Mavis v Family Court at Tauranga
[2017] NZHC 1709
•21 July 2017
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2016-470-202 [2017] NZHC 1709
BETWEEN MAVIS HOLDEN
Applicant
AND
FAMILY COURT AT TAURANGA First Respondent
BAY OF PLENTY DISTRICT HEALTH BOARD
Second Respondent
Hearing: (on the papers) Counsel:
C Tuck for Applicant
K Laurenson for First Respondent
G Bingham for Second Respondent
M-A McCarty, Amicus CuriaeJudgment:
21 July 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 21 July 2017 at 4.30pm pursuant to
Rule 11.5 of the High Court Rules
Solicitors:
Crown Law, Wellington
Registrar/Deputy Registrar
Bay of Plenty District Health Board, Tauranga
Counsel:
C Tuck, TaurangaM-A McCarty, Tauranga
HOLDEN v FAMILY COURT AT TAURANGA [2017] NZHC 1709 []
The application
[1] From 8 February 2016 until 28 April 2017, Ms Mavis Holden was detained under a compulsory treatment order made under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act).1 During the prior period of assessment and treatment, Ms Holden applied on three occasions to a Family Court Judge, under s 16 of the Act, for an order reviewing her condition.2 On the second and third occasions her application was declined, even though she was not given the opportunity to be heard.3
[2] Ms Holden seeks judicial review of a decision made by Judge Whitehead in which he declined her third s 16 review application. Although the application was filed on 29 January 2016, it has remained undetermined for some time. When I became seized of the application, I was not told by counsel that Ms Holden has been discharged from the compulsory treatment order. I discovered that when calling for the relevant Family Court file. Having said that, I consider that the point in issue is sufficiently important to determine in any event, notwithstanding that, for all
practical purposes, the question is now moot.4
[3] Both the Bay of Plenty District Health Board and the Family Court abide the decision of this Court. Neither has made submissions on the substantive application. Because the issue is of some importance and does not appear to have been the subject of a previous decision of this Court, I appointed Ms McCarty as amicus curiae. I thank her for her assistance. I am determining the application based on written submissions made by Mr Tuck, for Ms Holden, and Ms McCarty. By
consent, I am dealing with the application on the papers.
1 See para [24] below.
2 Section 16 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 is set out at para [13] below.
3 See paras [18] and [20] below.
4 Generally, see R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.
The statutory scheme5
[4] The Act was passed “to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment”.6 One of its objects was “to define the rights of such persons and to provide better protection for those rights”.7
[5] The first step in the process is for a third party to apply to the Director of Area Mental Health Services (the Director) for an assessment of the person concerned (the initial assessment). An application may only be made if the third party “believes that a person may be suffering from a mental disorder”.8 The application must be accompanied by a certificate from a medical practitioner to support the need for an assessment.9 The term “mental disorder” is defined by s 2(1) of the Act:
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;—
[6] Once an application is made, the Director makes necessary arrangements for the proposed patient to undergo a preliminary assessment examination.10 A medical practitioner, after completing the initial assessment examination, is then required to record certain findings. Section 10(1) of the Act states:
10 Certificate of preliminary assessment
(1) After completing the assessment examination, the medical practitioner shall record his or her findings in a certificate of preliminary assessment, stating—
5 For more nuanced summaries of the scheme of the Act, see Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 (HC) at paras [40]–[81] and Sestan v Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 (CA) at paras [16]–[18].
6 Mental Health (Compulsory Assessment and Treatment) Act 1992, Long Title.
7 Ibid.
8 Ibid, s 8(1).
9 Ibid, ss 8(1), 8A(a) and 8B.
(a) that he or she has carefully considered the statutory definition of mental disorder and the proposed patient’s condition in relation to that definition; and
(b) that, in his or her opinion,—
(i) the proposed patient is not mentally disordered; or
(ii) 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.
…
[7] If a certificate were given under s 10(1)(b)(ii), a further assessment must be arranged by the medical practitioner (the first assessment period).11 That can be done at a place to be nominated by the medical practitioner (including the patient’s place of residence) or, if the patient were not considered suitable for outpatient treatment, at a hospital. The medical practitioner can direct that a patient be admitted to and detained in a specific hospital for the period of five days required for further assessment and treatment.12 The responsible clinician who is to conduct the further assessment may direct the patient to attend at a specified hospital if he or she, during the period of five days, considers that outpatient assessment and treatment is not appropriate.13
[8] At the end of the first assessment period of five days, the responsible clinician certifies his or her findings. Section 12(1) of the Act states:
12 Certificate of further assessment
(1) Before the expiry of the first period of assessment and treatment, the responsible clinician shall record his or her findings in a certificate of further assessment, stating—
(a) that he or she has carefully considered the statutory definition of mental disorder and the patient’s condition in relation to that definition; and
(b) that, in his or her opinion,—
(i) the patient is not mentally disordered; or
11 Ibid, s 11(1).
12 Ibid, s 11(2).
(ii) there remain reasonable grounds for believing that the patient is mentally disordered and that it is desirable that the patient be required to undergo further assessment and treatment.
….
[9] If the responsible clinician were to certify reasonable grounds for further assessment and treatment under s 12(1)(b)(ii), notice must be given to specified persons, who include the patient, his or her principal caregiver and a district inspector of Mental Health.14 Any further period of assessment and treatment is for one of 14 days (the second assessment period).15 At the end of the second assessment period the responsible clinician provides a “certificate of final
assessment”.
[10] The nature of the final certificate and its consequences are set out in s 14 of the Act:
14 Certificate of final assessment
(1) Before the expiry of the second period of assessment and treatment, the responsible clinician shall record his or her findings in a certificate of final assessment, stating—
(a) that in his or her opinion the patient is fit to be released from compulsory status; or
(b) that in his or her opinion the patient is not fit to be released from compulsory status.
(2) The responsible clinician shall send to the Director of Area Mental
Health Services—
(a) a copy of the certificate of final assessment; and
(b) full particulars of the reasons for his or her opinion of the patient’s condition, and any relevant reports from other health professionals involved in the case; and
(c) where appropriate, a notice to the effect that he or she is applying to the court for a compulsory treatment order in respect of the patient.
(3) If the responsible clinician is of the opinion that the patient is fit to be released from compulsory status, that clinician shall direct that the patient be released from that status forthwith (but without
prejudice to the making of a further application under section 8A in respect of the patient at some time in the future).
(4) If the responsible clinician is of the opinion that the patient is not fit to be released from compulsory status, the clinician must, before the expiry of the second period, apply to the court for the making of a compulsory treatment order under Part 2.
[11] An application for a compulsory treatment order is made under s 14A of the Act after the final certificate has been given. The patient remains liable to assessment and treatment, pending determination of that application by a Family Court Judge.16
[12] During the periods of assessment, s 16 of the Act allows for an application to be made to a Family Court Judge for review of a patient’s condition.17 The application can be made during either the first or second assessment period.18 Such an application may be made by specified persons19 who, for present purposes, include the patient.20
[13] Section 16 of the Act sets out the process by which review is undertaken:
16 Review of patient’s condition by Judge
(1) When an application is made to the court under section 11(7) or section 12(7) or section 12(12) for a review of the patient’s condition,—
(a) subsection (1B) applies if the application is the only application that has been made for a review of the patient’s condition during the first and second periods:
(b) subsection (1C) applies if the application is the second or subsequent application that has been made for a review of the patient’s condition during the first and second periods.
(1A) When an application is made under section 29(4) for a review of the
patient’s condition, subsection (1B) applies.
(1B) When this subsection applies,—
16 Ibid, s 15.
17 If it is not practicable for a Family Court Judge to conduct the review, a District Court Judge may do so: ibid, s 16(7).
18 Ibid, s 12(7) and 12.
19 Ibid, s 10(4)(a)(ii)–(v) (in the case of the initial further assessment and s 12(5)(a)–(e) (in respect of the second period).
20 Ibid, ss 11(7) and 12(12).
(a) the court must grant the application; and
(b) a Judge must examine the patient as soon as practicable; and
(c) subsections (2) to (7) apply.
(1C) When this subsection applies, a Judge must decide whether or not to grant the application. In making this decision, the Judge must have regard to any evidence before the Judge that indicates that the patient’s condition has not changed since the last review.
(2) The examination shall be conducted—
(a) at the patient’s place of residence, the hospital, or the other place where the patient is undergoing assessment and treatment; or
(b) where that is not practicable, at the nearest practicable place. (3) The Judge must do the following things before and during the
examination, as appropriate and practicable:
(a) identify himself or herself to the patient; and
(b) explain to the patient the purpose of the visit; and
(c) discuss with the patient the patient’s situation, the proposed course of assessment and treatment, and the patient’s views on these matters.
(4) As well as examining the patient, the Judge shall consult with the responsible clinician, and with at least 1 other health professional involved in the case, and may consult with such other persons as the Judge thinks fit, concerning the patient’s condition.
(5) 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.
(6) Every review under this section of a patient’s condition shall, wherever practicable, having regard to the time in which that review is required to be conducted, and to the availability of Judges and other personnel and resources, be conducted by a Family Court Judge.
(7) Where it is not practicable for a review under this section of a patient’s condition to be conducted by a Family Court Judge, that review may be conducted by any District Court Judge.
The facts
[14] Ms Holden decided to purchase a motor vehicle. Having entered into a credit agreement for that purpose, she was having difficulty in making repayments. Ms
Holden made a conscious decision to stop eating so that she could save money on food and use that to meet repayment for the debt incurred in the purchase of the motor vehicle. As a result of that decision, she collapsed.21
[15] On 9 January 2016, a registered nurse applied to have Ms Holden assessed under s 9 of the Act. In setting out her reasons for believing that Ms Holden was “mentally disordered”, the registered nurse wrote:
[Ms Holden] is paranoid and delusional leaving the ward to smoke cannabis
not eating well – [under] weight
Self neglect –
Very vulnerable to exploitation off the ward.
Believes staff are cutting her hair [at] night. Very distressed [and]
suspicious.
[Ms Holden] leaves ward without letting staff know.
[16] On the same day, Ms Holden was examined by a medical practitioner who supported the application for assessment.22 The medical practitioner referred to Ms Holden as a “[48] year old lady with a diagnosis of paranoid schizophrenia, currently presenting as disorganised, paranoid and vulnerable”. Further information provided in the medical certificate supports the view expressed by the registered nurse in her application.
[17] Dr Michael Ratna undertook a s 9 assessment of Ms Holden that day. After that assessment, he signed a preliminary certificate in which he found that there were reasonable grounds for believing Ms Holden was mentally disordered and that it was necessary for her to undergo the first period of assessment.23 Immediately, Ms
Holden applied to the Family Court, under s 16, to review her condition.24
21 [citation redacted].
22 In accordance with s 8B of the Mental Health (Compulsory Assessment and Treatment) Act
1992.
23 The certificate was issued under s 10 of the Mental Health (Compulsory Assessment and
Treatment) Act 1992. Section 10(1) is set out at para [6] above.
24 See para [12] above.
[18] The s 16 application came before Judge Coyle the next day, 10 January 2016. Mr Tuck appeared for Ms Holden. Also present were the responsible clinician, Dr Ratna, and a second health professional, Nurse Thompson. After setting out the background to Ms Holden’s admission to hospital,25 Judge Coyle articulated the need to consider (on the one hand) a “potentially … rational decision to organise her life to meet her financial commitments” and (on the other) the fact that “the decision … was … fraught with risks for her in terms of her physical health”.26
[19] Judge Coyle concluded that Ms Holden was not fit to be released from the requirement for assessment and treatment under the Act. He reached that conclusion on the basis of her prior history of psychiatric disorder, discussions with Dr Ratna and Ms Thompson, as well as reports prepared for the purposes of both ss 10 and 12
of the Act. In a careful judgment, Judge Coyle recorded:27
[7] Dr Ratna had been working with Ms Holden in the community, she became entirely resistant to the depot injection and as a consequence he reverted to oral medication, which he is not sure she in fact took. Ms Holden was quite clear in her comments to me that she had been taking her pills, but Dr Ratna gave evidence of a poor compliant history with medication.
[8] He additionally talked of her sense of paranoia and particularly that she was being stalked, someone entering her house. It was Dr Ratna’s evidence that a belief in someone stalking is consistent with her history in that it only appears to become an issue when she is unwell and it is not an issue when she is well.
[9] He is concerned that Ms Holden is refusing to allow further medical enquiries to be undertaken, including taking a blood test. He is particularly concerned about a lump on her neck which Ms Holden is refusing to allow anyone to investigate. She had significant weight loss and despite being in the ward now for three weeks and having food available to her, there has only been a slight increase in her weight. Ms Thompson talked of Ms Holden’s ongoing unwillingness to eat while on the ward.
[10] Ms Thompson similarly brings a longitudinal perspective. She described Ms Holden regularly coming into the ward voluntarily, would be outgoing, making herself a cup of coffee and socialising freely with staff and other patients. That is in direct contrast with her presentation at the moment where Ms Thompson described as being guarded, isolationist and paranoid. Significantly she said that she could quite clearly see an altered state of mind for Ms Holden present.
25 See paras [14] and [15] above.
26 [citation redacted]. For context, see also para [14] above.
27 Ibid, paras [7]–[14].
[11] Thus as I said on one hand there has been conceivably a rational decision by Ms Holden to organise her affairs, which have had adverse impacts on her health but which have led to her deterioration in her physical health from not eating and drinking properly. The combination of the evidence of Dr Ratna and Ms Thompson satisfy me that it is not that, but rather a symptomatic of an underlying mental disorder.
[12] It seems to me that there is a clear link between that abnormal state of mind and a diminished capacity for Ms Holden to care for herself, where she has been even on the ward, neglecting her self-care, she has not been eating properly and has been making poor decisions in relation to aspects of her life.
[13] Additionally, I accept the evidence of Dr Ratna that this stalker is a consistent theme only when she becomes mentally unwell. Thus, I have enquired whether it is still the opinion of Dr Ratna that there remain reasonable grounds for believing that Ms Holden is still mentally disordered and that it is desirable that she be required to undergo further assessment and treatment.
[14] Particularly having regard to the statutory definition, including the opinion before me that Ms Holden has an abnormal state of mind of a continuous nature, characterised by delusions and disorders of volition and that it is such a degree that it seriously diminishes the capacity of Ms Holden to care for herself.
[20] At the end of his judgment, Judge Coyle made reference to an injection that
Ms Holden had received before he considered the s 16 application. The Judge said:
[16] Finally, I note that this morning Ms Holden was the subject of a depot injection. That was a surprise to me and to Mr Tuck for obvious reasons, namely that there was a s 16 application before the Court.
[17] I accept the evidence of Dr Ratna and Ms Thompson, however, that they were unaware until some point this morning that such an application had been filed by Ms Holden and thus they should not, in my view, be criticised for that clinical decision in the absence of any direct knowledge that a s 16 application had been filed.
[21] On 14 January 2016, Dr Ratna provided a certificate of further assessment, in which he opined that it was desirable that Ms Holden be required to undertake further assessment and treatment over a period of 14 days.28 Notice to that effect
was served on Ms Holden on the same day.29 She then applied for a second s 16
review. This application was based on her view that the medication she had received
28 The certificate was issued under s 12 of the Mental Health (Compulsory Assessment and
Treatment) Act 1992, which is set out at para [8] above.
29 In accordance with s 13(1) and (2).
before the s 16 hearing before Judge Coyle had resulted in a misapprehension of her true mental state at the time.
[22] The second s 16 application was referred to Judge Coyle. Relying on his discretion whether to grant the application or not,30 the Judge declined to proceed. In a short Minute, the Judge said:
I have received the second application filed by the applicant pursuant to s 16 of the Act. S 16(1C) applies which gives the court a discretion as to whether to grant a second review or not. The court is required to take into account if the patient’s condition has changed or not since the previous review. The basis of the review is a concern that at the last hearing the patient may have been medicated. But I have seen the s12 report of today’s date which indicates that there is no change to Ms Holden’s condition. If there is no change there is no entitlement to a further hearing; see Director of Mental Health Services v R, 2/8/08, Judge Burns, FC Auckland, FAM 2008-004-
2246. Given the s12 report’s conclusions, and the evidence that there is no
change in the patient’s condition, I decline to allow the application to
proceed.
[23] On 18 January 2016, Ms Holden filed a third application. After some email exchanges between the Deputy Registrar of the Family Court responsible for mental health applications and the responsible clinician, that application was referred to Judge Whitehead. He was aware of the previous two s 16 applications, and had before him an email from Dr Mark Lawrence. He was acting as responsible clinician while Dr Ratna was on leave. In response to an email from the Deputy Registrar asking whether there had been any change in Ms Holden’s condition that would warrant a further s 16 review taking place, Dr Lawrence replied about 10 minutes later: “No change”.
[24] On 18 January 2016, Judge Whitehead decided not to allow the third review application to proceed. In a very short decision he recorded:
No change in circumstances of her health. I decline the application to proceed.
[25] Subsequently, on 8 February 2016, Judge Annis Somerville made a compulsory in-patient treatment order in respect of Ms Holden. That order was to
30 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 16(1C), set out at para [13]
above.
continue for a period of six months, expiring on 7 June 2017. Ms Holden was discharged from that order, by a medical decision, on 28 February 2017.
Analysis
[26] In Sestan v Director of Area Mental Health Services, Waitemata District Health Board,31 the Court of Appeal held that s 16 “does not provide reviewing Judges with the power to release a patient on any ground other than they are no longer mentally disordered”. In that situation, a Family Court Judge to whom a second or subsequent application under s 16 is directed must consider whether the patient’s condition has changed since the last review.32 As s 16 applies only from the time that the first assessment period begins until the second period ends (a total of 19 days), a reviewing Judge is considering the possibility of changes in medical condition over a relatively short period of time. This point was emphasised by Potter J in Ellis v Counties Manukau District Health Board.33
[27] Potter J did not direct herself to a situation in which a second or subsequent application is made. In 1999, Parliament had decided to amend the Act to draw an express distinction between an initial s 16 application, and a second or subsequent one. That was done by introducing s 16(1A)–(1C) of the Act.34
[28] In its previous manifestation, s 16(1) had provided:
(1) Where an application is made to the Court under section 11(7) or section 12(7) or section 12(12) of this Act for a review of the patient's condition, a Judge shall examine the patient as soon as practicable.
[29] In its present form, s 16(1) draws a sharp distinction between the ways in which a first and subsequent application for review is to be addressed:
31 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1
NZLR 767 (CA) at para [53].
32 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 16(1C), set out at para [13]
above.
33 Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 (HC) at paras [72]–[74].
34 Section 16(1A), (1B) and (1C) were enacted by s 16(1) of the Mental Health (Compulsory Assessment and Treatment) Amendment Act 1999. In its current form, s 16 is set out at para [13] above.
(a) On an initial application, s 16(1B) applies. The Court must grant the application and a Judge must examine the patient as soon as practicable, in accordance with s 16(2)–(7) of the Act.
(b)On a second or subsequent application, s 16(1C) applies, so that the Judge must decide, initially, whether or not to grant the application having regard “to any evidence before the Judge that indicates the patient’s condition has not changed since the last review”.
[30] In this case, both Judge Coyle and Judge Whitehead declined to embark upon a subsequent review. In Judge Coyle’s case, the second review application was made only four days after his initial review, at which time he had seen Ms Holden, spoken to the responsible clinician and viewed relevant historical reports. The Judge was well aware of Ms Holden’s psychiatric history. Judge Coyle referred also to a report provided on the same day which indicated no change to her condition.35
[31] The application to Judge Whitehead was made only four days later. The only distinguishing feature is that the indication of no change in Ms Holden’s condition came from an acting responsible clinician, Dr Lawrence, while Dr Ratna was on leave.36
[32] The application for judicial review is directed only at Judge Whitehead’s decision. Nevertheless, it may be helpful if I were to make some comment about Judge Coyle’s refusal to embark upon a second review. In my view, he was entitled to do so. Given his knowledge of the background to the assessment regime and Ms Holden’s history of psychiatric disorders, it was open to the Judge, as a matter of discretion, not to conduct a second examination at a time so closely proximate to his first. The Judge was well aware that Ms Holden had been the subject of a “depot injection” on the morning of the first review, and clearly took that into account in
exercising his discretion.
35 See para [22] above. As to the knowledge Judge Coyle had acquired during his initial review on
10 January 2016, see the extracts from his judgment of 10 January 2016, set out at para [19]
above.
36 See para [23] above.
[33] Judge Whitehead was aware of the previous decisions made by Judge Coyle. He had received a communication from the acting responsible clinician that indicated no change to Ms Holden’s condition. In my view, there was sufficient information available to Judge Whitehead to make that decision. My reasons for reaching that view follow.
[34] In Sestan v Director of Area Mental Health Services, Waitemata District Health Board, the Court of Appeal had before it an appeal from the dismissal of an application for habeas corpus. That application was made following a s 9 assessment and treatment certificate which had the effect of detaining Mr Sestan. Counsel for Mr Sestan argued that the second assessment certificate issued under s 12 of the Act37 was premature and invalid. Counsel argued that the medical practitioner did no more than to look “at notes” and “discuss the matter with others”. He contended that no independent decision had been made by the medical
practitioner, and insufficient reasons were given for a belief that Mr Sestan was
“mentally disordered” for the purpose of ss 8A(e) and 8B(4)(b) of the Act.
[35] The Court of Appeal took a pragmatic view of the role of a medical practitioner under the assessment regime. Delivering the judgment of the Court, Robertson J said:38
[23] The application for assessment and the accompanying certificate outlined the incident Mr Sestan had with a car which involved road rage, his excessive spending, his lying to police, his not sleeping and parental concerns about this behaviour. There were sufficient grounds to support a reasonable belief that the appellant was mentally disordered. We do not accept the more extreme aspects of the appellant’s case that prior medical history is irrelevant to the examination. The current mental state of the person must be examined, but the medical practitioner is not required to be blinkered. It would be irresponsible for the medical practitioner not to consider background and relevant circumstances. These may, for example, provide an explanation for a person’s apparently bizarre behaviour that does not relate to his or her mental health, such as the effects of a particular combination of medications.
[36] The Court of Appeal also took the opportunity to consider the scope of the s 16 review jurisdiction. Robertson J said:39
37 Set out at para [8] above.
38 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1
NZLR 767 (CA) at para [23].
[84] Section 16 allows a patient to apply for a review of their condition. The s 16 procedure has been described as a “safety valve” to ensure that the patient’s right to liberty is not curtailed for medical or other irrelevant reasons (L v Director of Mental Health Services [1999] NZFLR 949 at p
954). Section 16(1)(b) provides that “a Judge must examine the patient as soon as practicable”. It is reasonable that the Judge provides his determination at the earliest possible time. In such circumstances it is not a breach of the NZBORA for the Judge to give a “tick the box” decision and provide further reasons if requested at a later time.
[85] Where a patient makes a second application for review under s 16 a Judge has a discretion as to whether or not to grant the application. In making that decision he or she “must consider any evidence before the Judge that indicates that the patient’s condition has not changed since the last review” (s 16(1C)). Accordingly, it was open to the Judge to determine that a second review was not required in this case.
[86] Mr Ellis repeated his “right to reasons” argument in relation to this point. Although the Judge did not provide reasons upon reaching a decision on whether or not to grant the review application (noting that he was not required to by the Act), the reasons for his decision could have been made available if they had been requested. Just because an Act does not require a decision maker to provide reasons for a decision does not automatically render any decision made in accordance with that Act unlawful by operation of s 23(1)(a) of the NZBORA.
[37] I accept that the Act was designed to reflect increased concern for civil liberties of those who might be subjected to the mental health regime. When the Bill that later became the Act was introduced by the Minister of Health (Hon David Caygill MP) on 8 December 1987, the Minister said: :40
The most conspicuous change of emphasis in the Bill is towards increased concern for civil liberties.
…
The Bill is designed to balance the need to safeguard individual rights and civil liberties with the realities of psychiatric illness and its treatment.
…
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.
[38] Six provisions of the New Zealand Bill of Rights Act 1990 (the Bill of
Rights) are relevant:
39 Ibid, paras [84]–[86].
40 (8 December 1987) 485 NZPD 1628.
(a) The first involves the right to refuse to undergo medical treatment.41
(b) The second is the guarantee of freedom of movement.42
(c) The third is the right of protection against arbitrary detention.43
(d) The fourth is the right to be informed of reasons for detention.44
(e) The fifth is the right to be treated with humanity, and with respect for the inherent dignity of the person.45
(f) The sixth is the guarantee that judicial and administrative tribunals will apply the principles of natural justice.46
[39] The purpose of the assessment and treatment regime set out in Part 1 of the Act is partly to protect the community by providing for limited circumstances in which compulsory psychiatric assessment and treatment might be required. It is also to promote the need to treat those who are labouring under a mental disorder. That is why a balance must be struck between those public policy concerns and the rights of
those who may be subjected to that regime.47
[40] The Act is carefully crafted to balance those concerns. As Fogarty J observed in Keenan v Director of Mental Health Services:48
[10] Taking into account the fact that Parliament intends the process can potentially be swift, I am of the view that nonetheless Parliament also intends that within that potentially swift process it is necessary to give as much protection to the person to be assessed as is possible. In this regard, Parliament does not envisage that the need for a family member or caregiver or other person concerned with the welfare of the proposed patient be dispensed with. It is a mandatory requirement. The fact that it is mandatory is reinforced by the opening phrase of subs (2), which says:
41 New Zealand Bill of Rights Act 1990, s 11.
42 Ibid, s 18.
43 Ibid, s 12.
44 Ibid, s 23(1)(a).
45 Ibid, s 23(5).
46 Ibid, s 27(1), set out at para [41] below.
47 Mental Health (Compulsory Assessment and Treatment) Act 1992, Long Title.
48 Keenan v Director of Mental Health Services [2006] 3 NZLR 572 (HC) at para [10].
(2) The arrangements required by subsection (1) of this section
shall include the following:
. . .
(d) Ensuring . . . (Emphasis added.)
“Ensuring” appears for the first time in subs (d).
[41] Ordinarily, one would expect a person who makes an application to a Court to receive a fair hearing on it. Section 27(1) of the Bill of Rights supports the view that the principles of natural justice are engaged. Section 27 provides:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
…
[42] However, the rights protected and guaranteed by the Bill of Rights must yield to specific statutory provisions that are designed to achieve other public policy goals.49 In this situation, Parliament has expressly mandated that a person who applies on more than one occasion for a s 16 review may be precluded from a hearing if a Family Court Judge were satisfied that, having regard to whether there has been any change in the patient’s condition, there is no good reason to justify embarking on the type of examination to which s 16(2)–(7) refers.
[43] Clearly, a Family Court Judge must have some information before him or her on which to reach that opinion. Generally, it would be desirable for a Judge to inquire whether the responsible clinician considers there had been any change in condition. But, for example, in a case where repeated applications are made in the space of a few days, that may not be necessary.
[44] In those circumstances, I conclude that there was sufficient information before Judge Whitehead for him to decline to embark upon an examination under
s 16.
49 New Zealand Bill of Rights Act 1990, s 4.
Result
[45] For those reasons, the application for judicial review is dismissed. No order as to costs.
[46] Ms McCarty’s reasonable costs and disbursements, as amicus curiae shall be paid out of moneys appropriated by Parliament for the purpose.
P R Heath J
Delivered at 4.30pm on 21 July 2017