Meek v Capital & Coast District Health Board
[2015] NZHC 2485
•9 October 2015
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2015-485-325
[2015] NZHC 2485
IN THE MATTER OF an appeal from a decision of the District Court striking out a statement of claim BETWEEN
STUART JAMES MEEK
Appellant
AND
CAPITAL & COAST DISTRICT HEALTH BOARD
Respondent
Hearing: 16 September 2015 Appearances:
Appellant in person
J A Eng for respondent
Judgment:
9 October 2015
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] In October 2014, Mr Meek commenced a proceeding in the District Court at Wellington. The claim was initially brought against Wellington Hospital and Mental Health, but was subsequently treated as a claim against the present respondent (CCDHB). The statement of claim comprised slightly less than eight full pages of allegations of mishandling by hospital services of Mr Meek’s mental conditions. For the most part those have been mental health issues connected with his self-harming and suicidal tendencies.
[2] The statement of claim sought 13 forms of relief, ranging from compensation and recognition of his legal right to access in-patient services and other support,
MEEK v CAPITAL & COAST DISTRICT HEALTH BOARD [2015] NZHC 2485 [9 October 2015]
through to relatively specific orders in the form of directions to CCDHB as to the nature of services that ought to be provided to Mr Meek.
[3] CCDHB applied to strike out Mr Meek’s claim and the application was granted in a judgment issued by Judge Hastings on 14 April 2015.1
[4] This judgment deals with Mr Meek’s appeal from that decision. As in the District Court, Mr Meek presented his own argument in the appeal before me.
The District Court decision
[5] I agree with Judge Hastings’ assessment of Mr Meek, which was put in the following terms:
[4] Mr Meek has not had an easy time of it. He was in Christchurch at the time of the earthquakes, after which he came to Wellington. He has not been mentally well for some time. He has self-harmed and attempted suicide on several occasions. He does not want to be in this state. He wants a plan that will assist him back to a healthy state of mind. I have no doubt whatsoever that his sense of grievance is genuinely and sincerely held.
[6] The Judge determined the application on the first ground CCDHB advanced for striking out the pleading, finding that the statement of claim disclosed no reasonably arguable cause of action. The Judge found that the statutes relating to the provision of health services to Mr Meek did not create a duty on CCDHB to provide services, despite recognition of the “consumer’s” right to have the services provided.2
[7] Consumers of health services are entitled to complain to the Health and Disability Commissioner (HDC). The Judge treated this as the alternative to any duty that might otherwise be owed by health service providers to consumers to provide their services to any particular standard. In this case, Mr Meek had referred a number of complaints about his treatment to the HDC and had received determinations that did not uphold those complaints.
1 Meek v Capital & Coast District Health Board [2015] NZDC 6131.
2 At [8].
[8] The Judge treated the District Court claim as an attempt to re-litigate the complaints that had been determined by the HDC, which is a specialist statutory body with jurisdiction to deal with such complaints. Because Mr Meek’s complaint to the appropriate forum had not been upheld, the Judge accepted the submission for CCDHB that the statement of claim could not disclose any reasonably arguable cause of action. The Judge accordingly struck the proceeding out on that basis, and did not consider the alternative grounds cited for CCDHB that Mr Meek’s claim was frivolous, vexatious, likely to cause prejudice or delay, or was otherwise an abuse of process.
The appeal
[9] Mr Meek was visibly upset at times during the hearing. At one point during my discussions of his arguments with him, he left the Court, but was persuaded to return by the Court security staff. After completing the presentation of his own argument, he insisted on leaving, despite my strong urging that he remain whilst I heard from Mr Eng. The written submissions for CCDHB focused relatively narrowly on supporting the District Court Judge’s findings. In part because Mr Meek had absented himself, I invited Mr Eng to address additional questions of law by way of a short supplementary submission, and that was duly received. I also received and considered further materials from Mr Meek.
[10] Mr Eng’s primary submission was that the statement of claim is not expressed in terms that a defendant could reasonably be required to plead to. It contains a lengthy narrative of complaints in respect of alleged deficiencies and omissions in the treatment Mr Meek has received, and inadequate references to documents. Most importantly, there was an absence of any adequate pleading as to the legal basis for any duty of care owed to Mr Meek and the circumstances that constitute a breach of such duty. That point is clearly correct.
[11] However, the issue on such applications is whether there are reasonable prospects for the deficiencies in the pleading to be cured by an amended statement of claim, and whether, in the circumstances of the case, it is appropriate that the plaintiff be afforded an opportunity to do so before striking the proceeding out.
[12] I endeavoured to explain to Mr Meek the requirement for his pleading to specify the basis for any duty of care he claimed CCDHB owed him, the source of that duty and the circumstances in which the duty was breached. Mr Meek was not inclined to accept that any more was required than a reference in general terms to the statutes governing the provision of health and mental health services, and his asserted right to have such services provided to him on reasonable terms.
[13] The Judge had drawn the following distinction. On the one hand, there is the right of a person to receive health services supported by a right to complain to the HDC about the services provided. On the other hand, a statute may recognise a consumer’s right to access health services. That is subject to a duty imposed on the providers of such services to make them available and carry them out competently. The latter would be a statutory duty of care, which the Court might consider. The former is not in the Court’s jurisdiction. Mr Meek would not accept that distinction.
[14] Other than a possible statutory duty, the other basis for asserting liability of CCDHB in this case would be to impose a common law duty of care on health providers to provide appropriate health services to those in need, and to do so competently. There is nothing in Mr Meek’s statement of claim alleging the elements of this claim: an assumption of responsibility and circumstances justifying the imposition of such a duty of care. Nor is there any pleading that says exactly how CCDHB’s services were provided in breach of a reasonable standard of care.
[15] Mr Meek advised that he had no legal training, and considered it unrealistic to attempt to obtain a lawyer to advise him on the proceedings. He was not able to tell me how he might amend his pleading to set out the nature of the duty of care, and the way that it was breached. Perhaps from an abundance of caution, I will nonetheless analyse whether the statement of claim is reasonably capable of repair.
A duty of care under statute?
[16] The core legal argument that underlies Mr Meek’s complaints is that the statutes under which health services and mental health services have been provided to him create a duty. Further, that such a duty can be enforced by claims for damages and orders as to future conduct against CCDHB.
[17] The Judge dismissed that argument, citing the Medical Law text.3 The analysis in that text is that the Code of Health and Disability Services’ Consumers Rights does not support a right to access care, but once consumers have accessed care, they have an entitlement to complain about such services to the HDC. Just because Mr Meek has a right to complain to the HDC, that does not mean the same type of complaint can be brought in this Court.
[18] In fact, the existence of that alternative remedy is telling against the existence of any private law duty for breach of a statutory duty. In Xi v Howick Baptist Healthcare Ltd, the Court found that rights contained in the Code do not provide the basis for a cause of action in the general courts.4 The determination is reflected in the following:
[27] The Code on which the plaintiffs rely allows only for remedies under the Health and Disability Commissioner Act. The Act does not give a consumer, aggrieved at treatment by a health professional, the right to sue in general courts of civil jurisdiction for breaches of the Code. The rights given by the Code are governed by the Health and Disability Commissioner Act. That means that Hua Xi, who is the consumer here, cannot bring a claim in this court for breach of the Code. If she is to bring a claim in this court, it has to be for some other right outside the Code. …
[19] I am therefore satisfied that there is no prospect of a tenable cause of action for a claim for breach of statutory duty in the present case.
Common law duty of care?
[20] The imposition of a common law duty of care on CCDHB in the present circumstances would certainly be novel. On strike out applications, the Court should be reluctant to dismiss at this initial stage the prospect of a novel duty of care arising in the absence of fully contested factual circumstances that only become available at trial.5
[21] CCDHB, in its submissions filed after the hearing, responsibly acknowledged that, as a matter of law, it could not contend that there is no scope at all for a district
3 Skegg and Paterson (eds) Medical Law in New Zealand (Brookers, 2006) at [2.6.3].
4 Xi v Howick Baptist Healthcare Ltd [2014] NZHC 1058.
5 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
health board to owe a common law duty of care to patients. CCDHB nonetheless adhered to its original position that there was no tenable basis on which a common law duty of care could be found to arise on the basis of Mr Meek’s pleadings.
[22] There are some factors counting against the creation of a common law duty of care. The various statutes that deal with the provision of health services contemplate that deficiencies in the provision of services are to be addressed by complaints to the HDC. It would cut across the statutory structure of those arrangements to impose a novel duty of care in tort. The HDC has expertise and experience in assessing the adequacy and competence of the provision of health services, and it is inherently unlikely that the Court would impose a second form of accountability in a different context.
[23] Given the scope of the accident compensation scheme, a majority of potential claims in negligence for personal injury are excluded by it. That is not exhaustive, given the prospect of claims for exemplary damages, and if adverse consequences are characterised as a mental injury.
[24] Accordingly, although the attribution of a novel duty of care in the circumstances complained of by Mr Meek is unlikely, it cannot be ruled out entirely as a matter of law.
[25] The main difficulty for Mr Meek is that he has not framed his claim in terms of a common law duty of care and he dismissed the prospect that he could amend the allegations to plead the circumstances in which a duty of care was owed to him, and the nature of the allegedly actionable breaches.
[26] A related difficulty is that Mr Meek has not said how he will prove the factual allegations. Generally, strike out applications are to be considered on the assumption that a plaintiff will be able to make out the factual allegations in the statement of claim. However, in this case the reports from the HDC reject Mr Meek’s factual assertions as to the circumstances of inadequate treatment, and prefer very different explanations for the interactions complained of that were provided on behalf of CCDHB. That justifies CCDHB’s submission that the factual bases for the claims could most likely
not be made out. CCDHB did not join issue on the facts by filing evidence to rebut the allegations in the statement of claim. Instead, it relied on the findings of the HDC which are reflected in the documents that are before the Court.
[27] Mr Meek vigorously disputed the findings that have been made by the HDC. He criticised the HDC for accepting explanations provided by CCDHB personnel that Mr Meek claims were lies. Mr Meek has separately pursued his challenge to the findings by the HDC in a judicial review proceeding that was also filed in this Court. That judicial review has, thus far, withstood an application for it also to be struck out. It appears to be a more appropriate forum for the type of criticisms he wishes to advance.
[28] Having regard to all the circumstances, I am satisfied that there is no reasonable basis on which the Court could recognise a cause of action in the allegations pleaded by Mr Meek. A claim for breach of statutory duty is untenable. That is how Mr Meek insisted on framing his complaint. While the Court cannot rule out the possibility of a claim for a breach of a common law duty, Mr Meek has not shown himself willing or able to plead a claim in those terms. Accordingly, I dismiss the appeal from the District Court decision to strike the proceeding out.
Costs
[29] CCDHB indicated that it would abide the decision of the Court on costs. Having considered not only Mr Meek’s personal concerns expressed with considerable passion, but the prospects of crafting those into a tenable cause of action, the only conclusion is that those prospects were forlorn. The response to the appeal was presented responsibly. Applying ordinary principles, CCDHB would be entitled to costs. If CCDHB wishes to press its claim for costs, then I would be minded to certify 2B costs and reasonable disbursements, but would commend any decision not to do so.
Dobson J
Solicitors:
Crown Solicitor, Wellington for respondent
Copy to:
S J Meek
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