Y v Counties Manukau District Health Board
[2018] NZHC 1195
•25 May 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV- 2018-404-958
[2018] NZHC 1195
BETWEEN Y
Applicant
AND
COUNTIES MANUKAU DISTRICT HEALTH BOARD
Respondent
Hearing: 25 May 2018 Appearances:
Applicant in person
M Hardy for Respondent
P F Gruar (counsel appointed to assist the Court)Judgment:
25 May 2018
JUDGMENT OF LANG J
[on application for writ of habeas corpus]
This judgment was delivered by me on 25 May 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Y v COUNTIES MANUKAU DISTRICT HEALTH BOARD [2018] NZHC 1195 [25 May 2018]
Background
[1] Mr Y is currently residing in Tiaho Mai, the adult in-patient mental health unit administered by the Counties Manukau Health Board (the Board).
[2] Mr Y has applied for an order that he be released from the unit. He seeks to do so using the summary procedure preserved by the Habeas Corpus Act 2001 (the Act). As a result, the Court is required to determine the application in priority to its other business.1
[3] Mr Y’s application was received in the form of an email message on 21 May 2018. The Act requires applications to be made by originating application.2 I treat Mr Y’s email message as being an application under the Act even though it does not meet the formal requirements of the Act and the High Court Rules 2016.
[4] Following receipt of the application, I arranged for Mr Gruar to be appointed as counsel to assist the Court. His role was to consider and make submissions on the material filed by the Board in opposition to the application. I left it to Mr Gruar to determine whether he should speak to Mr Y and/or whether he should arrange for Mr Y to be present at the hearing of the application. As matters transpired, Mr Gruar spoke to Mr Y prior to the hearing. In a memorandum filed before the hearing he advised me that Mr Y wished to be present at the hearing. Arrangements were therefore made to bring Mr Y to Court to attend the hearing.
The events preceding 21 May 2018
[5] In order to understand Mr Y’s current status it is necessary to set out the events that led to Mr Y filing the present application.
[6] The circumstances in which Mr Y came to be a resident in the Tiaho Mai Unit are set out in an affidavit filed by Dr Clyde Bensemann, the Acting Director of Area Mental Health Services for the Counties Manukau region. He confirms that on 1 May 2018 Mr Y’s mother applied for her son to be assessed under s 8A of the Mental Health
1 Habeas Corpus Act 2001, s 9(1).
2 Habeas Corpus Act 2001, s 7(1).
(Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act). Mr Y’s mother made that application because of concerns she held regarding her son’s mental health.
[7] Following receipt of the application Dr Jindal, a health practitioner under the Mental Health Act, issued a certificate on 2 May 2018 under s 8B of that Act. This certified that Dr Jindal considered there were reasonable grounds for believing Mr Y was mentally disordered. A notice dated 2 May 2018 was then served on Mr Y under s 9 of the Mental Health Act. This required him to undergo an assessment examination at the Tiaho Mai unit on 2 May 2018. Following that examination Dr Pigitala, a consultant psychiatrist, prepared a clinical report for the Director of Area Mental Health Services (the Director) setting out his reasons for concluding that Mr Y was mentally disordered. He also issued a Certificate of Preliminary Assessment under s 10(1) of the Mental Health Act.
[8] Dr Bensemann deposes that Mr Y was then detained between 2 and 7 May 2018 under a notice issued pursuant to s 11 of the Mental Health Act. This required Mr Y to undergo a five-day period of assessment and treatment as an in-patient.
[9] On 7 May 2018, Dr Jannes Bornman, Mr Y’s responsible clinician, prepared a Certificate of further Assessment under s 12(1) of the Mental Health Act. He also prepared a further clinical report for the Director under s 12(2)(b) of that Act. On the same date he served on Mr Y a notice under s 13(1) of the Mental Health Act. This required Mr Y to undergo a further 14-day period of assessment and treatment as an in-patient at Tiaho Mai. The 14-day period ended on 21 May 2018.
[10] In the meantime, Mr Y had applied on 2 May 2018 under s 11(7) of the Mental Health Act for review of his detention by a District Court Judge. A Judge heard that application on 8 May 2018 and decided Mr Y was not fit to be released from compulsory status.
[11] On 21 May 2018, Dr Bornman applied for Mr Y to be subject to a compulsory treatment order under s 14(4) of the Mental Health Act. On the same date, Dr Bornman issued Mr Y with a notice under s 14A(3)(c) of the Mental Health Act requiring him
to attend Court for the hearing of that application. Dr Bornman also completed a Certificate of Final Assessment under s 14(1) of the Mental Health Act. This recorded that in Dr Bornman’s opinion Mr Y was not fit to be released from compulsory status. The certificate was accompanied by a clinical report setting out the reasons for Dr Bornman’s opinion. In short, Dr Bornman considers Mr Y’s abnormal state of mind currently poses a serious danger to the health and safety of both himself and others. It also seriously diminishes Mr Y’s capacity to take care of himself.
The present position
[12] The application for a compulsory treatment order will be heard by a District Court Judge on 29 May 2018. Mr Y will be represented by counsel at that hearing and he will have the ability to call and cross-examine witnesses. Mr Gruar has advised Mr Y that this hearing provides him with an opportunity to persuade the Judge he should be released from the Tiaho Mai unit.
[13] Mr Y’s principal motivation in bringing the present proceeding has been to challenge the notion that he may be suffering from a mental disorder. The habeas corpus procedure is not, however, an appropriate means by which to determine that issue. Rather, it needs to be determined at the hearing to be held on 29 May 2018. This Court can only concern itself with the legality of Mr Y’s current detention. This requires the Court to determine whether Mr Y is currently being lawfully detained in accordance with the provisions of the Mental Health Act.
[14] Once Dr Bornman applied for a compulsory treatment order on 21 May 2018 Mr Y’s status was governed by s 15(1) of the Mental Health Act, which provides as follows:
15. Status of patient pending determination of application
(1)Where the responsible clinician applies to the Court for the making of a compulsory treatment order, the patient shall remain liable to assessment and treatment in accordance with the terms of the notice given under subsection (1) of section 13 and the succeeding provisions of that section until the expiry of a period of 14 days after the date on which the second period of assessment and treatment would otherwise have expired.
…
[15] The effect of s 15(1) is that Mr Y presently remains liable to assessment and treatment in accordance with the notice issued under s 13 on 7 May 2018. Section 15(1) extends the effect of that notice for a further 14 days after its original expiry date of 21 May 2018. Mr Y will therefore remain subject to the requirements of the notice until 4 June 2018. Section 15(2) permits a Judge to extend that period for up to one month if the application for a compulsory treatment order has not been determined by 4 June.
[16] The factual position is therefore identical to that in A v Auckland District Health Board, in which the applicant also sought a writ of habeas corpus whilst being detained under s 15(1) pending determination of an application for a compulsory treatment order.3 Venning J held that the applicant’s detention was lawful, and that the appropriate process for the review of his current mental state was the hearing to determine the application for a compulsory treatment order.4
[17]It follows that Mr Y is currently lawfully detained at the Tiaho Mai Unit.
Result
[18]The application for a writ of habeas corpus is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland
P F Gruar, Barrister, Auckland Copy to: Applicant
3 A v Auckland District Health Board [2014] NZHC 2619.
4 A v Auckland District Health Board, above n 3, at [24]-[25].
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