Z v Health New Zealand

[2024] NZHC 3271

NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992, ANY REPORT OF THIS

PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-618

[2024] NZHC 3271

UNDER

the Mental Health (Compulsory Assessment and Treatment) Act 1992

IN THE MATTER OF

an application under s 84

BETWEEN

Z

Applicant

AND

HEALTH NEW ZEALAND

Respondent

Hearing:	24 October 2024
Appearances:	J P McGilvary and R Keenan for Applicant G F Weir for Respondent
Judgment:	6 November 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 6 November 2024 at 11 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Liberty Law, Auckland Dentons, Auckland

Z v HEALTH NEW ZEALAND [2024] NZHC 3271 [6 November 2024]

[1]    This is an application seeking an order under s 84(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA), namely that a Judge conduct an examination in open court or in chambers of a person who is detained as a patient in hospital.

[2]    The applicant was detained as an inpatient at the Auckland Regional Forensic Psychiatry Service’s Mason Clinic pursuant to a compulsory treatment order (CTO) made on 10 May 2024 by the Family Court under s 30 of the MHA.1

Section 84 — Examination by a Judge

[3]    The question for determination in an examination by a Judge is whether the person is:2

(a)detained illegally in the hospital as a patient; or

(b)fit to be discharged from the hospital.

[4]    The potential outcomes are set out in s 84(3) of the MHA. If the person is detained illegally or fit to be discharged from hospital, then the Judge must “order that the person be discharged from the hospital forthwith”. If not, then no such order is made.

[5]    In addition, the Judge may report his or her opinion to the Minister, with such comments and recommendations as the Judge thinks fit.3

[6]    Section 84(3) refers to the examination process as potentially including “the evidence of any medical or other witness”. Under s 84(7), for the purposes of any examination under s 84(2), the Judge has the power to:

1      This was the position before me at the hearing. I was advised the direction made on 10 May 2024 would expire on 2 November 2024, but an extension would be sought ahead of its expiry.

2      Mental Health (Compulsory Assessment and Treatment) Act 1992 [MHA], s 84(3)(a)–(b).

3      Section 84(8).

(a)summon any medical or other witnesses to testify on oath in respect of any matter involved in the examination, and to produce any relevant documents; and

(b)call for any report on the person’s condition by the Review Tribunal.

[7]    In Re M,4 Greig J made the following observations concerning s 74 of the Mental Health Act 1969, the predecessor to s 84:

The purpose of s 74 is to provide additional protection and an additional safeguard to those who may be detained or kept in a mental hospital. It is an important supervisory function of the Court and is a statutory expression of the inherent jurisdiction of the High Court to maintain a protective and supervisory function over those who are under a disability. It partakes to some extent of the application of the jurisdiction in habeas corpus but is more a part of that inherent protective jurisdiction of the Court over such members of the community as infants and the insane. In this sense then the jurisdiction is an important one to be exercised with a careful scrutiny in the protection and welfare of the person who is detained.

Compulsory Treatment Orders

[8]    To  assess whether it is appropriate to conduct a judicial examination under    s 84(2), it is necessary to consider the statutory framework governing how a person may lawfully be detained in hospital as a patient.

[9]    CTOs are governed by pt 2 of the MHA. A CTO is made if the Family Court determines that the patient is mentally disordered and, having regard to all the circumstances, it is necessary to make the order.5 CTOs remain in force for six months, but the patient must be released immediately if they are fit for release from compulsory status at any time.6 The responsible clinician may apply to the Family Court to extend a CTO if satisfied that the patient is not fit to be released from compulsory status.7

4      Re M HC Wellington M716/85, 21 April 1986 at [15].

5      MHA, s 27.

6      Sections 34 and 35(1).

7      Section 34.

[10]Mental disorder is defined as:8

… 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;—

…

[11]   Every CTO  is either a community treatment order or an inpatient order.      A community treatment order requires the patient to attend at the patient’s place of residence, or at some other place specified in the order, for treatment.9 CTOs must be community treatment orders unless “the court considers that the patient cannot be treated adequately as an outpatient”.10

[12]   An inpatient’s responsible clinician may grant them leave of absence from the hospital for a period of up to three months on such terms and conditions as the clinician thinks fit. A patient granted leave under s 31 continues to be an inpatient for the purposes of the MHA, and their leave is subject to such terms and conditions as their responsible clinician thinks fit. Therefore, such leave may be cancelled by the responsible clinician.11

[13]   Finally, pt 7 of the MHA provides for regular clinical reviews of patients subject to CTOs,12 and reviews by the Mental Health Review Tribunal,13 from which there is a right of appeal to the District Court.14

8      Section 2.

9      Section 29(1).

10     Section 28(2).

11     Section 31.

12     Section 76.

13     Section 79 and the s 2 definition of “court”.

14     Section 83.

Factual background

[14]   The applicant has a long history of engagement with mental health services, including periods of compulsory treatment (both as an inpatient and in the community).

[15]   His criminal history includes a conviction in 2011 for unlawful sexual connection with a female aged 12 to 16 years, for which he was sentenced to eight years’ imprisonment. Upon release he was subject to an extended supervision order, which expired in March 2023.

[16]   In January 2024, the applicant was an inpatient at the Mason Clinic. He was granted three months’ leave pursuant to s 31 of the MHA but was recalled four days later as a result of breaching his leave conditions. As I return to below, his grievances about the factual basis for this recall seems to be at the core of the applicant’s present application.

[17]   The applicant currently meets with a psychiatrist weekly. His last formal psychiatric review for the purposes of an application to extend his detention under the MHA was completed on 1 May 2024. He was assessed as continuing to be mentally disordered and posing a serious danger to the health and safety of himself and others.

[18]   The applicant’s detention under the MHA was extended by the Family Court on 10 May 2024 for a further period of six months, expiring on 2 November 2024.

(a)At the hearing, the Judge examined the applicant in person. The hearing was also attended by Dr Ryan (one of his clinicians) and a nurse.

(b)The Judge noted that the applicant opposed any CTO, and he did not accept he had a mental disorder, or that he required any medication.

(c)The Judge noted the severity of the concerns that had resulted in the extended supervision order. Although those orders had expired, that background made it critical to have a very good safety plan for rehabilitation, for the applicant’s own sake.

(d)The Judge’s assessment was that a community treatment order was premature, given that there was not yet a plan that would be safe enough for him and others. The Judge therefore made an inpatient order.

[19]   Dr Rishi Duggal is a forensic psychiatrist and now the responsible physician for the applicant. On 29 August 2024, Dr Duggal determined that the applicant should be granted a further leave of absence from the hospital under s 31 for an initial period of three months. The terms of the leave require the applicant to be discharged to suitable accommodation and attend the Mason Clinic fortnightly for the administration of his medication. Despite ongoing efforts, the leave has not yet commenced because suitable accommodation has not been secured.

High Court procedures

[20]   This proceeding was commenced in March 2024 when the applicant filed a handwritten letter.

[21]   After  the  respondent  was  joined  and  further  information  obtained,  on  31 May 2024, Whata J directed the respondent to facilitate a meeting between the applicant and a District Inspector (DI) to discuss the matters set out in the application and directed the DI to prepare a report.

[22]   In June 2024, DI Rosemary Thomson met with the applicant and initially filed two reports:

(a)In her first report dated 1 July 2024, the DI advised the Court that:

(i)the purpose of the applicant’s s 84 application is to obtain discharge from inpatient status, not discharge from compulsory treatment; and

(ii)the applicant does not wish to challenge his compulsory status by way of review by the Mental Health Review Tribunal at this time.

(b)In her second report dated 9 July 2024, the DI advised the Court that:

(i)the applicant has self-diagnosed that he is currently fit to be discharged from hospital and has no medical or other witnesses to support his application; and

(ii)planning was underway by the responsible clinician towards the applicant being discharged to treatment in the community.

[23]   On 15 July 2024, Blanchard J made an order under s 84(1) directing the DI to inquire into and report on whether the applicant:

(a)is being detained illegally in hospital as a patient;

(b)is fit to be discharged from hospital; and

(c)is a special patient15 or is legally detained for some other cause.

[24]On 5 August 2024, the DI filed her third report in which she:

(a)relayed an update from Dr Duggal regarding steps being taken towards the applicant being transitioned to community treatment; and

(b)confirmed that the applicant was seeking immediate discharge, but he was happy to await the outcome of an upcoming complex case review on 29 August 2024.

15 “Special patient” is defined in s 2 of the MHA as someone detained in hospital under ss 24(22)(a), 38(2)(c) or 44(1) of the MHA or under s 169 of the Criminal Procedure Act 2011; or a person remanded to, held or liable to be detained in hospital under various other statutory provisions that are listed.

[25]   An affidavit from Dr Duggal dated 5 August 2024 was also filed and served at the same time. Dr Duggal’s affidavit sets out his view that the applicant continues to be mentally disordered. The applicant has a diagnosis of bipolar disorder, antisocial personality traits and querulous paranoia. Dr Duggal’s opinion is that the applicant is detained legally under a CTO (he is not a special patient or detained for some other cause), and that he is not presently fit for discharge from inpatient status or release from compulsory status. He also exhibits earlier reports with the same conclusions from Dr Goodwin dated 7 December 2023 and from Dr Ryan dated 1 May 2024.

[26]   This proceeding was adjourned at the request of the parties to allow for the complex case review to occur on 29 August 2024.

[27]   Subsequently, on 19 September 2024 this matter was set down for the hearing that took place on 24 October 2024, to determine whether to conduct an examination under s 84(2).

Scope of outcomes

[28]   For making that assessment, a preliminary issue is the nature of outcomes available following an examination under s 84(2) of the MHA. There is some uncertainty about that, as a matter of statutory interpretation.

[29]   The respondent’s position is that the power to order a “discharge” under s 84(3) only enables continuing the status quo, or the release of a patient from compulsory status altogether. It does not allow the Court to order something between the two, such as determining that the person may be discharged from hospital but should remain subject to a CTO, either on conditional leave under s 31, or receiving community treatment under s 30(2).

[30]That position is based on the following analysis:

(a)The predecessor of s 84 was s 74 of the Mental Health Act 1969, and the wording is very similar. Under the 1969 Act, “discharge from hospital” meant full discharge from compulsory treatment (because there was no such thing as a CTO). In other words, prior to 1992 the

remedy of “discharge from hospital” following an examination by a High Court Judge was an order for what is now called “release from compulsory status”.

(b)There is nothing in the legislative history to suggest that Parliament intended to broaden the scope of s 84 under the 1992 legislation.

(c)An order under s 84(3) must be made if the person is “fit” for discharge. Fitness for release16 is the criteria for release from compulsory status used throughout the MHA. For example, s 11(6) provides as follows:

If, at any time during the first period, the responsible clinician considers that a patient is fit to be released from compulsory status, the clinician must give a written notice to the patient and, if necessary, to the person in charge of the hospital directing that the patient be released from that status immediately.

(d)In contrast, the criteria for a decision by the responsible clinician under s 30(2) (that is, to convert to a community treatment order) is not “fitness” for release/discharge, but rather whether the patient can continue to be “treated adequately as an outpatient”.

(e)Like the habeas corpus jurisdiction, s 84 is designed to provide protection is against illegal detention, not against treatment decisions.

(i)In JE v Capital & Coast District Health Board, Miller J concluded at s 84(3) conferred on the Judge “no power to direct that the treatment of a patient who is not fit to be discharged must be varied”.17

16     This contrasts with “fit to be granted leave of absence from the hospital”, as referred to in s 11(5).

17     JE v Capital & Coast District Health Board HC Wellington CIV-2009-485-1106, 19 June 2009 at [49].

(ii)In S v Capital & Coast District Health Board,18 Mallon J observed:

[12]    The s 84(2) power is supervisory and operates as an additional protection and safeguard for those who are detained under a compulsory care order. For it to be appropriate to exercise this supervisory power I consider that there would need to be something which raises a concern about the appropriateness of the more usual course, that of review by the Tribunal (and, potentially, appeal to the District Court).

[13]    Having carefully reviewed the file, I have concluded that there is no basis for thinking that the more usual procedure will not appropriately protect and safeguard S’s rights. The District Inspector raised whether S may have improved sufficiently. Dr Spencer [the responsible clinician] has responded with his views about this. The reasons why S disagrees with that can be considered by the Tribunal.

(f)Decisions under s 30(2) to convert a CTO to a community treatment order and decisions under s 31 to grant (or cancel) leave (including the terms and conditions of the leave) are decisions regarding treatment, specifically whether treatment is to be provided on an inpatient or outpatient basis. Treatment decisions are susceptible to judicial review but are not able to be challenged by way of an s 84 application.

[31]   When read in the above historical and current statutory context and in light of its purpose, I accept that the respondent’s interpretation is correct. Section 84(3) only enables a Judge to order the release of a patient from compulsory status. It is a binary decision as to whether the patient is entitled to full release, or not.

Exercise of discretion

[32]   Accordingly, I do not consider that s 84(2) is an appropriate procedure to use on the facts of this case.

18     S v Capital & Coast District Health Board [2012] NZHC 1962, [2012] NZFLR 816.

[33]   The evidence before the Court from the medical practitioners is that the applicant is legally detained in hospital and is not fit for discharge from hospital or release from compulsory status. There is no medical evidence before the Court to the contrary (the applicant relies on “self-diagnosis”).

[34]   Although the applicant asserts that he is fit for discharge, he has advised the DI that he does not currently wish to challenge his CTO status through the Mental Health Review Tribunal. On the evidence I have reviewed in this proceeding, there is nothing which raises a concern about the appropriateness of that more usual course, if and when the applicant wishes to challenge his CTO status.19

[35]   His clinical team remains focused on enabling the applicant to be released on leave to live in the community subject to conditions (under s 31). This planning must be undertaken carefully, based on their assessment of the potential risk he poses to himself and others once in the community. There is nothing in this case about the applicant’s continued detention to raise concerns about illegality, or the appropriateness of the usual processes under the MHA being followed in respect of his treatment and his potential transition back into the community under either s 30(2) or s 31.

[36]   Counsel for the applicant explained that his client wants this Court to conduct a factual inquiry, with rules of evidence applied, as to the basis for the clinical team maintaining that he poses a “serious danger to the health and safety [of himself or others]”, being part of the definition of “mental disorder”, and why a CTO is considered necessary. As I understand it, the facts he wishes to be examined are primarily the grounds for recalling him on 18 January 2024 from s 31 leave. Those reasons are listed in the report from the Complex Care Review dated 29 February 2024, and in the Clinical Report dated 1 May 2024 considered by Judge Parsons when she made her CTO order on 10 May 2024. For example, the applicant wants to be able to test conventionally admissible proof20 (that is, direct witness evidence subject

19 At [12]–[13], quoted in [30](e)(ii) above.

20 A more flexible approach to admissibility is permitted under s 22 of the MHA, which says that in any proceedings on an application for a compulsory treatment order, whether by way of hearing in the first instance or by way of appeal or otherwise, the court may receive any evidence that it thinks fit, whether it is otherwise admissible in a court of law or not.

to cross-examination) that he offered lifts to people outside the City Mission, and about him abruptly leaving before the required post-injection waiting period following intramuscular injections of his prescribed medication (he admits the latter occurred but seeks to justify it). The applicant seems focused on whether the risk has already manifested in actual danger or criminal conduct, rather than whether he has an ongoing mental disorder posing risks that should be managed.

[37]   In any event, the matters raised by the applicant do not support the view that he is either detained illegally or fit for full release/discharge. To the extent that the applicant is dissatisfied with the process for or decisions about leave under s 31 (earlier leave being cancelled, the difficulty of achieving the conditions for resuming leave, or delay), that amounts to a challenge to a treatment decision. It is not a matter for assessment through s 84(2).

[38]   For the above reasons, I decline to exercise the Court’s discretion to conduct an examination under s 84(2).

Result

[39]Application declined.

O’Gorman J