VC v NC
[2015] NZHC 2014
•25 August 2016
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2015-485-44 [2015] NZHC 2014
BETWEEN VC
Appellant
AND
NC Respondent
Hearing: 18 August 2015 Appearances:
J Miller and B Peck for the Appellant
NC appearing in personJudgment:
25 August 2016
JUDGMENT OF MALLON J
Table of Contents
Introduction ....................................................................................................................................... [1] The jurisdiction under the Act ......................................................................................................... [2] The facts of this case ....................................................................................................................... [16]
The 3 June 2015 order.................................................................................................................. [16]
The 23 June 2015 order ................................................................................................................ [32] Assessment of appeal....................................................................................................................... [50] Result ................................................................................................................................................ [63]
Postscript.......................................................................................................................................... [65]
VC v NC [2015] NZHC 2014 [25 August 2016]
Introduction
[1] VC is the subject of an order made under s 9 of the Alcoholism and Drug Addiction Act 1966 (the Act). The effect of that order is that VC is detained for treatment at a rehabilitation centre for up to two years. She appeals against that order.
The jurisdiction under the Act
[2] Section 9 of the Act provides the power to order detention and treatment. So far as is presently relevant it provides:
9Power of District Court Judge to order detention and treatment on application of relative or other reputable person
(1) On the application in the prescribed form of a relative (as defined in this section) of any person, or on the application in the prescribed form of a constable or of any other reputable person, that the person to whom the application relates is an alcoholic, any District Court Judge may if he thinks fit issue his summons to the alleged alcoholic to show cause why an order should not be made requiring him to be detained for treatment for alcoholism in an institution.
…
(6) On the hearing of the application the District Court Judge shall not make an order under subsection (7) unless 2 medical practitioners either give evidence to the effect or give certificates in the prescribed form to the effect that they believe the alleged alcoholic to be an alcoholic within the meaning of this Act and that the making of an order for his detention and treatment as such is expedient in his own interest or in that of his relatives.
(7) Subject to subsection (6), on the hearing of the application, the alleged alcoholic being then present before him, the District Court Judge may, if he thinks fit, and if he is satisfied of the truth of the application, and that the managers or the superintendent of an institution, as the case may require, are willing to receive the alcoholic into the institution, make an order requiring the alcoholic to be detained for treatment for alcoholism in that institution.
[3] Preconditions for an order are therefore:
(a) an application on a prescribed form from an appropriate person that the person to whom the application relates is an “alcoholic” (which is a defined term); and
(b)two medical certificates in the prescribed form (or evidence) from medical practitioners that they believe the person meets the definition of an “alcoholic” and that the order for his or her detention and treatment is “expedient” in the interests of the person or his or her relatives; and
(c) an “institution” (a defined term) that is willing to receive the person.
[4] If these preconditions are met, it does not follow that an order will be made. The Judge must scrutinise the application and supporting material. That is because of the requirement in s 9(7) that the Judge be “satisfied of the truth” of the application (implicitly this must also include being satisfied as to the medical evidence) and that the institution is willing to receive the person. The Judge must also consider anything said by or on behalf of the person who is the subject of the application as to why the application should not be granted. That is because of the requirement in s 9(1) that the person who is the subject of the application must be present and have the opportunity “to show cause why an order should not be made”. The Judge then has a discretion as to whether to make the order. This follows from the wording of s 9(7) of the Act that the “Judge may, if he thinks fit, and if he is
satisfied of the truth [of the matters stated], make an order”.1 The discretion (“if he
[or she] thinks fit”) is framed in general terms.
[5] Section 10 provides the period of the detention. It is as follows:
10 Period of detention
(1) No person in respect of whom an order for detention is made under the foregoing provisions of this Act shall be detained under that order in any institution or institutions under this Act for more than 2 years altogether after his first reception in an institution pursuant to the order.
(2) Subject to the provisions of this Act, every such person shall be detained until he is discharged pursuant to this Act.
[6] The effect of that section is therefore to provide for a maximum period of detention of two years and that a person is detained under the order until they have
been discharged under the Act. Although the Act does not expressly prohibit an
1 My emphasis.
order being made for a period less than two years, the section has been approached as though the period of detention is two years unless an earlier discharge has been granted under the Act.2
[7] By s 17 of the Act, a power of discharge is conferred on the Minister of Health, the supervising committee of the institution (if there is one), or a person in charge of a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992. They may also:
(c) release any patient on leave of absence for any period not exceeding the balance of 2 years for which he is liable to be detained, upon and subject to such terms and conditions (to be satisfied in the order) as the Minister or the supervising committee or the superintendent thinks fit.
[8] By s 18 of the Act, a patient may apply in writing to the Minister, or the supervising committee, or the superintendent, for a discharge at any time after six months have expired following the person entering the institution under the order. If the request is declined the person may apply to a High Court Judge in writing for the order to be discharged. Where a discharge is refused no further application can be entertained unless a further six months have elapsed after the date of the refusal.
[9] By s 35 of the Act, a person who is the subject of an application is entitled to be heard, to call evidence, and to be represented by a solicitor or counsel. There is a power of adjournment in accordance with the now repealed s 23 of the Mental Health Act 1969. In any event, this power “shall not limit any other power of the court, Judge or District Court Judge to adjourn the determination of the application.” A District Court Judge has a general power to adjourn a matter before him or her.3
[10] The Act has not been amended in any substantive way since its enactment in
1966. At that time the legislative approach to the control of alcohol was quite different.4 More generally the Act reflects that era’s approach to addiction, health
2 Referred to further at [62] and n 34 below.
3 District Courts Act 1947, s 23.
4 As an example, only a few years earlier law changes were made to end a ban on “barmaids”: see s 192 of the Sale of Liquor Act 1962. The licensing regime was different and more restrictive. As well, “6 o’clock closing” was still in place, although that was shortly to change following a national referendum in 1967. The drinking age was 21 and was lowered to 20 in 1969.
treatment and care. It predates the New Zealand Bill of Rights Act 1990 (NZBORA) by 24 years.5 It is out of step with other legislation of a similar kind.6 The Law Commission recommended repeal of the Act and replacement with a new regime in
2010.7 This has not occurred.
[11] As noted, the Judge’s discretion is to make an order if he or she “thinks fit” to do so. In the pre-NZBORA era, it was said that the Act requires the Judge to reconcile so far as possible two broad considerations: the natural concern of the community and family and friends of the person, who may be incapable of making an informed decision in their own interests, to ensure that appropriate medical treatment is available; and the need to ensure that the person’s liberty is not curtailed unless justified. It was said that it required “a weighing of rights of the subject of the application and of the community, and in a general sense the application of
fairness.”8
[12] It remains the case post-NZBORA that the rights of a person and the interests of the community need to be balanced. However in that balancing the person’s rights, as affirmed by the NZBORA, are relevant considerations and their weighting may need “recalibration” in the exercise of the Court’s discretion.9 The rights potentially engaged when someone is facing detention under the Act are the right to refuse to undergo any medical treatment,10 the right to freedom of movement,11 the right not to be arbitrarily detained or arrested,12 and the right to natural justice.13
These rights may be subject only to such reasonable limits prescribed by law as can
be justified in a free and democratic society.14 If the provisions of the Act can be
5 See Bill Atkin “Editorial: Alcoholism, addiction and freedom” (2000) 3 BFLJ 191: “This Act has not been revised in the light of latter day thinking concerning the role of the State and human rights. It sticks out like a sore thumb as a coercive mechanism to deprive a person of his or her liberty, with few or none of the safeguards and procedures now found in other areas of the law.”
6 In particular, the Mental Health (Compulsory Assessment and Treatment) Act 1992.
7 Law Commission Compulsory Treatment for Substance Dependence: A Review of the
Alcoholism and Drug Addiction Act 1966 (NZLC R118).
8 Re Sorenson HC Hamilton AP176/89, 16 October 1989 at [11], a case decided before the
NZBORA.
9 See Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [7.13.1]
10 New Zealand Bill of Rights Act 1990, s 11.
11 Section 18.
12 Section 22.
13 Section 23.
14 Section 5.
given a meaning that is consistent with these rights, that meaning is to be preferred to any other meaning.15
[13] As the Law Commission has noted, medical treatment cannot be imposed on a competent person without their informed consent or some other legal justification.16 Implicit in this is the right to refuse medical treatment even where death will be an inevitable consequence of that refusal.17 However the right to refuse medical treatment is not absolute. An important public interest is served by
intervening where a person is at risk of serious harm. The Law Commission’s view is that for most alcohol dependent people the acute risks of harm tend to be short- lived.18 It therefore considers that only a relatively short period of detention, to restore capacity, during which detoxification and supporting treatment can be undertaken in appropriate facilities, can be justified.
[14] The Law Commission’s view is that compulsory treatment for alcohol and
drug dependence is only justified in the following circumstances:19
·a person’s dependence has seriously impaired his or her capacity to make choices about ongoing substance use and personal welfare; and
·care and treatment is necessary to protect the person from significant harm; and
·no other less restrictive means are reasonably available for dealing with the person; and
· the person is likely to benefit from treatment; and
· the person has refused treatment.
[15] The discretion under the Act must be exercised in a way that is consistent
with a person’s rights, as affirmed by the NZBORA, and the text and purpose of the
15 Section 6.
16 Law Commission, above n 7, at 4.
17 See, for example, In re T (Adult: Refusal of Treatment) [1993] FAM 95 (CA) at 115; Airedale
NHS Trust v Bland [1993] AC 789 (HL) at 864 per Lord Goff of Chieveley and at 891 per Lord Mustill; In re C (Adult: Refusal of Treatment) [1984] 1 WLR 290 at 295; In re B (Adult: Refusal of Medical Treatment) [2002] EWHC 249 (Fam), [2002] 2 All ER 449 at [22] to [27]; and R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38, [2015] AC
657 at [23] and [26].
18 Law Commission, above n 7, at 5.
19 At 5.
Act in today’s context.20 The Law Commission’s view is a helpful source as to how the discretion might be exercised. This may lead to potentially different outcomes in the exercise of a Judge’s discretion than previously may have been the case.
The facts of this case
The 3 June 2015 order
[16] The application for the order was made by VC’s husband. He made the application out of concern for VC and the difficulties of living with someone who has been dependent on alcohol for many years. VC’s drinking followed a cyclical pattern where she would go on a drinking binge for about 10 to 15 days at a time, stop drinking for two weeks and then binge again. The application was made during one such drinking binge which had lasted 20 days, when the police came to the
house as a result of an incident arising from VC’s state.21 VC’s husband was at his
“wits end”.22
[17] The husband told VC that he was making the application. He arranged for her to see Dr Garcia at Hutt Hospital so that he could assess her and provide a medical certificate in support of the application. The husband also arranged for VC’s general practitioner, Dr Hastie, to provide a certificate.
[18] The husband’s application was made on the prescribed form. That form does not set out the nature of the orders which the Court is asked to make. The form asks for details of the person making the application and of the person who is the subject of the application, and the nature of the relationship between them. It also asks the applicant to state the grounds for his or her belief that the person is an alcoholic. The
husband stated:
20 See, for example, JJH v PCH FC New Plymouth FAM-2008-043-82 15 July 2008 at [1] and [2], where the application was initially adjourned to give the subject of the application an opportunity to take voluntary steps towards sobriety.
21 The information on the file and from VC’s husband indicates police involvement on a number of occasions. For example, she has called a suicide helpline when intoxicated and the police would come to the house in response. She has also been arrested for threatening her husband.
22 This information is in the bundle of materials filed in support of the appeal. VC’s husband also attended the hearing and confirmed these matters. He explained very clearly the difficulties of living with someone who is “drinking themselves to death.”
[C]hronic alcoholism with problematic and harmful patterns of alcohol abuse with significant issues
- financial problems
- social problems/employment
- legal problems
- repeated declined help and treatment
- major health issues, risk to self and others
[19] The application was supported by medical certificates from Dr Garcia and Dr Hastie. These certificates were also on the prescribed form. This is a standard form on which the following is pre-printed:23
... I believe [named person] is an alcoholic within the meaning of the Alcoholism and Drug Addiction Act 1966 *(or a drug addict within the meaning of the Alcoholism and Drug Addiction (Forms) Regulations 1968) and that the making of an order for his detention and treatment as such is expedient in his own interest *(or in the interest of his relatives).
[20] The prescribed form then asks the doctor to state the reasons for their belief that the named person is an alcoholic. The medical certificate from Dr Hastie stated her reasons as being:
- repetitive cycles of alcohol abuse over a number of years
- partner reported today recent mixing of medications with alcohol
- alcohol abuse has affected her ability to maintain a momentum in her work life/business and affects her relationships negatively
- [VC] has not been co-operative with help offered to her by CADS, when she had initiated the CADS referral
- [VC] has now become more aggressive and violent making it more difficult to manage in the community and her partner is requesting urgent help and intervention due to the risk of harming herself and/or others.
[21] The medical certificate from Dr Garcia stated:
She has continued to drink alcohol regularly, heavily and in a manner that is completely out of control and which, if continued, despite the effects of alcohol counselling and medication, will result in severe consequences.
23 Alcoholism and Drug Addiction (Forms) Regulations 1968, s 3(6) and form 6.
[22] The application and medical certificates were accompanied by:
(a) a letter from the Salvation Army’s Bridge Programme stating that VC would be suitable for admission to their service subject to completion of supervised detoxification and stabilisation of her mental health status; and
(b)a letter from Capital & Coast District Health Board (Capital & Coast DHB) dated 28 May 2015 advising VC of her admission details for the Detox Unit at Kenepuru Community Hospital (Kenepuru).24
[23] VC’s husband did not know precisely when the application was to be heard, other than that it would be on the Monday or Tuesday25 of the week of 1 June 2015. On the morning of 3 June 2015 he was given about 40 minutes notice that the application was to be called. He got VC out of bed and took her to court. She was “pretty intoxicated”. VC’s husband accepts that she would not have understood what was happening in court.
[24] VC’s affidavit evidence confirms this. She says she was pushed out of bed by her husband telling her that she had to be in court in 20 minutes. She attended the court without having had a shower.26 She says that there was a lawyer at the court, the duty solicitor (who that day was Ms L Stevens), and that she spoke with her for about five minutes. She accepted that she needed help. She did not know what the order meant legally, thought it was a voluntary thing, and believed that she would be able to go home and see her dogs. She did not understand that she could be detained compulsorily for up to two years. She does not recall the lawyer giving her advice.
She says that she was drunk at the time so it would have been hard for her to engage.
[25] The application came before Judge O’Dwyer. In attendance with VC and her husband were Ms Stevens, a nurse from Hutt Valley Health, and Ms Lustig.
24 I note that this letter gave her admission date as being 3 May 2015. That appears to be an error, with the correct date presumably being 3 June 2015.
25 Or, possibly, the Tuesday or Wednesday.
26 The information on the file is that VC had not had a shower at any stage during this particular
20 day drinking binge.
Ms Lustig was VC’s counsellor at Hutt Valley District Health Board (Hutt Valley
DHB). She supported the application and was assisting VC’s husband in making it.
[26] A transcript of the hearing before the Judge has been obtained. The Judge noted that this was an application for an order under the Act and “the purpose behind [it] is for you to have some treatment to address the difficulties of your alcohol problem”. Ms Stevens was asked to convey VC’s instructions. Ms Stevens stated:
My instructions are the application won’t be opposed and [VC] very bravely accepted that she does need this help, that the focus has to be on her now and not other matters that are happening in her life, other issues.
[27] Ms Stevens confirmed that VC was “not opposing” the application and that she “understands an outline of what’s entailed with this”. VC then said:
Your Honour, I know I’m weak today but I know in a few days I can be
stronger –
...
– and27 try to leave or something because it’s the way I am.
...
So I was hoping that I could be put into a daytime programme and I would
commit to it. I can be arrested if I’m not there but I will miss my dogs –
...
That’s the only thing I have in my life. I have no family.
...
And that really hurts
[28] The Judge responded that it was a very positive step that she was able to accept help and stated:28
[2] I have read the papers and it is clear from the papers that you really do need to have this assistance with this problem. You will have to take the steps carefully and take the steps slowly, but accepting the framework of the treatment plan that is for you, I think that is really important.
[3] I will make the order today.
27 It is not clear whether the transcriber has missed out some words here as the Judge was talking at the same time as VC at this point.
28 NC v VC [2015] NZFC 5091. This is the formal judgment.
Now am I right in thinking that ... [VC] ... will be going to Kenepuru
Hospital … [t]o begin with, good ...29
[4] [VC] I have made the order today. What that means is that you will be going now with your treatment team. You will be going to Kenepuru Hospital for help and treatment.
[29] At this point VC said “Your Honour, I didn’t know I was so sick”. She asked what would happen after this and was told that Ms Stevens would have a talk with her about it.
[30] The committal order as sealed and signed by the Judge on 3 June 2015 stated as follows:
…
Now, therefore, I do order that the said [VC] be detained for treatment for alcoholism in the institution situated at Porirua and known as Kenepuru Hospital.
Firstly, [VC] shall be detained at Detox Unit
Kenepuru Hospital
Rahia Street
PORIRUA for detoxification.
[31] The order did not state how long it was to last. Nor did it refer to VC going to the Bridge Programme after detoxification as was envisaged by the application.
The 23 June 2015 order
[32] After this hearing VC went to Kenepuru for detoxification. She remained there until 8 June 2015 by which time she had completed detoxification successfully. She was then picked up by Ms Lustig and a nurse and driven to the Bridge Programme in Newtown.
[33] VC’s evidence is that she could see on the order that she was to go to Kenepuru for detoxification and that it did not refer to the Bridge Programme. She also says that the Judge had not mentioned the Bridge Programme either. VC says that she questioned her case worker about this during her first week at the Bridge
Programme. She says that on 15 June 2015 she was told by her case worker that she
29 These remarks are from the transcript obtained for the appeal.
was not under the Act and that she was free to go if she wished. She says that she wanted to stay voluntarily, that she attended classes all of that week, and that she was relieved that she was no longer under the Act.
[34] Meanwhile Ms Lustig was informed that VC was not under the Act due to an error in the paperwork. Ms Lustig then contacted the District Court with the intention of having the order amended. As a result of that contact Judge O’Dwyer was informed of the matter. The Judge directed the registry case officer that she could not amend the order unless the application clearly stated that the order sought was for detention at Kenepuru and thereafter the Bridge Programme, and unless there was also a record of the Judge clearly informing VC at the hearing that she was being detained at Kenepuru and then at the Bridge Programme.
[35] A review by the case officer correctly informed the Judge that the application was not particularly clear although the supporting information indicated that the Bridge Programme was intended after Kenepuru, and that the Judge had not mentioned the Bridge Programme at any stage. Following this, Judge O’Dwyer directed that VC would need to attend court and that a duty solicitor would need to be present. As she was going to be away for a few days, she noted that a duty judge would need to be contacted if the matter was urgent.
[36] The registry then prepared a note for the duty judge (Judge Ellis) as follows:
Judge,
- On 3 June 2015 Judge O’Dwyer made orders as sought in this matter: - Respondent be detained for detox at Kenepuru Hospital, Porirua, and then attend treatment at the Wellington Bridge Programme held by the Salvation Army.
- An administrative error was made in that the order prepared for Judge
O’Dwyer to sign did not mention the Wellington Bridge Programme.
- Judge O’Dwyer directed that the Respondent be summonsed to appear
for further/amended order to be made.
- Committal Order attached for your signature
[37] The summons to appear was issued by the Court on 17 June 2015. The date for the appearance was 23 June 2015. This summons was given to VC by the clinical director of the Bridge Programme on 22 June 2015. With the summons was a letter advising VC that the hearing was a judicial conference at which the Judge
would “try to identify the current issues, identify whether you are agreed on any matters, and make orders or directions as to how the case is to be progressed.” VC was advised to obtain legal advice but was provided with no information as to whom she should contact.
[38] VC appeared in Court on 23 June 2015. She was sober. She spoke to the duty solicitor, Mr Elliott. VC’s evidence is that Mr Elliott told her that he was a criminal lawyer and did not know anything about the Act. VC then appeared before Judge Ellis.
[39] At the beginning of the hearing VC was asked whether she understood why she had been asked to come back to court. She replied:
I understand that I was, my husband, poor thing, put me under the Act or made application because I needed treatment and I was scared to do it because I thought it was a mental institution, and last week I was told that I was not under the Act and I decided to stay voluntarily because I do understand that I need treatment and I understand that we’re here because apparently the Court made a mistake. They sent me to Kenepuru. I did complete the detox. I am voluntarily out at Bridge now and I am totally against me being under the Act because I am an independent person, I have things going for me and I do not want a black cloud in my head. I think it is detrimental to my mental health to feel that I cannot go somewhere because the police going to pick me up. I do not have a criminal record. I am a good person and I am trying to do the right thing by me and by the people around me. So I am at a Bridge now. I intend to complete the programme and I just would like to be allowed to complete the programme without having to be under some kind of mental act. That would make me feel better as a person and will make me feel that I am not diminished.
[40] The Judge asked VC why she had not done a rehabilitation programme before to which she replied:
Because, obviously, I did not think I needed it, and when I realised that I did need it I been trying to go to counsellor and get help for the last 10 years or so. I have a big tragedy in my family and that just kind of threw me off. And the last two years have been very bad and very hard on my husband who found the other exit to this was to just throw me somewhere so I could get some treatment and I am grateful for that because he probably saved my life, and so has probably these two people here. But now I have been sober, I am taking my medication for anti-depressants and I am supposed to go psychiatric help after the programme to deal with post-traumatic stress disorder. But I agree with the fact that I do need help, and I am happy to be at the Bridge; it is a very nice place, very nice people. I am getting a lot of help and I intend to complete the programme. However, I feel that being
under the Act for me, mentally, is very stressful and so I am doing it voluntarily.
[41] The Judge advised that, when he had been asked to deal with the matter, he did not understand that he was going to be asked to start a hearing from scratch. He said that he understood that the Judge ordered VC to go to “detox” and then to the Bridge Programme.
[42] Mr Elliott said:
Sir, can I – the information conveyed to counsel was that the order had not been made in terms of the second limb, and it was perhaps akin to a recall this morning. So that – the advice given to the respondent, has been given on that basis. What I think, to paraphrase Your Honour, what you are indicating is perhaps there has been an administrative error in the registry and the second limb of the order was not spelt out in the documentation, but it was in fact mind and Your Honour is now confirming that.
[43] The Judge then said:
I have not spoken to Judge O’Dwyer, but the note that was made on the file was that Judge O’Dwyer made orders as had been sought. Firstly, that the respondent, that is [VC], be detained for detox at Kenepuru Hospital and then attend treatment at the Wellington Bridge Programme. That was the Judge’s decision. An administrative error was made in that the order that was prepared for the Judge to sign did not mention the Bridge Programme and therefore the Judge directed that [VC] be summoned back to the Court so that that could be explained to her and she could be heard before any further order was made. So I have heard from [VC] that she does not wish to be a committed patient under the Act; I understand that. Is there any other legal submission you wish to make on her behalf?
[44] In light of this explanation of what had occurred, Mr Elliott accepted that Judge O’Dwyer’s decision could not be overturned or otherwise altered in this forum.
[45] The Judge’s decision was then as follows:30
…
[4] I respect your view that in your present frame of mind and apparent sobriety, you wish to be free to make your own choice and I do deeply respect that. I also take into account what you have said about the perceived stigma of having an order made against you. The reality, [VC], is that an
30 NC v VC DC Hutt Valley FAM-2015-096-242, 23 June 2015.
order has already been made against you and it is clear to me that until or unless that order had been made, you would not, in fact, have voluntarily undertaken the steps that you have now undertaken.
[5] I accept that you are now committed to seeing through the treatment at the Bridge Programme, and I congratulate you for that, but I am not going to put in front of you the challenge or the temptation that if, and when, it gets too hard, because I know from experience that it will, that you are simply at liberty to walk out the door. The dangers from that are simply too great in terms of the longstanding nature of your addiction.
[6] Therefore, I will confirm the order that was made by Her Honour Judge O’Dwyer both requiring you to undergo the detox which you have and to enter and complete the programme at the Bridge which you tell me you are already committed to doing. The order is made. I have not taken away your freedom, it is alcohol that has done that and it is time it was addressed and it is now being addressed.
[46] As a result of this decision a further sealed order, dated 23 June 2015, was issued as follows:
…
And whereas, the said [VC] has appeared before me and I am satisfied that the said [VC] is an alcoholic and that the manger of the institution situated at 24 Riddiford Street, Newtown, Wellington, known as Salvation Army Bridge Programme are willing to receive the said [VC] into that institution.
Now, therefore, I do order that the said [VC] be detained for treatment for alcoholism in the institution situated at 24 Riddiford Street, Newtown, Wellington and known as Salvation Army Bridge Programme.
[47] The order was in the standard form. It did not refer to the earlier order or to Kenepuru and it did not say that it replaced or amended that order. It also did not state when it was to expire or set out the right of a person to apply for a discharge after six months (and successive periods of six months).
[48] VC’s evidence is that she did not feel able to fully express her viewpoint before the Judge told her that he was going to make the order. The stress of being put back under the Act, when she was willing to stay there voluntarily, made her feel very distressed and she ended up going on a drinking binge. This evidence is supported by the notes of her counsellor at the Bridge Programme. These notes record that VC was disappointed and angry with the Judge confirming that it was always intended for her to go to the Bridge Programme. They record that after leaving the Court she had gone straight to a bar (which refused to serve her). They
also record that two days later she was drinking again. She was located in an intoxicated state at a café and was unwilling to move.
[49] The present position is that, as of next week, VC will have completed
12 weeks of the Bridge Programme. She and her counsel explained to me that the usual length of the programme is 12 weeks but that successive 12 week programmes can then be imposed. They also explained that VC can be granted periods of extended leave but will be subject to breath testing and recall.
Assessment of appeal
[50] It is apparent that at the hearing on 3 June 2015 VC was not in a position to give informed consent to the orders that were sought. She was intoxicated and said things which showed that she did not understand what was to happen. For example, she said she wanted to be able to go home at night and asked “what happens after this?” There was nothing on either the application or the supporting documentation to alert her to the effect or possible duration of the order, nor to her rights in respect of the application and any order that might be made. In speaking to VC, the Judge referred to its effect in general terms only (“the purpose ... is for you to have some treatment to address the difficulties of your alcohol problem”). The Judge did not refer to the Bridge Programme nor to how long the order would be in place.
[51] In these circumstances it was not sufficient to make the order on the basis that the preconditions were met (that is, an application in proper form, two medical certificates in proper form, and the consent of an institution that was willing to receive VC) and that VC was not opposing the order. It remained necessary for the Judge to determine whether it was appropriate to make the order in the exercise of her discretion. Her reasons for making the order are unclear from the record of her
decision.31
[52] An important consideration relevant to the exercise of that discretion was whether there was any reasonable alternative. The Judge had very little information
on the papers before her about that. The prescribed medical form provides a medical
31 The Judge’s brief decision is understandable because of the way the matter came before her but
it has meant that I do not have her reasons in considering this appeal.
practitioner with limited space (a few lines) to set out why they believe that the person is an alcoholic and that treatment is expedient in the interests of the person or their relatives. Similarly the prescribed application form provides an applicant with only a few lines to set out why they believe the person is an alcoholic. In this case the grounds for these beliefs, as set out in both the application and the medical certificates, were brief and expressed in general terms. For example they did not provide any detail about when and what kind of counselling had been tried previously. It was also not clear that the application was especially urgent. No specific current health issues were described. Difficulties in managing VC in the community were also expressed in only general terms.
[53] Given what VC conveyed herself and through her counsel at the hearing, it was quite possible that she was willing to undergo detoxification at Kenepuru voluntarily. It was also the case that she had voluntarily attended the assessment by Dr Garcia. She attended court at the urging of her husband in contrast with a number of other cases where warrants for arrest have been necessary.
[54] In these circumstances, it was not clear that an order was justified at the time of the 3 June 2015 hearing. A reasonable alternative was potentially an adjournment of the hearing to allow VC the opportunity to attend Kenepuru voluntarily. The application could then have come back to the court for further consideration following that opportunity. If VC successfully detoxed, she would have been in a better position to consider whether she wished to consent to the application and to understand what that might mean. Further, if she did not want to consent to the application, she would have been in a better position to “show cause” why the application should not be granted.
[55] Because that opportunity was not given to her, it is not known whether she would have attended voluntarily, although the matters referred to above suggest that there was a reasonable prospect that she would. If she had failed to do so, that would have been a relevant factor in deciding whether to grant the application. However, it would not necessarily have been the deciding factor. It would be necessary to consider why she had not attended, and to consider whether compulsory detention
was a justified response to the situation. More information about her health and its effect on others would be needed.
[56] As it happened, the order as sealed on 3 June 2015 only referred to Kenepuru. She was therefore a voluntary patient at the Bridge Programme. When this error was discovered it may have been open to Judge O’Dwyer to recall the order and correct it. This may have been a possibility if the order, as sealed, did not reflect her intention.32 However it is not clear from the transcript of the hearing and the direction she gave to the case officer whether she had turned her mind to what was to happen after Kenepuru. In the absence of a clear record from the Judge about this, I cannot infer that she turned her mind to the duration of the order.33
[57] Judge O’Dwyer was right to direct that the matter would have to come back before the District Court. It is not clear whether she envisaged the need for a rehearing or whether it would simply be an opportunity to clarify what her intention had been. The note to Judge Ellis indicates that the case officer understood it was the latter and that was how it was understood by Judge Ellis. However, in the absence of a clear direction from Judge O’Dwyer that she had turned her mind to and intended, at the time of the hearing before her, detention at the Bridge Programme following detoxification at Kenepuru, the hearing before Judge Ellis needed to be a rehearing.
[58] What occurred before Judge Ellis was somewhat of a mix of the two. On the one hand VC had the opportunity to say why she did not want to be detained and the Judge responded to that. On the other hand, the Judge said that the order had already been made and VC’s counsel accepted that it could not be revisited if that were the case. Moreover, the Judge did not, at least explicitly, consider why the order was justified given that VC had completed detoxification successfully, that she was
attending the Bridge Programme voluntarily, and that she said she was happy to
32 District Court Rules 2014, r 11.10.
33 The content of the prescribed forms mean that this is not particularly clear and the application came before her on an unopposed basis. It also seems that the Act is not all that commonly used.
There does not appear to be a great number of decisions made by the courts under the Act. See also Atkins, above n 5: “It is a slightly forgotten piece of legislation but is still used. It is hard to get firm statistics … what I have gleaned is that in the last ten years [1990 to 2000] there was a high of 277 orders in 1991. Numbers appear to have fallen away since then, but are still far from negligible.”
continue doing so. Again, a reasonable alternative was to adjourn the application for a few weeks to give her the opportunity to do so.
[59] I also note that if the order was to confirm an earlier order that had not been correctly drawn up, then the sealed order should have indicated this. This was important because, in the absence of any specified duration for the order, it was subject to the statutory two year maximum unless VC was discharged earlier in accordance with the Act.
[60] For these reasons I consider that the order made on 23 June 2015 must be quashed. VC did not have a proper opportunity to show cause as to why the order should not be made. Her rights under the NZBORA were not taken into account or, if they were, they were not given the weight they were entitled to be given. That was because Judge Ellis (understandably in light of the information he was given) started from the position that the order had already been made and that a full reconsideration of that order was therefore unnecessary.
[61] This appeal has illustrated some of the difficulties that can arise in applications of this kind. There are difficulties both for those who wish to make an application and for those who are the subject of an application if they do not have access to legal advice. For example, they may be unable to afford legal advice or too intoxicated to take advantage of advice that is available; or a lawyer, such as a duty solicitor, may have insufficient time to consider and advise the person who is the subject of the application when it is dealt with at short notice. There are also difficulties for the Court because, given the way such applications often come before it, the Court may not have the benefit of submissions from opposing counsel.
[62] In the absence of legislative amendment, it may be that consideration could be given to improving the standard processes adopted under the framework of the existing Act. While there is an obvious need for the prescribed forms to be easily accessible and useable by those wishing to make an application, there is also a need for those who are potentially subject to them to understand the effect of an order and their rights in respect of it. It might also be worth considering whether there is scope
under the existing provisions to make an order for a specified short duration.34 It may of course be that these matters have been considered or are in hand already.
Result
[63] The order is quashed. I have considered whether to refer the matter back to the District Court for rehearing. I have decided that this is not appropriate. VC should be given the opportunity to show that she will continue to attend the Bridge Programme voluntarily if that is the recommendation of her carers at that programme at the end of the current 12 week programme. If she does not do so and resumes drinking, there is always the prospect of a further application being made for a fresh order. If VC wishes to avoid that, it will be important for her to show that she does not need to be under a compulsory order.
[64] I make an order prohibiting publication of the names or identifying particulars of the parties. I also make an order prohibiting publication of the judgment in news media or on the internet or other publicly available database without leave of the Court, although publication in a law report or law digest is permitted. I make these orders in accordance with the intent of s 35(1) of the Act, which states that every application under it shall be heard and determined in private.
Mallon J
Postscript
[65] The judgment was issued to the parties with two suppression orders:
(a) suppression of names and identifying particulars;
34 It may, for example, be possible to argue that s 10 can be given an interpretation consistent with the NZBORA enabling a Judge to make an order for a period of detention that is less than two years in circumstances where doing so would be proportionate to the order’s intended objective. For example, an order of shorter duration could enable detoxification or detoxification combined with an initial 12 week programme. The application could then potentially return to the Judge for further consideration. I have not had submissions about this and therefore do not intend to express any considered view on the matter. Counsel for VC suggested in submissions another route to imposing an order of short duration. I have also not reached any view on this submission. It is better for this matter to be considered when it arises in a future case.
(b)an order prohibiting publication in news media, internet or publicly available database without the leave of the court. Reporting in law report or digest permitted.
[66] The second order was made out of an abundance of caution, without having had the opportunity to obtain the views of counsel for VC and of NC, to enable the judgment to be delivered without delay. Shortly after releasing the judgment I sought the views of counsel for VC and of NC as to whether the second order was necessary, in light of the first order. I advised them that, subject to considering their views, it was my view that it was not. Counsel for VC advised that they were content for just the first suppression to apply. NC has not responded.
[67] I have concluded that only the first suppression is necessary. While the proceeding is to be heard in private, I take the view that what may be published is a separate matter for the consideration of the Judge. I note that suppression of identity has been the only suppression ordered in a number of other cases under the Act. I consider that the important privacy interests that are involved are sufficiently protected by the first suppression order and open justice considerations favour the lifting of the second order that I put in place. I am therefore removing the second suppression order. For clarity I am reissuing the judgment with the suppression banner amended to reflect the up to date position.
Mallon J
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