JM v TE WHATU ORA (HEALTH NEW ZEALAND) [2023] NZHC 1237

JM v TE WHATU ORA (HEALTH NEW ZEALAND) [2023] NZHC 1237 [24 May 2023]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE APPLICANT.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2023-409-000241[2023] NZHC 1237UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN JMApplicantAND TE WHATU ORA (HEALTH NEWZEALAND)RespondentHearing: 23 May 2023Appearances: R J T George for ApplicantW S Taffs for RespondentJudgment: 24 May 2023JUDGMENT OF EATON JThis judgment was delivered by me on 24 May 2023 at 4.45 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 18 May 2023, JM filed an application for a writ of habeas corpus seekinghis release from an inpatient compulsory treatment order made under s 30 of theMental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) by JudgeLindsay on 16 May 2023.1The application[2] JM says he is being unlawfully detained at Hillmorton Hospital. Non-compliance with s 18(4) of the Act is alleged. Section 18 prescribes what a Judge mustdo in considering an application for a compulsory treatment order. Subsection (4)provides:(4) As well as examining the patient, the Judge shall consult with theresponsible clinician, and with at least 1 other health professionalinvolved in the case, and may consult with such other persons as theJudge thinks fit, concerning the patient's condition.(emphasis added)[3] A "responsible clinician" is defined in s 2(1) of the Act as the clinician incharge of the treatment of the patient. Section 7 of the Act provides that a Director ofArea Mental Health Services (Director) shall ensure at all times there is in respect ofeach patient a responsible clinician.The s 30 decision[4] An application under s 14(4) of the Act for a compulsory treatment order wasfirst called in the District Court on 9 May 2021. The application was heard byJudge Hambleton at Hillmorton Hospital. A minute was issued by the Judge on thesame date confirming that Dr Daniel Allan was present at the hearing. Dr Allan wasrecorded as the responsible clinician. Also present was Pamela Finn, recorded as thesecond health professional. The Judge observed that the application had been filed byDr Susan Nightingale on 27 April 2023 and that Dr Allan had appeared because hiscolleagues, Dr Laura Hammersley (who was described as the responsible clinician upuntil 9 May) and Dr Nightingale, were unavailable. Dr Allan understood that JM was1 Te Whatu Ora (Health New Zealand) v JM [2023] NZFC 5108.facing an application for a community treatment order. The application was adjournedbecause JM told the Judge he opposed the order sought and because Dr Allan had notmet JM until they were together in the waiting area of the court convened at thehospital.[5] The s 14(4) application was determined by Judge Lindsay on 16 May 2023.Again, the hearing was held at Hillmorton Hospital. Dr Carol Dean appeared as theresponsible clinician, having first met JM that day. The second health professional,Andrea Firth, also appeared. She too only met JM on 16 May.[6] Mr George advises the Court that Mr Bailey, then appearing for JM, raised theissue of compliance with s 18(4) on the grounds that Dr Dean was not JM's responsibleclinician and Ms Firth was not involved in his case. An adjournment was sought.[7] The Judge did not address the objection or application to adjourn but observedthat the direct contact between the two health professionals and JM:2 has been limited and I have had to question whether I am comfortableproceeding with the hearing on the basis of what I am going to describe aslimited contact between Dr Dean and the patient, but also the second healthprofessional.[8] The Judge described the role of the Judge at the hearing of a s 30 applicationas being to undertake a first-hand assessment of the person subject to the application.Judge Lindsay referred to JM's history with mental health services and to a report,dated 14 April 2023, recording concerns expressed by a probation officer that JM waspresenting in a paranoid state and similar concerns of an accommodation provider thatJM presented with paranoia, hyper-vigilance and had been talking in riddles. Thereport detailed police inquiries and reports of JM being agitated and presenting withpsychoses.[9] The Judge referred to evidence given by Dr Dean that, having met with JM,she was "concerned about a couple of things". That included JM's self-account thathe had not taken his prescribed medication and the fact that he was presenting aspsychotic.2 At [4].[10] The Judge then referred to evidence of a representative of Housing First, whodescribed JM's presentation as changing markedly and deteriorating in the week or soafter he left the hospital to reside in units which, I infer, were operated by HousingFirst.[11] The Judge heard directly from JM who maintained there was nothing wrongwith him. Having regard to both JM's words and demeanour Judge Lindsay noted JMhad a level of paranoia held not only towards people in authority but perhaps tosomeone within his housing environment, such that the Judge was concerned aboutJM remaining untreated. The Judge described JM as presenting as, at times,disruptive, hostile, elevated and emotionally dysregulated. Judge Lindsay concludedthat JM suffers from an abnormal state of mind best characterised by delusions andthat, when unwell, he poses a danger to the health and safety of others and perhaps tohimself. Consequently, the Judge concluded that JM has seriously diminishedcapacity for self-care, and an order under s 30 was appropriate.[12] Mr Taffs advises the Court that the Judge had the benefit of consultation withDr Dean and Ms Firth, a report from Ms Fraser-Milne (clinical manager), a 9 Mayreport from Ms Patel (a nurse on JM's ward), and two clinical reports fromDr Nightingale.Evidence[13] This application was set down for hearing with urgency. Submissions onbehalf of the applicant were filed in advance of any evidence filed by the respondent.Evidence was not filed on behalf of JM. Mr George did annex to his submissions acopy of a "Change of Responsible Clinician" form (transfer form). Very shortly beforethe hearing, Mr Taffs, on behalf of Te Whatu Ora, filed affidavits from Dr Dean andMs Firth addressing the procedural issues raised on behalf of the applicant.I summarise that evidence.[14] Dr Dean is a consultant psychiatrist in the East/South Adult CommunityMental Health Team in Christchurch. She has been a consultant psychiatrist for12 years. Dr Dean deposes that she has been approved by the relevant Director to actas a responsible clinician pursuant to the Act. She confirms that only consultantpsychiatrists and senior registrars are authorised to act as responsible clinicians.[15] Dr Dean refers to the practice, approved by the Director, that a patient'sassigned (ordinary) responsible clinician will attend any judicial hearings but, in theevent that clinician cannot attend (for example, due to sickness or leave), anothersuitably qualified person may temporarily assume the role of responsible clinician.She refers to the transfer form that is signed by both the current and to-be-assignedresponsible clinician recording the transfer of that designation. Dr Dean deposes thatnotwithstanding best efforts, there are occasions when the form is not completed, forexample when one of the two clinicians is away sick or on leave. She acknowledgesthat no such form was completed in relation to the 16 May hearing. Dr Dean says sheassumed the role of responsible clinician in preparation for the 16 May hearing andprepared for the hearing as the responsible clinician. She describes the absence of thetransfer form as an "administrative error".[16] Dr Dean confirms by way of background that the previous responsible clinicianfor JM was Dr Sue Nightingale. Dr Nightingale had applied for an inpatient treatmentorder on 27 April 2023 and had filed a clinical report with that application. Dr Deanrefers to staffing issues within the East Unit and, in particular, short staffing ofconsultant psychiatrists.[17] In relation to the 9 May hearing, Dr Dean deposes that Dr Nightingale wasunavailable. It was arranged for Dr Hammersley to attend the hearing, but she becameill and could not do so. In the material provided, I have sighted a Change ofResponsible Clinician form dated 9 May 2023, transferring care from Dr Nightingaleto Dr Hammersley. I have also sighted a transfer document dated 9 May, transferringcare from Dr Hammersley to Dr Allan.[18] The 9 May hearing was adjourned but could not be heard on a day whenDr Nightingale was working as the court lists for those days were at capacity. Dr Deanconfirms that arrangements were then made for her to attend the 16 May hearing inthe capacity of responsible clinician. She says that in preparation for that role, she:(a) reviewed the clinical report prepared by Dr Nightingale along with theclinical notes created subsequently;(b) had a discussion with Dr Nightingale on 15 May 2023 about thehearing: "We discussed the [a]pplicant's presentation, improvementwith treatment and need for ongoing compulsory treatment in view ofthe risk"; and(c) spoke with Andrea Firth, a clinical nurse specialist for the EastOutpatient Team: "While I was aware that Ms Firth had not met theapplicant prior to the hearing, as he had only recently been referred tothe outpatient team for follow up. His assigned case manager was onleave. Nonetheless, Ms Firth had been involved in the referral processand meetings with the inpatient team so was well aware of theapplicant's presentation."[19] Dr Dean confirms that she felt comfortable to perform the role of responsibleclinician. She described Dr Nightingale as a superb clinician and said she had noconcerns about Dr Nightingale's reports or notes. She found it easy to understand theapplicant's presentation and the need for the Mental Health Act processes. Dr Deansays that she met with JM prior to the hearing and conducted a brief psychiatricassessment that was terminated when the applicant was repeating that he did not needmedication and would not take it. She was concerned about the applicant'spresentation and his comments, and believed he was presenting as unwell. She saysshe had a discussion with Ms Firth prior to the hearing and resolved that an inpatientorder was needed due to the risk of violence associated with JM's psychosis. She saysMs Firth agreed with her assessment. Dr Dean did not consider an adjournment wasappropriate having regard to JM's mental state and her awareness that Dr Nightingalewas a locum who was leaving the employment of Te Whatu Ora in two days.[20] Ms Firth is a consultant psychiatrist and clinical nurse specialist for the EastAdult Community Mental Health Team. In her evidence, she refers to Ms Fraser Milneas the clinical manager of that team. Ms Fraser Milne wrote the second health reportin the absence of JM's assigned case manager who was on leave.[21] In her capacity as clinical nurse specialist, Ms Firth oversees the co-ordinationand execution of community care for the East Team. That includes interacting withthe inpatient team on a regular basis. She says that as a consequence of those regularmeetings, she was aware of JM. She had viewed emails between the inpatient teamand been involved in emails with the inpatient team reviewing JM's notes after he hadbeen highlighted as likely to require outpatient follow-up. She was aware, throughthese avenues, that JM had been engaged with mental health services numerous timesover the past 23 years and that on admission he had appeared to be very unwell andrequired time in both seclusion and the locked high-care area to manage hisbehaviours.[22] Ms Firth deposes that in preparation for the 16 May hearing, she read the reportwritten by Ms Fraser Milne and the reports from the consultant reviews on theinpatient ward.[23] Ms Firth had signed a report dated 16 May 2023 prepared by Ms Fraser Milne.SubmissionsApplicant[24] Mr George, on behalf of JM, submits there was non-compliance with s 18(4)in two respects. First, the Judge did not consult with the responsible clinician.Mr George submitted that as at 16 May 2023, Dr Dean was not JM's responsibleclinician. Second, the Judge failed to consult with at least one other healthprofessional involved in the case. Mr George submits Ms Firth was not involved inJM's case.[25] Mr George refers to ST v Chief Executive of Canterbury District Health Board,where Mander J found that a nurse who had been aware of ST's presence on the wardas a casual nurse but had not been working directly with ST was not a healthprofessional for the purposes of s 18(4).3 Mander J observed: "The concept ofconsultation anticipates some 'face to face' engagement".4[26] Mr George submitted the dual failings amounted to significant non-compliancewith s 18(4), giving rise to an unlawful s 30 inpatient order. He submitted that anapplication for habeas corpus is appropriate because it raises a particularisedjurisdictional question. He seeks an order releasing JM from Hillmorton hospital.Te Whatu Ora[27] Mr Taff's submits the evidence of Dr Dean and Ms Firth address the allegednon-compliance with s 18(4).[28] Mr Taffs submits that completion of the transfer form was not necessary inorder to assign responsible clinician status to Dr Dean. He submits that Ms Firth wasinvolved in JM's case given her role exercising oversight over the case, coupled withher having read relevant reports.[29] Mr Taffs submits the issues raised by the applicant are not appropriatelyamenable to habeas corpus given the basis for JM's detention is fully set out in theminute of the Judge, and there is a significant dispute as to whether there has beennon-compliance with s 18(4). He submits that the application for a writ of habeascorpus should be dismissed.Analysis[30] The requirement to consult with the responsible clinician and another healthprofessional are integral components, alongside the independent examination by aJudge, of the protections afforded to a patient subject to forced detention. The longtitle to the Act refers expressly to providing "better protection" for the rights of personssubjected to compulsory psychiatric assessment and treatment.3 ST v Chief Executive of Canterbury District Health Board [2014] NZHC 1775, [2014] NZAR1043 at [28].4 At [30].[31] In PS v North Shore Family Court,5 Asher J observed there was no discretionto a Judge to dispense with the personal examination by a Judge of the patient.Similarly, there is no discretion for the Judge to dispense with consultation with theresponsible clinician and a health professional.[32] Although Judge Lindsay expressly recognised the limited contact betweenDr Dean and JM, and between Ms Firth and JM, the Judge did not refer to s 18(4) ofthe Act or address the consequences of the limited contact.[33] It is perhaps not surprising that JM is frustrated that the mandatory judicialconsultation prescribed by s 18(4) took place with medical personnel JM only met onthe morning of the s 30 hearing.[34] I will address the two critical questions posed by Mr George and then considerthe appropriateness of a writ of habeas corpus in light of my findings.Was Dr Dean the responsible clinician?[35] Mr George frankly acknowledged that if the respondent was able to produce atransfer form recording the transfer of responsible clinician status from Dr Nightingaleto Dr Dean, the compliance issue raised on behalf of the applicant would have beenaddressed.[36] The transfer form itself is not prescribed by statute. Rather, it is an internaldocument utilised by Te Whatu Ora. It is an internal record intended to give notice toan inpatient as to the identity of the clinician with overall responsibility for their care.It is a document signed by the existing responsible clinician and by the clinician towhom responsible clinician status is transferred.[37] I agree that it is an integral component of the Act that the Director must ensurethat at all times there is an assigned responsible clinician in respect of each patient.6Mr George is right that a responsible clinician has the power to detain that patient andto administer medication. Accordingly, Mr George submits that the Court ought to5 PS v North Shore Family Court [2011] 2 NZLR 781 (HC).6 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 7.require formality in the appointment or assignment of the responsible clinician andthat the requirement for formality is consistent with a purpose of the Act being toprovide better protection for the rights of persons who may be subject to compulsorypsychiatric assessment and treatment.[38] In ST v Chief Executive of Canterbury Health Board, a writ of habeas corpuswas sought on the grounds of non-compliance with s 18(4) of the Act.7 Whilst it wasacknowledged that the responsible clinician appeared at the hearing and consultedwith the Judge, it was submitted that the other health professional was not a personinvolved in either the care or treatment of the patient, therefore giving rise to anunlawful s 30 order. In that case, the respondent conceded that the health professionalhad no involvement in the treatment or care of the patient. Mander J concluded that,in light of the concession made, non-compliance with s 18(4) was established and thecase was amenable to habeas corpus.[39] In the present case, the respondent makes no such concession and relies on theevidence of Dr Dean to demonstrate she was the responsible clinician for JM on16 May. The focus is on the omission to complete a transfer form. In my view, thefailure to complete a transfer form was an administrative oversight. In any event, I donot consider the completion of the form to be determinative as to Dr Dean's status asa responsible clinician. The purpose of requiring the responsible clinician to appearat the hearing is to enable that person to consult with the presiding Judge. In order tomeaningfully consult, that clinician must have knowledge of the subject patient andbe able to offer an opinion to the presiding Judge as regards appropriate care andtreatment.[40] I accept the evidence of Dr Dean. She was asked to attend the 16 May hearingas JM's responsible clinician. Although she did not meet JM prior to the hearing, shehad, in advance of 16 May, reviewed the report of the initial responsible clinician,Dr Nightingale, had a discussion with Dr Nightingale regarding JM on 15 May, andhad a discussion with Andrea Firth prior to the hearing. Significantly, Dr Dean feltcomfortable performing the role of responsible clinician and carried out her7 ST v Chief Executive of Canterbury Health Board, above n 3.obligations by engaging with JM prior to the hearing and making her own assessmentas to his presentation. I am satisfied on the material presented that Dr Dean wasassigned and undertook the role of responsible clinician when she appeared at thehearing on 16 May.[41] The Director is obliged to ensure that a responsible clinician is assigned to apatient. I agree it is inevitable that from time to time it will be necessary to assign anew responsible clinician to address changes in clinical personnel, unavailability,illness and similar circumstances. The Act does not prescribe a process for theassignment of the responsible clinician.[42] The alleged invalidity is said to arise from the failure to complete a transferform. I agree with Mr Taffs that any such failing reflects an error of form notsubstance. Significantly, the applicant does not dispute that Dr Dean is suitablyqualified and authorised to act as his responsible clinician. No issue is raised as to themanner in which Dr Dean carried out her responsibilities as the responsible clinician.I am satisfied that Dr Dean was the responsible clinician for JM on 16 May.Was Ms Firth a health professional involved in the case?[43] I accept the position is not as clear in relation to the role performed by Ms Firth.Counsel did not refer to any authorities dealing with the meaning of "involved in thecase". I am satisfied that Ms Firth did have familiarity with JM's case and had, inadvance of the hearing, considered and signed what was described as a second healthreport prepared by the clinical manager of the East Adult Community Mental HealthTeam, Ms Fraser Milne. The facts are easily distinguishable from ST.8 I am satisfiedthat Ms Firth was involved in JM's case.[44] I agree that face-to-face engagement with the patient might ordinarily featureas evidence of meaningful involvement in a patient's care and has obvious advantages.But in order to engage in a meaningful consultation with a judge for the purposes ofs 18(4), I do not consider it to be essential. Knowledge of the patient and their careand treatment, achieved through oversight of the ward and through a review of clinical8 ST v Chief Executive of Canterbury Health Board, above n 3.reports, may well, and in this case I am satisfied does, qualify Ms Firth as "involvedin the case".[45] No clear breach of s 18(4) has been established so as to justify a determinationthat JM's detention is unlawful and that a writ of habeas corpus is appropriate.Suitability of habeas corpus[46] Although strictly unnecessary given my finding that the detention of JM is notunlawful, I address the issue of the suitability of an application for habeas corpus inthis case. This issue was considered in ST. In that case, the Judge had consulted withthe responsible clinician, but it was accepted that a nurse who appeared at the s 30hearing and who had no prior involvement in the care or treatment of the patient didnot qualify as an involved health professional. Mander J found the applicant had beencareful in couching her application in very confined terms and that in light of therespondent's concession, the issue was sufficiently limited to be categorised asjurisdictional in nature and therefore amenable to determination by way of habeascorpus. The concession was critical.[47] This issue also arose in B v Auckland District Health Board,9 where the Courtof Appeal endorsed its earlier conclusion in Sestan v Director of Area Mental HealthServices Waitemata District Health Board, which was as follows:10[89] Because of the nature of the jurisdiction, it is almost inevitable that there willat times be some variance or deviations from strict statutory requirements. It isimportant to view any non-compliance in the round rather than from a blinkered focuson isolated provisions which ignore the statutory context.[90] We do not accept that whenever it is demonstrated that there is any degree ofnon-compliance with a specific provision the only consequence will be the totalinvalidity of all subsequent actions. The Court must assess what happened, why ithappened and how it happened, remembering that the protection of a vulnerableperson, 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 a habeas corpus, butwhere the critical issue is whether a person is mentally disordered there will be fewcircumstances in which it is the appropriate means of challenging or reviewing official9 B v Auckland District Health Board [2010] NZCA 632, [2011] NZAR 135.10 Sestan v Director of Area Mental Health Services Waitemata District Health Board [2007] 1NZLR 767 (CA).action. By its nature, the speed with which an application must be determined and thelimited opportunity there is for information to be put before the Court means that themechanisms contained within the MHCTA will, in normal circumstances, be muchmore efficient and appropriate[48] In Sestan, the Court considered a complaint of unlawful detention under part 1of the Act. The Court did not consider the issues raised were appropriately dealt within a summary determination observing that the depth of the investigation required willindicate the suitability of habeas corpus.[49] In Manuel v Superintendent of Hawkes Bay Regional Prison,11 in consideringthe very same issue, the Court of Appeal said:[49] There may not be a bright line which distinguishes between thosearguments which are available on habeas corpus applications and those which canonly be deployed (if deployed at all) in judicial review proceedings. Nonetheless wesee the test as coming down to whether the arguments in issue are properly susceptibleto fair and sensible summary determination. If they are, they can be addressed inhabeas corpus proceedings. If not, they must be held over for evaluation in judicialreview proceedings[50] I have concluded that the arguments in this case are not suitable for habeascorpus. Whether the omission to complete the transfer form invalidated theassignment of Dr Dean as the responsible clinician and /or that engaging face-to-facewith JM prior to 16 May was essential to qualify as a health professional for thepurposes of s 18(4), raises issues that are not so narrow as to be categorised asjurisdictional in nature. The issues raised in this case are far more nuanced than in ST.[51] Also factoring against habeas corpus is that the essential issue in this case waswhether JM is fit to be released from compulsory care. The Judge found JM posedrisks to both the community and to himself if he was released. Those findings wereavailable to the Judge on the evidence presented. I do not consider this to be one ofthose rare case where a habeas corpus is the appropriate means to challenge thedecision of the Judge.Result[52] The application for a writ of habeas corpus is refused.11 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).Observation[53] It is clear that the East/South Adult Community Mental Health Team facesresourcing issues giving rise to the unavailability of assigned responsible clinicians toattend judicial hearings. This has the potential to lead to conflict within the ward forpatients facing judicial hearings attended by clinicians with whom they have had littleor no direct involvement. That scenario is undesirable.[54] It is also clear that the judicial lists to hear applications under the Act arefrequently at capacity. As a consequence, there are difficulties scheduling hearingsthat permit the appropriate responsible clinicians and health professionals to appear atthe hearings. Health professionals play a central and critical role in assisting the courtin dealing with applications under the Act. Administrative processes should prioritisethe allocation of hearing dates which permit those actively involved in the care andtreatment of the patient to appear at the hearings....................................................Eaton JSolicitors:Crown Solicitors OfficeCC:R George