Wright v Attorney-General
[2019] NZHC 59
•5 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2800
[2019] NZHC 59
BETWEEN NICHOLAS DAVID WRIGHT
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
AUCKLAND DISTRICT HEALTH BOARD
Second Defendant
Hearing: 12, 13, 14 March and 9 April 2018 Appearances:
Plaintiff in person
Olivia Klaassen for the First Defendant
Anna Adams and Hershla Ifwersen for the Second DefendantJudgment:
5 February 2019
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 5 February 2019 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar
Solicitors:
Meredith Connell, Auckland, for the Defendants
Copy for:
N D Wright, Auckland, Plaintiff
WRIGHT v ATTORNEY-GENERAL [2019] NZHC 59 [5 February 2019]
CONTENTS
Paragraph No.
Mr Wright’s lack of resources [8]
Costs in New Zealand Bill of Rights cases [9]
Mr Wright’s claim against the District Health Board [12] Part 1 of the Mental Health (Compulstory Assessment and Treatment) Act 1992 [18] What happened in Mr Wright’s case [39]
Mr Wright’s other challenges to his detention [49]
Mr Wright’s procedural challenges to his detention [51]
Mr Wright’s substantive challenges [59]
State of mind of medical practitioner [60]
Mentally disordered [61]
The need for reasons [66]
The information that certifiers take into account [71]The reasonableness requirement [72]
The standard for review of a certifier’s opinion [73]
The opinions in this case [74]
The District Health Board’s post facto evidence [74]
The certificate under s 8B [78]
The certificate of preliminary assessment [80]
Can Mr Wright’s continued detention and treatment be legitimised
by later assessments? [81]
Assessment of Mr Wright’s claim against the District Health Board [84]
Mr Wright’s cases against the Police [86]
Mr Wright’s other current proceeding [88]
The first arrest [89]
The second arrest [101]
The third arrest – Bhosale [106]
The fourth arrest [112]
Irresponsible litigant? [120]
The balancing question [125]
Security for the fourth arrest [129]
Other matters [131]
Outcome [135]
[1] The defendants, the Attorney-General (sued in respect of the Police) and the Auckland District Health Board, apply for the plaintiff, Mr Wright, to provide security for costs. Mr Wright is suing the police for breaching his rights under the New Zealand Bill of Rights Act 1990 when they arrested him four times, on 22 November 2009, 25 March 2012, 1 May 2013 and 23 November 2013. He is suing the Auckland District Health Board for breaching his rights under that act for detaining him in November and December 2009 under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The defendants say that he does not have the means to pay any costs that may be ordered against him, his claims are without merit and he is litigating irresponsibly. While Mr Wright is entitled to access the court to have his case heard and decided, they argue that this should not be allowed to prevail over their interest in being protected from obtaining no more than a barren order for costs against him. The police estimate that they will obtain an order for costs of $108,000 against Mr Wright and propose that security should be fixed at $54,000. The district health board estimates a costs order of about $66,000 and proposes that security be fixed at $30,000.
[2] The defendants characterise Mr Wright as a time-wasting, irresponsible, vexatious litigant in person. That is not entirely fair. He does not have independent representation, he has limited means and he has not complied with some case management directions. He can be criticised for the way he has run this case. In the way of some other litigants in person he takes many points on the basis that at least some of them may be sound. But he comes to the case with real legal skills. Until September 2009 he was a partner in a law firm practising in public law. He has a sound understanding of the principles in that area of the law. He is familiar with the rules and practice of this court and can present legal submissions in court.
[3] Mr Wright says that his purpose in bringing this proceeding is to educate. He does not bear any grudge personally against those responsible for his arrests, detentions and compulsory treatment, but he says that they made flawed decisions that resulted in breaches of his rights under the New Zealand Bill of Rights Act. He does not believe that those responsible conspired against him or were malicious, but he does consider that they were incompetent. He believes that state agencies should provide
better training to their staff on protecting rights under the New Zealand Bill of Rights Act. He seeks vindication of his rights, Baigent damages and other relief. Baigent damages are awarded to vindicate the right, not to punish or discipline the perpetrator.1 They are discretionary and usually modest.
[4] In his third amended statement of claim Mr Wright added causes of action for breaches of statutory duty and breaches of duty of care, but I held that they were time- barred and struck them out.2 For additional relief in his causes of action for breaches of the New Zealand Bill of Rights Act, he has claimed exemplary damages and special damages (as well as general damages). At this stage of the case he has not shown any plausible basis for exemplary damages: while Mr Wright says that police officers and doctors and nurses in the health board made bad decisions, there is nothing in the case to suggest high-handed conduct requiring condemnation. Mr Wright alleges losses of earnings but the defendants say that he has not discovered any documents to support that part of his case. There will be real causation issues. While Mr Wright asserts losses of earnings from late 2009 onwards, they may be due to other difficulties in his life and would have occurred, even if the defendants had not breached his rights. That part of his case seems tenuous at this stage. Accordingly, the core of his case should be considered as seeking vindication of his rights, but no more.
[5] Proceedings to obtain vindication of rights under the New Zealand Bill of Rights Act have a distinct approach to costs which in turn bears on whether security should be ordered. If costs are unlikely to be ordered against Mr Wright, there is no reason to require security. All parties agree that if I were to order security for even a relatively small sum (say $5,000), Mr Wright would not be able to pay. The order would bar his access to the court. There are two main questions:
(a)Does Mr Wright have a triable case on the merits?
(b)If so, should his access to the court be barred because of his alleged irresponsible conduct of the case?
1 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [177].
2 Wright v Attorney-General [2017] NZHC 2865.
[6] I am satisfied that overall Mr Wright’s case against the district health board raises important questions as to how health practitioners decide whether the mentally ill should be detained under Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act. There is a public interest in having those questions argued and decided. He has not run his case well, but on balance his access to the court to decide these questions carries more weight than giving the district health board security for costs.
[7] His case against the police does not raise any new questions, but relies on established law. All the same he has an arguable case (but perhaps no more than that) that the police wrongly arrested him on the first two occasions. While he can be criticised for his conduct of the case, on balance that should not count against his case continuing to trial. He has already litigated the third arrest and should not be relitigating it. The police have already been largely vindicated on the fourth arrest because of Mr Wright’s guilty pleas to three charges. The remaining parts of his case on the fourth arrest are relatively trivial. His wish to pursue those parts should be subject to him providing security.
Mr Wright’s lack of resources
[8] The police and the district health board apply for security for costs on the ground under r 5.45(1)(b) of the High Court Rules that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in his or her proceeding. Mr Wright’s inability to pay is not contested. The defendants refer to his non-payment of the costs I ordered in the strike-out and discovery decision,3 his non-payment of costs to the police in an earlier proceeding4 and their fruitless inquiries to find any assets in his name. In the hearing Mr Wright acknowledged that he had no assets, funds or income from which he could meet any costs order. His notice of opposition and affidavit did not put this aspect in issue.
3 Wright v Attorney-General [2017] NZHC 2865, $10,546.33 to the district health board and $7,915 to the police.
4 Wright v Bhosale [2016] NZCA 593; Wright v Bhosale [2017] NZSC 69.
Costs in New Zealand Bill of Rights Act cases
[9] Once a defendant has satisfied the court on one of the threshold grounds in r 5.45(1) of the High Court Rules, the court has a discretion whether to order security and if so, how much. That usually involves balancing a plaintiff’s right of access to the court against a defendant’s interest in being paid costs after successfully defending the proceeding.5 It is invariably assumed that if successful the defendant will obtain a costs order against the plaintiff. That recognises the standard principle that costs follow the event.6 The Crown and government agencies are entitled to apply for costs in the same way as other litigants.7 But there is a different approach to costs in cases under the New Zealand Bill of Rights Act. In Attorney-General v Udompun the Court of Appeal considered that costs may not always be ordered against an unsuccessful plaintiff. Glazebrook J for the majority said:8
In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bringing BORA claims. This would clearly have the result of weakening BORA protections.
And Hammond J said in agreement:9
In principle, BORA should not be watered down by leaving persons with no incentive or an inability to bring proceedings. This is because BORA places an affirmative obligation on the “judicial branches of the government of New Zealand” (s 3(a)) to “affirm, protect and promote” (preamble to BORA) the provisions of that enactment. An obligation of that strength is not discharged by the application of “usual” costs rules.
There is some indication in the case law that although, generally speaking, to date Courts have tended to assert that merely because litigation is of a “public interest” or “test case” variety that is not a licence to depart from the “usual” regime for costs. Where there is a government (or government agency) involved in a case involving fundamental human rights, that may be a circumstance to alter the usual exercise of a costs discretion (see Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315 (PC), per
5 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA); Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017.
6 High Court Rules 2016, r 14.2(1)(a).
7 See for example Reefdale Investments Ltd v Commissioner of Inland Revenue (2004) 17 PRNZ 229 (HC).
8 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186].
9 At [223] and [224].
Lord Steyn, and Nuredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 at p 145).
[10] The Court of Appeal saw bill of rights cases falling outside the normal costs rules, including presumably the rule for refusal of costs in public interest cases.10 The court was not categorical: “In this area it may not always be appropriate…”, “…that may be a circumstance to alter the usual exercise of a costs discretion…” A principled discretion should be applied. These factors are likely to arise in deciding whether to order costs against an unsuccessful plaintiff in a bill of rights case:
(a)Did the plaintiff make other claims as well as the bill of rights claim, for example causes of action in tort?
(b)Was the plaintiff seeking no more than vindication of their rights?
(c)Notwithstanding that the plaintiff sought vindication of their rights, was their claim so unmeritorious that costs should be awarded anyway?
(d)Should the court order costs because of the way the plaintiff has run their case?
There may of course be other matters. The point is that as a matter of principle it seems unlikely that costs will be awarded against an unsuccessful plaintiff if their claim was bona fide and had some merit even if it was unsuccessful, they sought no more than vindication of their rights and their conduct of the case did not warrant an adverse costs order.
[11] Accordingly, the defendants cannot assume that Mr Wright will be ordered as a matter of course to pay costs if they succeed at trial. That goes to whether security for costs should be ordered. There is no point in ordering security if costs will not be awarded. Before there can be any balancing of the plaintiff’s access to the court against the defendant’s desire to have security for costs, it must first be established whether it is likely that Mr Wright will be ordered to pay costs, if he loses. For this case that requires a review of the merits of his claims and of his conduct of the case.
10 High Court Rules 2016, r 14.7(e).
As to the merits, I deal with his claim against the district health board first, then the police. While his detention by the district health board followed his first arrest by the police, it is more helpful in understanding the mental health issues to leave the police matters aside for the moment.
Mr Wright’s claim against the district health board
[12] Mr Wright was a patient of the Auckland District Health Board under Part 1 the Mental Health (Compulsory Assessment and Treatment) Act 1992 from 23 November 2009 to 9 December 2009. He was an in-patient at the district health board’s adult acute mental health unit, Te Whetu Tawera, at Auckland Hospital until 7 December 2009, although he was given permission to leave on 4 December 2009 and to return on 7 December. On 7 December he became an out-patient and was transferred to the St Luke’s Community Mental Health Centre. He was discharged on 9 December 2009.
[13] Mr Wright says that in subjecting him to compulsory assessment and treatment under Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act, the district health board breached his rights under the New Zealand Bill of Rights Act, namely:
11 Right to refuse to undergo any medical treatment
Everyone has the right to refuse to undergo any medical treatment.
13Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
14Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
15Manifestation of religion and belief
Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
21Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
22Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
23Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment –
(a)shall be informed at the time of the arrest or detention of the reason for it; …
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[14] For this part of the decision I deal mainly with his rights under ss 11 and 22, as he was undoubtedly detained and required to undergo medical treatment against his will. If he establishes breaches of those rights, he will have a case of relief. Other alleged breaches are secondary. In part, they may be no more than consequences of detaining him and requiring him to take treatment.
[15] The district health board suggests that while in hospital Mr Wright sometimes took his medication willingly,11 but that may not be a complete answer. His medical treatment was more extensive than that. It ran from the initial assessment to decide whether he should be detained (he could not refuse to take part) until his release from his status as a mentally-disordered patient. In M v Attorney-General12 Potter J accepted that “medical treatment” had a wide meaning. The right in s 11 is founded on the right to determine what shall be done with one’s body. “Treatment” includes medical examination and assessment.
[16] In general, an unlawful detention is arbitrary.13 Both sides ran their arguments on whether Mr Wright’s detention was lawful. The district health board did not argue that even if he was unlawfully detained, his detention was not arbitrary. Mr Wright did not argue that even if he was lawfully detained, his detention was still arbitrary.
[17] A point as to burden of proof needs to be noted. The district health board put as its case that Mr Wright would not be able to establish at trial that he was arbitrarily detained and required to undergo medical treatment against his will. It assumed that
11 The medical records suggest that he was unwilling to take medication at times.
12 M v Attorney-General [2006] NZFLR 181 (HC) at [105]-[108].
13 R v Goodwin (No 2) [1993] 2 NZLR 390 (CA) at 394; Alexander v Police [2012] NZHC 1686 at [21]; Manga v Attorney-General [2000] 2 NZLR 65 HC) at 70.
the burden of proof was on him throughout. The district health board, however, relies on its powers under the Mental Health (Compulsory Assessment and Treatment) Act to justify detaining and treating Mr Wright. That is an affirmative defence which the board must prove. Once Mr Wright shows an infringement of his normal rights not to be detained and to refuse medical treatment, the burden passes to the board as the state agency relying on an enactment overriding his rights under the New Zealand Bill of Rights Act to show that it has acted within its statutory powers. That is consistent with the common law which allows tort actions (trespass to land, trespass to the person and false imprisonment) to test the validity of state actions. The government agency has to prove as an affirmative defence that its breach of the plaintiff’s rights was lawful. That goes back at least as far as Entick v Carrington.14 It is also consistent with the purpose of the New Zealand Bill of Rights Act in upholding human rights and fundamental freedoms.15 It goes to establishing what the authors of “The New Zealand Bill of Rights Act” call a “culture of justification”:16
A “culture of justification” means a culture in which citizens are entitled to call upon the provision of reasons for measures which that affect their rights, are entitled to challenge those reasons, and in a sense more importantly, are entitled to expect that in advance of impairment thought will have been given to the reasonableness of a particular limit.
The context for that statement is establishing justified limitations under s 5 of the act,17 but the same principle applies to proving that actions taken under a justified limitation comply with the law. Those whose rights have been affected by a state agency are entitled to challenge its actions and to require it to justify them in fact and in law.
14 Entick v Carrington (1765) 2 Wils KB 275, 95 ER 807 (KB) at 291: “…our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law” (Emphasis added).
15 New Zealand Bill of Rights Act 1990, long title.
16 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, 2015) at 6.8.1.
17 See also R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [108]:
“The onus is on those who claim the limit is reasonable and justified to satisfy the Court that this is demonstrably so.”
Part 1 of the Mental Health (Compulsory Assessment and Treatment) Act 199218
[18] As its short title suggests, the act is concerned only with compulsory assessment and treatment of the mentally ill.19 It has nothing to say about those who seek treatment voluntarily. Under other parts of the act, patients are made subject to compulsory status by court order: Part 4 deals with special patients, those liable to be detained in a hospital under the Criminal Procedure (Mentally Impaired Persons) Act 2003 and equivalent legislation. Part 2 deals with compulsory treatment orders made by a judge for those who have been assessed and treated under Part 1 and who are considered as not fit to be released from compulsory status at the end of the Part 1 phase.20 Compulsory treatment orders under Part 2 are made only if the court determines that the patient is mentally disordered. Under Part 1, however, decisions for the compulsory assessment and treatment of patients are made by mental health professionals, but with recourse to a judge under a right of review in s 16.
[19] The first step is for an application to be filed for the assessment of the person concerned under Part 1. The person becomes a “proposed patient” upon application. An application may only be made if someone “believes that a person may be suffering from a mental disorder.” The application must be supported by a certificate of a medical practitioner. If a medical practitioner on examination of the proposed patient reasonably believes that he or she is mentally disordered, the patient is required to undergo assessment and treatment for five days. Within that period there is a further assessment. If the responsible clinician considers that there are reasonable grounds for believing that the patient is still mentally disordered, he or she gives a certificate of further assessment which requires the patient to be subject to further assessment and treatment for up 14 days. Before that period is up, there is another examination. If the clinician is not of the opinion that the patient is fit to be released, he or she must apply for a compulsory treatment order under Part 2. A clinician treating a patient may
18 I rely on the version in force at the time of the events in this case.
19 See also Mental Health (Compulsory Assessment and Treatment) Act 1992, long title:
“An Act to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment, to define the rights of such persons and to provide better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder” (Emphasis added).
20 Section 14(4).
release them from compulsory treatment at any time if they consider that they are fit to be released.21
[20] Patients under Part 1 are required to accept such treatment as the clinician directs.22 If the clinician considers that the patient cannot be adequately treated as an outpatient, the patient must be admitted and detained in a specified hospital.23 A proposed patient can be moved without his consent to a place where an examination is to take place.24 Police may be called on to assist.25
[21] At the same time and like other parts of the Act, Part 1 is subject to provisions to protect the interests and rights of patients. Under s 4 the procedures in Part 1 shall not be invoked in respect of a person by reason only of:
(a)that person’s political, religious, or cultural beliefs; or
(b)that person’s sexual preferences; or
(c)that person’s criminal or delinquent behaviour; or
(d)substance abuse; or
(e)intellectual disability.
Under s 5 powers under the act must be exercised with proper respect for cultural identity and personal beliefs. Under s 7A medical practitioners are under a duty to consult with a patient’s family. Part 6 sets out rights of patients, including general rights to information, to treatment, to be informed about treatment, to independent psychiatric advice, to legal advice and to complain of breaches of rights to a district inspector or an official visitor for investigation. Under Part 1 there are provisions requiring explanations and information to be given to patients and proposed patients.26
21 Sections 11(6), 13(6).
22 Section 58.
23 Section 11(2)(b) and 13(2)(b).
24 Section 40(1)(a), (2)(a).
25 Section 40.
26 Sections 9(2)(d), 10(4), 12(5).
[22] In the interests of sound and transparent administration decisions must be recorded and in many cases reasons must be given. Powers may generally only be exercised by mental health professionals: duly authorised officers27 and medical practitioners, and in some cases, only those approved by the Director of Area Mental Health Services.
[23]The definition of “mental disorder” is fundamental:
2 Interpretation
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;—
and mentally disordered, in relation to any such person, has a corresponding meaning
As is:
Fit to be released from compulsory status, in relation to a patient, means no longer mentally disordered and fit to be released from the requirement of assessment and treatment under this Act.
[24] Under Part 1 the process to be put under compulsory status starts with an application under s 8:
8Any person may fill out application form
(1)Anyone who believes that a person may be suffering from a mental disorder may at any time fill out an application form asking the Director of Area Mental Health Services for an assessment of the person.
(2)An application is made under section 8A when the Director of Area Mental Health Services receives a filled out application form that complies with section 8A.
(3)In sections 8A and 8B,—
27 Appointed under s 93. Their role includes giving general advice and assistance under s 37.
(a)The person who fills out the application form is called the
applicant; and
(b)The person who is the subject of the application is called the
person.
8A Application for assessment
An application is made under this section when the Director of Area Mental Health Services receives a filled out application form that complies with the following:
(a)It is accompanied by a certificate issued under section 8B relating to the person that states a date of examination within the 3 days immediately before the date of the application; and
(b)It states that the applicant is 18 years or over; and
(c)It states that the applicant has personally seen the person within the 3 days immediately before the date of the application; and
(d)It states the relationship or association of the applicant with the person; and
(e)It states the grounds on which the applicant believes the person to be suffering from a mental disorder.
From the time of the application, the person subject to it is a proposed patient.
[25] A certificate under s 8B by a medical practitioner must accompany the application for assessment under s 8A. The medical practitioner must examine the proposed patient and issue a certificate if he or she considers that there are reasonable grounds for believing that the person may be suffering from a mental disorder.28 Under s 8B(5):
(5)The certificate must—
(a)State that the medical practitioner has examined the person:
(b)State the date of the examination:
(c)State that the medical practitioner considers that there are reasonable grounds for believing that the person may be suffering from a mental disorder:
(d)Set out full particulars of the reasons for that opinion, explaining in what way the medical practitioner believes that the person's condition may come within the statutory definition of mental disorder:
28 Section 8B(4).
(e)State that the medical practitioner is not related to the person or to the applicant (except when the medical practitioner is the applicant).”
[26]An assessment examination must then be arranged and conducted under s 9:
9Assessment examination to be arranged and conducted
(1)Where an application is made under section 8A, the Director of Area Mental Health Services, or a duly authorised officer acting with the authority of that Director, shall make the necessary arrangements for the proposed patient to undergo an assessment examination forthwith.
(2)The arrangements required by subsection (1) shall include the following:
(a)nominating, in accordance with subsection (3), the person by whom the assessment examination is to be conducted:
(b)determining, in consultation with the person by whom the assessment examination is to be conducted, the time and place at which it is to be conducted:
(c)giving to the proposed patient a written notice—
(i)requiring the proposed patient to attend at the specified place and time for the purposes of the assessment examination; and
(ii)explaining the purpose of the assessment examination; and
(iii)stating the name of the person who is to conduct the assessment examination:
(d)ensuring that the purpose of the assessment examination and the requirements of the notice given under paragraph (c) are explained to the proposed patient in the presence of a member of the proposed patient’s family, or a caregiver in relation to the proposed patient or other person concerned with the welfare of the proposed patient:
(e)ensuring, where necessary, that appropriate arrangements are made to convey the proposed patient at the required time to the place where the assessment examination is to be conducted, and, where it is necessary or desirable that the proposed patient be accompanied on the journey, ensuring that an appropriate person is available to do so.
(3)Every assessment examination shall be conducted by a medical practitioner (but not being the medical practitioner who issued the certificate under s 8B(4), being—
(a)a psychiatrist approved by the Director of Area Mental Health Services for the purposes of the assessment examination or of assessment examinations generally; or
(b)if no such psychiatrist is reasonably available, some other medical practitioner who, in the opinion of the Director of Area Mental Health Services, is suitably qualified to conduct the assessment examination or assessment examinations generally.
(4)For the purposes of subsection (1), an application under section 8A is deemed to have been made if the Director of Area Mental Health Services or a duly authorised officer receives notice of it from the medical practitioner who issued the certificate relating to the person under section 8B(4)(b). The medical practitioner may give notice by any means, including by telephone. The assessment examination must not take place until the Director of Area Mental Health Services, or a duly authorised officer, or the medical practitioner who is to conduct the examination receives an application relating to the person and complying with section 8A.
[27] A notice under s 9 is authority for the district health board to detain the proposed patient for an assessment examination:
113 Authority of person in charge of hospital or service to admit and detain
(1)Every notice under section 9 requiring a proposed patient to attend at a hospital or service for an assessment examination is sufficient authority for the person in charge of the hospital or service to take all reasonable steps to detain the proposed patient in the hospital or service for the shorter of—
(a)6 hours; and
(b)the time it takes to conduct the assessment examination.
[28] After the examination, the medical practitioner records his or her findings in a certificate of preliminary assessment under s 10.
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—
(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.
(2)The medical practitioner must send to the Director of Area Mental Health Services—
(a)the certificate of preliminary assessment; and
(b)full particulars of the reasons for his or her opinion of the proposed patient’s condition, and any relevant reports from other health professionals involved in the case; and
(c)a copy of any notice given to the patient under section 11(1); and
(d)the application for assessment made under section 8A, if it is in the possession of the medical practitioner.
(3)If the medical practitioner is of the opinion that the proposed patient is not mentally disordered, that person is free from further assessment and treatment under this Part (without prejudice to the making of a further application under section 8A in respect of the person at some time in the future).
(4)Where the medical practitioner considers that 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, the medical practitioner shall—
(a)give or send a copy of the certificate of preliminary assessment to each of the following:
(i)the patient:
(ii)any welfare guardian of the patient:
(iii)the applicant for assessment:
(iv)the patient's principal caregiver:
(v)the medical practitioner who usually attends the patient; and
(b)give or send, to each of the persons specified in paragraph (a), a statement of the legal consequences of the finding set out in the certificate of preliminary assessment, and of the recipient's right to apply to the court for a review of the patient's condition; and
(c)otherwise deal with the case in accordance with section 11.
[29] If the medical practitioner finds under s 10(1)(b)(ii) that in his or her opinion 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, the medical practitioner must require the patient to undergo further assessment and treatment for five days (called the “first period”).29 The health practitioner gives written notice of this requirement under s 11(1). Under the notice, the patient can be required to attend as an outpatient or as an inpatient, if the medical practitioner considers that the patient cannot be further assessed and treated adequately as an outpatient. The section provides for a responsible clinician to be assigned to the patient. Responsible clinicians can direct that outpatients be admitted and detained for assessment and treatment, that inpatients may be treated as outpatients and may be granted leave of absence for defined periods, and may also release the patient from compulsory status.
[30] A notice under s 11 for the patient to attend as an inpatient is authority for the district health board to detain the patient. Section 113(2) says:
(2)Every notice under section 11or section 13 requiring a patient to attend at a hospital for the purpose of assessment and treatment as an inpatient is sufficient authority for the person in charge of the hospital—
(a)to admit the patient to the hospital; and
(b)to take all reasonable steps to detain the patient in the hospital during the period of assessment and treatment to which the notice applies.
The patient is required to accept medical treatment directed by the clinician.30
[31] Before the five days are up, the responsible clinician must make a certificate of further assessment under s 12:
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—
29 Section 11(1).
30 Section 58.
(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
(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.
(2)The responsible clinician shall send to the Director of Area Mental Health Services—
(a)a copy of the certificate of further 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)a copy of any notice given to the patient under section 13(1).
(3)If the responsible clinician is of the opinion that the patient is not mentally disordered, that clinician shall direct that the patient be released from compulsory 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 considers that 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, that clinician shall deal with the case in accordance with the succeeding provisions of this section and section 13.
…
[32] If the responsible clinician finds that the patient comes within s 12(1(b)(ii), the clinician must require the patient to undergo further assessment and treatment for the “second period” – 14 clear days.31 Again, during this second period, the responsible clinician may determine whether the patient is to be an inpatient or outpatient, may grant leave, and may discharge the patient from compulsory status. The clinician gives the patient a notice under s 13 and if the notice requires the patient to be treated as an inpatient, that is authority for the district health board to detain the patient.32
31 Section 13.
32 Section 113(2).
[33] Before the second period is up, the responsible clinician must make findings in a certificate of final assessment under s 14:
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.
[34] An application for compulsory treatment orders under Part 2 is heard by a Family Court judge who conducts a hearing to determine whether or not a patient is mentally disordered. If the court considers the patient is mentally disordered, the judge also decides whether it is necessary to make a compulsory treatment order. Mr Wright’s case did not progress to an application for a compulsory treatment order under Part 2.
[35] Under s 16, a patient has the right to have his or her condition reviewed by a judge. The judge, usually a Family Court Judge, conducts a hearing in which he or
she hears from the patient, the responsible clinician, may hear from others, and may consult with others concerning the patient’s condition. The judge must order the patient to be released from compulsory status if satisfied that the patient is fit to be released.
[36] Mr Wright submitted that I should interpret the act with s 6 of the New Zealand Bill of Rights Act in mind, that is, I should prefer a meaning consistent with the Bill of Rights Act over any other meaning. He said this in the context of establishing the meaning of “mentally disordered”. In the early days of the New Zealand Bill of Rights Act some decisions under the Mental Health Act 1969 suggested support for that.33 In Re M Gallen J said:34
I think it must follow that the provisions of the Mental Health Act continue to apply regardless of the passing of the New Zealand Bill of Rights Act, but they are to be interpreted as far as possible in the light of the New Zealand Bill of Rights Act and it may well be that earlier interpretations may no longer be appropriate.
[37] Since then the higher courts have developed increasingly sophisticated methodologies as to how ss 4, 5 and 6 of the New Zealand Bill of Rights Act apply to legislation that impacts on rights under that act. While the decisions have carefully stressed that no one approach is prescriptive, Tipping J’s approach in R v Hansen currently has general acceptance:35
Step 1 Ascertain Parliament’s intended meaning.
Step 2 Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
Step 3 If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit under s 5.
Step 4 If the apparent inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament’s sovereignty prevails.
Step 5If Parliament’s intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
33 Re M [1992] 1 NZLR 29; Re S [1992] 363 (HC).
34 At 40.
35 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [92].
Step 6 If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.
[38] For this case, it is not necessary to go past step 4, because the Mental Health (Compulsory Assessment and Treatment) Act is a justified limit under s 5. It confers powers that are inconsistent with rights under the bill of rights, including the right to refuse treatment and not to be arbitrarily detained. It is prescribed by law.36 It is a reasonable limit that can be demonstrably justified in a free and democratic society.37 There is a long history of mental health legislation in New Zealand that provides for compulsory treatment. Similar legislation is also standard in countries which New Zealand compares itself with. Limiting the rights of certain mentally ill persons is in the interests of public safety or their own welfare and is therefore a justified curtailment of rights under the New Zealand Bill of Rights Act, so long as the limitation is no more than necessary to achieve the purpose of the act, and it is in due proportion to the objective. Accordingly, it is not necessary to re-examine the words under s 6. While Parliament’s intended meaning prevails, it should not be overlooked that the act has a strong emphasis on recognising and upholding the rights of those thought to be mentally disordered. That purpose is to be applied when interpreting the act. It is not necessary to resort to the New Zealand Bill of Rights Act for that.
What happened in Mr Wright’s case
[39] Mr Wright and the district health board disagree on many details of what happened while it detained him. For this decision, it is not necessary to resolve many of those differences. They are better left until trial. Even if I were to accept the district
36 See McGrath J in R v Hansen at [180]:
“To be prescribed by law, limits must be identifiable and expressed with sufficient precision in an Act of Parliament, subordinate legislation or the common law. The limits must be neither ad hoc nor arbitrary and their nature and consequences must be clear, although the consequences need not be foreseeable with absolute certainty.”
37 See Tipping J’s test in R v Hansen at [104]:
“This approach can be said to raise the following issues:
(a)Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)(i) is the limiting measure rationally connected with the purpose?
(ii)does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(iii)is the limit in due proportion to the importance of the objective?”
health board’s account as likely to prevail, that does not mean that Mr Wright is bound to fail on the merits.
[40] On 22 November 2009 police arrested Mr Wright at his home in Mt Albert on a charge of assaulting a police officer and resisting arrest. His mother, concerned at his behaviour, had called her husband in Taupo who had rung the police. There was an altercation between Mr Wright and the police officers. He revoked their implied licence to come onto the premises and required them to leave. They did not. The circumstances of the altercation are contentious, but are part of the background. The police officers took Mr Wright to the Avondale police station.
[41] That is where the district health board became involved. Two community mental health nurses, both duly authorised officers under the act, came to the station and spoke to Mr Wright. He complains that they did not explain their purpose. They called a psychiatrist, who came and spoke with Mr Wright. One of the nurses made an application under s 8 to the Director of Area Mental Health Services, saying:
It is my belief that Nicolas is mentally unwell and needs further assessment under the Mental Health Act. His behaviour this evening and recently (last two weeks) seems erratic, irrational and his report this is out of character. It is my opinion that he is elevated in mood and manic and is potentially a risk to himself and others.
[42] The psychiatrist gave a certificate under s 8B. For full particulars of the reasons for believing that Mr Wright may be mentally disordered, he wrote:
Two week history of elevated mood, racing thoughts and irritable behaviour. Reporting unusual ideas with poor insight and judgment. Reputation at risk. Family reported that behaviour is out of character.
[43] A mental health nurse gave Mr Wright a notice under s 9(2)(c) that he would be examined by a named psychiatrist at Te Whetu Tawera at 2:30am on 23 November 2009. The police took Mr Wright to Te Whetu Tawera, the acute mental health ward at Auckland Hospital. Mr Wright says that he was dishevelled (as a result of the altercation with the police), his clothes were ripped and he was handcuffed.
[44] At Te Whetu Tawera the psychiatrist examined Mr Wright. In a certificate of preliminary assessment under s 10, she gave her opinion under s 10(1)(b)(ii) that there
were reasonable grounds for believing that he was mentally disordered. She recorded her findings in a clinical report form. According to the form, it is to be used amongst other things for a preliminary assessment under s 10(2)(b) and is to give particulars of the patient’s condition and reasons for the conclusions reached. It has an instruction that it is not to be given to the patient. The psychiatrist ticked the box marked “Serious danger to the health and safety of himself or other persons”. Under the heading “Examination” to give mental status findings to support the definition of mental disorder, she wrote:
35 y/o Australian male who has been in NZ since 15 yrs. He lives with his parent & three children from a previous relationship age 9, 12, 14. His 9 yro suffers neurofibromatosis ADS & ADHD. He was asked to leave his law firm 2/12 ago. Over the last 2/52 he has been elated, has reduced sleep, increased energy, racing thoughts, irritable driven behaviour culminating in an altercation with police today. He is at a total loss of understanding what lead to the police behaviour & him being charged with resisting arrest & assaulting a policeman. He intends to take all of us to the High Court: feels the damage done to his children is beyond repair. On examination he is pressured & repeats the story of events about 5 times. He denies any sense of paranoia. He is able to understand that there may be other sides to the stories. He asked me to explain the 2 arms of the MHA but then stopped me saying that he didn’t have time to listen to fools: I was incapable of understanding him.
While she gave Mr Wright a copy of the certificate of preliminary assessment, she did not give him a copy of the clinical report form. His later requests under the Official Information Act for a copy were not met, at least not immediately. The psychiatrist’s notes of the preliminary assessment are more extensive and refer to matters not recorded in the clinical report form. They finish with this:
I told him that there was reason to believe he suffered from a mental disorder and that he was a danger to others based on what had happened and that he would be kept in hospital for a period of observation.
She gave a notice under s 11, requiring Mr Wright to undergo a five day further period of assessment and treatment, and assigned a responsible clinician. He was required to be detained as an inpatient at Te Whetu Tawera.
[45] On 25 November 2009 Mr Wright applied under s 16 for a review of his condition, as provided by s 11(7). On such a review, the judge must decide whether a patient is fit to be released from compulsory status and if so satisfied must order the
patient’s release.38 A Family Court judge heard the application on 27 November. A mental health nurse made a report for the hearing, which records earlier history, his behaviour since admission and includes:
However, judgment seems impaired by elevated mood and delusional beliefs. Nicolas beliefs (sic) his admission into hospital is a police conspiracy against him. Nicolas continues to present as highly elevated in mood, irritable and threatening, this follows a period of consistent with Depression over the last few months. Nicolas will benefit from further stay in hospital to allow further assessment of underlying and contributing factors of his current mental instability.
Mr Wright’s mother wrote a letter for the judge recording her son’s recent behaviour, which was out of character, and expressing her concern over his mental health. Those present at the hearing were Mr Wright and his lawyer, mental health professionals (doctors and a nurse) and members of Mr Wright’s family. The judge was not satisfied that Mr Wright was fit to be released.
[46] On 27 November 2009, the responsible clinician examined Mr Wright and issued a certificate of further assessment under s 12 of the Mental Health (Compulsory and Assessment and Treatment) Act. She gave her opinion that under s 12(4) there remained reasonable grounds for believing that Mr Wright was mentally disordered. Her clinical report form under s 12(2)(b) said:
Mr Wright presented on his first assessment after being admitted to this Unit as unkempt, with pressure speech, not possible to interrupt, frequently raising his voices. His monologue was of two hours duration, and I hardly managed to delivery any question or thought on what he was saying. His thought form was circumstantial with some tangentiality but goal directed. His thought content was mostly about procedure of admission, accusation against police and admitting doctors, disqualification of family member’s concerns he believed contributed to his admission to hospital. There were some unusual religious beliefs, some themes that might be considered narcissistic or grandiose (like “with his new firm will save the world”). His mood was elevated, affect highly intense with irritability that he was not able to contain towards the end of the interview when he became intensely rageful (came close to my face, threatening, accusing me of going to be responsible for his mother’s death if I do not release him from the hospital) He refused blood test, refused to give his urine for analysis. He also refused to take any medication as he did not believe anything wrong with his mental health.
In my contact with the family and in reviewing his file I found additional information suggestive of manic episode with some grandiose ideas (sending an email with unrealistic plans that family were scared will damage his
38 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 16(5).
reputation), with high level of elevated mood and irritable affect leading to some unsafe behaviour (reckless driving with child presence), some degree of violence (making his partner to seat in a cold water and with open windows to teach her a lesson, some unacceptable degree of physical behaviour towards children – as per ex-wife). There is also significant history of drug abuse that certainly contribute to intensity of Mr Wright’s symptomology (he still refuses adequate tests but accuses us of not thoroughly assessing him physically).
Since that time Mr Wright remains to present in a similar manner – he leaves my attempts to assess him as soon as I say anything he disagrees (with threats of legal action). At one stage he was forced to take medication as staff was not capable to manage his level of intimidation, hostility and threats. That contributed to a significant decrease in agitation and irritability, but his uncooperativeness with assessment has remained a problem.
I believe that Mr Wright needs a further period of assessment, he needs at least some level of insight in need to get help in order not to further damage his professional reputation, and his family relationships and to avoid further risky behaviours that are a result of his, what appears to be at this level, manic-like episodes.
Her notice under s 13 required him to continue to be detained at Te Whetu Tawera.
[47] With written permission of the responsible clinician given on 4 December 2009, Mr Wright left Te Whetu Tawera until 7 December 2009. He was required to live at his home address. He remained an inpatient. On 7 December 2009, the responsible clinician gave a notice under s 13(4) that Mr Wright could be assessed and treated adequately as an outpatient. He was transferred to St Luke’s Community Mental Health Centre under the care of another psychiatrist.
[48] On 9 December 2009, that psychiatrist signed a certificate of final assessment under s 14, giving his opinion that Mr Wright was fit to be released from compulsory status. With that, Mr Wright was no longer subject to Part 1 of the Mental Health (Compulsory and Assessment and Treatment) Act. He was restored to all the freedoms he enjoyed before he was detained on 22 November.
Mr Wright’s other challenges to his detention
[49] On 26 November 2009, while he was still in Te Whetu Tawera, Mr Wright made a habeas corpus application and an application for judicial review of the decision to detain him under the Mental Health (Compulsory Assessment and Treatment) Act.
He withdrew his habeas corpus application after he was released from Te Whetu Tawera and discontinued his judicial review proceeding in February 2010.
[50] The abandonment of those proceedings does not count against his bringing this proceeding. The district health board did not say that there any outstanding costs payable by Mr Wright for the earlier proceedings. They were directed at obtaining his release. Here he wants to show that the district health board breached his rights under the New Zealand Bill of Rights Act, even though he does not allege any ongoing breach.
Mr Wright’s procedural challenges to his detention
[51] In his statement of claim Mr Wright pleads that there were procedural flaws that invalidated the decisions by nurses and doctors that led to his detention and compulsory treatment. In summary, these include that:
(a)at the police station a community mental nurse did not identify herself as a duly authorised officer at the outset;
(b)at the station the nurses made notes of what he said but did not give him copies and later destroyed the notes;
(c)he was not given copies of the application under s 8, the certificate under s 8B or a notice under s 9(2)(c);
(d)the Director of Area Mental Health Services did not receive the application under s 8A until after the assessment under s 9 took place;
(e)he did not receive an explanation under s 9(2)(d);
(f)there was no lawful basis for the police to take him to the hospital;
(g)the Director of Area Mental Health Services did not make the necessary arrangements for the assessment examination;
(h)the assessment examination took place outside the front doors of the hospital accident and emergency department when he was handcuffed and flanked by two police officers;
(i)the assessing psychiatrist did not consult with his family; and
(j)the Director of Area Mental Health Services had not approved the assessing psychiatrist under s 9(3).
Those are all steps up to the finish of the assessment examination on 23 November. Mr Wright is also upset about the conduct of the review under s 16, but he has not put that in issue and does not seek relief in respect of it. Nor does he allege any procedural flaws by doctors or nurses after the notice under s 11.
[52] Some of the points are irrelevant. There is no requirement for an authorised officer to identify herself as such; she is not required to keep notes; there is no legal requirement as to the place of assessment (even though the psychiatrist disagrees with Mr Wright’s evidence on this point). Further an affidavit of Mr Wright of 2 December 2009 suggests that he did receive the notice under s 9(2)(c), but he was not satisfied with the explanation he was given. Under ss 40 and 41 a duly authorised officer may take all reasonable steps to take a proposed patient to a hospital for assessment and may call on the police for assistance. The director does not personally have to arrange the assessment examination; under s 9(1) a duly authorised officer may do so.
[53] More importantly, in general such procedural objections do not count in invalidating decisions to detain a proposed patient. In a habeas corpus case challenging a detention under the act for non-compliance with procedural requirements (especially s 9(2)(d)), Sestan v Director of Area Mental Health Services, the Court of Appeal gave guidance:39
The statute is aimed at defining and protecting the rights of people who may be mentally disordered. Courts will not countenance breaches of the Act’s provisions and obligations lightly. It should not be overlooked that, within the statutory framework, ongoing protective mechanisms exist. These checks and balances operate during the periods of assessment and treatment and after a compulsory treatment order has been made under s 17 by a Judge.
Because of the nature of the jurisdiction, it is almost inevitable that there will at times be some variance or deviations from strict statutory requirements. It is important to view any non-compliance in the round rather than from a blinkered focus on isolated provisions that ignore the statutory context.
We do not accept that whenever it is demonstrated that there is any degree of non-compliance with a specific provision the only consequence will be the total invalidity of all subsequent actions. The Court must assess what happened, why it happened and how it happened, remembering that the protection of a vulnerable person, and potentially the community, is at the heart of the legislative framework.
39 Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767 (CA) at [88]-[90].
[54] It also relevantly referred to its earlier decision in Burr v Blenheim Borough Council as authority that procedural errors do not necessarily invalidate official action. In that decision it said:40
When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account.
[55] In the light of this approach most of Mr Wright’s procedural objections are likely to fall away. But there is one that requires attention, the claim that the assessing psychiatrist was not approved under s 9(3). If the person is not within s 9(3), they cannot carry out the assessment, cannot give a certificate of preliminary assessment and cannot give a notice under s 11. The power to detain and to require compulsory treatment will not arise. It does not matter how qualified and experienced they may be if they are not approved under one of the limbs in s 9(3).
[56] Mr Wright has a procedural difficulty in pursuing this objection. The matter came up in his application for further discovery. I said:41
Two of the remaining categories were documents showing whether a nurse was legally authorised to carry out functions under s 9(1) of the Mental Health (Compulsory Assessment and Treatment) Act, and documents showing whether a psychiatrist met the requirements of s 9(3) of the Act. In the hearing, Mr Wright advised that he was now satisfied that the nurse and the psychiatrist were respectively authorised and approved under s 9(1) and (3) of the Act. He no longer sought discovery of documents within those categories.
[57] In the hearing for this decision, Mr Wright denied making the concession I recorded. He had not however challenged my decision at the time. Notwithstanding that, he still wants to run his argument that the assessing psychiatrist was not approved under s 9(3). There may be a way round the difficulty for him. He made the concession in a hearing to decide procedural matters. He no longer sought discovery
40 Burr v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at 4.
41 Wright v Attorney-General [2017] NZHC 2865 at [34].
of particular documents. While he did not obtain the discovery he applied for (and the district health board says that it did not hold documents showing particular approval under s 9(3)), it may still be open to Wright to maintain his argument for the substantive hearing. That may turn on whether the district health board can say that it has been prejudiced by Mr Wright going back on his concession.
[58] On the issue, Mr Wright’s case is that the Director of Area Mental Health Services must decide specifically whether a medical practitioner should carry out assessment examinations, either generally or in a particular case. On the other hand the district health board’s case is that the psychiatrist in this case was a consultant, the most senior non-management position for a doctor. Because of her position as a consultant, she could carry out assessment examinations without the director first considering whether she was fit to do so. It is therefore not necessary to prove that the director did give approval under s 9(3). On this point I cannot say that Mr Wright’s argument is hopeless. If he is right, the psychiatrist could not give a certificate of preliminary assessment and there was no basis for Mr Wright’s detention and compulsory treatment. The requirement that examinations be carried out only by those who are approved under s 9(3) is so fundamental to the process that failure to comply with it can invalidate subsequent steps.
Mr Wright’s substantive challenges
[59] Mr Wright says that the s 8B certificate and the certificate of preliminary assessment under s 10(1)(b)(ii) are invalid because the psychiatrists who gave them did not reasonably hold the opinions they expressed. That requires consideration of the required states of mind of the certifying psychiatrists, the meaning of “mentally disordered”, the need for reasons, the information that certifiers may take into account, the reasonableness requirement and the standard of review of their decisions.
State of mind of medical practitioner
[60] With states of mind, it is helpful to bear in mind the differences between suspicion, belief and knowledge. With suspicion, there is uncertainty: you think that something may be the case. With belief, you think that something is the case. There is
no uncertainty in your mind, even if you may be wrong. With knowledge, your belief is true and justified, that is, well-grounded. For a s 8B certificate, the medical practitioner need only suspect that the person may be suffering from a mental disorder. For a certificate of preliminary assessment, the medical practitioner must believe that the person is mentally disordered. In neither case are they required to know. They may be wrong in their suspicion or belief. A mistaken belief is still a belief. The safeguard against arbitrariness is that their opinions must be reasonable.
Mentally disordered
[61] The medical practitioners are required to have opinions whether a person may be or is mentally disordered. In Waitemata Health v Attorney-General Elias CJ said:42
The Act is not a general mental health Act. It applies only to those whom it is necessary to assess or treat compulsorily and then only if their condition reaches a sufficient state of seriousness. Other statutes such as the Protection of Personal and Property Rights Act 1988 deal with the care of those with diminished ability to look after themselves in the community.
The Act avoids reference to mental or psychiatric illness. The words used in the definition are words in ordinary use, although their application is heavily dependent upon the assessment of clinicians...
[62] It is important to recognise the seriousness requirement. In this case the district health board relies on the first limb: that Mr Wright’s abnormal state of mind posed a serious danger to the health or safety of himself or others. Absent serious danger (and the second limb not being invoked) there is no basis for compulsory treatment. An abnormality of mind that does no more than result in unsociable behaviour, irritability or incivility, while a nuisance, cannot be a serious danger and does not give grounds for detention, no matter how worthwhile it may be to treat the person.
[63] The serious danger must be to health or safety. Citing re JK, Mr Wright submitted that that required a risk of serious physical harm to another.43 In that case Judge Ellis relied on case law under the Mental Health Act 1969 which had a different definition of “mentally disordered”. In Re M Gallen J had said that the quality of behaviour necessary to come within the category of that against which the public
42 Waitemata Health v Attorney-General (2001) 21 FRNZ 216 (CA).
43 Re JK (1994) 12 FRNZ 14 (FC).
requires to be protected must be no less than serious physical violence.44 Judge Ellis reasoned that the new legislation was intended to redefine the circumstances under which persons may be subject to compulsory psychiatric treatment, to provide better protection for the rights of those persons and in light of the protections under the New Zealand Bill of Rights Act, the new act was not to be read as giving more extensive powers than the old one did. Later cases have not however followed him. Harm may be both physical and mental.45 Threats to emotional or psychological well-being may be a danger to health. Tritely, threats to property or reputation do not count as relevant danger.
[64] The danger must be serious. Judge Carruthers’ dictum in In the Matter of E is helpful:46
It seems to me that the word "serious" must be considered in the context of this legislation to emphasise the nature and degree of the danger which may present. "Serious" according to The Concise Oxford English Dictionary means "Important, demanding consideration, not to be trifled with, not slight". And The Shorter Oxford Dictionary refers to "weighty, important, grave ... considerable".
In Re O Judge Boshier described a "serious danger" as one which was "imminent" and "demonstrable".
In this case the contrast has to be between "serious" danger and danger without any qualifying adjective. When seen in that light "serious" danger enhances the word "danger" by requiring components of imminence, and likely consequences which will have or could have important results.
[65] A risk assessment is required. That may involve assessment on four parameters: the nature of the harm involved – property damage as opposed to personal injury; the magnitude or gravity of the harm; its imminence; and its frequency.47 There may be a balancing exercise, weighing factors that point to an absence of risk or lower risk (such as no history of violence and no history of mental illness) or mitigation of risk (such as family support available and assurance that the person will voluntarily take medication as required) against others that indicate heightened risk (such as lack of insight into condition and living alone). There is no fixed scale against which risk
44 Re M [1992] 1 NZLR 29 (HC) at 38.
45 Re IC [2001] NZFLR 895 (HC); Re RWD (1994) FRNZ 387.
46 In the Matter of E [1994] NZFLR 328 at 332.
47 Peter Skegg and Ron Paterson (eds) Health Law in New Zealand (online ed, Thomson Reuters) at 14.4.3(1).
factors can be measured. Each case will be assessed on its own facts, but the medical practitioner certifying mental disorder under s 9 must be satisfied not only of the risk to health or safety, but also that it is serious in the sense indicated in In the Matter of E.
The need for reasons
[66] The soundness of giving reasons for decision is widely recognised. In “Administrative Law” Professor Craig says:48
There are a number of advantages in the provision of reasons for decisions. First, reasons can assist the courts in performing their statutory function. Substantive review based on relevancy, propriety of purpose or proportionality is easier to apply if the agency’s reasons are evident. Second, an obligation to provide reasons will often help to ensure that other objectives of administrative law are not frustrated. If, for example, we grant consultation rights in certain areas, then a duty to furnish reasons will make it more difficult for the decision-maker merely to go through the motions of hearing interested parties without actually taking their views into account. Finally, it is arbitrary to have one’s status redefined without an adequate explanation of the reasons for the action. The provision of reasons can, by way of contrast, increase public confidence in the administrative process and enhance its legitimacy. A duty to provide reasons can, therefore, help to attain both the instrumental and non-instrumental objectives that underlie process rights.
[67] Medical practitioners giving an 8B certificate or a certificate of preliminary assessment are required to give full particulars of their reasons. The certifier under s 8B must explain in what way he or she believes that the person’s condition may come within the statutory definition of mental disorder. The certifier under s 10 must give full particulars of the reasons for their opinion of the proposed patient’s condition, that is, whether they are mentally disordered. The need to give express reasons for an opinion is an important safeguard against arbitrary decision-making. While this might seem formalistic to some, Parliament was clearly concerned to ensure accountability and transparency in decisions to detain the mentally ill and to avoid both arbitrariness and the appearance of arbitrariness.
[68] The requirement for full particulars means that the certifier cannot make bald conclusory statements. Some detail is required. The requirement for reasons means that the certifier must set out what has led him or her to come to their opinion about
48 Paul Craig Administrative Law (8th ed, Sweet & Maxwell, London, 2008) at [12-038].
the person’s condition. That may include facts, but while facts may be the basis for reasons, facts alone are not reasons. Something more is required to show why certain facts led to a conclusion. The requirement to set out full particulars of the reasons in a document means that the reader is not required to look elsewhere to find out why the certifier came to their opinion. It is not open to the certifier to say that there are other undisclosed reasons for their opinion. Nor should the reader be required to construct reasons from information given by the certifier; that would mean that the reader is providing reasons when the certifier has not. A sentence along the lines, “I believe that A has an abnormal state of mind, because … (with details provided).” is likely to inform the reader of the certifier’s reasons.
[69] Section 10 requires the certifier to give his reasons to the Director of Area Mental Health, but there is no requirement to give those reasons to the proposed patient. That does not, however, mean that the proposed patient is not entitled to know what those reasons are. They are entitled to them under s 23(1) of the New Zealand Bill of Rights Act:
23 Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—
(a)shall be informed at the time of the arrest or detention of the reason for it;
There is nothing in the Mental Health (Compulsory Assessment and Treatment) Act barring the proposed patient from being informed of the reasons. The Court of Appeal recognised this in Sestan v Director of Area Mental Health Services.49 The right to know the reasons is also consistent with a patient’s general rights to information under s 64:
General rights to information
(1)Every person, upon becoming a patient, shall receive a written statement of his or her rights as a patient.
(2)Every patient is entitled to be kept informed of his or her rights as a patient, and, in particular,—
(a)of his or her legal status as a patient;
49 Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767 (CA) at [72].
(b)of his or her right, at any time during the first period of assessment and treatment or the second period of assessment and treatment, to have his or her condition reviewed by a Judge under section; …
If rights of review under s 16 or otherwise are to be effective, the patient needs to know the reasons for their detention.
[70] As the certifiers’ duties to give recorded reasons ensure transparency in decision-making and guard against arbitrariness, their records of reasons provide the basis for assessing the reasonableness of their opinions. It is not open to the certifier to say that their belief is reasonable for reasons that they have not recorded.
The information that certifiers take into account
[71] The certifiers will use information they obtain from their examinations of the person or proposed patient. They may also take into account information given by others, such as reports of the person’s conduct. Not all information a certifier may receive may be accurate. An experienced psychiatrist will use judgment in working out what can be relied on. From the information the certifiers will need to establish what is no more than background and what can be used as facts to form an opinion. On the other hand information unknown to a certifier is irrelevant. It cannot help in establishing whether the certifier reasonably reached their opinion.
The reasonableness requirement
[72] As noted already, the reasonableness requirement is a safeguard against arbitrariness. While a belief or suspicion need not be correct, it must be reasonable. Before reasonableness can be assessed, there must be a relevant opinion as to mental disorder based on information available to the certifier and reasons given for the opinion. Any review of the merits of the opinion will need to take into account the circumstances in which the opinion was given, the quality of information available to the certifier and the room for legitimate differences of professional opinion. A court is unlikely to substitute its opinion for the certifier’s. If a competent psychiatrist could (not would) reach the same opinion, it is likely to be upheld as reasonable. Deference to psychiatrists is required because the decision is a matter of expert assessment.
The standard for review of a certifier’s opinion
[73] Accordingly, to decide whether certificates under s 8B and s 10(1) are valid, the required inquiries seem to include:
(a)Did the certifier have the required opinion (suspicion or knowledge as the case may be)?
(b)Did the certifier give reasons for that opinion?
(c)Did the certifier have information on which to base those reasons?
(d)Do the reasons support the certifier’s opinion?
[94] There was a scuffle as Mr Wright resisted efforts to handcuff him. After they warned him, the police officers pepper-sprayed Mr Wright. They took him outside and later to the Avondale police station. On the way there they told him that he was under arrest, he had the right to remain silent and to consult a lawyer. At the station, Mr Wright contacted a lawyer. Arrangements were made for a mental health team to assess Mr Wright.
[95] Mr Wright challenges the powers of the police to come into his house and arrest him. They say that they had a right of entry under s 317(2) of the Crimes Act 1961:
Any constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property, if he believes, on reasonable and probable grounds, that any such offence is about to be committed.
While the police did not expressly rely on it, Mr Wright also addressed whether the police could enter as a matter of necessity, under the test stated by Tipping J in Dehn v Attorney-General:61
A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order
(1) to preserve human life, or (2) to prevent serious physical harm arising to
61 Dehn v Attorney-General [1988] 2 NZLR 564 (HC) at 580.
the person or another, or (3) to render assistance to another after that one has suffered physical harm.
In this case, the police position is likely to be the same, whichever power is considered.
[96] It is not necessary however to consider these powers before the police entered the bedroom. Until then the police can rely on the normal implied licence to a member of the public to come on to land for any legitimate purpose.62 When they reached Mr Wright’s home, the occupants (Mrs Wright and Mr Wright’s partner) apparently agreed to or acquiesced in their entering the premises. They could assume ongoing consent. That changed when Mr Wright revoked their licence. From then they needed other powers to remain inside the house. This matter will turn on how the evidence comes out at trial. The police explanation for going into the bedroom was concern for welfare of Mr Wright’s children.63 Mrs Wright took the children out of the room as Mr Wright spoke to the police, so any threat of immediate danger to the children appears to have passed. The police will need to justify their ongoing presence from then on. Mr Wright may be able to show at trial that with the children safe there was no reason for the police to remain, he could require them to go and they had no reason to resist his requests, no matter how oddly he was behaving. In moving towards Constable Darvill with his hands at his side and not raised, he did not assault the officer.64 In that case Constable Darvill may have had no cause to touch Mr Wright,65 who in turn was entitled to push his hand aside. He has an argument that Constable Darvill was no longer acting in execution of his duty and could not have had good cause to suspect that Mr Wright had committed the offence of assault to justify an arrest under s 315(2)(b) of the Crimes Act 1961.66 He cites Coster v Police as authority that a police officer is no longer acting in execution of his duty once he or she remains
62 Robson v Hallett [1967] 2 QB 939 (CA); Dehn v Attorney-General at 572-574.
63 Mr Wright and his mother will say that, even if he was acting strangely, there was no reason to think that Mr Wright would cause serious and immediate injury to his children. In an affidavit Mrs Wright says that she told the police officers that the children were definitely not in any danger. The police say that that does not square with what she said at the time.
64 He cites Mitchell v Police (1989) 5 CRNZ 190 (HC).
65 Here Mr Wright cites Collins v Willcock [1984] 1 WLR 1172 (QB).
66(2) Any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant—
…
(b)any person whom he has good cause to suspect of having committed a breach of the peace or any offence punishable by imprisonment:
on premises after their implied licence has been revoked.67 The matter is not clear- cut. Constable Darvill may be able to justify his touching Mr Wright as self-defence or as protecting the children while they left the room.68
[97] Mr Wright says that the police did not tell him promptly and in detail of the nature and cause of the charges against him, contrary to s 24(1)(a) of the New Zealand Bill of Rights Act. The police statements refer to him having been told of the reason for his arrest, but do not say how detailed. The evidence is not enough to resolve the matter at this stage, but little seems to turn on the point. Mr Wright seems to have understood that he was being arrested for what had happened in the bedroom. He knew enough to consider that the police actions were not justified.
[98] Mr Wright says that at the police station he asked to make a written statement, but the police would not let him. There is however authority that the police are not obliged to give an arrested person the opportunity to make a statement (even though it may be desirable to do so) and the failure to do so does not result in a breach of any right under the New Zealand Bill of Rights Act.69 In response Mr Wright says that there was a breach of natural justice under s 27(1) of the New Zealand Bill of Rights Act, because by denying him the opportunity to record his side of the story, the police were trying to get the upper hand in any prosecution because they had the opportunity to make an immediate record of what had happened without giving him the same chance. The point is academic in this case because the prosecution was abandoned and Mr Wright has given a detailed account. He has not been prejudiced.
[99] Mr Wright submitted that the sergeant at the police station charged him without satisfying himself that the elements of assaulting a police officer in the execution of his duty were made out, swearing information without supporting evidence that the elements of the charge were made out, and that Constable Darvill had provided deliberately inaccurate information in a caption sheet to be used by the prosecution. I accept the submission for the police that decisions to prosecute are generally not
67 Coster v Police (1993) 10 CRNZ 54 (HC) at 59.
68 The police cited Mepstead v DPP [1966] Crim LR 111 as authority for the lawfulness of Constable Darvill touching Mr Wright.
69 Doughty v R [2012] NZHC 2377.
reviewable.70 That circumspection is required because of the distinct functions of the government and the courts in dealing with prosecution of offences. Any deficiencies in investigating suspected offences and laying charges can be left to be exposed when the charges are heard. This part of Mr Wright’s case is not seriously arguable.
[100] Mr Wright’s claims against the police for the first arrest do not raise any new questions of law. The principles seem well-established. It will be a case of how they are applied to the facts. The more significant part of his case is around the police entry into his home and his arrest. The later parts, after he was taken from his home, do not seem to raise major issues. All the same the testing of police powers to enter a private property and arrest an occupier may serve a useful purpose. That part of his case has some merit.
The second arrest
[101] Early on the morning of 25 March 2012 Mr Wright was in the café section of an inner city petrol station. The two staff on duty considered that he was a nuisance, but he disputes this. One of them called the police, but they did not ask Mr Wright to leave. A police officer who had spoken to one of the staff told Mr Wright that he had to go. He did not. They arrested him, but he says that they did not explain that he was under arrest before they laid hands on him. They manhandled him out of the petrol station and into a police car. Mr Wright had a camera with which he filmed what happened inside the petrol station. There was also CCTV coverage of what happened on the forecourt. At the police station he asked to make a statement but the police refused. They said that they did not take statements from intoxicated people. He denied that he was intoxicated and asked the police to give him an evidential breath test or equivalent to test his sobriety. They would not. He returned later in the afternoon to give a statement, but was not satisfied that the officer had made an accurate record of what he had to say. He was charged with trespass contrary to s 3 of the Trespass Act 1980 and with resisting arrest.
70 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [28]-[31]; Osborne v Worksafe New Zealand
[2017] NZCA 11, [2017] 2 NZLR 513.
[102] The charges were heard on 12 April 2012. One of the police officers was away and did not give evidence. The other police officers and one of the petrol station staff did. The District Court Judge dismissed both charges in a reserved decision. Section 3 of the Trespass Act says:
3 Trespass after warning to leave
(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
Occupier is defined:
occupier, in relation to any place or land, means any person in lawful occupation of that place or land; and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land
The judge held that the public had a general right of access to the petrol station. Mr Wright was entitled to be on the premises until his implied licence to be there was revoked. Only then would he become a trespasser. A warning to leave under s 3 would also need to be given before a failure to leave could be an offence.71 There was no evidence that either staff member on duty at the time had authority of the occupier, a company, to terminate an implied licence or to give a warning under s 3. While there was a manager, that person was not present at the time. There was no evidence that the staff on duty had managerial responsibilities.72 There was no evidence that the staff had told Mr Wright to leave. There was no evidence that anyone with the authority of the occupier had authorised the police to act on its behalf to give a warning under s 3. The judge held that the police had not proved that Mr Wright was warned to leave the petrol station by an occupier. Given her decision on the trespass charge she was not satisfied that the police officers were acting in execution of their duty and dismissed the resisting charge.
[103] The police say that the prosecution failed because one officer did not give evidence. The court directed the case to go ahead despite a police request for an adjournment. They also say that the judge erred in law and that they can uphold the
71 See also Wilcox v Police [1994] 1 NZLR 243 (HC) at 246.
72 See also Polly v Police [1985] 1 NZLR 443 (CA).
trespass charge if it is challenged in this case. I accept Mr Wright’s submission that the case did not fail because of the absence of the police officer. The other police witnesses gave evidence as to what he said and did. Even if the police establish that the cashier who gave evidence could authorise the police on behalf of the occupier to give warnings under the Trespass Act, there is still the difficulty that there was no evidence that Mr Wright’s implied licence was revoked before any warning was given.
[104] But the question in this case is whether Mr Wright can establish breaches of his rights under the New Zealand Bill of Rights Act, not whether another prosecution on those charges would succeed. As to his arrest, the police will say that under s 315(2)(b) of the Crimes Act they had reasonable cause to suspect that he had committed an imprisonable offence, trespass. Mr Wright will say that the arrest was unreasonable because the police arrested him before telling him that he had become a trespasser; the police laid hands on him before they told him that he was under arrest; the police used excessive and disproportionate force in arresting him.73 That may go to a breach of s 23(5) of the New Zealand Bill of Rights Act, the right of anyone deprived of liberty to be treated with humanity and respect for the inherent dignity of the person. If the evidence of police witnesses is accepted at trial, Mr Wright will have difficulties. Against that he can point to his success in defending the prosecution as a pointer that his case is not hopeless. His case is arguable, but not strong.
[105] Mr Wright also makes similar complaints to those he made about his arrest in 2009: the refusal to take a statement from him in the police station, the failure to record his statement accurately when he did make one, errors in laying charges without evidence to support them, failure to explain the nature and causes of the charges. Again the responses to the earlier arrest also apply here. The points are largely academic, given his success in defending the charges.
The third arrest - Bhosale
[106]Mr Wright has already sued the Police over his arrest on 1 May 2013 – the
Bhosale case. He succeeded in causes of action in tort for assault, battery and false
73 He says the four officers forced him to the ground and handcuffed him, they dragged him on his knees to the police car. They say that was because he refused to co-operate despite being asked.
imprisonment, and for breach of the New Zealand Bill of Rights Act. He received compensatory damages and an additional small sum for his claim under the New Zealand Bill of Rights Act. That was a partial success only.74 He appealed unsuccessfully.75 The Supreme Court refused his application for leave to appeal.76 He believes that there is some point in referring to the 1 May 2013 arrest in this proceeding.
[107] In my discovery and strike out decision, I said that references to the arrest on 1 May 2013 are unnecessary and can be disregarded.77 Mr Wright would not be able to claim against the police for that arrest. I said that Mr Wright accepted that the matter was res judicata.78 I thought that would be the end of the matter, but in the security for costs hearing, Mr Wright raised it again. He acknowledges that he has already obtained judgment against the Crown for that arrest, but says that it is relevant in this case as going to the cumulative impact of his treatment by the police. He does not seek any relief specifically for that arrest.
[108] Mr Wright has attached to his affidavit copies of police records, “alerts”, which describe him as “mentally disordered”, “extremely aggressive” and as having “assaulted Police throughout” in the incident of 22 November 2009. This was information police officers would have had access to in the Bhosale incident. The police did not however discover these documents in the Bhosale proceeding. He contends that these documents were highly relevant to that case because he says that the information in them is false. It meant that in his later dealings with them the police acted on tainted information. The police therefore did not make an “honest mistake” in that incident. Mr Wright also attacks police contentions that that these alerts would not have been available to the officers who dealt with him in the Bhosale incident.
[109] None of these matters however allow Mr Wright to rerun the Bhosale case in this proceeding. He has already obtained judgment, even if the findings and relief were not as extensive as he had hoped. The judgment is final and Mr Wright has
74 Wright v Bhosale [2015] NZHC 3367.
75 Wright v Bhosale [2016] NZCA 593, [2017] NZAR 203.
76 Wright v Bhosale [2017] NZSC 69.
77 Wright v Attorney-General [2017] NZHC 2865 at [49]-[50].
78 At [3].
exhausted his rights of appeal. Because that case has been decided on its merits, it cannot be relitigated, unless the judgment of 21 December 2015 is set aside. It has not been. Mr Wright has not applied to set it aside and I see no basis on which it could be.
[110] As to his argument that he has a new cause of action for the arrest, he has two difficulties. The first is the abuse of process principle in Henderson v Henderson,79 which bars relitigating a matter on the basis that something that could have been raised in the first case was not. The second is that Mr Wright withdrew his claims of breach of statutory duty and negligence against the police.80 If he had not withdrawn them, I would have struck them out as time-barred, just as I did with the same causes of action against the district health board.81
[111] In the context of the security for costs decision, he is bound to lose in relitigating the arrest of 1 May 2013. The police have a water-tight defence of res judicata. I might set security for costs for that part of his case at the full amount of costs that the police would recover against Mr Wright on that, but that is awkward. Costs are awarded on proceedings, not on causes of action or parts of causes of action and security is fixed on the same basis. If security were ordered for only part of his case, there would be a stay of that part only, but not others. Given that Mr Wright does not have the means to pay any security, there would sooner or later be an application to debar him from pursuing that matter because of his failure to provide security. Given the total lack of merit in this part of his case, there is a more direct way to deal with the matter: I strike out those parts of his third amended statement of claim which refer to the arrest of 1 May 2013.82 This does little more than formalise and restate what I ruled in my earlier decision.
79 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, as now understood in the light of Johnson v Gore Wood Co [2000] UKHL 65, [2002] 2 AC 1.
80 Wright v Attorney-General [2017] NZHC 2865 at [45].
81 Wright v Attorney-General [2017] NZHC 2865, [15]-[29].
82 Paragraphs 10, 11, 90 and 91 and the references to the arrest in paragraphs 8.3, 9 and 120.
The fourth arrest
[112] On the evening of 23 November 2013 Mr Wright was driving a car with two passengers in the inner city. At a police breath-testing stop there was an incident with police that resulted in his being arrested and charged with refusing to surrender keys under s 121(2)(c) of the Land Transport Act 1998, resisting arrest and possession of cannabis. He pleaded guilty on 20 September 2014. On 19 December 2014, he was discharged without conviction under s 106 of the Sentencing Act.
[113] The police summary of facts said that at the checkpoint he was asked to produce his licence. He said that he did not have it and an officer directed him to move his car to the side of the road for further checks. Mr Wright became agitated and said that he did not have time to stop. He began edging the car towards the police officer yelling abuse and questioning the officer’s authority to stop him. When he moved his car to the side the officer asked him to surrender his keys. He refused to do so and pushed the officer’s hand away when he tried to remove the keys. He was warned before being arrested. When told that he was under arrest, he braced himself inside the car and struggled to resist being removed from the car, shouting that he was being assaulted. He was handcuffed and removed. He refused to allow a search of his pockets and had to be put on the floor of the booze bus so that he could be searched. At the police station he was strip searched and a bag with one gram of cannabis was found. He claimed that the police had planted it. His explanation for his behaviour at the checkpoint was that the police had no authority to stop him or take his keys.
[114] For this case Mr Wright gives this account. He was breath-tested at the checkpoint and passed. He was asked to show his driver’s licence. He did not have it but gave the officer his name and the number of the licence. The officer asked him to drive to the side of the road and stop the car. Mr Wright queried this, but pulled over as requested. The officer asked for the keys. Mr Wright asked the officer for his authority to demand the keys. The officer referred to s 114 of the Land Transport Act. Mr Wright knew that the section did not give the police power to take keys. He believed that he could not be required to remain and considered driving off. The officer stood in front of the car to stop him leaving. Mr Wright braked. The officer told him to turn off the engine, which he did. The officer again asked for the keys.
Again Mr Wright queried the demand and the officer referred to s 114. The officer reached into the car to take the keys. Mr Wright put his hand in the way to stop him. The officer pulled Mr Wright’s hand away and tried to remove the keys by force. They became jammed as a result. The officer handcuffed Mr Wright’s right hand and forced him to get out of the car through the window. Another officer undid his seatbelt. Mr Wright was dragged to the booze bus, his shorts were pulled down and he was searched. He was told that he was under arrest for obstruction and refusing to surrender the keys. The police searched the car, ostensibly because they saw a knife, but Mr Wright says that it was an item of table cutlery. At the police station he was strip searched. He admits saying that the police planted the cannabis and that there was no basis saying that. He asked to make a statement but was refused. He made a naked protest. He was kept in a cold and uncomfortable cell for some hours. He was assessed by a doctor under s 8B of the Mental Health (Compulsory Assessment and Treatment) Act, who did not believe that he might be mentally disordered.
[115] The police accept that the discharge without conviction under s 106 of the Sentencing Act means that they cannot rely on s 47(1) of the Evidence Act 2006 to say Mr Wright did commit the offences with which he was charged. That is because there are no relevant convictions, as required by s 47.83 But they say that his guilty pleas are admissions by Mr Wright and they go to the statements in the summary of facts. More than that, his guilty pleas acknowledge that the police were entitled to take the keys and to arrest him when he refused. The police powers are in s 121 of the Land Transport Act:
121 Enforcement officer may immobilise vehicle, etc, in specified circumstances
(1)An enforcement officer may exercise all or any of the powers conferred by subsection (2) if he or she believes on reasonable grounds that—
…
(b)in all the circumstances, the direction or prohibition or action is necessary in the interests of that person or of any other person or of the public.
(2)The enforcement officer may—
…
83 A discharge under s 106 is treated as an acquittal – s 106(2).
(c)take possession of all ignition or other keys of the vehicle, and for that purpose require that person to deliver up immediately all such keys:
(d)take such steps as may be necessary to render the vehicle immobile or to remove it to a place where it does not constitute a traffic hazard.
…
(4)An enforcement officer may arrest without warrant a person who fails to comply with a direction given under this section or does or attempts to do any act that is for the time being forbidden under this section.
Having admitted that he refused to hand over the keys contrary to s 121(2)(c), he cannot now sensibly contend that the police power to require the keys under that provision had not arisen. If he considered that the police did not have the power, he would not have pleaded guilty to the charge. Similarly, his plea to the resisting charge acknowledges that the police had power to arrest him under s 121(4). With that he cannot allege arbitrary arrest or detention contrary to s 22 of the New Zealand Bill of Rights Act.
[116] Mr Wright alleges unlawful searches of his person and the car. In response the police say that they were entitled to search him in the booze bus under s 85 of the Search and Surveillance Act 2012. That allows rub-down searches of arrested persons. On Mr Wright’s account the search went further as his shorts were removed. Statements by police officers are silent on this aspect. The police say that the search of the car was authorised under s 28 of the Search and Surveillance Act after the knife was sighted. That allows search of a vehicle if a police officer reasonably suspects that a person travelling in the vehicle is committing an offence of possession of knives, offensive weapons or disabling substances and the vehicle contains a knife, offensive weapon or disabling substance. They say that they could search his person at the police station under ss 22 and 88 of the Search and Surveillance Act. Section 22 allows warrantless searches for drugs when an officer has reasonable grounds to believe that a person has possession of a controlled drug and to suspect that a drug offence has been committed. They had found a drug utensil when they searched Mr Wright in the booze bus. Section 88 allows warrantless searches of arrested persons where the officer has reasonable grounds to believe that the person arrested has evidential material relating to the offence for which the person was arrested. The power under
s 88 does not seem to be available because Mr Wright had not been arrested for any drug offending before the search at the station. In summary while the searches were generally authorised, there may be an issue whether the search in the booze bus went further than a rub-down search. Even if Mr Wright’s account is accepted, it is not a major breach of his right not to be subject to unreasonable search.
[117] Mr Wright also complains of the police refusal to take a statement from him, the failure to disclose the nature and cause of the charge, and the decision to charge without a prima facie basis for it. Again the responses made earlier to similar complaints apply here as well.
[118] He also complains about being detained naked in a cell, but that seems to have been self-inflicted after he refused to put his clothes on again after being strip- searched.
[119] Overall his claims for the fourth arrest seem weak. Perhaps the strongest point is that the search in the booze bus went beyond a rub-down. That aside it is hard to see an arguable case for any of his complaints about the fourth arrest.
Irresponsible litigant?
[120] Both defendants take Mr Wright to task for his conduct of the case, the police more strongly than the district health board. He began the proceeding in late 2015, shortly before the sixth anniversary of his first arrest. With both sides acting diligently, the case might have been heard in 2017. Of course I have to take some responsibility for the delay, given the time I have taken on this decision. All the same, the defendants have been reasonably prompt in complying with directions and getting on with the case. Mr Wright has not performed so well. During 2016 he did not respond to the defendants. He did not provide initial disclosure. He did not have an address for service. He did not confer with the defendants on discovery. On 17 August 2016, I directed him to make standard discovery by 10 November. He did not comply. On 9 December 2016, I directed him to make discovery by 31 March 2017. In a conference on 5 May 2017 he acknowledged the defendants’ complaints that his discovery was inadequate. I gave him until 16 June 2017 to file and serve any further
affidavit of documents, after which he would not be allowed to file and serve any further discovery. Mr Wright did not comply with directions given on 30 June 2017 for his discovery application against the defendants. I gave amended directions on 18 September 2017. In a minute of 26 January 2018, I recorded his failure to file his notice of opposition to the security for costs application on time.
[121] The defendants point out that he applied for further discovery only eight months after he received their discovery. They refer to changes in pleadings, adding time-barred causes of action, changes in his case, allegations in submissions against the defendants not set out in pleadings. They say that the way he has run the case has cost them much more than if he had done so efficiently. The police also refer to parts of the Bhosale case where Mr Wright took late steps out of time which put them to added cost and inconvenience.
[122] Mr Wright acknowledges the criticism and says that in earlier stages of this case he was less well organised, but he is now in better shape to run the case. He undertook to handle matters better from now on.
[123] Under Attorney-General v Udompun a public authority sued for breach of rights under the New Zealand Bill of Rights Act may be put to expense in defending the claim but not obtain costs on successfully resisting the claim. While that may be understandable if the case is run responsibly, it is harder to support if the plaintiff does not run their case properly, but puts the defendant to increased costs. At the same time it is necessary to bear in mind that many bill of rights plaintiffs will find it difficult to bring a claim. The law is complex. Changes in pleadings may be made with reconsideration of the case. Because Baigent awards are so modest, engaging a lawyer is unlikely to be cost effective. There is uncertainty whether legal aid would be available when the litigant wishes to pursue what might be seen as no more than a “point of principle”. Unless the litigant can persuade a lawyer to do the case on a pro bono basis, they may do the case themselves, just as Mr Wright has. Most litigants in person are not able to run their cases as competently as lawyers. This means that when considering claims of irresponsible conduct it is important not to set the bar too high, lest security, a barrier to access to the court, is imposed too readily. That would undermine what the Court of Appeal intended in Attorney-General v Udompun.
[124] Even allowing for those considerations, I find that Mr Wright has put the defendants to much more effort and expense than is reasonable for a self-represented Bill of Rights claimant pursuing their case diligently. As a lawyer, he is aware of the required standards for litigation in this court. Given the way he has run the case, it is likely that if he fails at trial the judge may not follow Attorney-General v Udompun but may order him to pay costs because of the increased expense he has caused the defendants.
The balancing question
[125] That does not mean that security for costs should be ordered automatically. Instead the matter is considered on the normal discretionary basis of weighing Mr Wright’s access to the court against the defendants’ interest in being paid costs if they succeed. The choice is stark. Because Mr Wright has no means to pay any costs orders, any security ordered with a stay will stop his case being heard. On the other hand, refusing security will mean that the defendants will be completely out of pocket even if they succeed at trial.
[126] Mr Wright’s case against the district health board has some merit and it should be heard, even if he may fail. His case raises a significant issue as to the duty to give reasons when decisions are made to detain and subject people to compulsory assessment and treatment. As far as I am aware, there is no case directly on point, even though there are decisions on other aspects of the Mental Health (Compulsory Assessment and Treatment) Act. There is likely to be a public benefit in having the question decided. In my view that consideration outweighs the district health board’s interest in having security for costs. It would therefore be wrong to require Mr Wright to put up security for the board. Its application fails.
[127] Mr Wright has arguable cases against the police for the first two arrests. His case is weaker in challenging police actions after each arrest. There is a benefit in testing the exercise of police powers of arrest to ensure appropriate accountability. The circumstances of the second arrest suggest that some of the police might benefit from a greater understanding of how to enforce the Trespass Act. The factors in his favour on these arrests are not as strong as that counting for his claim against the
district health board. All the same, his interest in contesting the actions of the police carries more weight than their interest in his paying costs if he loses.
[128] It is otherwise with the fourth arrest. The police have been vindicated in arresting and charging Mr Wright. While he makes a range of complaints against the police, the main arguable point is that a personal search went beyond an ordinary rub- down. Pursuing that point is not worthwhile. It is not so important that it counts ahead of the police having security to cover their costs. He should provide security for the fourth arrest, even if it means that that will force him to drop that claim.
Security for the fourth arrest
[129] On the third arrest I commented on the awkwardness of providing security for part of a case. But I propose that here to allow Mr Wright to continue his claims for the first and second arrests, while setting security for costs on the fourth arrest. That can be achieved by directing that Mr Wright will not be able to continue his claim on the fourth arrest and give evidence and submissions on it unless he gives security. The time for him to give security should be the close of pleadings date at the latest. That way the police will know whether to prepare evidence on the arrest. In the meantime, the police will not be required to deal with any interlocutory matters dealing with the fourth arrest until security is provided.
[130] Any costs awarded are likely to be for increased costs arising from Mr Wright’s conduct of the case on the fourth arrest, on the basis that Attorney-General v Udompun will not apply. Security is not required for other parts of his case against the police. I fix the security at $7,500. That is not intended to give a complete indemnity. It is an amount that Mr Wright might be able to raise if he is serious about his case on the fourth arrest.
Other matters
[131] At the end of the hearing I said that I expected that I would need time to consider my decision. I did not anticipate that I would take as long as I have. That
must have concerned the parties. I apologise for the inconvenience they must have suffered from the delay.
[132] I have addressed Mr Wright’s challenges to particular parts of the defendants’ evidence. He submitted generally against my reading the defendants’ records and reports where they were hearsay. In a security for costs application, the court obtains an impression of each side’s case, but does not require full chapter and verse. Some economy in presenting evidence is desirable. The rules recognise this.84 It was acceptable for the defendants to have one deponent make an affidavit attaching that party’s record, even though many documents were hearsay reports.
[133] I set out provisional views on costs, but invite submissions. Mr Wright cannot obtain any order for costs against the district health board except disbursements, as he does not have legal representation. At the same time his success might be recognised by giving him a credit against any future costs orders that might be made against him. Mr Wright and the police have had divided success. Should costs lie where they fall?
[134] As this case started before 1 March 2017, the remedy for challenging this decision is an application for review.85 The normal time for applying for review is five working days after judgment is given. All parties are likely to require longer time to consider the decision and decide whether to seek a review. Accordingly I have extended the time to apply for review.
Outcome
[135]I make these orders:
(a)The district health board’s security for costs application is dismissed;
(b)The references in the third amended statement of claim to the third arrest are struck out;
84 High Court Rules 2016, r 7.30.
85 Senior Courts Act 2016, Schedule 5, cl 11(3)(b).
(c)Mr Wright is not required to give security for costs for his claims against the police for the first and second arrests;
(d)By the close of pleadings date, Mr Wright is to provide security for costs for his claim against the police for the fourth arrest in the sum of
$7,500. If he does not provide that security by then, he may not give evidence about the fourth arrest or pursue that arrest at the hearing. In the meantime, the police are not required to deal with any interlocutory matters about the fourth arrest until security is provided;
(e)I invite the parties to file memoranda as to costs and to address the matters in [132] above;
(f)The time for applying for review of this decision is extended to 15 working days after delivery of the judgment; and
(g)The Registrar is to allocate a face-to-face conference for further directions.
……………………………….
Associate Judge R M Bell
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