L v Auckland District Health Board

[2017] NZHC 2671

NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002566

[2017] NZHC 2671

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for the writ of habeas corpus

BETWEEN

L

Applicant

AND

AUCKLAND DISTRICT HEALTH BOARD

Respondent

Hearing:

30 October 2017

Appearances:

L (Self-represented Applicant) in Person

A M Adams and M P Hardy for the Respondent

Judgment:

31 October 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 31 October 2017 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

L v AUCKLAND DISTRICT HEALTH BOARD [2017] NZHC 2671 [31 October 2017]

Solicitors:    Meredith Connell, Auckland

Copy To:     L, Auckland

Introduction

[1]    Mr L is currently an in-patient at Te Whetu Tawera Unit (TWT). TWT is a mental health facility  falling  under  the  auspices  of  the  respondent,  the  Auckland District Health Board (ADHB).

[2]    Mr L has filed a writ of habeas corpus challenging the lawfulness of his ongoing detention by the ADHB. If that detention is unlawful, as Mr L submits, he must be released.

[3]The ADHB opposes the grant of the writ on the basis that:

(a)Mr L is lawfully detained pursuant to s 13 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA);

(b)Alternatively, an application for a writ of habeas corpus is not the appropriate procedure for considering the applicant’s allegations.

Background

[4]    Mr L was arrested on 10 October 2017 and charged with obtaining by deception (over $1,000) under s 240(1)(a) of the Crimes Act 1961, and wilful damage pursuant to s 11(1) of the Summary Offences Act 1981. He is currently bailed to TWT.

[5]    Around this time he broke his elbow and was admitted to hospital where he underwent surgery on his arm. On 16 October 2017, an application was made under  s 8(a) of the MHA for an assessment to be made. Following that assessment, a notice under s 11 of the MHA was issued requiring compulsory assessment and treatment for the five day period specified under the Act. A certificate which accompanied that notice stipulated that Mr L was suffering from psychosis and had persecutory delusions.

[6]    On 19 October 2017, Mr L made an application under s 16 of the MHA for a review of his condition by a Judge. On 20 October 2017, the District Court Judge determined that she was not satisfied that Mr L was fit to be released from compulsory in-patient assessment and treatment.

[7]    On the same date, a notice was issued under s 13 of the MHA which requires Mr L to undergo further assessment and treatment as an in-patient at TWT for 14 days. That 14 day period is due to expire on 3 November 2017.

[8]    Mr L’s current detention is pursuant to that s 13 notice. The certificate of assessment issued in support of that s 13 notice states that there are reasonable grounds for believing that Mr L is mentally disordered and that it is desirable that he be required to undergo further assessment and treatment. The reasons for that assessment are set out in a clinical report form dated 20 October 2017 which notes that Mr L has a seriously diminished capacity to take care of himself.

[9]    On 27 October 2017, Mr L sought a further review hearing by a District Court Judge. That application was also declined.

[10]   The current writ for habeas corpus was filed on 26 October 2017 and listed for hearing in the Duty Judge list on Monday, 30 October 2017. Mr L is legally represented in respect of the criminal charges, but he has not engaged legal counsel in respect of the habeas corpus application. Accordingly, Mr L represented himself at the habeas corpus hearing. He presented focused and succinct submissions in support of the application.

Application for writ of habeas corpus

[11]   In his written application, Mr L contends that his detention is politically motivated (he describes himself as a human rights activist). He states that he is mentally fit and has a second opinion report from a private clinician who confirms he has no mental problems. He seeks to be released from hospital as soon as possible as he has another court hearing concerning his son who he alleges is also illegally detained.

[12]   In oral submissions at the hearing, Mr L challenged the legality of his ongoing detention on three grounds:

(a)The 14 day and five day assessment periods in the notices were faked.

(b)The clinician who made the assessments which underpin the notices was not qualified in New Zealand, was only recently certified to practice, and was subject to the supervision of another clinician.

(c)A report from another clinician provided evidence that he was mentally fit.

Relevant legal principles

[13]   Section 14(1) of the Habeas Corpus Act 2001 places the onus on the ADHB to establish that the detention of Mr L is lawful. Unlawfulness is determined as at the date of the hearing.1 In determining the issue, the court must inquire into matters of fact and law claimed to justify the detention, and such inquiry is not limited to the correction of jurisdictional errors.2

[14]   Applications made under the Act are dealt with in an expedited procedure and afforded priority over other work of the High Court.3 As such, the process is poorly suited for the resolution of administrative law challenges or complex substantive matters. A court may decline habeas corpus in such circumstances, especially where the matter is more appropriately dealt with through judicial review, or another statutory mechanism (such as that under the MHA).4

1      Misiuk v The Chief Executive of the Department of Corrections [2010] NZCA 480, [2011] 2 NZLR 114 at [25].

2      Habeas Corpus Act 2001, s 14(2).

3      Habeas Corpus Act 2001, s 9.

4      RL v Counties Manukau District Health Board [2015] NZHC 1982 at [20]–[22].

Analysis

[15]   I have carefully considered the documents submitted by Mr L in support of his writ. I am not persuaded that there are any defects or flaws in the legal process which would render his detention illegal. My reasons for that finding are as follows.

[16]   Mr L raised concerns about the linking of the dates between the certificate of further assessment, and the notice requiring Mr L to undergo the 14 day period of further assessment, both of which are dated 20 October 2017. The certificate records the date that the initial five day assessment period commenced, being 16 October 2017. However, both the certificate of further assessment and the notice relate to a further period of assessment, being the 14 day period of assessment and treatment.

[17]   Some of Mr L’s confusion may arise from the fact that the option on the certificate of further assessment which provides that the patient is not mentally disordered was not deleted until 27 October  2017.  Dr  Fraser,  the  Director  of  Area Mental Health Services for the Auckland region has sworn an affidavit in opposition to the application. He explains that this was simply a matter of oversight by the clinician completing the certificate. The clinician’s opinion following the assessment was clear from the fact that she subsequently issued a s 13 notice, and from the reasons outlined in her clinical report form. When the oversight was bought to the clinician’s attention, it was promptly corrected. I am satisfied that this oversight does not invalidate the legal basis on which Mr L continues to be detained.

[18]   In relation to the clinician’s qualifications, Mr L has produced a print-out of the Medical Council registration information for the clinician who completed the certificates and issued the notices. That records that the clinician was qualified overseas, receiving a Bachelor of Medicine and Bachelor of Surgery in 2004. The dates relating to the practising certificate (1 June 2017) simply relate to her current practising certificate and do not indicate she is only recently qualified. There is no adverse inference to be drawn from the supervision condition. That condition is simply to enable the clinician to complete the particular assessment requirements for registration within a particular scope of practice.

[19]   Finally, the further report produced by Mr L to support his contentions that he is mentally fit is dated 29 June 2017. It therefore pre-dates by a number of months the events leading to the assessments and current detention at TWT.

[20]   Overall therefore, I am satisfied that there is a legal basis upon which Mr L is currently detained. The application for a writ of habeas corpus must therefore be declined.

Result

[21]The application for a writ of habeas corpus is declined.

Edwards J