B V AUCKLAND DISTRICT HEALTH BOARD CA849/2010

B V AUCKLAND DISTRICT HEALTH BOARD CA849/2010 20 December 2010PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT IS PERMANENTLY PROHIBITED. IN THE COURT OF APPEAL OF NEW ZEALAND CA849/2010 [2010] NZCA 632BETWEEN B Appellant AND AUCKLAND DISTRICT HEALTH BOARD Respondent Hearing: 20 December 2010 Court: Randerson, Harrison and Stevens JJ Counsel: B O'Callahan and A Bali for Appellant A M Adams and Z R Johnston for Respondent Judgment: 20 December 2010 at 5.00 pmJUDGMENT OF THE COURT A The appeal is dismissed. B Costs are reserved. Memoranda may be filed in terms of paragraph [24] hereof. C Publication of the name or identifying particulars of the Appellant is permanently prohibited.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] The appellant, Ms B, appeals against a judgment delivered by Ellis J in the High Court at Auckland on 15 December 20101 dismissing her application for habeas corpus. Ms B had contended that she was unlawfully detained by the Auckland District Health Board under the Mental Health (Compulsory Treatment and Assessment) Act 1992 (the Act). [2] The focus of the application before the High Court was that Ms B's initial detention under s 10 of the Act was unlawful because there was no factual basis upon which the relevant clinician could have had reasonable grounds to believe that she was "mentally disordered", 2 an essential foundation for a certificate of preliminary assessment under s 10 of the Act. [3] A certificate under s 10 is the first step in a staged process under Part 1 of the Act enabling the compulsory assessment and treatment of a patient within strictly limited timeframes. Depending on the result of this process, the patient may be found to be fit for release from compulsory treatment status or an application may be made for a compulsory treatment order under Part 2 of the Act. [4] The appeal was brought on for hearing at short notice for two reasons. First, an application under the Habeas Corpus Act 2001 must be given precedence over all other matters before the Court. 3 Secondly, an application has been made under s 14 of the Act for the making of a compulsory treatment order under Part 2 of the Act. That application is to be heard in the District Court tomorrow.Brief background facts[5] Ms B is 22 years of age. On 9 November 2010, one of her relatives applied for an assessment under s 8A of the Act on the ground that it was believed she was1 B v Auckland Area Health Board CIV-2010-404-7978, 15 December 2010.2 As defined in s 2 of the Mental Health (Compulsory Treatment and Assessment) Act 1992.3 Section 17(1) of the Habeas Corpus Act 2001.suffering from a mental disorder. On the same day, a consulting psychiatrist issued a certificate under s 8B of the Act supporting the application for assessment. [6] The following day, 10 November 2010, Dr Marcos Melese assessed Ms B and issued the certificate of preliminary assessment under s 10 of the Act. This stated there were reasonable grounds to believe Ms B was mentally disordered and that it was desirable that she be required to undergo further assessment and treatment. Under s 11 of the Act Ms B was admitted to and detained in Te Whetu Tawera, a mental health facility attached to Auckland Hospital. The purpose of her detention under that section was to enable her further assessment and treatment for "the first period" under the Act, a period of five days. [7] The clinical report associated with the certificate under s 10 was relatively brief. It described Ms B's mental state and family history of schizophrenia and went on to state that there was evidence of diminished capacity of care as she "has not been eating properly, not attending University and not socialising". We do not have before us the full material which was before the High Court but we were informed that there was some additional affidavit evidence from Dr Melese supporting the basis on which he issued the certificate under s 10. [8] After the initial five day period, Ms B's responsible clinician, Dr John Anderson, assessed her and completed a certificate under s 12 of the Act, stating there were reasonable grounds to believe she was mentally disordered and it was desirable that she be required to undergo further assessment and treatment. On the same day, Dr Anderson required that Ms B undergo a further 14 day period of assessment and treatment under s 13 of the Act. [9] On 29 November 2010, Dr Anderson completed a certificate of final assessment under s 14(1)(b) and issued a certificate under that section stating that, in his opinion, Ms B was not fit to be released from compulsory status. As he was obliged to do under s 14(4), Dr Anderson then applied for a compulsory treatment order under Part 2 of the Act.[10] The application for a writ of habeas corpus was not sought until 3 December 2010, more than three weeks after Ms B was initially detained on 10 November and after three successive assessments of whether she was fit to be released. During that time, Ms B generally declined to co-operate with those responsible for her care and, although District Inspectors lodged two applications on her behalf during that period for a review of her condition by a Judge under s 16 of the Act, those applications were withdrawn on Ms B's instructions.The Judge's decision[11] After a full day's hearing in the High Court, Ellis J issued a careful and thoughtful decision declining Ms B's application. She accepted a submission made by the respondent Board that the focus of her inquiry should be on the basis for Ms B's detention at the time of the High Court hearing which, at that stage, was pursuant to the certificate under s 14 of the Act. In response to Mr O'Callahan's submission that the validity of Ms B's detention depended upon the earlier certificates issued (and, in particular, the validity of the s 10 certificate) the Judge said: 4... I accept that any scrutiny of the basis upon which B is presently detained may require consideration of any earlier detention decision(s), particularly if, as a matter of fact or law, those decisions formed any kind of platform for the later one.[12] The Judge went on to say that assessment under Part 1 of the Act is a staged process and that, at each point in that process, there is an inquiry as to whether the subject person is, or remains, mentally disordered and of the desirability of compulsory assessment and/or treatment. [13] The Judge also noted that a patient may apply for review by a Judge under s 16 of the Act and the wide-ranging inquiry which the High Court could undertake under s 84 of the Act upon the application of a patient or on the application of any other person or on a High Court Judge's own motion.4 At [10].[14] The Judge then reviewed the evidence placed before her in the form of the certificates and associated reports prescribed by the Act as well as additional affidavit evidence. The Judge noted the observations of this Court in Sestan v Director of Area Mental Health Services, Waitemata District Health Board5 to the effect that the remedy of habeas corpus will not normally be an appropriate remedy where it is sought to challenge whether a person is mentally disordered. She went on to define the issue as "whether there are real rather than theoretical, exceptions to the general rule here expressed. And, if so, is this case one of those exceptions?"6[15] The Judge concluded there might well be a role for habeas corpus in cases where issue was taken with the existence or otherwise of mental disorder at the early stages of the compulsory assessment and treatment process, prior to the determination of an application for a compulsory treatment order. However, the Judge saw this as presenting real difficulties for the Court on a habeas corpus application. It would be required to make factual inquiries (including consideration of expert evidence) into the existence of mental disorder in proceedings which were essentially summary in nature. Summarising the position, the Judge said:[41] For all the above reasons it would need, in my view, to be a very clear-cut case (akin perhaps to a case involving Wednesburyunreasonableness) before the habeas corpus jurisdiction could properly be utilised where the existence of mental disorder is in dispute, even in cases brought at an early stage in the MHA process. What this means, I think, is that exceptions to the presumption against habeas corpus in the MHA context will arise only where fundamental issue is taken with the basis upon which the compulsory assessment and treatment process has been initiatedand where it is alleged that the undisputed facts do not on their face disclose any reasonable grounds for concluding that the patient may be mentally disordered.[16] Having reviewed the evidence, the Judge concluded that it could not be said there were no reasonable grounds for believing that Ms B had a seriously diminished capacity for self care at the time the s 14 finding was made. On that footing, the application for habeas corpus was dismissed.5 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 at [91].6 At [32].The issues on appeal[17] The principal submission advanced by Mr O'Callahan on appeal was that the Judge erred in failing to determine whether the s 10 certificate was unlawful or invalid. He contended that it was essential for the Judge to make a finding in that respect because the s 10 certificate formed the foundation for the process under Part 1. If it were invalid, there was, he submitted, no authority for Ms B to be detained. Nor was there any authority for her to be assessed and treated without her consent. And, he submitted, there would be no authority for the responsible clinicians to issue the subsequent certificates under ss 12 and 14 or to apply for the compulsory treatment order. [18] In response, Ms Adams submitted on behalf of the Board that each of the stages of assessment and treatment under Part 1 of the Act were discrete and required, on each occasion, a fresh assessment of whether Ms B was fit to be released. It followed that the Judge was right to focus on the most recent authority for Ms B's detention, namely the certificate under s 14 of the Act. In that respect, Ms Adams relied on the recent decision of this Court in Misiuk v The Chief Executive of the Department of Corrections.7 That case is authority for the proposition that, irrespective of whether there may have been some prior deficiency in the lawfulness of the applicant's detention, if he or she is lawfully detained at the date of hearing there is no basis upon which the application may be granted.8[19] Ms Adams also stressed the safeguards available under the Act to a person in Ms B's position. These included the availability of review by a Judge under s 16 of the Act at any time between the date of the s 10 certificate and the issue of the s 14 certificate; the availability of the remedy already discussed under s 84 of the Act (which includes the ability of a High Court Judge to inquire into any issues of illegality); the obligation on the responsible clinician under ss 11(6), 12(3) and 13(6) of the Act to direct the release of the patient if, at any time, he or she considers7 Misiuk v The Chief Executive of the Department of Corrections [2010] NZCA 480; leave to appeal refused [2010] NZSC 140.8 At [25].that the patient is fit to be released from compulsory status; and the availability, in appropriate cases, of judicial review.Conclusion[20] We agree with the Judge that there may be cases of an exceptional nature where an application for a writ of habeas corpus is an appropriate means of addressing a complaint of unlawful detention under Part 1 of the Act. However, we endorse the conclusions of this Court in Sestan v Director of Area Mental Health Services (above) to the following effect:[89] Because of the nature of the jurisdiction, it is almost inevitable that there will at time 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 which ignore the statutory context. [90] 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. [91] A person in the position of Mr Sestan is entitled to seek habeas corpus, but where the critical issue is whether a person is mentally disordered there will be a few circumstances in which it is the appropriate means of challenging or reviewing official action. By its nature, the speed with which an application must be determined and the limited opportunity there is for information to be put before the Court means that the mechanisms contained within the MHCAT will, in normal circumstances, be much more efficacious and appropriate.[21] We are satisfied that this is not a case where the matters at issue are "properly susceptible to fair and sensible summary determination", to use the expression adopted by this Court in Manuel v Superintendent of Hawkes Bay Regional Prison.9We accept the submission made by Ms Adams that the process of assessment and treatment under Part 1 of the Act has moved on substantially since the s 10 certificate was issued. If, as Mr O'Callahan sought, we were to refer this matter back to the High Court for an assessment of the validity of the s 10 certificate, that would inevitably involve the High Court in a significant factual assessment which9 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47].would not, and should not, be confined to the material available at the time the s 10 certificate was issued. [22] It was clear, even from the limited material available to us on appeal, that a substantial body of additional material has come to hand since the s 10 certificate was issued which would bear upon the validity of the assessment made at the time of the s 10 certificate. We accept that some of this material has arisen from events subsequent to the s 10 certificate under attack but other material is now available as to Ms B's condition both prior to and at the time of the s 10 certificate. [23] We see no reason why this further material should not be treated as relevant to any further assessment of the validity of the s 10 certificate. The result is that, if we were to grant the relief sought on appeal, the High Court would be engaged in a factual assessment which is not appropriate for the summary procedures envisaged by the Habeas Corpus Act. [24] We are also influenced in reaching this conclusion by the availability of more appropriate and effective remedies which Ms B could have utilised at an earlier stage of the process. Instead, she did not bring the application for a writ of habeas corpus until she had been detained for some three weeks and at a point when the processes under Part 1 were complete. Finally, Ms B will have the opportunity before a District Court Judge tomorrow to explore in detail whether she is fit to be released from compulsory status.Result[25] For these reasons, the appeal is dismissed. [26] We reserve costs. Mr O'Callahan is to advise the Court and the respondent when the result of Ms B's application for legal aid is received. The respondent will have 14 days thereafter to file a memorandum as to costs and the appellant will have 14 days thereafter to respond.[27] We make a permanent order that the name or identifying particulars of Ms B are not to be published.Solicitors: Carter & Partners, Auckland for Appellant Meredith Connell, Auckland for Respondent