REYNOLDS v FAMILY COURT AT CHRISTCHURCH [2021] NZHC 2465

NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORYASSESSMENT 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 https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/ THIS JUDGMENT HAS BEEN ANONYMISED TO PROTECT THE APPLICANT'S NAME.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000094[2021] NZHC 2465UNDER Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial reviewBETWEEN Kathryn Anne ReynoldsApplicantAND FAMILY COURT AT CHRISTCHURCHRespondentHearing: 7 September 2021Appearances: A J Bailey for Applicant T J Mackenzie as ContradictorJudgment: 20 September 2021Reissued: 28 October 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 20 September 2021 at 3.30 pm, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] In early October 2020, the applicant, Ms Reynolds, was detained for assessment and treatment, at Hillmorton Hospital in Christchurch under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). Ms Reynolds did not accept that she was suffering from a "mental disorder".1 She applied to the District Court, pursuant to s 16 of the Act, for a review of her condition with a view to being released from compulsory status.[2] Ms Reynolds says that the District Court at Christchurch acted unlawfully and, by doing so, thwarted her ability to have her s 16 application heard.2[3] Specifically, she asserts the District Court:(a) unlawfully delegated the allocation of hearing dates for judicial hearings under the Act to the Canterbury District Health Board (CDHB);(b) failed to schedule a s 16 hearing "as soon as practicable" following the filing of her application;3 and(c) erred in law when it declined to hold a s 16 hearing on the dates allocated for hearing on the basis that the issue of a s 14 certificate by the Director of Area Mental Health Services prevented a s 16 hearing being held after that date.Participation in the hearing[4] Initially the proceeding named the CDHB as a respondent. The proceeding against that entity has been discontinued. It is also accepted by Ms Reynolds that the1 As defined in s 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act).2 While the applicant makes her claims against the Family Court, that is a division of the District Court and it is the District Court which has responsibility for dealing with applications under the Act (although Family Court Judges usually determine them). For this reason, I refer to the District Court as the responsible entity in this judgment.3 As required under s 16(1B) of the Act.relevant functions of the CDHB were carried out by the Office of the Director of Area Mental Health Services (DAMHS), and that is the entity which will be referred to in this judgment.[5] The Family Court at Christchurch abides the decision of the Court but appears for ancillary purposes and reserving rights.4[6] Mr Tim Mackenzie was appointed by the Court to appear as contradictor.The legislative framework for compulsory treatment orders[7] The Act sets out the circumstances and conditions under which a person may be subjected to compulsory psychiatric treatment and assessment. An application to have a person assessed for compulsory treatment under the Act can only be made where it is believed that they may be suffering from a "mental disorder".5 The term "mental disorder" is defined by s 2(1) of the Act as follows: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[8] Once such an application is made under the Act, DAMHS makes the necessary arrangements for the proposed patient to undergo a preliminary assessment examination.6 The findings are then recorded in a certificate issued under s 10 of the Act. If the certificate records that the health practitioner has "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",7 a4 Pursuant to High Court Rules 2016, rr 5.50 and 5.51.5 Section 8.6 Section 9(1).7 Section 10(1)(b)(ii).further assessment must be arranged by the health practitioner. The health practitioner can direct that the patient be admitted to, and detained in, a specified hospital for a period of up to five days for this assessment (the first period).8[9] At the end of the first period, the responsible clinician must issue a certificate recording their findings, pursuant to s 12(1) of the Act. If the responsible clinician certifies that there are reasonable grounds for believing the patient is mentally disordered and that further assessment and treatment is required under s 12(1)(b)(ii), notice must be given to the patient (and other specified persons) and there follows a further period of assessment and treatment which can last up to 14 days (the second period).9[10] Before the end of the second period the responsible clinician must provide a "certificate of final assessment" under s 14. If the responsible clinician considers the patient is not fit to be released from compulsory treatment, they must, before the expiry of the second period, apply to the District Court for the making of a compulsory treatment order.10 While the application for a compulsory treatment order awaits determination by a Judge, the patient remains liable for assessment and treatment for a further period of 14 days after the date on which the second period would have expired.11[11] At any time during the two periods of assessment, the patient can apply to the District Court for review of his or her condition under s 16.12 If the application is the first that has been made for a review of the patient's condition during the first and second period of assessment, then:13(a) the Court must grant the application; and(b) a Judge must examine the patient as soon as practicable.8 Section 11(2)(b). "First period" is defined in s 2(1) of the Act.9 Section 13 "Second period" is defined in s 2(1).10 Section 14(4).11 Section 15.12 Sections 11(7) and 12(12).13 Sections 16(1)(a) and 16(1B).[12] If the patient has already applied for a review and makes a second or subsequent application, it is not mandatory to grant the application and the Judge must have regard to any evidence that indicates that the patient's condition has not changed since the last review when making that decision.14[13] Subsections (2) to (7) of s 16 set out various aspects of procedure for the examination. Subsection 16(6) provides:Every review under this section of a patient's condition shall, wherever practicable, having regard to the time in which that review is required to be conducted, and to the availability of Judges and other personnel and resources, be conducted by a Family Court Judge.However, where it is not practicable for a review to be conducted by a Family Court Judge it may be conducted by any District Court Judge.15[14] If, as a result of the s 16 review, the Judge is satisfied the patient is fit to be released from compulsory status, the Judge must order the patient's release.16[15] If, during the second period, the responsible clinician considers the patient is not fit to be released from compulsory treatment and applies to the Court for a compulsory treatment order, that application is considered in accordance with Part 2 of the Act.17 Again, wherever practicable, the application is to be heard by a Family Court Judge, but where it is not practicable, it may be heard and determined by any District Court Judge.18 The patient must be examined as soon as practicable and in any case not later than 14 days after the application is filed in the Court.19 The statutory requirement for that examination mirrors those for an examination under s 16 and, if the Judge is satisfied the patient is fit to be released from compulsory status, they must order the patient's release forthwith.2014 Sections 16(1)(b) and 16(1C).15 Section 16(7).16 Section 16(5).17 Section 14(4).18 Section 17.19 Section 18(1).20 Section 18(5).[16] There are then further provisions contained in Part 2 which enable evidence to be called,21 and reports to be prepared,22 and which then set out a number of matters for the Judge to consider before deciding whether to make a compulsory treatment order. If the patient is not mentally disordered, then the Judge must order the patient be released forthwith.23 If the patient is mentally disordered, the Judge must determine whether it is necessary to make a compulsory treatment order.24 If a compulsory treatment order is required, the Judge must consider whether that is to be a community treatment order or an inpatient order.25The facts in this case[17] In the present case, Ms Reynolds was admitted to Hillmorton Hospital under s 11 of the Act, on 5 October 2020. At that point, the first period of five days assessment and treatment commenced. On 9 October 2020 she was ordered to be assessed and treated for a further period of up to 14 days pursuant to s 13(2)(b) of the Act.[18] Four days later, on 13 October 2020, Ms Reynolds filed an application for review of her condition under s 16. On the same day, her application was scheduled to be heard on 28 October 2020 at approximately 1 pm.[19] On 22 October 2020 her responsible clinician issued a s 14 certificate which set out his opinion that Ms Reynolds was not fit to be released from compulsory status and an application was made to the District Court for a compulsory treatment order to be made in respect of Ms Reynolds.26[20] On 28 October 2020, and shortly before Ms Reynolds's scheduled s 16 hearing, the Judge allocated to review her condition under s 16 declined to do so on the basis a s 14 certificate had issued. The scheduled s 16 hearing did not proceed that day.21 Sections 20 and 23.22 Section 21.23 Section 27(2).24 Section 27(3).25 Section 28(1).26 Under s 14(4) and Part 2 of the Act.[21] Mr Bailey, who was acting for Ms Reynolds, filed an application for habeas corpus on the same day. Before that application was heard, Mr Bailey was advised that a further hearing had been scheduled to consider his client's s 16 application, with a hearing date of 3 November 2020.[22] However, on 2 November 2020, the Judge scheduled to conduct the s 16 review advised it would not proceed because:27 there is a certificate issued under section 14 of the Act, the matter has moved on, there is an application for a Compulsory Order on Wednesday, there is no point in considering a section 16 application out of time.[23] On 4 November 2020 Ms Reynolds was examined by a Judge as required by s 18 of the Act. The compulsory treatment order was made and Ms Reynolds remained detained as an inpatient at Hillmorton Hospital.[24] While, in those circumstances, the application may appear moot, Mr Bailey submitted:(a) the s 16 review is an important safety valve in the compulsory assessment and treatment process and patients place a great deal of importance on having a Judge review their condition, which was denied to Ms Reynolds in this case; and(b) there are important legal issues arising which have consequences for how these cases are decided in the future.For these reasons he says this is not a case where the application is moot or futile.27 This is from an email from the Court to counsel which was cited in submissions but not included in the affidavit's evidence, although it was not contested that this was the reason the Judge gave for not examining Ms Reynolds on that date.Did the Family Court unlawfully delegate the allocation of hearing dates to DAMHS?[25] Mr Bailey submits it is clear from ss 12 and 16 of the Act that the responsibility of dealing with s 16 applications lies solely with the District Court (albeit, in practice, they are dealt with by the Family Court division of that Court). This is because:(a) the application must be filed with the District Court;28(b) the District Court is required to grant the application;29 and(c) a Judge is required to examine the patient as soon as practicable".30However, he says the affidavit evidence demonstrates that DAMHS is effectively given responsibility for scheduling these hearings, without proper judicial oversight.[26] The Principal Family Court Judge, Judge Moran, filed an affidavit providing information on the administration of proceedings under the Act, including the interface between the Family Court and DAMHS. She acknowledges that the nature and demand of hearings under the Act means that "with my approval, the Office of the Director of Area Mental Health performs a significant role in scheduling this aspect of the Court's business".[27] Judge Moran notes that due to the number of applications for orders under the Act, two full days (namely Tuesday and Thursday) are scheduled for mental health hearings in each week. She also says the "judicial cap for these hearings, being the maximum number of applications that can be heard on any day, is set at 13. This limit is almost invariably reached". She explains that the hearing days are now Tuesday and Thursday each week "to ensure that section 16 applications are better captured and that potential delays are avoided". She notes that since the hearing days were changed to Tuesday and Thursday "there have been no instances of section 16 applications not being heard within the required timeframe". She also notes that, while28 Section 16(1).29 Section 16(1B)(a).30 Pursuant to s 16(1B)(b).the cap is set at 13, "judges invariably hear any section 16 applications that they are aware of, even if they are over cap. That has always been the position."[28] She acknowledges that DAMHS is responsible for scheduling all hearings, and that hearings are allocated a 15-minute hearing time unless otherwise directed by a Judge. She points out that s 16 hearings are, wherever possible, scheduled at the end of the mental health list because they frequently extend well beyond the allotted 15 minute hearing time.[29] She points out that the process for scheduling mental health hearings at the local hospitals is well established and is generally consistent with the process adopted nationally. Importantly, the co-ordinator of DAMHS has the requisite knowledge to undertake the scheduling as it: requires information such as the names and medical status of the patients, the availability of their responsible clinicians and the hospital venues required. This information is not known to the Family Court Registry until it is provided by the CDHB in the form of a Hearing List.The scheduling task also involves liaising with District Inspectors and legal counsel and informing relevant family members of the date of hearing.The Family Court does not hold these particulars, again reinforcing the practicality of DAMHS undertaking scheduling.[30] Affidavit evidence was also filed by Mr Gregory Trainor, a District Inspector under the Act based at Christchurch. He confirms that DAMHS "has a substantive role in allocating hearing dates" for s 16 applications and compulsory treatment order applications. He notes that, given the control DAMHS has over the allocation of hearing dates, all applications filed by responsible clinicians under s 14(4) for compulsory treatment orders are, in his understanding, heard within the statutory timeframe prescribed by s 15 of the Act. He expresses a concern, however, at what he describes as "extremely lengthy delays in patients having their section 16 applications heard/allocated." He says some s 16 hearings for patients have been allocated more than 14 days after the filing of the application, as in Ms Reynolds's case, and so:A patient's important right to challenge their detention (and treatment) is being frustrated by both the delay in having their section 16 hearings heard and in some cases (such as the present) a refusal to hear the applications".[31] Mr Bailey submits that the Family Court's scheduling arrangement, as explained in these affidavits, is unlawful. It is the Court, not the responsible clinician or DAMHS, that has the responsibility to ensure such applications are dealt with "as soon as practicable". Mr Bailey says there is no evidence that the Court has imposed restrictions or requirements on DAMHS to ensure s 16 hearings are scheduled as soon as practicable as, if that were the case, it would have been addressed in Judge Moran's affidavit.[32] Of further concern, in Mr Bailey's submission, is the evidence that "[t]he judicial cap for these hearings, being the maximum number of applications that can be heard on any day, is set at 13 [and] [t]his limit is almost invariably reached". This suggests not all hearings that could or should be heard will be scheduled for hearing and DAMHS will need to determine which cases are scheduled for hearing. Mr Bailey expresses a concern that compulsory treatment order hearings (which must be completed within the timeframes in s 15, failing which the patient must be released), are being prioritised over s 16 hearings. Because DAMHS has "unfettered powers" in respect of scheduling, Mr Bailey considers it likely that DAMHS prioritises its own compulsory treatment order applications, with the resulting effect that s 16 review applications are delayed.[33] While he notes the evidence of Judge Moran that "judges invariably hear any section 16 applications that they are aware of, even if they are over cap", he considers it is unclear how a Judge would even become aware of those applications given the scheduling arrangements. In particular, he points out that Judge Moran's affidavit does not say that the Court requires DAMHS to advise it when the cap is being exceeded, or when s 16 applications are delayed. For this reason, he says the Court is "largely blind" as to whether it is discharging its statutory duties to examine a patient "as soon as practicable" following the filing of a s 16 application.[34] For completeness, Mr Bailey accepts that the Court can work collaboratively with DAMHS to arrange for hearings under the Act. However, the responsibility toensure that a Judge examines a patient "as soon as practicable" following the filing of a s 16 application for review lies solely with the Court. Delegation of the allocation of hearing dates to DAMHS is incompatible with that statutory obligation and is, accordingly, unlawful.[35] Mr Mackenzie, in response, says that DAMHS carries out what is an administrative task of placing each application against the next available spot in the hearing list and then advancing that list to the Court. There is no deliberative or substantive decision made by DAMHS on the review application itself. Those applications are made to, and held by, the Court. It is not the case that DAMHS maintains exclusive knowledge and control of the applications.[36] Furthermore, when it is appreciated that DAMHS is carrying out a purely administrative task and one that for the practical reasons explained by Judge Moran, it is necessary for DAMHS to carry out, then it can be seen that this function is within the District Court's inherent powers to delegate to DAMHS.[37] Those inherent powers have been described by the Court of Appeal as "the powers necessary to enable it to act effectively within that jurisdiction".31 Here, the inherent power to delegate placing applications within the list framework provided by the Court is consistent with the statutory jurisdiction at s 6(7) of the Family Court Act 1980 for the Principal Family Court Judge to ensure the orderly and expeditious discharge of the business of the Family Court.[38] In any event, Mr Mackenzie submits the rule against delegation only applies to the delegation of the exercise of a judgement or discretion vested in the decision-maker. Decision-makers can delegate administrative tasks that are incidental to the decision making.32 Here, he says the tasks assigned by Parliament are to:(a) grant the application for review; and(b) to carry out the review as soon as practicable.31 Attorney-General v District Court at Otahuhu [2001] 3 NZLR 740, (2001) 19 CRNZ 29 (CA) at [16].32 Commissioner of Inland Revenue v B [2001] 2 NZLR 566, (2001) 20 NZTC 17,043 (HC) at [24].[39] The Court clearly grants the application for review by effectively requiring DAMHS to allocate a hearing date to all initial s 16 applications and then endeavours, through the process for scheduling hearings, to carry out the review as soon as practicable.[40] The task of placing each application into an available hearing space offered by the Court is, in Mr Mackenzie's submission, an incidental administrative task and whether DAMHS or the Family Court fill each hearing space does not affect the rights of the applicant.[41] An analogous case, in Mr Mackenzie's submission, is Parkin v Crown Solicitor at Christchurch. There the applicant brought a judicial review proceeding after his criminal trial had been unilaterally adjourned at the direction of the Crown Solicitor's Office, which undertook the scheduling of trials into hearing weeks provided by the trial Court.33 One ground of review was that there was an unlawful delegation of scheduling hearings by the Court to the Crown Solicitor's Office. The Court declined to make such a declaration, noting that the Court provides a "safety valve" in the event of scheduling disputes.34Discussion[42] In my view, the applicant has not established that the Court has unlawfully delegated a task for which it has statutory responsibility. The Court is mindful of its statutory obligation to conduct s 16 applications for review as soon as practicable. It is clear from Judge Moran's affidavit that there is oversight and review by the Court of the adequacy of the days that are made available and of the number of hearings scheduled within a day, so that urgent matters can be addressed at short notice.[43] I accept the submission that the role carried out by DAMHS of placing each application into an available hearing space provided by the District Court, is not a function that must be retained by the Court. It is practicable and expedient for this to be delegated to DAMHS. Judge Moran's evidence shows the Court liaises with33 Parkin v Crown Solicitor at Christchurch HC, Christchurch CIV-2009-409-2685, 22 March 2010.34 At [27].relevant parties involved in administering these provisions of the Act, including the District Inspectors, to check that the statutory requirements are being served by the procedures adopted. It is through that process that the Family Court changed from hearing applications on Tuesdays and Wednesdays, to on Tuesdays and Thursdays, to better respond to the need to hear applications as soon as practicable. The evidence also demonstrated that judges do see the lists in advance and modify them where necessary by adding in hearings at the end of the list, or, as in this case, removing items from the list where the Judge thought that was appropriate.[44] I also reject Mr Bailey's submission that DAMHS uses its role to prioritise compulsory treatment order applications over s 16 review applications. There was no direct evidence to support this assertion other than the concern raised by Mr Trainor, and Judge Moran's evidence was that, since shifting the hearing days "there have been no instances of section 16 applications not being heard within the required timeframe".35[45] In conclusion, the applicant has failed to establish that the Court has unlawfully delegated one of its functions under the Act. The tasks that have been delegated are essentially administrative tasks which are appropriately left to DAMHS to organise and the Court retains responsibility for ensuring s 16 applications are heard as soon as practicable.Did the Court act illegally by failing to examine the applicant pursuant to s 16 of the Act "as soon as practicable"?[46] Mr Bailey acknowledges the second ground of review overlaps with the first ground, saying the alleged failure to schedule Ms Reynolds's s 16 review as soon as practicable was, at least in part, caused by the issues raised under the first ground of review.[47] Mr Bailey goes on to say that, although Ms Reynolds filed her s 16 application on 13 October 2020, it was not allocated a hearing date until 28 October 2020, some 15 days later. In his view, a delay of 15 days from the filing of a s 16 application35 Albeit it is not clear what she means by "required timeframe" when the statutory requirement is simply "as soon as practicable".effectively defeats the purpose of s 16, as it is imperative that these applications are set down and heard as quickly as possible. The detention and enforced treatment aspects of the Act individually justify that, but collectively, even more so.[48] Mr Bailey points out that in assessing the length of the delay and any justification for it, it is important that this Court has regard to the New Zealand Bill of Rights Act 1990 (NZBORA). When a patient is placed under the Act, multiple rights of the patient under the NZBORA are infringed, including:(a) the right to refuse to undergo medical treatment (s 11);(b) freedom of association (s 17); and(c) freedom of movement (s 18).[49] He also adds that the principles underpinning s 16 are derived from the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, which were adopted by the United Nations General Assembly under Resolution 46/119 on 17 December 1991. Mr Bailey refers, in particular, to Principle 16(2) and Principle 17(1) and (2) which underpin the relevant procedures in the Act. For example, Principle 17(2) states:The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.[50] Mr Bailey submits it can fairly be inferred that the Court failed to schedule Ms Reynolds's s 16 application as soon as practicable, based on the length of delay alone. He notes there were potentially four dates on which Ms Reynold's s 16 application could have been heard between when it was made on 13 October 2020, and when her hearing was scheduled on 28 October 2020.36 Mr Bailey points out that, while Judge Moran's affidavit says "judges invariably hear any section 16 applications36 At this stage hearings were being convened on Tuesdays and Wednesdays each week, as the change to Tuesdays and Thursdays was made following a meeting in November 2020 between the Liaison Judge for the Southern Region and the Mental Health District Inspectors.that they are aware of, even if they are over cap", it is difficult to see how any Judge would have been aware of Ms Reynolds's situation in order to bring her scheduled hearing date forward to an earlier date.[51] In summary, he considers that Ms Reynolds's s 16 examination could, and should, have taken place well before 28 October 2020 and thus, the Court failed to examine her as soon as practicable, as required by s 16.[52] Mr Mackenzie noted that a s 16 application for review does not have a time limit placed on it. This distinguishes it from other provisions in the Act, such as ss 15 and 29, which do have time limits. It also distinguishes it from applications for habeas corpus where there are express obligations on the Registrar to schedule a hearing within three working days.37 In his submission, the absence of a timeframe recognises that there is, by implication, already a deadline in the Act, as a s 16 review can only be heard during the first and second periods.38[53] Although this submission overlaps with issues raised under the third ground of appeal, Mr Mackenzie submits that the s 16 review power does not remain alive after the expiry of the second period. The second period (as it is described in the Act) is clearly defined at s 2 of the Act as ending 14 clear days after the patient receives notice of the second period. Section 15, which allows compulsory assessment and treatment to continue beyond the conclusion of the second period while the application for a compulsory treatment order is being considered, does not import an extension of the s 16 review ability. Mr Mackenzie submits s 16 reviews are not given a timeframe, but instead left to be conducted as soon as practicable, in recognition that sometimes it may simply not be practicable to hear a s 16 review. This could occur for any manner of reasons, including the patient's situation or the lateness of the application. In his view, there is no statutory consequence of a missed s 16 review. The patient will still either be examined in the same way under s 18, or be discharged.37 Habeas Corpus Act 2001, s 9(3).38 Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 (HC) at [72]-[74]. For reasons discussed at [67]-[70] of this judgment, in my view the s 16 review can be heard after the second period.[54] In his submission the words "as soon as practicable" must be guided by the reality that resources are always finite. Here, the context is one of limited availability of hearing spaces and resultant delays until an application can be heard. In his view, it is not appropriate for this Court, in a judicial review proceeding, to determine whether s 16 applications should have priority over applications for compulsory treatment orders (where there is a specified timeframe in which they must be heard), especially while sitting in a vacuum and not hearing from the competing interests.Discussion[55] In my view, this is an intensely factual issue that is not amenable to review. It is also bound up with the question of whether a s 16 review can be scheduled after the end of the second period. This is a question I address under the third ground of review.[56] Mr Bailey's submissions were in large part premised on compulsory treatment order applications being prioritised over s 16 reviews, an assertion which I have held was not established on the affidavit evidence. While a 15 day delay between making the application and having a hearing date seems long given the timeframes in the Act, I do not know what work was scheduled ahead of it, or why those cases were given priority. These issues are unsuitable for resolution in the context of judicial review.[57] If it was correct that a s 16 application had to be allocated a hearing date before the end of the second period, there might be more reason to complain, but as I go on to discuss, I do not consider that is the case.[58] Accordingly, I decline to make a finding that the Court has not complied with the requirement to schedule the review as soon as practicable and this ground of review is unsuccessful.Did the Court make a mistake in law by refusing to examine Ms Reynolds on the ground that a s 14 certificate had issued and she was now subject to Part 2 of the Act?[59] Ms Reynolds's scheduled s 16 hearing did not proceed on 28 October 2020. Ms Reynolds's affidavit evidence says it: caused me even further distress when I found out that on the day of my scheduled hearing that the Judge hearing the cases at Hillmorton Hospital declined to even allow me a hearing.[60] There does not appear to be any official record of why the s 16 application did not proceed on that day. The only explanation was that relayed by Mr Bailey in submissions, which was the Judge who was to preside on that day declined to examine the applicant on the basis that a s 14 certificate had issued prior to the hearing taking place.[61] Ms Reynolds's s 16 review was then rescheduled to 3 November 2020, possibly, it seems, as a response to her filing of an application for habeas corpus. However, again, the Judge refused to examine Ms Reynolds on the basis that a certificate had been issued under s 14 of the Act and there was an application for a compulsory treatment order to be heard on 4 November 2020 so "there is no point in considering a section 16 application out of time".[62] Ms Reynolds's position is that there was utility in convening a s 16 hearing and it is not accepted that the s 16 application was "out of time". The s 16 application was made well within the timeframe specified in s 12(12) which states:Notwithstanding any of the foregoing provisions of this section, at any time during the second period, the patient may apply to the court to have the patient's condition reviewed under section 16.[63] Once she made the application within the statutory timeframe, there were mandatory obligations on the Court. It was required to grant the application and a Judge had to examine her as soon as practicable. The fact that a s 14 certificate had been filed and an application made for a compulsory treatment order was irrelevant to Ms Reynolds's position, it did not alter her status. Under s 15(1), where a 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.[64] In Mr Bailey's submission, neither s 12 nor s 16 requires, either explicitly or implicitly, that a s 16 review can only take place before a s 14 certificate is issued. There is also no logical reason to adopt such an approach. The refusal to examine Ms Reynolds on 28 October 2020 deferred her important right to be examined, if she so wished, by a Judge "as soon as practicable". There was no reason why it was not practicable to examine Ms Reynolds that day. Similarly, the decision to decline to hear her application six days later was also based on a mistake of law, being that the issue of a s 14 certificate and filing of a compulsory treatment order application prevented the applicant being examined pursuant to s 16 of the Act.[65] Mr Mackenzie's submissions again relied on the assumption that there was no jurisdiction to hear the s 16 application after the first and second periods had ended. Instead, Ms Reynolds had moved into the next phase of the Act's procedures prescribed by Part 2, which required the Judge under s 18 to examine the patient as part of the compulsory treatment order application, not only as soon as practicable, but within 14 days. As is the case with a s 16 hearing, if the Judge is satisfied the patient is fit to be released from compulsory status following a s 18 examination, then the Judge must order that the patient be released forthwith. Thus, the s 18 examination addresses the same issue as s 16, and it must occur within 14 days. If the s 18 examination does not occur within the specified timeframe, the patient is automatically discharged.39[66] In Mr Mackenzie's submission, the legislation could not have intended that a moot s 16 application should be heard in place of, or alongside, the compulsory treatment order application when the examination under s 18 effectively duplicates what would occur under a s 16 review. To do so, would create an "inefficient anomaly within the already tight timeframes under the Act".39 Section 15(3).Discussion[67] I acknowledge that previous decisions appear to have described the s 16 procedure as confined to the first and second periods. In Ellis v Counties Manakau District Health Board, Potter J described the procedure as follows:40[72] During the first and second periods while the responsible clinician is responsible for the assessment and treatment of the patient, a separate process for review is available to the patient or a person on his or her behalf [The patient] may seek a review by the Court "at any time" during the first and second periods.[68] Similarly, in Holden v Family Court at Tauranga, Heath J said:41As s 16 applies only from the time that the first assessment period begins until the second period ends (a total of 19 days), a reviewing Judge is considering the possibility of changes in medical condition over a relatively short period of time.[69] However, these cases simply paraphrased the provisions of s 12 of the Act and neither case was required to consider the issue that arises here, namely whether an application made within the second period (as permitted by the Act) can still be heard after that period has ended, and while a person awaits examination for a compulsory treatment order.[70] I do not consider the legislation precludes it. First, under s 12(12) the patient can, "at any time during the second period", apply to the Court to have their condition reviewed under s 16. There is no reason why patients who apply for a s 16 review in the last few days of the second period should almost inevitably be denied a s 16 review because it is not practicable to convene a hearing before the second period ends. Section 12(12) makes it clear that the right to apply terminates at the end of the second period. It does not affect the Court's response under s 16 which is still to review the patient as soon as practicable.[71] I acknowledge that for most patients there would be little practical utility in pursuing a s 16 application for review once an application for a compulsory treatment order has been made under s 14(4), and they may be content to either have the40 Ellis v Counties Manakau District Health Board, above n 36.41 Holden v Family Court at Tauranga [2017] NZHC 1709 at [26].two combined, or to abandon the s 16 review. For example, patients may recognise that they are mentally disordered, but that disorder can be addressed in some less restrictive way than an inpatient compulsory treatment order and so they may choose to focus on the outcome of that process. Where it is likely that the s 18 examination will occur in the same timeframe as a s 16 examination, the two could be combined, with a finding under s 18(5) disposing of the s 16 application at the same time.[72] Applying those findings to the circumstances of this case, I do not consider it was correct, in law, to dispense with a s 16 review hearing, solely on the grounds that an application for a compulsory treatment order had been made under s 14(4). While the s 16 review could be dispensed with, with the consent of the patient, here Ms Reynolds wanted the s 16 application for review to proceed. In those circumstances, I consider, under s 16(1B)(b), she should have been examined as soon as practicable, in other words, at least on 28 October 2020 which was a week before she was scheduled to be examined for the purpose of a compulsory treatment order. While it would appear, on the facts, this would have made no difference to the outcome in Ms Reynolds's case, there may be cases where an opportunity to be released is delayed by refusing to proceed with a scheduled s 16 hearing on the grounds that a compulsory treatment order has been applied for.[73] Having concluded the Court erred in law by declining to hear Ms Reynolds's s 16 review on the assumption it was "out of time" as it was superseded by the Part 2 process. I turn now to the question of relief.Relief[74] I accept relief, including declaratory relief, may be declined when the dispute is in the past, and there is no utility in making the declaration sought.42 Here, Ms Reynolds's application for a s 16 review was overtaken by the s 18 examination, which found she was not fit to be released from compulsory treatment in any event. However, this does not mean the issues raised are simply academic. In particular, the issue of whether a s 16 review application can still be heard once a s 14 certificate has issued is of continuing relevance to the administration of the Act. Furthermore, as Professor42 Turner v Pickering [1976] 1 NZLR 129 (SC).Philip Joseph has said, where there has been a mistake in law "it is the judicial function formally to declare it." 43 I also consider that by making such a finding, the applicant will be vindicated in raising her concerns. For these reasons, I consider the declarations sought should be made.[75] Accordingly, in respect of the third ground of review, I make the following declarations:(a) the issue of a s 14 certificate does not revoke a patient's right to be examined by a Judge pursuant to s 16 of the Act;(b) the applicant's right to be examined by a Judge "as soon as practicable" pursuant to s 16 of the Act was breached by the respondent as a result of its mistaken belief that the issuing of the s 14 certificate by the responsible clinician prevented a s 16 hearing being held after that date.Costs[76] The applicant has sought costs. However, the respondent has played no active part in the proceedings, so no obvious liability for costs arises. In any event, costs are not normally awarded against a judicial officer or body on an application for review. Such entities are only liable for costs where there has been judicial misconduct of a "particularly egregious kind" which would warrant an expression of disapproval.44Errors of law or process will not, by themselves, support an award of costs. For these reasons, while costs are reserved, my preliminary view is that costs should lie where they fall.[77] Mr MacKenzie's reasonable costs and disbursements as counsel to assist are to be paid out of monies appropriated by Parliament for that purpose.45Solicitors:Crown Law, Wellington43 Philip A Joseph Constitutional and Administrative Law (online ed, Thomson Reuters) at [2.27.3].44 Coroner's Court v Newton [2006] NZAR 312 (CA) at [46].45 Senior Courts Act 2016, s 178(3).Hansen Law, ChristchurchCopy To:Mr A J Bailey, Barrister, ChristchurchT J Mackenzie, Barrister, Christchurch