M v Attorney-General HC Wellington CP70/00

[2002] NZHC 1174

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP70/00

ORDER MADE PROHIBITING PUBLICATION OF THE PLAINTIFF’S NAME OR IDENTIFYING FACTS

BETWEEN M
Plaintiff

AND THE ATTORNEY-GENERAL
Third Defendant

Hearing: 7 October 2002

Counsel: M J Leggat for the Plaintiff
P A McCarthy for the Third Defendant

Judgment: 25 October 2002

JUDGMENT OF GODDARD J

Solicitors:
Rudd Watts & Stone, Wellington, for the Plaintiff
Crown Law Office, Wellington, for the Third Defendant

Introduction and Background

[1] This is an application for review of a decision of Master Gendall, striking out various paragraphs of the Amended Statement of Claim and ordering the provision of further particulars by the plaintiff in relation to certain other paragraphs.

[2] At the commencement of the hearing the Attorney-General sought and was granted leave to file a Notice of Opposition out of time and to appear in opposition to the application.

[3] The proceeding at issue concerns events that occurred whilst the plaintiff was a patient in Porirua Hospital for two separate periods during the years 1954 to 1959. According to existing records, she was admitted to the hospital in 1954 and again in 1956, on each occasion pursuant to s 8 Mental Health Amendment Act 1928. In each instance the admitting diagnosis was schizophrenic reaction and the plaintiff’s reception and detention at the Hospital was pursuant to a formal reception order made by a Stipendiary Magistrate. The face of the first reception order dated 1 December 1954 (and which is identical to the second reception order dated 13 August 1956) records the following:

“AND WHEREAS the Superintendent of the said institution, by notice under his hand . . . did transmit copies of the said request and certificates and did certify that in his opinion the said patient was a mentally defective person requiring to be detained in a mental hospital: AND WHEREAS as required by section 8 of the Mental Defectives Amendment Act 1928 I have made inquiry into the matter herein and am satisfied that the said patient is mentally defective and requires detention in an institution under the Mental Defectives Act 1922:

Now, therefore, I do hereby order that the said patient continue to be detained in the said institution, in accordance with the provisions of the Mental Defectives Act 1911.”

[4] Each reception order was made in response to a formal written request. The first request in 1954 was made by the plaintiff’s mother and the second in 1956 by her father. The reception orders were based on independent assessments of the plaintiff by two competent medical practitioners, both of whom had duly certified her as “mentally defective” for the purposes of the Mental Defectives Act 1911. Within the general definition of “mentally defective” under the Act, the certifying medical practitioners had further classified the plaintiff as being of “unsound mind”. These definitions of “mentally defective” and “unsound mind”, provided in the Mental Defectives Act 1911 as amended by the Mental Defectives Amendment Act 1928, are as follows:

“2. “Mentally defective person” means a person who, owing to his mental condition requires oversight, care, or control for his own good or in the public interest, and who according to the nature of his mental defect and to the degree of oversight, care, or control deemed to be necessary is included in one of the following classes -

CLASS I - “Persons of unsound mind” - that is, persons who, owing to disorder of the mind, are incapable of managing themselves or their affairs.”

[5] As is clear from the reception orders, the formal requests by the plaintiff’s parents and the supporting medical certificates were transmitted to the Court on each occasion by the superintendent of Porirua Hospital, along with the superintendent’s own certified opinion that the plaintiff was required “to be detained in a mental hospital”.

Section 6 of the Mental Health Amendment Act 1935

[6] Of central relevance to this case is s 6 of the Mental Health Amendment Act 1935, which provides immunity from suit under mental health legislation in force. In this case, the relevant Act was the Mental Defectives Act 1911 as amended by the 1928 Amendment Act. Section 6 reads as follows:

“(1) A person who does any act in pursuance or intended pursuance of any of the provisions of the principal Act shall not be under any civil or criminal liability in respect thereof, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless he has acted in bad faith or without reasonable care. [emphasis added]

(2) No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such act except by leave of a Judge of the Supreme Court, and such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable care.

. . .

(4) Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of or, in the case of a continuance of injury or damage, within six months after ceasing of such injury or damage:”

The Master’s Decision

[7] The Amended Statement of Claim which came before the Master contained a number of allegations relating to the plaintiff’s treatment whilst she was in Porirua Hospital. These related to the lawfulness of her reception and detention at the hospital; whether her placement in seclusion on occasions had been necessary or justified; whether the administration of electro-convulsive therapy (“ECT”) and insulin treatment to her had been justified, appropriate and consented to by her; allegations that she was prescribed incorrect medication without adequate consideration as to its effects; allegations that she was physically, verbally and sexually abused by nursing staff and allegations that she was threatened with violence and the administration of ECT by nursing staff. A number of related allegations were also included.

[8] In relation to the first category of allegation (the lawfulness of the plaintiff’s reception and detention at Porirua Hospital) the Master found these events were clearly provided for under the mental health legislation. Therefore commencement of any proceedings seeking to impose civil liability for false imprisonment resulting from the plaintiff’s detention and reception at Porirua Hospital pursuant to the reception orders was statute barred by virtue of s 6 Mental Health Amendment Act 1935, absent leave being granted to bring such proceedings. In similar vein, the plaintiff’s allegations of being placed in seclusion unnecessarily were statute barred, as the legislation clearly contemplated that both restraint and seclusion might form part of the necessary oversight, care or control of a mentally defective patient. In this regard, s 65 of the Act required a Register of Restraint and Seclusion to be kept by mental institutions.

[9] In relation to the second category of allegation (justification for and appropriateness of the ECT and insulin treatment administered to the plaintiff and medication prescribed to her) the Master was satisfied that the legislation contemplated that a patient detained in a mental hospital would receive “treatment” and the administration of such treatment would constitute acts done “in pursuance of” the Mental Health Act in force at the time. On that basis the statutory bar provided by s 6 of the Mental Health Act 1935 operated to prevent the prosecution of this category of allegation. Specifically the Master found:

“I am satisfied that reception of a patient into a hospital under s 8 and the remaining provisions of the Mental Health Act contemplate that a patient detained in a mental hospital will receive treatment and that such treatment is therefore “in pursuance of” the Act. To hold otherwise, would, in my view, defeat the intent behind the Act and the ability of institutions to function. And, in any event, considering the plaintiff’s specific treatment here I am satisfied that there is nothing before the Court at this point to establish that, given the state of medical knowledge at the time, there was anything in the plaintiff’s approved treatment regime that was inadequate or inappropriate.

Accordingly I am satisfied that . . . the allegations relating to inadequate medical treatment . . . are not able to proceed in the absence of leave being granted pursuant to s 6(2) Mental Health Amendment Act 1935. No such leave has been granted and therefore there is no alternative but for these to be struck out.”

[10] In consequence of the Master’s findings in relation to the first and second categories of allegations (described above) he struck those allegations out and consequentially amended the related causes of action.

[11] The third category of allegations made by the plaintiff (physical, verbal and sexual abuse of her by nursing staff and threats of violence and administration of ECT) did not form part of the Crown’s strike out application and was therefore not considered by the Master. In relation to it, he simply acknowledged the Crown’s position in the following passage:

“The plaintiff’s allegations as to assault being physical abuse, verbal abuse, sexual abuse, threats of violence and use of ECT and punitive use of ECT outlined in paragraphs (4)(c), (e), (j) and (k) of the plaintiff’s amended statement of claim are not the subject of this strike out application.

As to these assault allegations, the third defendant accepts that this strike out application does not address the four subparagraphs in the amended statement of claim that allege these. Without acknowledging that assaults occurred, the third defendant does acknowledge that the Mental Health Act 1911 did not authorise gratuitous assaults - by way of example, see s 126 which created the offence of “neglect or ill-treatment of mentally defective persons”.”

The Issues on Review

[12] On review in this Court, the plaintiff does not seek to challenge the Master’s ruling as it relates to her reception and detention in Porirua Hospital. She does however seek to review his ruling on the issue of seclusion. She also seeks review of his decision to strike out her allegations about the medical treatment administered to her at the hospital and whether she consented to that treatment. Essentially the issue on review is whether the use of seclusion and the administration of ECT and insulin treatment and the prescription of medicine to the plaintiff can be categorised as acts done “in pursuance or intended pursuance of any of the provisions of the Mental Health Act 1911, or whether they are acts which fall outside the scope of the Act. A further issue raised is whether the onus lies on the Crown to satisfy the Court on a strike out of the nature of such acts. Mr Leggat argued that the acts complained of were not done “in pursuance or intended pursuance” of any of the provisions of the Mental Health Act 1911. Alternatively he argued that there was no sufficient evidential basis for the Master to have concluded that they were done “in pursuance or intended pursuance” of the provisions of the Act in the context of a strike out. Further, that the striking out of those allegations would not serve to significantly reduce the time or costs involved in a trial. He submitted that the Master had erred in a number of respects, which he particularised as follows:

“First, he failed to consider the 1911 Act in light of the very well established body of law that a person’s rights to seek redress through the Courts not be removed without the clearest statement of intent from Parliament.

Secondly the Master erred in deciding that not to hold that the “treatment” allegedly administered was “in pursuance of the Act would be to defeat the intent behind the Act. No reasons were given for reading such an intent into the Act.

Further, the Master erred in holding that there was nothing to establish that, given the state of medical knowledge at the time, there was anything in the Plaintiff’s approved treatment regime that was inadequate or inappropriate. Yet there was no evidence before the Court as to medical knowledge or practice at the time, or that the Plaintiff was subject to any particular treatment regime, or that such regime would have been adequate or appropriate at the time. Instead of requiring the Defendant seeking to strike out the allegations as not even being arguable to discharge the heavy onus incumbent on it, the Master in effect reversed the onus and placed it on the Plaintiff.”

Discussion

[13] The existing records and the clear intention of the legislative scheme in force at the time confirm the Master’s findings that the plaintiff was at all times lawfully received and detained in Porirua Hospital; that her discharge from the hospital was not dependent on her own wishes but dependent on medical decisions as to whether her continued detention was required; and, that the use of seclusion as part of her necessary “oversight, care or control” was contemplated under the Act. In respect of the latter, s 65 of the Act required institutions to keep a Register of Restraint and Seclusion.

[14] In relation to what Mr Leggat identified as the essential issue - namely, whether the scope of treatment administered to the plaintiff in Porirua Hospital was “in pursuance or intended pursuance of” the provisions of the 1911 Act, I can only agree with the Master’s interpretation of the Act. His view, as expressed in the quoted passage from his judgment in paragraph [9] above, is clearly correct, not only on the basis of the reception provisions in s 8 of the Act but also in light of the purpose of the Act and by reference to a number of its other provisions.

[15] The purpose of the 1911 Act was to provide institutional oversight, care and control for persons medically classified as “mentally defective” to the degree deemed necessary in each case. For these purposes an “institution” was defined under the Act as:

“A mental hospital or other place provided for the reception and detention of . . . mentally defective persons, and declared to be a public institution under this Act, or in respect of which a license is granted under this Act.”

[16] A “patient’ was defined under the Act as:

“. . . a person lawfully detained under [the] Act.”

[17] Lawful detention under the Act would, in the normal course of events, be pursuant to reception orders under s 8 following independent assessment of a prospective patient by two competent medical practitioners.

[18] The s 8 procedure also provided for the urgent admission of patients to mental institutions where:

“. . . it is expedient either for the welfare of the person alleged to be mentally defective or in the public interest that such a person should be placed under care and treatment in an institution under the principle Act before a reception order can be obtained . . .”[emphasis added]

[19] The plaintiff’s argument that the administration of treatment and medicine to her in Porirua Hospital was not done “in pursuance or intended pursuance of” the Act is untenable in the context of the statutory scheme as outlined above. She has been compelled to tailor her argument along such lines in order to avoid the statutory immunity in s 6 Mental Health Amendment Act 1935, because she is time-barred from obtaining leave to sue on the grounds of “bad faith” or lack of “reasonable care” under s 6. Mr Leggat made the submission that the Master, in interpreting the 1911 Act as he did, erred by failing to consider it in light of the “very well established body of law that a person’s right to seek redress through the courts not be removed without the clearest statement of intent from parliament”. I simply respond to this submission by observing that the terms of the statutory immunity are crystal clear and the rationale for such an immunity obvious.

[20] The plaintiff’s argument as to whether the acts of threatened maltreatment alleged in paragraphs 4(c), (e), (i) and (k) of the Amended Statement of Claim remain alive. The Crown has accepted, within the context of a strike out (as opposed to an application for leave to sue under s 6), that it is arguable whether the gratuitous use of ECT for (say) punitive purposes would fall outside the scope of the Act altogether, rather than falling for determination under the “bad faith” proviso in s 6. I note that Durie J in his judgment of 25 June 2001 declined to make any finding on this issue and expressly left it open for argument at trial.

[21] I turn then to the issue raised by Mr Leggat as to which party bears the onus of establishing an arguable .case in the context of a strike out application. Rule 186(a) of the High Court Rules provides that a pleading may be struck out where it discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading. In relation to the struck out paragraphs 4(d), (f), (h) and (i) of the Amended Statement of Claim, Mr Leggat said that the deficit was the Attorney-General’s, as the onus had been on her to place before the Court any evidence relating to medical knowledge or practice at the time; any evidence that the plaintiff was subject to any particular treatment regime; and any evidence that such regime was adequate or appropriate at the time. With respect I disagree with that submission. It is for the plaintiff who makes allegations to disclose a reasonable cause of action in relation to each allegation made. This necessarily requires the provision of particulars which tend to support each allegation made:

“And, in any event, . . . there is nothing before the Court at this point to establish that, given the state of medical knowledge at the time, there was anything in the plaintiff’s approved treatment regime that was inadequate or inappropriate.”

[22] The Amended Statement of Claim in its present form contains no more than bare allegations about treatment and medication administered to the plaintiff, without any accompanying logical and sequential statement of the ingredients of each tort alleged and resultant damage. There is no disclosure of any reasonable cause of action in relation to the treatment allegations.

[23] To illustrate the deficit, the allegations made about the alleged wrongful and involuntary administration of medical treatment are set out below. They simply comprise the following statements:

1. The administration of electro-convulsive therapy which was unjustified, inappropriate and without consent.

The ECT was administered to the plaintiff on a number of occasions. Both parties have obtained copies of records which at least purport to record dates on which it was administered to the plaintiff. The administration was unjustified and/or inappropriate because the plaintiff’s condition did not warrant its use.

2. The administration of insulin treatment which was unjustified, inappropriate and without consent.

The plaintiff was given insulin on a number of occasions. Both parties have obtained copies of records which at least purport to record dates on which it was administered to the plaintiff. The administration was unjustified and/or inappropriate because the plaintiff’s condition did not warrant its use.

3. The prescription of incorrect medication with no, or no adequate consideration being given as to the effects of the medication prescribed.

In addition to the insulin treatment already referred to, the plaintiff was, on numerous days administered tranquillising pills (the name(s) of which is/are not known) up to three times per day.

[24] Taking the first of the above allegations as an example, one would have expected there to be a number of specific particulars pleaded to support that allegation. For instance (but by way of example only), that such treatment was not justified or appropriate for a diagnosis of schizophrenic reaction in the 1950s; the basis upon which it is alleged that such treatment was not justified or appropriate for a diagnosis of schizophrenic reaction in the 1950s; what treatment a responsible body of psychiatric opinion would have regarded as justified and appropriate in the 1950s (using a Bolam [ Bolam v Friern Hospital Management Committee [1957] 2 All ER 118] type test); and how the allegedly unjustified and inappropriate use of ECT is related to any currently diagnosed condition from which the plaintiff suffers. Specifying such particulars is not the same as pleading evidence, it being accepted in the context of a strike out that allegations pleaded are capable of proof.

[25] The above three allegations as they stand are however quite unfocussed and devoid of particulars. They disclose no reasonable causes of action. Without such disclosure the defendant cannot be expected to respond.

[26] One other issue was raised that also requires response. That is the plaintiff’s contention that she and her family were not consulted about her treatment during the periods she was detained in Porirua Hospital and that she did not consent to (for instance) the administration of ECT. That however entirely overlooks the fact that the plaintiff was a committed patient during those periods and therefore under the care and control of the Hospital. In that capacity she was not a voluntary patient so that the issue of consent to treatment did not arise in the usual way. In this regard, her situation can be contrasted with that of Mr Bolam.

Conclusion

[27] As the legislative scheme provides for the reception and detention of persons assessed as “mentally defective” and thus requiring “oversight, care or control in a mental institution to the degree deemed necessary “for their own good or in the public interest”. The Act is therefore to be construed as contemplating that such care as is necessary will or may include treatment. Indeed the Act expressly provides for that in s 8.

[28] Axiomatically any treatment administered is prima facie to be construed as administered for therapeutic purposes. On that basis it will also be construed as administered in pursuance or intended pursuance of the mental health act in force at the time.

[29] On that the Master did not, as Mr Leggat submitted:

“. . . err in deciding that not to hold that the “treatment” allegedly administered was “in pursuance of” the Act would be to defeat the intent behind the Act.”

[30] A patient lawfully detained in a mental institution pursuant to a mental health act is not a voluntary patient, so the usual requirements relating to informed consent may not be applicable.

[31] The Act clearly contemplated the use of seclusion as part of the necessary “oversight, care or control” of a patient lawfully detained under the Act. As noted, in paragraph [13], s 65 of the Act required institutions to keep a Register of Restraint and Seclusion. Therefore any use of seclusion must prima facie be construed as in pursuance of the Act.

[32] It is for the plaintiff as the party alleging unlawful or tortious acts on the part of another to discharge the onus of disclosing a reasonable cause of action in relation to each allegation.

Particulars

[33] The plaintiff sought review of the Master’s order that certain particulars be provided to the defendant. However counsel have undertaken to resolve the issue of those particulars between them. In the event they are unable to do so, they have leave to return to the Court to seek orders.

Judgment

[34] The order of the Master striking out the following paragraphs is confirmed and the plaintiff’s application for review of his order relating to these is dismissed.

4(g)

4(d), (f), (h) and (i)

17 and 18 (except insofar as they relate to paragraph 4(a))

20 (except insofar as it relates to paragraph 4(a))

10(b) and (d)

14

20 (except insofar as it relates to paragraph 4(a))

[35] Leave is reserved to the parties to return to Court on the question of particulars to be provided.

[36] There will be no order for costs.