v Capital and Coast District Health Board

[2017] NZHC 3092

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-998 [2017] NZHC 3092

UNDER

The Habeas Corpus Act 2001

BETWEEN

H Applicant

AND

CAPITAL AND COAST DISTRICT HEALTH BOARD

Defendant

Hearing:	6 December 2017
Appearances:	Applicant in Person D La Hood for Defendant
Judgment:	12 December 2017

JUDGMENT OF CLARK J

Introduction

[1]      B is currently a patient at Nga Taiohi, an adolescent secure inpatient service at

Kenepuru Hospital.

[2]      On 4 December 2017 B’s mother filed an application for habeas corpus.  The grounds   are   diffuse   and   include   the   mother’s   objection   to   her   daughter ’s “imprisonment” as theft of property and kidnap.   But the essence of the mother’s concern is that her daughter is detained under duress and against her will. The habeas

corpus application attaches a “claim for wrongdoing” (an invoice) for $596,320.00.

H v CAPITAL AND COAST DISTRICT HEALTH BOARD [2017] NZHC 3092 [12 December 2017]

[3]      On an application for habeas corpus the defendant must establish the detention of the detained person is lawful.1    If the defendant, the Capital and Coast District Health Board, fails to establish the detention of B is lawful I must order her release.

Background

[4]      On 16 November 2017 an application was made for B’s assessment under

ss 8A and 8B of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). At the time, B was in police custody in Tauranga. B had been using cannabis and sniffing petrol excessively and she was exhibiting evidence of psychosis.  The application for assessment was supported by a medical certificate signed by Dr Chaffe, of the Tauranga Hospital.  He thought it was possible the criminal acts for which B had been in police custody were carried out in response to her psychosis.

[5]      B was issued with a notice under s 9 of the Act requiring her to attend an assessment examination. The notice was witnessed by B’s father.

[6]      Again, on 16 November 2017, a certificate of preliminary assessment and a clinical report for the Director of Area Mental Health Services, were completed as required by subs 10(1) and 10(2) of the Act. The medical practitioner considered there were reasonable grounds for believing B to be mentally disordered and that it was desirable B be required to undergo further assessment and treatment.  A notice was issued pursuant to s 11 of the Act requiring B to undergo a further period of assessment and treatment at the Wellington Forensic Unit for a period beginning on 16 November

2017 and ending 21 November 2017.

[7]      On 21 November 2017 a certificate of further assessment, notice of further assessment and clinical report for the Director of Area Mental Health Services was completed in accordance with s 12 of the Act.

[8]      This certificate was issued by Dr Delmage, a consultant forensic adolescent psychiatrist, who has provided an affidavit on behalf of the defendant for the purpose of the habeas corpus hearing. A clinical report was attached to the certificate of further

assessment.  Dr Delmage formed the opinion B was suffering from a mental disorder associated with high risk to herself and low but not insignificant risk to others.

[9]      The next event was on 5 December 2017 at Kenepuru Hospital when a Family Court Judge heard an application for review of B’s condition.  B’s mother attended as did other family members. Judge Grace gave an oral judgment on 5 December 2017.2

Judge Grace had met with B and each health professional involved in her treatment. The Judge needed to be satisfied there was evidence to suggest B suffers from a disorder of such a degree it poses a serious danger to her health or safety, or the health and safety of others, or seriously diminishes her capacity to care for herself. The Judge noted the positive impact of the medication on B (from a medical perspective) but the clinicians remained of the view B is “not out of the woods” and to discharge her would not be tenable.  That view was supported by a second mental health professional.  In the circumstances Judge Grace was not prepared to discharge B at that point.

[10]     On 5 December 2017 Dr Delmage completed a certificate of final assessment and application for a compulsory treatment order pursuant to s 14 of the Act.  As Dr Delmage applied for a compulsory treatment order, B remained liable to treatment for a further 14 days pursuant to s 15(1) of the Act.

The application for habeas corpus

[11]     B’s mother, who brought the application, asked to be represented by B’s step- father who I shall refer to in this judgment by the letter “T”.  I mean no disrespect to B’s mother, or to “T”, by not naming them.   I trust they will understand that the anonymity of all family members involved is for their daughter’s welfare and the protection of her interests including her privacy.

[12]     I found T’s submissions on behalf of B’s mother illuminating and helpful in understanding the reasons for the habeas corpus application. The exact concerns about the lawfulness of B’s detention had not been obvious to me from the grounds in the written application.  I do no more than summarise T’s submissions and explanations.

[13]     Speaking on behalf of B, her mother and B’s whanau, T explained their view of the Act; that while aware of the statutory processes and technicalities, the Act does not override their daughter’s rights to be cared for according to the customs and laws by which they live. As the family sees it they have a taonga who is incarcerated. The family should not be obstructed from engaging their own lawful processes and their legal jurisdiction where methods, beyond the powerful medicines B is being given, can be applied to her betterment.   T acknowledged the skill and assistance which government agencies can bring but said that must be with the family’s consent. And the family does not consent.  Family, mother, hapu, and whānau are all in agreement that B be released to their Kōti’s authority for their scrutiny and remedy.  Ultimately B’s mother seeks the return of her flesh and blood; the child that issued from her.

[14]     While not accepting for a moment the legitimacy of the framework by which I must assess B’s compulsory detention, T listened with grace and respect to my explanation of the bounds of the law which I, as a Judge of the High Court, am constrained to apply.

Assessment

[15]     I am bound, as Mr La Hood submitted, by the principles which the Court of Appeal discussed in Sestan v Director of Area Mental Health Services, Waitemata District Health Board.3

The [Act] is aimed at defining and protecting the rights of people who may be mentally disordered.   Courts will not countenance breaches of the Act’s provisions and obligations lightly…within the statutory framework, ongoing protective mechanisms exist. These checks and balances operate both during the periods of assessment and treatment and after a compulsory treatment order has been made under s 17 by a Judge.

[16]     As the Court of Appeal observed in respect of Mr Sestan, a person in the position of B is entitled to seek habeas corpus or entitled to have habeas corpus sought

on her behalf but where the critical issue is whether she is mentally disordered there

3      Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007]

1 NZLR 767 (CA) at [88].

will  be few  circumstances  in  which  habeas  corpus is  the  appropriate  means  of challenging the position.4

[17]     The Court of Appeal has since elaborated the principles but it is not necessary

to discuss them further. The basis, and reasons, for this application as explained by T, do not engage these well-established principles.   The application is advanced in reliance on a parallel constitution and legal structure which B’s family contend should govern the situation.  I am unable to accede to that.

[18]     Although the family does not argue that the Act has not been complied with, I have carefully scrutinised the requirements of the Act, the steps taken under it and the medical opinions reached.  It seemed to me that a notice requirement had not been met.  I observed to Mr La Hood there was no evidence the s 13 notice requiring B to undergo a further period of assessment and treatment had in fact been given.  During a short adjournment Mr La Hood located the document in Dr Delmage’s file.   I accepted it without opposition from the applicant.

[19]     B is in detention pursuant to the combined effect of an application for a compulsory treatment order and the operation of s 15 which provides for the status of a patient pending determination of an application.  Where a responsible clinician has applied for a compulsory treatment order, the patient remains liable to assessment and treatment until the period of 14 days has expired. That date is 19 December 2017.

[20]     The defendant has demonstrated that all of the statutory requirements have been met. The applicant has not been able to show that B is detained unlawfully, that is, in terms of the Act.

[21]     The habeas corpus application must be dismissed.

Karen Clark J

4 At [91].

Solicitors:

Luke Cunningham Clere, Wellington for Defendant