R C L v Counties Manukau District Health Board

[2019] NZHC 2483

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT.

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, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002048

[2019] NZHC 2483

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

R C L

Applicant

AND

COUNTIES MANUKAU DISTRICT HEALTH BOARD

Respondent

Hearing:	30 September 2019
Appearances:	R C L (Self-represented Applicant) in Person B J Johns and I G Allan for the Respondent
Judgment:	1 October 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 1 October 2019 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Solicitors: Claro, Wellington

Copy To:     R C L, Auckland

R C L v COUNTIES MANUKAU DISTRICT HEALTH BOARD [2019] NZHC 2483 [1 October 2019]

[1]                 The applicant, Mr L, is currently an in-patient in the Tiaho Mai Mental Health Unit (Tiaho Mai) at Middlemore Hospital having been admitted pursuant to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (Act). Mr L applies for a writ of habeas corpus.

Background

[2]                 This is the third occasion that Mr L has sought a writ of habeas corpus.1 He was detained in Tiaho Mai on both those occasions. Both applications were dismissed.

[3]                 The background to the current application starts on 8 September 2019. On that date, a registered nurse applied for an assessment of Mr L under the Act. The application was supported by a psychiatrist’s report. A preliminary assessment was undertaken the same day, and on the basis of that report, Mr L was required to undergo a five-day period of assessment and treatment under s 11 of the Act.

[4]                 On 11 September 2019, Mr L sought a review by a Judge under s 16 of the Act. However, on 12 September 2019, before that application could be heard, Mr L’s condition was reviewed and he was released from compulsory status under s 11 of the Act.

[5]                 Mr L’s  condition  deteriorated,  however,  and  following  an  incident  on   22 September 2019, he was made subject to an assessment under s 9 of the Act. Mr L was determined to be “mentally disordered” (within the meaning of the Act) and a certificate of preliminary assessment was issued.

[6]                 Mr L was admitted to Tiaho Mai where he was required to undergo a five day period of assessment and treatment under s 11 of the Act. He sought a further review by a Judge under s 16 of the Act. That review was heard on 27 September 2019 by Judge Mathers. The Judge ordered that Mr L was not fit to be released from compulsory status.

1      RL v Counties Manukau District Health Board [2015] NZHC 1982 [20 August 2015]; RCL v Counties Manukau District Health Board [2015] NZHC 2512 [13 October 2015].

[7]                 A further assessment of Mr L was undertaken in accordance with s 12 of the Act. That assessment has determined that Mr L needs to undergo further assessment and treatment for a period of 14 days. That notice, under s 13 of the Act, will expire on 11 October 2019.

The application

[8]                 Mr L filed his application on 26 September 2019. He appeared at the hearing before me and made polite and courteous submissions in support of his application.

[9]                 The written application refers to the previous decisions declining his applications for a writ of habeas corpus. Mr L contends that those previous decisions were biased and that there is inconsistency in the Judge’s observations that submissions were made clearly on the one hand, and the finding that it was not possible to determine on the application whether the applicant was mentally disordered.

[10]             In his written application Mr L makes a number of complaints about the way he has been treated whilst detained. He says the “UN list of human rights” has been breached at least 33 times and his phone and money have been stolen. He indicates that he intends to commence proceedings against the hospital on behalf of himself and a fellow in-patient. He made oral submissions along similar lines before me.

[11]             Mr L also refers to his attempts to make a citizen’s arrest of a number of people including staff at the hospital, and Court Registry staff. He says he is seeking costs of

$7m being his reasonable costs incurred since the case began. It appears that he has also written to the Prime Minister about the treatment he has received but has not received a response.

Legal framework

[12]             An application for a writ of habeas corpus challenges the legality of a detention. It is to be determined in accordance with the Habeas Corpus Act 2001. Section 14 of that Act relevantly provides:

14       Determination of applications

(1) If the defendant fails to establish that the detention of the detained  person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—

…

(b)an application for the issue of a writ of habeas corpus is not   the appropriate procedure for considering the allegations made by the applicant.

[13]             The effect of s 14(1) is that the person or body detaining a person (in this case, the Counties Manukau District Health Board) must establish that the detention is lawful.  If it fails to do so, then the writ of habeas corpus must be issued.  However,  s 14(1A) provides that a court may refuse an application without requiring the defendant to establish that the detention is lawful if the court is satisfied that the habeas corpus procedure is not appropriate for considering the allegations made by the applicant.

[14]I have approached this application by considering:

(a)first, whether an application for habeas corpus is the appropriate procedure in this case, and

(b)second, whether the defendant has established that the detention is lawful.

Is an application for a writ of habeas corpus the appropriate procedure?

[15]             As already noted, Mr L is detained under the provisions of the Mental Health (Compulsory Assessment and Treatment) Act on the grounds that he is mentally disordered (as defined in that Act). Mr L challenged this diagnosis and, in some respects, the qualifications of the psychiatrists who had made it.

[16]             In Sestan v Director of Area Mental Health Services Waitemata District Health Board, the Court Appeal said:2

[91] A person in the position of Mr Sestan is entitled to seek habeas corpus, but where the critical issue is whether a person is mentally disordered there will be few circumstances in which it is the appropriate means of challenging or reviewing official action. By its nature, the speed with which an application must be determined and the limited opportunity there is for information to be put before the Court means that the mechanisms contained within the MHCAT will, in normal circumstances, be much more efficacious and appropriate.

[17]             I consider those observations apply equally to Mr L’s circumstances. The habeas corpus process is designed for situations where the unlawfulness of the detention is clear. The short timeframes within which applications must be determined make it ill-suited to the determination of complex issues, such as those involved with the determination of whether someone is mentally disordered.

[18]             The Act itself also sets out a process by which someone in Mr L’s position may challenge his ongoing detention. Those provisions include the availability of review under s 16 of the Act, which Mr L has triggered on two occasions most recently. It also includes obligations on responsible clinicians to direct the release of a patient if at any time that clinician considers that the patient is fit to be released from compulsory status.

[19]             Mr L’s written application includes allegations that are not well suited to resolution pursuant to the habeas corpus procedure. Mr L has indicated an intention to file negligence proceedings to pursue his claim for damages. Further, to the extent that the allegations concern the reasonableness of the exercise of statutory powers, and alleged breaches of the New Zealand Bill of Rights Act 1990, then judicial review proceedings provide a better procedural route to determine those allegations.

[20]             To conclude, I do not consider the habeas corpus procedure to be the appropriate procedure to determine the applicant’s allegations. That is sufficient to dismiss the application, but I have nevertheless considered whether the defendant has established that the detention is lawful.

2      Sestan v Director of Area Mental Health Services Waitemata District Health Board [2007] 1 NZLR 767 at [91].

Has the defendant established that the detention is lawful?

[21]             The defendant has filed an affidavit by one of the consultant psychiatrists who attended on Mr L and who has knowledge of his case. She deposes to Mr L’s background medical history, his diagnoses of a mental disorder and his previous admissions to Tiaho Mai.  She also canvasses the sequence of events resulting in   Mr L’s current detention and the applicable provisions of the Act which applied at the relevant time.

[22]             Mr L says that the detention is unlawful because he is not mentally disordered and has been subject to criminal acts which he describes as torture. He also submits that someone who is mentally disordered cannot bring High Court proceedings, as he has done.

[23]             As he did before Toogood J, Mr L presented his oral submissions before me politely and courteously. But that does not necessarily mean he is not mentally disordered within the meaning of the Act. The affidavit filed on behalf of the defendant sets out the various assessments made of Mr L confirming his diagnosis as one which falls within the definition of mental disorder.

[24]             More importantly, the affidavit confirms that each step taken in relation to Mr L has been in accordance with the provisions of the Act. It provides good evidence that Mr L’s detention is lawful.

[25]             In his (unsworn) affidavit in support of his application, Mr L states that “a certificate that purported to provide reasons for the applicant’s condition was left unticked”. However, it is confirmed in the affidavit filed on behalf of the defendant that all necessary certificates and notices have been provided to Mr L. I have no reason to disbelieve this statement.

[26]             Based on my review of all the affidavit evidence before me, I am satisfied that Mr L is detained in accordance with the provisions of the Act, and that the detention is lawful. The application must therefore be declined.

Result

[27]             The application for the issue of a writ of habeas corpus is declined. I make an order prohibiting publication of the name of the applicant or any particulars which might lead to his identification. There will be no order for costs.

Edwards J