STOP FORCED DRUGGING NZ

2009-02-14T18:56:00.065+13:00

What are medical staff at Hillmorton State psychiatric institution Christchurch New Zealand involved in?

The medical psychiatric staff at Hillmorton hospital are authorized to use resonable force on patients to treat them (see s.122B(3), Mental Health (CAT)Act 1992).

What sections of the New Zealand Bill of Rights Act 1990 are relevant?

The relevant provisions are:

s.9. Right not to be subjected to torture or cruel treatment -
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

s.10 Right not to be subjected to medical or scientific experimentation -Every person has the right not to be subjected to medical or scientific experimentation without that person's consent.

s.11 Right to refuse to undergo medical treatment -Everyone has the right to refuse to undergo any medical treatment.

23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—

(a) Shall be informed at the time of the arrest or detention of the reason for it; and

(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
...
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.'

●▬▬▬▬▬▬▬▬ஜ۩۞۩ஜ▬▬▬▬▬▬▬▬●

Other relevant stautory provisions include:

'146 Consent to treatment, etc, not affected

(1) No sentence or condition imposed or order made under this Act limits or affects in any way any enactment or rule of law relating to consent to any medical or psychiatric treatment.

(2) Subsection (1) applies except as expressly provided by any other enactment.'

Sentencing Act 2002

s21(1)'
...

(iii) Psychiatric illness:

(iv) Intellectual or psychological disability or impairment:

(v) Any other loss or abnormality of psychological, physiological, or anatomical structure or function:'
...

Human Rights Act 1993
see s.21-for grounds of unlawful discrimination

Forced psychiatric treatment, under the Mental Health Act, is inconsistent with the right to refuse treatment in section 11 NZBORA. Hillmorton medical staff have been/and are involved in the detainment and forced drugging (and ECT) of patients at Hillmorton, as are staff at other state psychiatric institutions throughout new zealand.

74 Oxford Tce, Christchurch psychiatric emergency

*REPEAL ALL COMPULSORY TREATMENT PROVISIONS IN THE

MENTAL HEALTH(CAT)ACT 1992

Room in acute wing of Hillmorton psych. Hospital around 2000.

s.23(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. (NZBORA)

(see SFD slideshow- http://stopforceddrugging.blogspot.com/search/label/general%20information%20for%20medical%20clinics)

2007-11-05T18:47:00.086+13:00

What are medical staff at Hillmorton State psychiatric institution Christchurch New Zealand authorized to do?

The medical psychiatric staff at Hillmorton hospital are authorized to use resonable force on patients to treat them (see s.122B(3), Mental Health (CAT)Act 1992).

Forced medical treatment in inconsistent with section 11 of the New Zealand Bill of Rights Act 1990. Section 11 states that everyone has the right to refuse to undergo any medical treatment. This is a fundamental human right. Hillmorton medical staff have been/and are involved in the detainment and forced drugging (and ECT) of patients at Hillmorton, as are staff at other state psychiatric institutions throughout new zealand.

;">www.stopforceddrugging.blogspot.com

The message is this: all legislative provisions that compel a so -called 'mentally disordered' (see definition in s.2 Mental Health (CAT) Act 1992) person to take drugs should be repealed. Parliament, should not have the jurisdiction to decide what drug another human being has to take and to compel them to take it. However, Parliament, with its supremacy, has theoretically and academically speaking , unlimited power. It almost escapes comprehension how Parliament's jurisdiction could extend to these vast limits. You will note the posters on this blog using terms like 'fascist democracy'. That observation is not an inaccurate one. In New Zealand, descriptions such as 'tyranny of the majority' and 'elective dictatorship' fit nicely. This country is essentially, even with MMP, controlled by the majority.

The majority, via a democratic mandate, elect their representatives into power. However they cannot be blamed after that for what those representatives, acting as Parliament, enact into law. The majority are to blame for the initial act, that is, of electing representatives into Parliament based on a handful of promises. If Parliament later choose to break those promises there is little the majority can do. Where do the minority fit into to all this?

Do you think the minority, the ones held under the Mental Health Act, would have voted for representatives who sought to enact a piece of legislation that takes away their fundamental rights, such as the right to refuse treatment in section 11 of the New Zealand Bill of Rights Act 1990? Or, do you think they they would vote for a party they wished to enact legislation that authorized the use of force on them? ( see s.122B(3) MHA ). It is absurd to even suggest it. Who would vote for a party that promised to take away the rights of the very people who voted them into power? That is why the majority in this country are to blame, as they hold the power, through the sheer weight of numbers, to elect who they want. A small sector of the population is held under the provisions of the Mental Health (CAT) Act 1992. In reality, any person who comes within the statutory definition of 'mental disorder' in section 2 of the 1992 Act can be detained and forced to take drugs, however, this is not the reality. Only a small defenseless group of individuals are held under the 1992 Act. They are hidden from site and locked away in some psychiatric institution or live in compulsory community care in some house hidden in suburbia.

Do you think that that small dis -empowered minority will ever be able to effect any real change to the 1992 legislation? Even if there was a political party who sought to repeal or amend certain provisions in the 1992 Act would they have sufficient numbers in Parliament to do so? Could they form a coalition with another like minded party? How would the majority respond if this were to happen; or would the majority now be relegated to position of minority?

judicial criticism of detention:

"...any deprivation of liberty, incarceration, or physical detention is, in reality, a form of punishment," Hamilton v. Love, 328 F.Supp. 1182, 1193.

2007-11-05T18:47:00.038+13:00

Christchurch Police station New Zealand

You tube video

The New Zealand police have statutory powers conferred upon them under the Mental Health (C.A.T.) Act 1992 ("the MHA") which appear repugnant to human rights. Extensive powers exist in section 122B in relation to an emergency. In an "emergency"(not defined in the MHA) the police may use '... such force as is reasonably necessary in the circumstances' (s.122B(1)) to take or retake a person, proposed patient, or patient (see s.122B(2)(a) MHA): to detain a person, proposed patient, or patient (see s.122B(2)(b)MHA); and to enter premises (see s.122B(2)(c) MHA).

The police have statutory power to use force against the innocent – this is chronic. Those in the mental heath system face enough discrimination and violation without being subject to police use of force against them. Notwithstanding the fact these powers are confined to "emergency" situations it is still barbaric, as many so -called patients are unable to formulate the necessary mental element essential for criminal liability. This is yet another example of Parliament empowering the police to use force against those who may be completely innocent. Read more about use of force in mental health at this site.

2007-09-17T16:05:00.002+12:00

Re S [1992] 1 NZLR 363

Re K [2003] NZFLR 318

SFD introduction:

Re S [1992] 1 NZLR 363 and Re K [2003] NZFLR 318, were both right to refuse treatment cases. Re S is an early decision, being 1991. Thus it was decided about a year after the New Zealand Bill of Rights Act 1990 (“NZBORA”) came into force.

In 2007, it is difficult to judge the continuing authority of Re S (see Brookbanks, infra, at p.73). But it remains important for this: the word “Everyone”, appearing in s.11 NZBORA, does not literally mean everyone. As far as the mental health jurisdiction is concerned, “Everyone” applies only those who are “competent” to refuse treatment. The right in s.11 only crystallizes when the person is competent (see Re K, para.[22]).

This distinction creates a strange anomaly, the result being that a patient can be both “mentally disordered” as per s.2 of the MHA, yet at the same time considered to be “competent”. The definition for competence derives from the common law.

However, the concepts of mental disorder and competency are not mutually exclusive (see Re S at p.372 cited in Re K at para. [22]). It is probably important to view them separately. Where a patient is mentally disordered but yet “competent” the right to refuse treatment in s.11 NZBORA could, it seems, be invoked in the person's favour. They have a right to refuse treatment. Thus there remains a narrow window of opportunity for a patient to evade the compulsory treatment under the MHA.

This is of huge importance. It must be remembered throughout this discussion that Re S concerned the now repealed Mental health Act 1969, and not the 1992 Act presently in force in New Zealand. Only material excerpts from those judgments will be used:

Re S [1992] 1 NZLR 363

High Court
Auckland, New Zealand
15, 16 April; 17 July 1991
Barker J.

Held:

The provisions in the Mental Health Act 1969 continue to apply in spite of the passing of the NZBORA. But the provisions of the Mental Health Act are to be interpreted, “as far as possible”, in light of the NZBORA.

Re M [1992] 1 NZLR 29 followed.

The wide discretion conferred on the superintendent under s.66 of the Mental Health Act 1969 would be compromised and rendered ineffective if the word “Everyone” in s.11 of the NZBORA were to be read as including all “mentally disordered” persons who are committed patients. “Everyone”, in s.11, means “every person who is competent to consent”. On the facts, S was incompetent to make a decision as to whether to continue or discontinue medication. Because of this, his right under s.11 did not permit him to refuse medical treatment as an out patient. S's limited “detention” on leave was necessary due to his state of mind, that is, his lack of perception regarding the need for continuing treatment. His detention was not illegal (see Re S, p. 373 line 52, p. 375 line 38).

Application for discharge refused.

Observation: There is need “for a clear legislation intent” and to in what circumstances and by whom the rights and freedoms in the NZBORA, in relation to the mentally disordered, may be restricted.

Other cases mentioned in judgment

Kohn v Globerman (1986) 27 DLR (4th) 583 (Manitoba: CA).
M, (A Mental Patient), Re ( HC Wellington, M 716/85, 21 April, 1986, Grieg J).
R v Big M Drug Mart Ltd [1985] 1 SCR 295 (SCC).
R v Duguay, Murphy and Sevigny (1989) 67 CR (3d) 252 (SCC).
T, Re (HC, Auckland, M 2/87, 22 August 1988, Gault J).

Application

This was an application made under s.74 of the Mental Health Act 1969 for an inquiry for an order to discharge the appellant.

Cur adv vult

Re K [2003] NZFLR 318

In this later 2002 decision, Judge Inglis QC cited Re S (at para. [22]: see also X v X [2000] NZFLR 1125). However, Re S was deficient, in that it provided no suitable test to determine capacity. To resolve this, his Honour followed the UK Court of Appeal decision Re MB (Medical treatment) [1997] 2 FLR 426 (CA), adopting it's two- fold test for determining whether a person was “competent” to refuse medical treatment.

The main issue in Re K was whether Mrs K had the capacity or competence to decline to consent to the proposed medical treatment. This was to be answered by asking:

1. whether she was able to comprehend and retain information that was material to the decision, especially as to the likely consequences of having or not having the treatment in question and;

2. whether she was able to use the information and weigh it in the balance as part of the process of arriving at a decision.

On the facts, his Honour held that K had a significantly limited insight into the nature and condition of her illness. She therefore lacked the capacity to make a valid and reasoned assessment as to whether to accept or decline the proposed treatment (held in Re K, at para.(4)). So the application to extend the compulsory treatment order was made (see s.34(4) MHA -conferring jurisdiction on a District Court to extend the order). His Honour stated:

'The question whether she has that capacity or competence is to be answered according to the test stated above [from Re MB]. If in terms of that test she has that capacity or competence, then her refusal to accept treatment would mean that the present application would have to be dismissed. It would not matter that her refusal to consent to treatment might seem imprudent or perverse, for the capacity and thus the right to make decisions of this kind is not vitiated simply because it is exercised in a away that some might consider inadequate or unwise.' (at para. [24])

The incredible thing here is that if K had of satisfied the two fold capacity test above, the Judge would have dismissed the clinician's application: it “would have to be dismissed”. If K had been found to be competent, s.11 NZBORA could have been invoked in her favour. Having capacity, she would be included within the definition of “Everyone” (in s.11).

Determining capacity turns on the evidence adduced in each particular case. If that question was answered in the affirmative, the right to refuse treatment in s.11 would have resulted in the dismissal of the clinician's application. What does this mean? Does it mean that the provisions in the MHA do not override a competent person's refusal of medical treatment? Does it mean that when a patient is “mentally disordered” (s.2 MHA) yet “competent” they can invoke the right in s.11 NZBORA to refuse treatment for mental disorder?

As far as human rights in the mental health jurisdiction is concerned Re K seems a major advancement. However, it lacks authority, being only a Family Court decision, as opposed to being a decision from a superior court. Nevertheless, it seems, on the basis of Re K, that a patient who is mentally disordered yet competent could evade the compulsory treatment provisions of the MHA. The important thing to remember here is that the MHA itself makes no distinction between being mentally disordered and being competent. These innovations derive from the common law.

Did the legislature intend that the MHA should also include those who are competent? Should those who are competent be compelled to receive treatment - as well as those considered mentally disordered? Nowhere is that issue addressed in the legislation. Neither is a distinction found in the NZBORA in relation to being competent or incompetent- in regards to the word “Everyone” in s.11. When is the s.11 right to refuse treatment to be restricted? There was and still is need “for a clear legislative intent”, see the observation made by Barker J in Re S, as far back as 1991, above (at p.363).

Hypothetical patient scenario:

Assume, for the sake of argument, that a patient is subject to either one of the assessment periods (ss.11 or 13) . ( Ignore any practical concerns that time constraints would render court action virtually impossible).

Section 58 of the MHA applies to both of those periods of assessment and treatment. The section states:

58 Treatment while undergoing assessment

Every [patient] who is undergoing assessment pursuant to section 11 or section 13 of this Act shall be required to accept such treatment for mental disorder as the responsible clinician shall direct.

Note the words “shall be required to accept”; s.58 is mandatory in it's wording. Furthermore, s.122B(3) of the MHA provides a discretionary power to use force to treat a patient to whom s.58 applies. How is the mentally disordered yet “competent” patient able to evade the operation of s.58? Because the patient is competent, she now falls within “Everyone” in s.11 NZBORA. Section 11 NZBORA can be invoked. She has a right to refuse treatment for mental disorder under the MHA.

Still, there is a problem. Where does this leave section 4 of the NZBORA? Section 4 is a legislative direction to courts in New Zealand. It expressly upholds inconsistent legislation. Section 4 reads:

4 Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a)Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b)Decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

If a court were to hold that the mentally disordered yet competent patient could invoke s.11 NZBORA to avoid compulsory treatment under s.58, would this not contravene s.4 NZBORA? For instance, if a court held s.58 MHA to be “invalid”, or “ineffective”, or if it “decline[d] to apply” s.58 this would contravene s.4. Does s.58 encompass all those who are mentally disordered and competent at the same time? Is the section all inclusive? It's wording is imperative, but it completely fails to address the issue of competency. Arguably, it was presumed that a mentally disordered person is also incompetent. Perhaps any reference to capacity was seen as superfluous.

The competency argument seems more convincing when a phrase in the inconsistent provision is vague. Take, for instance, s.59 of the MHA. That section reads:

59 Treatment while subject to compulsory treatment order

(1)Every patient who is subject to a compulsory treatment order shall, during the first month of the currency of the order, be required to accept such treatment for mental disorder as the responsible clinician shall direct.

(2)Except during the period of 1 month referred to in subsection (1) of this section, no patient shall be required to accept any treatment unless—

(a)The patient, having had the treatment explained to him or her in accordance with section 67 of this Act, consents in writing to the treatment; or

(b)The treatment is considered to be in the interests of the patient by a psychiatrist (not being the responsible clinician) who has been appointed for the purposes of this section by the Review Tribunal.

(3)Where, during the period of 1 month referred to in subsection (1) of this section, the responsible clinician is satisfied—

(a)That the patient will need further treatment of a particular kind beyond the expiry of that period; and

(b)That the patient is unlikely to consent to that treatment,—

the responsible clinician may, notwithstanding that the period has not expired, refer the case to the psychiatrist referred to in subsection (2)(b) of this section for consideration, so as to ensure that the opinion of that psychiatrist is available on the expiry of that period.

(4)The responsible clinician shall, wherever practicable, seek to obtain the consent of the patient to any treatment even though that treatment may be authorised by or under this Act without the patient's consent.

Here the focus is on s.59(2)(b). Should the vague paternalistic phrase “in the interests of the patient” used in s.59(2)(b) be able to trump a rational and competent patient's refusal of treatment? The phrase is obviously weak. Brookbanks states:

'The purported power to give a patient a right to refuse treatment after the expiration of the statutory one month [s.59(2)] is immediately taken away by the provision that the patient's refusal may be overridden by an independent psychiatrist appointed by the Mental Health Review Tribunal who considers, notwithstanding the patient's refusal, that further treatment is “in the interests of the patient”[s.59(2)(b)]. In other words, undefined parens patriae concerns are permitted to trump a competent patient's express right to refuse consent, even in the face of a vigorous and rational objection to the proposed treatment.' (Compelling civil commitment to treatment: a workable tension? (2002) Family Law Journal 72).

Brookbank's article was cited by Judge Inglis QC (at para. [21]). But neither his article, nor the Re K decision, confront the s. 4 NZBORA problem above. Even if a a patient is deemed competent and can invoke the right in s.11 to refuse treatment for mental disorder, how can s.11 override inconsistent mental health legislation? Surely, if s.11 were held to prevail over s. 58 or s.59(2)(b) of the MHA, this would breach s.4 of the NZBORA. It would be to do what s.4 expressly forbids.

SFD critique of Re K

The Judge simply asserted that if K were found to have been competent the application ”would have to be dismissed” (at para. [24]). It seems the clinician's application would have simply been dismissed and nothing more. K would have been no longer subject to the MHA. Is this correct? Even if K had been found to have the capacity to refuse treatment, surely compulsory treatment sections in the MHA could not simply be brushed aside?

The Judge never addressed the s. 4 NZBORA issue. This point was noted by a university law lecturer who specialized in medical law. Because of this, that lecturer finds the reasoning in Re K dubious indeed. Moreover, Re K also fails to state where and when the competency test applies, that is, to what exact sections in the MHA.

On the evidence, K clearly fell within the statutory definition of mental disorder. Therefore there was jurisdiction to extend the compulsory treatment order (para. [18]). It was held that K lacked capacity. She had failed the two-fold competency test. Surely, this is the reason the Judge did not go on to look at questions of law regarding inconsistency.

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2007-07-21T16:14:00.001+12:00

Sestan v Director of Area Mental Health Services Waitemata District Health Board

Hearing: 29 November 2006

Court: William Young P, Robertson and Arnold JJ

Counsel: T Ellis and W Wills for the Appellant
MR Heron and DA Marshall for the Respondent

Judgment: 12 December at 4pm

_________________________________________________

SYNOPSIS OF COURT OF APPEAL DECISION

_________________________________________________

SFD introduction:

The Sestan appeal involved a whole multitude of issues. The grounds of appeal were “wide- ranging and diffuse” (at para. [2]). The appellant argued there has been breaches of some of the provisions of the Mental health (Compulsory Assessment and Treatment)Act 1992 (“the MHA”)and the New Zealand Bill of Rights Act 1990 (“NZBORA”). Therefore the processing of Mr Seatan undertaken via the MHA was unlawful and he had been subjected to arbitrary detention contrary to section 22 NZBORA. However, s.22 is not discussed by the Court of Appeal (“the CA”) in the decision. This synopsis will only cover the points of law raised on appeal. It is only a summary. Every submission advanced by the appellant's counsel failed.

The High Court proceedings (Asher J)

The appellant had earlier argued, before Asher J, that there had been a breach of section 9(2)(d) of the MHA, that the second certificate issued under s.12 of the MHA was premature and invalid, and there was an issue as to whether Mr Sestan was actually mentally disordered (para [14]).

Each of these issues were raised again in the CA, but the attack was far more extensive (para.[15]). The appellant's counsel contended that there were many failures in following the statutory requirements of the MHA throughout the compulsory assessment and treatment process (para.[18]).

Were the section 8A and 8B requirements complied with?

Sections 8, 8A and 8 B of the MHA provide:

[8 Any person may fill out application form

(1)Anyone who believes that a person may be suffering from a mental disorder may at any time fill out an application form asking the Director of Area Mental Health Services for an assessment of the person.

(2)An application is made under section 8A when the Director of Area Mental Health Services receives a filled out application form that complies with section 8A.

(3)In sections 8A and 8B,—

(a)The person who fills out the application form is called the “applicant”; and

(b)The person who is the subject of the application is called the “person”.]

[8A Application for assessment

An application is made under this section when the Director of Area Mental Health Services receives a filled out application form that complies with the following:

(a)It is accompanied by a certificate issued under section 8B relating to the person that states a date of examination within the 3 days immediately before the date of the application; and

(b)It states that the applicant is 18 years or over; and

(c)It states that the applicant has personally seen the person within the 3 days immediately before the date of the application; and

(d)It states the relationship or association of the applicant with the person; and

(e)It states the grounds on which the applicant believes the person to be suffering from a mental disorder.]

[8B Medical practitioner's certificate to accompany application for assessment

(1)This section applies when—

(a)A medical practitioner is asked, by an applicant, to issue a certificate to accompany the application form; or

(b)A medical practitioner is the applicant and wishes to issue a certificate to accompany his or her application form.

(2)A medical practitioner to whom subsection (1)(a) applies must not issue a certificate if he or she is related to the applicant or to the person.

(3)A medical practitioner to whom subsection (1)(b) applies must not issue a certificate if he or she is related to the person.

(4)The medical practitioner must—

(a)Examine the person; and

(b)If he or she considers that there are reasonable grounds for believing that the person may be suffering from a mental disorder, issue the certificate.

(5)The certificate must—

(a)State that the medical practitioner has examined the person:

(b)State the date of the examination:

(c)State that the medical practitioner considers that there are reasonable grounds for believing that the person may be suffering from a mental disorder:

(d)Set out full particulars of the reasons for that opinion, explaining in what way the medical practitioner believes that the person's condition may come within the statutory definition of mental disorder:

(e)State that the medical practitioner is not related to the person or to the applicant (except when the medical practitioner is the applicant).]

Counsel for the appellant contended that sections 8A and 8B were not complied with and as a result Mr Sestan was unlawfully detained (para.[20]). He conceded that the appellant was “seen” and “examined” within the required three days and by people having the the appropriate relationship with Mr Sestan. However, counsel argued that the medical practitioner looked at notes and discussed the matter with others. Therefore, this amounted to evidence that the medical practitioner did not act independently, but instead had been essentially “got at”.Counsel further asserted that insufficient reasons had been given for the belief that the appellant was “mentally disordered” in breach of ss.8A(e) and 8B(4)(b) MHA. Counsel submitted that that it could not be sufficiently proven that the appellant was mentally disordered (para.[20]).

Counsel for the respondent contended that the MHA did not require a diagnosis of mental disorder, instead it was enough that the medical practitioner ans the applicant had “reasonable grounds for believing” that the appellant “may” have been mentally disordered. He stated that there was sufficient grounds on the certificates to fulfil the statutory requirements of the MHA (para.[21]).

Section 2 of the MHA provides a definition of “mental disorder”:

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

The application for assessment and the certificate relayed details of an incident which Mr Sestan had had involving road rage, excessive speeding, lying to the police, his not sleeping and parental concerns about his behaviour. The CA held there were sufficient grounds to support a reasonable belief that the appellant was mentally disordered. The CA did not accept the more extreme elements of the appellant's case- that prior medical history is irrelevant to the examination. The CA stated that the current mental state of the person must be examined, but the medical practitioner is not required to adopt a blinkered approach. The CA further stated that it would be irresponsible for the medical practitioner not to consider the person's background and relevant circumstances. These may provide an explanation for the person's behaviour, behaviour that does not relate to the person's mental health, but instead the effects of a certain medications (para.[23]).

Was Mr Sestan detained while the ss.8A and 8B processes were taking place?

The appellant submitted that he was “detained” when undergoing the section 8B examination and while the s.8A application was made. While he was detained he was not informed of his right to consult a lawyer in accordance with s.70 MHA or s.23(1)(b) NZBORA. Therefore the appellant contended that any information obtained during this process was tainted and the assessment under s.9 MHA was a nullity (para [24]).

The CA stated whether the appellant was detained prior to the s.9 assessment required a close examination of the statutory framework (para. [25]).

The CA stated that during the application phase ( ss.8-8B) the person being examined is under no compulsion to stay and participate. Section 38(3) of the MHA provides that if a duly authorised officer (DAO) decides that a person needs to have a medical examination (under s.8B), but the situation id not urgent, the DAO must “arrange or assist in arranging”for a medical practitioner to examine the person. The statutory wording suggests that the DAO has no power to compel the person to submit to an examination but instead must make attempts to arrange a time for examination that the person finds acceptable (para. [26]).

However, the situation is different where the DAO believes that the examination is urgent and the person “refuses to go willingly” to a medical practitioner. Section 38(4)(d) states that if a DAO believes that the person needs to be examined urgently they must “take the person” to a medical practitioner and may call the police to assist them in this end ( para. [27]).

At para.[28] the CA cites two cases; Innes v Wong [1996] 3 NZLR 238 (HC); and Re RO [Mental health] (1998) 17 FRNZ 486. In Innes, Cartwright J states that there the power to compel someone to submit to an examination must be read narrowly; “except in extreme cases of emergency there is no basis for ignoring the rights of the person who is thought to be mentally disordered”. This accord with the District Court in Re RO, where it was held that during the ss. 8A and 8B process a person is participating voluntarily and is free to leave (Sestan, para. [28]).

The voluntary nature of the ss. 8-8B procedure may be compared with section 9 MHA. Under s.9(1) the DAO must make arrangements for the “proposed patient” (s.2A) to be assessed “forthwith”. Notice of the assessment must be given to the patient to attend for the purpose of assessment examination; s.9(2)(c)(i). The wording is mandatory, the proposed patient must submit to the examination forthwith (para. [29]).

counsel for the appellant contended that the language of s.8B was equally mandatory and pointed to the s.8B(4)(a) requirement that a medical practitioner must “examine the person”. However, the CA held that the compulsion in s.8B(4)(a) is directed at the medical practitioner, rather than the person being examined. The section imposes a mandatory requirement on the medical practitioner to examine the person before issuing the certificate (para. [30]).

The CA was satisfied that, unless the situation is urgent and the s.38 procedures adopted, a person is not detained until they are required to submit to an s.9 assessment examination (para. [31]).

Counsel argued that Mr Sestan did not voluntarily submit to the s.8B assessment examination, and because of this was therefore under a defacto detention. Counsel pointed to the phone conversation between the appellant and a member of the Community Health Team where the appellant had refused a home visit and further stated that he would not allow the Mental Health Act to be used. Counsel also pointed out the fact that the Mr Sestan had tried to leave the hospital, but was not allowed to do so (para. [32]).

However, the CA was satisfied that Mr Sestan has acquiesced to the examination process. Mr Sestan went voluntarily to the Emergency department at North Shore Hospital. His attempt top leave was not made until after the s.8A application had been made and Mr Sestan was given notice of the assessment, then, at that, time the appellant was properly detained. In the circumstances the CA were satisfied that the appellant was not detained until required to undergo a s.9 assessment. Accordingly, there was no requirement that Mr Sestan be informed of his right to a lawyer, in accordance with s.23(1)(b) NZBORA, up until, and before that time (para. [33]).

Section 70 MHA -right to a lawyer

Counsel for the appellant argued that even if the appellant was not detained for the purposes of s.23 NZBORA, when the application process was being carried out, nevertheless the appellant was entitled to be informed of his right to a lawyer in accordance with section 70 of the MHA. Section 70 provides:

70 Right to legal advice

Every patient is entitled to request a lawyer to advise the patient on his or her status and rights as a patient, or any other matters on which persons customarily seek legal advice, and, if the lawyer agrees to act for the patient, he or she shall be permitted access to the patient upon request.

Under section 70 every “patient” is entitled to request a lawyer. A person does not become a “patient” until required to undergo further assessment under ss.11 or 13: s.2 (para [35& 36]).

Section 63 of the MHA states that s.70 also applies to “proposed patients”. Proposed patient is defined in section 2 o the MHA:

[2A Meaning of “proposed patient”

A person—

(a)Starts being a proposed patient when an application is made under section 8A; and

(b)Stops being a proposed patient when a medical practitioner records a finding—

(i)Under section 10(1)(b)(i), in which case the person does not become a patient; or

(ii)Under section 10(1)(b)(ii), in which case the person becomes a patient.]

An application under s.8A is deemed (deeming provision) to be made when the DAMHS receives a completed application that complies with s.8A: s.8(2). However, an s.8A application is not complete unless it is accompanied by a certificate issued under s.8B by a medical practitioner. Thus a person becomes a “proposed patient” only after the ss.8A and 8B processes are completed. It follows that up until that time, Mr Sestan had no entitlement to a lawyer (para.[38]).

The CA stated that they were satisfied that ss.8A and 8B were complied with (para.[39]).

Were the requirements of s.9 of the MHA complied with?

Section 9 of the MHA provides that:

9 Assessment examination to be arranged and conducted

(1)Where an application is made under [section 8A], the Director of Area Mental Health Services, or a duly authorised officer acting with the authority of that Director, shall make the necessary arrangements for the proposed patient to undergo an assessment examination forthwith.

(2)The arrangements required by subsection (1) of this section shall include the following:

(a)Nominating, in accordance with subsection (3) of this section, the person by whom the assessment examination is to be conducted:

(b)Determining, in consultation with the person by whom the assessment examination is to be conducted, the time and place at which it is to be conducted:

(c)Giving to the proposed patient a written notice—

(i)Requiring the proposed patient to attend at the specified place and time for the purposes of the assessment examination; and

(ii)Explaining the purpose of the assessment examination; and

(iii)Stating the name of the person who is to conduct the assessment examination:

(d)Ensuring that the purpose of the assessment examination and the requirements of the notice given under paragraph (c) of this subsection are explained to the proposed patient in the presence of a member of the proposed patient's family, or a caregiver in relation to the proposed patient or other person concerned with the welfare of the proposed patient:

(e)Ensuring, where necessary, that appropriate arrangements are made to convey the [proposed] patient at the required time to the place where the assessment examination is to be conducted, and, where it is necessary or desirable that the proposed patient be accompanied on the journey, ensuring that an appropriate person is available to do so.

(3)Every assessment examination shall be conducted by a medical practitioner ( … but not being the medical practitioner who [issued] the certificate [under section 8B(4)(b)]), being—

(a)A psychiatrist approved by the Director of Area Mental Health Services for the purposes of the assessment examination or of assessment examinations generally; or

(b)If no such psychiatrist is reasonably available, some other medical practitioner who, in the opinion of the Director of Area Mental Health Services, is suitably qualified to conduct the assessment examination or assessment examinations generally.

[(4)For the purposes of subsection (1), an application under section 8A is deemed to have been made if the Director of Area Mental Health Services or a duly authorised officer receives notice of it from the medical practitioner who issued the certificate relating to the person under section 8B(4)(b). The medical practitioner may give notice by any means, including by telephone. The assessment examination must not take place until the Director of Area Mental Health Services, or a duly authorised officer, or the medical practitioner who is to conduct the examination receives an application relating to the person and complying with section 8A.]

Counsel for the appellant submitted that the respondent failed to meet it's obligations pursuant to the section 9 process in five ways:

(a) non-compliance with s.9(2)(d) of the MHA;

(b) that the respondent failed to properly inform the appellant of his rights in accordance with s.64(1) of the MHA;

(c)that the respondent failed to properly inform the appellant of his right to a lawyer in accordance with s.23(1)(b) of the NZBORA;

(d) that the medical practitioner failed to consult with the appellant's family in accordance with s.7A(2) of the MHA;

(e) that the respondent had breached the appellant's common law right to silence.

The section 9(2)(d) MHA issue

the respondent conceded that s. 9(2)(d) had been breached as a family member of the appellant had not been present when an explanation of the assessment procedure had been given . The facts over this were not in dispute. The issues for the CA were the breach affected the processes that followed and what was the appropriate remedy. Counsel contended that the right in s.9(2)(d) was important, not a right that the person could waive, or decline, and that the failure by the respondent to observe it rendered the whole subsequent process a nullity. Counsel for the respondent that the breach was serious, the right was not fundamental, and was simply a right to have a support person present while the explanation was given, not for the assessment itself. He argued a writ of habeas corpus would be a disproportionate response to the breach.

Counsel for the appellant placed considerable reliance on Re S-C (Mental patient: habeas corpus [1996] 1 QB 599 (CA Civ) for the proposition that a procedural error renders the entire subsequent process a nullity. The CA of appeal rejected this submission (para.[43]).

The CA held that non-compliance with a mandatory provision does not automatically mean that a writ of habeas corpus is either required or appropriate: Manuel v Superintendent of Hawkes Bay Prison [2005] 1 NZLR 161 (CA); Campbell v Superintendent Wellington Prison CA3/05 14 February 2005; Burr v Blenheim Borough Council [1980] 2 NZLR 1 (CA) (Sestan at para. [44]).

Whether non-compliance with a procedural requirement is fatal depends on (1) the place of the requirement in the scheme of the Act and (2) the degree of seriousness of the non-compliance: Burr at 4 (Sestan para. [45]).

The CA held that the scheme of the MHA indicates that it was not intended that those requiring compulsory treatment be released due to a procedural breach as occurred in respect of s.9. The MHA provides for ongoing review and reassessment ( see para.[53]).

If a person refuses to have a support person present what are the lengths a DAO is meant to go to to comply with the requirement? We are satisfied that Asher J in the HC did not err in his approach and was correct in not issuing a writ of habeas corpus for the breach of s.9(2)(d) MHA (para.[55]).

Right of appellant to be informed of rights

Counsel for the appellant submitted that the appellant had not been informed of his rights under the MHA. Counsel conceded that Ms Smith had verbally explained to Mr Sestan the extent of his rights under the MHA, but argued that this was insufficient for two reasons (para. 56]).
Firstly, the appellant did not understand his rights. In situations such as this it is essential that DAOs' ensure that persons properly understand the advice: R v Samuelu (2005) 21 CRNZ 902 (HC); R v Mallinson [1993] 1 NZLR 528 (CA). However, the CA were not convinced by this submission. Because of the person's mental condition, it may be impossible to explain their rights to them. “This cannot invalidate any subsequent assessment process” (para.[57]).

Counsel for the appellant submitted that the standard form written notice circulating around hospitals in the country was full of errors, and failed to inform patients of their rights. However, flawed, the CA held that the form was sufficient to inform them of their rights (para. [58]).

Counsel also submitted that Ms Smith had failed to give written notice of his rights as a patient as required by s. 64(1) MHA. On the facts she had attempted to give him written notice , but he had refused. So the appellant cannot not complain about what he himself preventing happening (para. [59]).

Even if the CA had of found that the appellant had not be sufficiently informed of his rights and specifically right to counsel, it would not necessarily follow that a writ of habeas corpus was the appropriate remedy. The CA cited s.75 of the MHA and the Act's internal complaint procedure (para. [60]).

Right to consult a lawyer

Mr Sestan had been informed of his right to request a lawyer when he was informed of his rights under the MHA. However, counsel submitted the information provided had been inadequate , insufficient, and inconsistent with the NZBORA requirement that a detained person has the right to see a lawyer without delay and in private (para. [62]).

The information was provided to the appellant in accordance with s.70 of the MHA. This specific statutory scheme was created after the NZBORA. Given that there may be reasonable grounds for believing that the person is mentally disordered it is reasonable that the right may not be available in private (para. [63]).

Issues concerning delay may turn on context. A step in the process may need to be taken in urgency, so waiting until a specialist lawyer is available may simply be counter productive. Waiting for hours or days in not a requirement, but that detriment can be balanced against the fact when one becomes available various reviews etc can be initiated. “ In this area there is not a one-off opportunity for legal assistance to be efficacious as is often the case in a criminal context” (para. [64]).

Obligation on medical practitioner to consult with “proposed patient”'s (s.2A MHA) family

The appellant's counsel submitted that the appellant was unlawfully detained, as the medical practitioner who conducted the s.9 assessment failed to consult with the appellant's family as required by s.7A(2) MHA (para. [65]).

The family had been consulted but not by the medical practitioner but instead by Ms Smith. She then passed the information on to the medical practitioner (para.[66]).

The CA held that this breach was of no consequence. “in this case the family was able to have input into the process, albeit through the DAO” (para. [67]).

Right to silence?

The appellant's counsel submitted that the requirement that Mr Sestan submit himself for a medical examination breached his common law right to silence. This argument was reiterated in regards to the mandatory requirements under ss. 11 and 13 MHA (para. [68]).

However, the CA noted, in relation to the NZBORA, that the statutory right to silence in s.23(3) is inapplicable, as the patient is not detained “for an offence”. The CA were satisfied that on a sensible construction under the common law, the right to silence had no application in these circumstances (para. [69]).

Was section 10 of the MHA complied with?

The appellant's counsel conceded that s.10 had be complied with, but that the framing of the provision was in breach of the appellant's right to reasons under s.23(1)(a) NZBORA. This was because when a medical practitioner certified his findings of the assessment examination, the only person entitled to receive a copy of the reasons given by the medical practitioner was the DAMHS: s.10(3)(b) MHA. The proposed patient is only entitled to a copy of the certificate- this fails to outline the reasons for the decision: s.10(4)(a)(i) MHA (para.[70]).

The CA held that the MHA does not specify that a patient be given a copy of the reasons, however it does not deny the patient the right to receive information. Other methods can be used. The CA stating “[t]his challenge is not persuasive” (para. [71]).

Was section 12 of the MHA complied with?

If a medical practitioner determines that there are reasonable grounds for believing that a “proposed patient” (s.2A MHA) is “mentally disordered” (s.2) under s. 10(1)(b)(ii) MHA, then the medical practitioner must require the patient to undergo further assessment and treatment for five clear days: s.11(1) MHA (para.[72]).

Section 12 provides:

12 Certificate of further assessment

(1)Before the expiry of the first period of assessment and treatment, the responsible clinician shall record his or her findings in a certificate of further assessment, stating—

(a)That he or she has carefully considered the statutory definition of mental disorder and the patient's condition in relation to that definition; and

(b)That, in his or her opinion,—

(i)The patient is not mentally disordered; or

(ii)There remain reasonable grounds for believing that the patient is mentally disordered and that it is desirable that the patient be required to undergo further assessment and treatment.

(2)The responsible clinician shall send to the Director of Area Mental Health Services—

(a)A copy of the certificate of further assessment; and

(b)Full particulars of the reasons for his or her opinion of the patient's condition, and any relevant reports from other health professionals involved in the case; and

(c)A copy of any notice given to the patient under section 13(1) of this Act.

(3)If the responsible clinician is of the opinion that the patient is not mentally disordered, that clinician shall direct that the patient be released from compulsory status forthwith (but without prejudice to the making of a further application under [section 8A] in respect of the patient at some time in the future).

(4)If the responsible clinician considers that there remain reasonable grounds for believing that the patient is mentally disordered and that it is desirable that the patient be required to undergo further assessment and treatment, that clinician shall deal with the case in accordance with the succeeding provisions of this section and section 13 of this Act.

(5)If the responsible clinician's finding is of the kind described in subsection (1)(b)(ii) of this section, that clinician shall forthwith give or send a copy of the certificate of further assessment to each of the following:

(a)The patient:

(b)Any welfare guardian of the patient:

(c)The applicant for assessment:

(d)The patient's principal caregiver:

(e)The medical practitioner who usually attended the patient immediately before the patient was required to undergo assessment and treatment under this Part of this Act:

(f)A district inspector:

(g)An official visitor.

(6)To each of the persons specified in paragraphs (a) to (e) of subsection (5) of this section, the responsible clinician shall also give or send a statement of the legal consequences of the finding set out in the certificate of further assessment, and of the recipient's right to apply to the Court for a review of the patient's condition.

(7)Any person specified in paragraphs (a) to (e) of subsection (5) of this section may, on receiving a copy of the certificate of further assessment, apply to the Court to have the patient's condition reviewed under section 16 of this Act.

(8)The district inspector who receives a copy of the certificate of further assessment shall, subject to subsection (11) of this section, after talking to the patient and ascertaining the patient's wishes in the matter (where that can be done), consider whether or not an application should be made to have the patient's condition reviewed under section 16 of this Act.

(9)If the district inspector considers that such an application should be made, the district inspector shall take whatever reasonable steps he or she thinks necessary to encourage or assist the patient, or any person specified in paragraphs (b) to (e) of subsection (5) of this section, to make such an application.

(10)If, in any case to which subsection (8) of this section applies, the district inspector considers that an application should be made to have the patient's condition reviewed under section 16 of this Act, but neither the patient nor any person specified in paragraphs (b) to (e) of subsection (5) of this section intends to make such an application, the district inspector may report the matter to the Court; and, in such a case, a Judge may, of his or her own motion, review the patient's condition under section 16 of this Act as if an appropriate application for such a review had been made to the Court.

(11)Instead of performing personally the functions specified in subsections (8) to (10) of this section, the district inspector may in any particular case arrange for an official visitor to perform them.

(12)Notwithstanding any of the foregoing provisions of this section, at any time during the second period …, the patient, or any person specified in paragraphs (b) to (e) of subsection (5) of this section, may apply to the Court to have the patient's condition reviewed under section 16 of this Act.

Section 12 of the MHA uses the phrase “before the expiry of the first period of assessment and treatment”. The section does not read “on the last day of the first period of assessment”. Thus a certificate under s.12 need not be issued on the last day of the five day period. This would lead to an unworkable result. “A grossly truncated period of assessment could invalidate the process” (see paras. [77] and those preceding).

The CA was satisfied that in this case the the first period of assessment was not grossly truncated, the timing was explainable, and requirements under s.12 were complied with (para. [78]).

Was section 16 of the MHA complied with?

Section 16 reads:

16 Review of patient's condition by Judge

[(1)When an application is made to the Court under section 11(7) or section 12(7) or section 12(12) for a review of the patient's condition,—

(a)Subsection (1B) applies if the application is the only application that has been made for a review of the patient's condition during the first and second periods:

(b)Subsection (1C) applies if the application is the second or subsequent application that has been made for a review of the patient's condition during the first and second periods.]

[(1A)When an application is made under section 29(4) for a review of the patient's condition, subsection (1B) applies.]

[(1B)When this subsection applies,—

(a)The Court must grant the application; and

(b)A Judge must examine the patient as soon as practicable; and

(c)Subsections (2) to (7) apply.]

[(1C)When this subsection applies, a Judge must decide whether or not to grant the application. In making this decision, the Judge must have regard to any evidence before the Judge that indicates that the patient's condition has not changed since the last review.]

(2)The examination shall be conducted—

(a)At the patient's place of residence, the hospital, or the other place where the patient is undergoing assessment and treatment; or

(b)Where that is not practicable, at the nearest practicable place.

[(3)The Judge must do the following things before and during the examination, as appropriate and practicable:

(a)Identify himself or herself to the patient; and

(b)Explain to the patient the purpose of the visit; and

(c)Discuss with the patient the patient's situation, the proposed course of assessment and treatment, and the patient's views on these matters.]

(4)As well as examining the patient, the Judge shall consult with the responsible clinician, and with at least 1 other health professional involved in the case, and may consult with such other persons as the Judge thinks fit, concerning the patient's condition.

(5)If the Judge is satisfied that the patient is fit to be released from compulsory status, the Judge shall order that the patient be released from that status forthwith.

(6)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.

(7)Where it is not practicable for a review under this section of a patient's condition to be conducted by a Family Court Judge, that review may be conducted by any District Court Judge.

Counsel for the appellant submitted that although s.16 MHA had been complied with, on a literal application of the MHA, the reviews were nonetheless unlawful. He gave two reasons for this (para. [[80]).

Firstly, the Judge who conducted the first s.16 review on 1 November 2006 failed to provide reasons for finding that the there were reasonable grounds that the appellant was mentally disordered. The Judge merely “ticked a box”. Counsel submitted that this was in breach of the appellant's right to reasons under s.23(1)(a) NZBORA (para. [81]).

Secondly, counsel argued that the s.16 review carried out on 18 November 2006 was unlawful because the Judge failed to conduct the examination. The Judge refused to hear the review application on the grounds that there had been no change in the patient's circumstances (para. [83]).

The CA stated that it had a lack of evidence as to what actually occurred. The CA was in no position to make assessments or findings in the absence of an evidential foundation. Speculation was inappropriate (para. [83]).

Section 16 of the MHA allows a patient to seek a review of their condition. The s.16 procedure has been called a “safety valve” to ensure that the patient's right to liberty is not sacrificed for medical or irrelevant considerations: L v Director of Mental Health Services [1999] NZFLR 949 at 954 (FC). Section 16(1)(b) states that “a Judge must examine the patient as soon as practicable”. The Judge will provide his or her reason at the earliest reasonable time. In these circumstances it is not a breach of the NZBORA for the Judge to simple “tick a box”, as further reasons for the decisions can be requested later in time ( para. [84}).

When a patient makes a second application for review under s.16 of the MHA a Judge has a discretion to accept or decline that application. In making that decision he or she “must consider any evidence before the Judge that indicates that the patient's condition has not changed since the last review” s.16(1C). As such, it was open to the Judge to conclude that a second review was not appropriate in this case (para. [85]).

Counsel repeated the right to reasons argument in relation to this point. The Judge did not provide reasons upon reaching a decision on whether or not to grant a review (not required by the MHA itself). However, the CA stated that the reasons could have been made available on request. Just because the MHA, or another Act, does not require a decision maker to provide reasons for their decision, this does not automatically render any decision made in accordance with that Act unlawful by dint of the operation of s.23(1)(a) NZBORA (para. [86]).

The Court of Appeal's Conclusion

The MHA in it's long title provides:

'An Act to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment, to define the rights of such persons and to provide better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder.'

The MHA is directed at defining and protecting the rights of those people who may be mentally disordered. “Courts will not countenance breaches of the Act's provisions and obligations lightly”. The MHA provides it's own ongoing protective statutory mechanisms, this should not be overlooked. The CA further stated that these checks and balances operate both during the periods of assessment and treatment and after a compulsory treatment order has been made pursuant to section 17 by a Judge (para. [88]).

The CA claimed that because of the nature of the MHA's jurisdiction '..it is almost inevitable that there will at times be some variance or deviations from strict statutory requirements.' It is important to look at any non-compliance “in the round” instead of from “a blinkered focus on isolated provisions which ignore the statutory context” (para. [89]).

The CA did not accept the argument that where there has been any degree of non-compliance with a specific provision, the only inevitable consequence is total invalidity of all subsequent actions. Instead, the Court must:

1. assess what happened;

2. why it happened; and

3. how it happened;

whilst remembering that the protection of a vulnerable person, and possibly the community, lies at the heart of the legislative framework (para. [90]).

A person in Mr Sestan's position was entitled to seek habeas corpus. However, where the issue is whether a person is mentally disordered there will be few situations in which it is the appropriate means of challenging or reviewing official action. An application for habeas corpus can be a lengthy process and there is limited opportunity to put information before the Court. The CA stated that the statutory mechanisms contained within the MHA itself will be far more efficacious and appropriate. Moreover, some points of law in the case lacked a sufficient evidentiary basis. “ The respondent has an onus to justify the detention, but that does not extend to covering every possibility which the ingenuity of counsel might eventually raise at a later point in the litigation cycle” (para. [91]).

Notwithstanding that the section 9 MHA process could have been more perfectly carried out, the CA were satisfied that the respondent had established that the current detainment of Mr Sestan was lawful. That being the case, there was no justification for the CA to issue a writ of habeas corpus (para. [93]).

The CA dismissed Mr Sestan's appeal (para. [94]).

SFD critique of the Sestan decision:

Many of the criticisms leveled at the Firmin case can be applied to Sestan. Only a few points will be covered. At para [24] the Court of appeal (“the CA”) discuss what factors a medical practitioner should focus on when deciding whether the person is “mentally disordered”. The CA stated that “[i]t would be irresponsible for the medical practitioner not to consider background and relevant circumstances”. However, surely the person's “background” should be excluded for the reason that it is historic.

The medical practitioner should focus only on the current state of mind of the person and relevant factors. The definition in s.2 MHA of “mental disorder” does not in it's text encompass background history. The words “Poses a serious danger...”, as used in s.2(a), also suggests this. To look back and examine past events is to risk propensity reasoning. Only the current state of the person's mind should be the focus. This literal perspective accords more the protection of individual liberty. The definition in s.2 should be strictly construed in accordance with a citizen's fundamental right to liberty.

The s.9(2)(d) issue:

Interestingly, the appellant's counsel contended that this right was not something that could be waived by the appellant or something he could decline to take up (para. [42]). Arguably, this is correct, as s.9(2) uses the imperative “shall”. In any respect, surely the appellant was incapable of making a rational decision as to whether to waive that right. This could be one reason that the legislature made the s.9(2)(d) requirement absolutely imperative. However, the CA held that although the breach was serious, it did not render the entire assessment invalid (para. [53]). The CA agreed with Asher J in the High Court; stating that his Honour took the correct approach by not issuing a writ of habeas corpus for the breach of s.9(2)(d) MHA (see para. [55]).
But how serious does the breach have to be? Clearly the breach of the s.9(2)(d) was “serious” (para.[46]). That being so, why was a remedy not given to the appellant. Ultimately, the CA is implicitly acknowledging that serious breaches in the MHA by mental health officials will be tolerated subject to the context in which they have occurred. This is condoning unlawful action by mental health officials. It sets a bad precedent.

Right to be informed of rights?

Here, the position of mental health officials is again favoured. What level of understanding about the patient's rights must be brought home to the patient? Here, the CA rely on the mental state of the person to lower the threshold of compliance imposed on mental health officials. Stating that it could be impossible to comply with the requirement due to the person's state of mind at the time. On the facts, it was held that the DAO did bring home to the the appellant his rights under the MHA. The reasoning by the CA seems to make any future allegations of failure to inform of rights difficult, neigh impossible. Because liability would seem to turn on the person's state of mind at the time, rather than from the imposition of an objective standard.

Again, the CA assert that even if they had found that Mr Sestan had not be adequately informed of his rights and his right to counsel specifically, it would “not necessary” follow that a writ of habeas corpus would be the appropriate remedy (para. [60]). In this respect the CA noted that s.75 of the MHA provides an internal statutory complaint mechanism for an alleged breach (see the circularity of the text in s.75).

Right to consult a lawyer?

The proposed patient does have a right to consult a lawyer: see s.23(1)(b) NZBORA and the later more specific s.70 of the MHA 1992. However, they may not, depending on the circumstances, have a right to consult that lawyer in private (para.[60]). At para. [64] the CA draw a distinction between the criminal law, and civil commitment procedures in the MHA. They stated that any delay must be considered in context. A particular procedure within the MHA may need to be undertaken with some urgency, and waiting for the presence of a lawyer may be simply counter-productive. Again, this favours mental health officials. The proposed patient's right to a lawyer may be sacrificed so a particular procedural step in the MHA can be undertaken.

Obligation on “medical practitioner” to consult with patient's family?

On the facts, the medical practitioner who conducted the s.9 assessment failed to consult with the appellant's family, as required by s.7A(2) MHA. The family was consulted by a Duly Authorized Officer (“DAO”), and not a medical practitioner, as required by the s.7A(2). Nevertheless, the CA held “[w]e are satisfied that this breach of s 7A was of no consequence” (para. [67]). The CA, re-writing the statutory text, held that in this case the family were able to have input into the process, “albeit through a DAO”, only (at para. [67]).

Patient's right to silence?

At paragraphs [68] and [69] of Sestan, the CA examine the person's right to silence. The appellant's counsel submitted that requiring the appellant to submit himself for examination, including examinations conducted under ss.11 and 13 of the MHA, amounted to a breach of the appellant's common law right to silence. Citing not one precedent, the CA held that the statutory right to silence found in s.23(3) [sic.] NZBORA does not arise, as the patient is not detained “for an offence”. But what remains of the common law right to silence?

Broad common law rights that have been included in the Bill of Rights are not limited to the extent of their definition in the Bill. For example, s 23(4) of NZBORA provides that everyone who is arrested or detained under any enactment for any offence or suspected offence has the right to refrain from making any statement. But if the person questioned has not been detained or arrested, the right to silence that exists at common law continues to apply.In R v Turcotte [2005] SCC 50 (30 September 2005) the Supreme Court of Canada referred to the common law right to silence (para 41):

"41 Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:"In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]""

http://nzcriminallaw.blogspot.com/2005/10/silence.html (extracts from D. Mathias, Criminal Law in NZ & Around the World )

The above passages obviously involve the criminal law in another jurisdiction, namely Canada. The concerns are primarily raised by fear of self-incrimination in relation to criminal law. However, the right to silence should still exist in relation to the mental health jurisdiction. There is no abrogation of this right in the MHA itself. The person has not been “obliged to do otherwise by law” (Turcotte, supra, at p.683). Thus even where a person is /or is not detained under the MHA they should be capable of exercising their common law right to silence.

The Court of Appeal's conclusion

In their conclusion the CA make, with all due respect to that Court, some alarming statements:

“[89] Because of the nature of the jurisdiction, it is almost inevitable that there will at times be some variance or deviations from strict statutory requirements. It is important to view any non -compliance in the round rather than on a blinkered focus on isolated provisions which ignore the statutory context.”

How does the mental health jurisdiction have a different “nature”, than say, the criminal law jurisdiction? Obviously, there are major differences, however, both the Crimes Act and the MHA have the potential to deprive citizens of their right to liberty -this is a fact. There is an old (but by no means dead) presumption of statutory construction that runs through the common law; which is that penal statutes should be strictly construed. Why should not provisions in the MHA be also strictly construed? Any negligence, or non-compliance by mental health officials should be ultimately construed in the person's favour against the State.

The CA in Sestan appear to have have promoted negligent behaviour on the part of mental health officials. Strict adherence to the MHA's provisions must be paramount. No form of illegality, even if merely technical, should be condoned. In the complete absence of entrenched rights in New Zealand, this is essential. In Sestan, the CA have shown their complete reluctance to enforce not only procedural requirements in the MHA but also fundamental rights in the NZBORA. Sestan is an unwelcome decision.

Application for leave to appeal to Supreme Court dismissed

Case Number
SC94/2006

Case Name

Josko Sestan v The Director of Area Mental Health Services, Waitemata District Health Board

Summary

Civil– application to appeal from decision of the Court of Appeal declining to issue writ of habeas corpus – whether a person detained under the Mental Health (Compulsory Assessment and Treatment Act) 1992 has all the rights of a person detained contained in the New Zealand Bill of Rights Act 1990 – whether Court of Appeal erred in wrongly or inadequately analysing whether the applicant was mentally disordered – whether Court of Appeal erred in failing to place burden properly on respondent to show mental disorder – whether reasons for dangerousness finding sufficient – whether Family Court and Court of Appeal erred in finding applicant was mentally disordered – whether inadequate reasons given for finding of mental disorder – whether applicant wrongly deprived of due process rights.

CA 254/06 12 December 2006

Dates

15 February 2007 Application for leave to appeal dismissed.7 March 2007 Application for costs dismissed.

DISCLAIMER FROM PERSONAL LIABILITY
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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2007-06-06T11:08:00.003+12:00

There are no constitution rights in New Zealand:
a summary

The White Paper

The White Paper, released by the then deputy Prime Minister and Minister of Justice Geoffrey Palmer, contained some particularly controversial aspects, which sparked widespread debate.

Controversial Features of Proposed Bill of Rights

The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75% majority vote in the House of Representatives or a simple majority in a public referendum. The Bill of Rights was to therefore have status as supreme law, thereby causing some erosion to the doctrine of Parliamentary Sovereignty. The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the Treaty's status to that of supreme law .

A broad power was to be granted to the Judiciary to declare invalid any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights.

Recommendations of the Justice and Law Reform Select Committee

The proposed Bill of Rights met with such opposition from both academics and practising lawyers that The Justice and Law Reform Select Committee, who heard submissions regarding the bill, finally concluded that New Zealand was not yet ready for a Bill of Rights in the form outlined in the White Paper. The Committee recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law (cf. s.268 Electoral Act 1993 ).

New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 is:

AN ACT -

(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights
[ 28 August 1990

The Act was passed as an unentrenced statute on 28 August 1990. The operative sections of the Bill of rights Act are sections 4,5, and 6. Of course section 3 is also of critical importance. The operative sections will not be discussed here, as their interpretation has lead to judicial confusion over the years. As such, there is also a considerable body of case law to wade through. The main principle to extract from the above summary is that there are no entrenched rights in New Zealand. There exists no written constitution.

There is no supreme law document. There is no Charter of Rights and Freedoms, as exists in Canada. Section 4 of the NZBORA expressly upholds inconsistent legislation in order that it may prevail over any right or freedom in the NZBORA. Section 4 therefore upholds the sovereignty of New Zealand's Parliament. Parliament remains supreme in the Diceyean sense. The New Zealand Parliament cannot be bound. Provided Parliament adheres to the correct procedures for enacting legislation then academically speaking, any law can be enacted however extreme. Any residual untested common law jurisdiction to invalidate repugnant laws will not be discussed here. The so-called rights that exist in New Zealand are not true rights in any constitutional sense.

All statutory rights in New Zealand can be amended or repealed by Parliament by a simple majority vote (cf. s. 268 Electoral Act 1993). Parliament may choose to expressly repeal those rights or, as a question of law, certain rights will become partially or completely inoperative. The general rule is this: citizens rights in New Zealand exist only in so far as they have not been expressly taken away by Parliament or overridden by other inconsistent legislation. Have they been overridden? As stated, this turns on a question of statutory interpretation. In many human rights statutes in new Zealand you will find certain sections, or one section in particular, that limits or restricts the entire statute. For a classic example see section 4 of the NZBORA. Other examples can also be found.

Section 57 of the MHA, at the beginning of it's text, mirrors the right to refuse medical treatment in section 11 of the NZBORA, it reads:

57 No compulsory treatment except as provided in this Part or in
section 110A

A proposed patient or patient may refuse consent to any form of treatment for mental disorder, except as provided in this Part or in section 110A.

However, that right is immediately taken away by the words '...except as provided in this Part or in section 110A.' Thus a major exception to the right to refuse treatment has been created. These exceptions lie at the heart of the forced drugging regime in New Zealand.

The HDC Code of Health and Disability Services Consumers'
Rights Regulation 1996

Compare the HDC Code, which states in clause 5:

5. Other Enactments

Nothing in this Code shall require a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.

So where a "provider" (eg. a mental health authority's medical staff) has a statutory discretion to use force to treat a psychiatric patient under s.122B(3) MHA, no clause in the HDC Code can “prevent” this, as it is "authorised" by the MHA. Thus clause 5 renders the Code inherently weak (see also s.20(1)(a) HDC Act: see also the exception in Right 7(1) HDC Code).

Ironicially, at the same time, Right 2 of the HDC Code guarantees to the patient freedom from coercion. The word "coercion" is not defined in the Code. Clause 3 of the Code states that a provider is not in breach of this Code '... if the provider has taken reasonable actions in the circumstances to give effect to the rights...in this Code [eg. R. 2, above]'. The onus lies on the provider to prove this. For the purposes of clause 3 , "the circumstances" means all the relevant circumstances including the patient's clinical situation and the provider's resource contraints.

Surely, where mental health staff have exercised the power under s.122B(3) MHA and used reasonable force to treat a a patient it would be difficult to argue that they have breached the patient's right to be free from coercion under R.2 of the HDC Code.

The Code is merely a regulation (subordinate legislation) made under section 74 of the Health and Disability Comissioner Act 1994. It cannot prevent the operation of the Mental health Act.

Mental Health (Compulsory Assessment and Treatment) Act 1992

Some people may confuse the rights contained in the Mental Health Act with true rights. However, they are not worthy of that title at all. They are not substantive rights. Would you call a right to general information ( s.64) and a right to independent psychiatric advice (s.69) significant human rights? They are peripheral and condescending. You will notice there is no right not to be deprived of liberty or right to refuse medical treatment. Of course not, the so-called "patient" (s.2 MHA def.) has already been deprived of those rights by this stage.

Section 66 states that 'Every patient is entitled to medical treatment and other health care appropriate to his or her condition.' However, this is in no way amounts to a right to refuse medical treatment, and neither is the right to be informed about the treatment a right to refuse treatment (s.67).

What makes the rights in the MHA even more futile is that many contain limitations. For instance, a patient has no absolute right to receive visitors and make telephone calls. This so-called right is restricted to '...reasonable times and at reasonable intervals...'. This so-called right can be limited where, in the responsible clinician's opinion: '...such a visit or call would be detrimental to the interests of the patient and to his or her treatment.' In section 73 a patient has a right to receive letters and postals articles. However, section 73 is subject to section 123, which confers a power to vet the patient's incoming mail ( see also section 74; s.70 right to legal advice cf. for s.23(1)(b) NZBORA see Sestan v DAMHS Waitemata DHB NZ (CA) 2006, at paras. [56] -[64]). ).

All of the so-called rights below are undeserving of the title "rights". All could be repealed by the Parliament of New Zealand by a simple majority vote. That general rule reflects the doctrine of parliamentary sovereignty that continues to exist in this country.

Mental health (Compulsory Assessment and Treatment) Act 1992

Part 6 Rights of patients:

s.63A Rights of proposed patients

s.64 General rights to information

s.65 Respect for cultural identity, etc

s.66 Right to treatment

s.67 Right to be informed about treatment

s.68 Further rights in case of visual or audio recording

s.69 Right to independent psychiatric advice

s.70 Right to legal advice

s.71 Right to company, and seclusion

s.72 Right to receive visitors and make telephone calls

s.73 Right to receive letters and postal articles

s.74 Right to send letters and postal articles

[STOP FORCED DRUGGING]

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2007-06-04T18:37:00.001+12:00

Firmin v Attorney -General of New Zealand (for and on behalf of the Department of Corrections)

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2007 409 1429

Hearing: 7 February 2007

Appearances: A.J. McKenzie for the Appellant ( Firmin )

V Sim for the Respondent ( Attorney- General of New Zealand)

_____________________________________________________

SUMMARY OF CHISHOLM J'S JUDGMENT IN THE HIGH COURT
_____________________________________________________

Because of the result of an application made by a psychiatrist and a prison nurse the appellant Firmin underwent compulsory psychiatric assessment under the Mental health (Compulsory Assessment and Treatment)Act 1992 (“the MHA”). This happened immediately before he was released from prison. It transpired that neither the psychiatrist, Dr Miller, nor the nurse were authorised to make the application. The appellant issued proceedings in the District Court seeking compensation for alleged breaches of sections 11 ( right to refuse medical treatment ) and 23(5)( 'Everyone deprived of liberty shall be treated with humanity and with the inherent dignity of the person') of the New Zealand Bill of Rights act 1990 (“the NZBORA”).

The District Court Judge (“the DCJ”) found that the appellant's right to refuse medical treatment in terms of section 11 had been breached. However, he refused to award compensation. On appeal to the High Court the appellant appealed against the DC Judge's refusal to award compensation and the respondent cross -appealed against the finding that section 11 NZBORA had been breached.

The background facts

In 1997 the appellant Firmin was sentenced to seven years in prison. During this time a number of psychiatric assessments were made. In September 2001 the Parole Board declined to release the appellant on parole and determined that he should be released on his final release date.

The Parole Board asked Dr Miller,a psychiatrist, to meet with the appellant for the purpose of discussing a post-release plan. However, Dr Miller was unable to obtain the appellant's cooperation and he ultimately came to the view that the appellant was suffering from a mental disorder. He raised his concerns with Ms Williams, the superintendent of Paparua Prison, she agreed with his recommendation that an application should be made under the MHA for a compulsory assessment.

On 15 December 2001 Dr Miller and Ms Kearns, a registered prison nurse, purported to make an application pursuant to section 45 of the MHA for the appellant to be compulsorily assessed. Dr Miller provided a certificate to accompany the applications (it is unclear why there were two applications). The important fact is that neither applicant was authorised to make the application in terms of s.45 of the MHA. That role was confined to the prison superintendent or any other prison authorisd by her.

The appellant was transferred from Paparua Prison to Hillmorton psychiatric Hospital and Dr. Buchan, a psychiatric registrar at the hospital, conducted a preliminary assessment. She concluded that there were reasonable grounds to believe that the appellant was “mentally disordered” (see s.2 MHA). She also concluded that it was desirable for him to undergo further assessment and treatment. A further assessment was carried out by Dr Miller on 18 October 2001. While Dr Miller was uncertain about the correct diagnosis, nevertheless he still believed that the appellant may be suffering from a mental disorder and he certified that the appellant should undergo further assessment.

On 31 October 2001 Dr Miller reassessed the appellant. This time he concluded that the appellant was not suffering from a mental disorder and certified that he was “fit to be released from compulsory status”( see s.2(1) definition MHA ). The appellant was then discharged from Hillmorton Hospital and released from prison.

The District Court Judge's decision

The DCJ concluded that although neither the prison nurse nor Dr Miller were authorised to make the application, they had acted in “good faith” and with knowledge that they lacked the necessary authority. The DCJ also found that until the appellant was released on 31 October, Dr Miller, Ms Kearns and Dr Buchan had reasonable grounds for believing that the appellant might be mentally disordered and that therefore it was desirable for him to undergo assessment.

The DCJ found that the appellant's rights under section 11 NZBORA had been breached -rejecting the respondent's contention that the procedural non -compliance was nothing more than a minor technical breach which did not render the later events a nullity. In the DCJ's view the application was invalid from it's inception and the appellant had been unlawfully detained at Hillmorton Hospital. This conclusion was challenged by the respondent on cross-appeal in the High Court.

The appellant's allegation that there had also been a breach of s.23(5) NZBORA was rejected by the DCJ on the basis that there was no evidentiary basis for the appellant's allegation. No issues arose in regard to this finding by the DCJ for the purposes of the High Court appeal.

After considering the Prisoners' and Victims' Claims Act 2005 and weighing the matters listed in s.14(2) of that Act, the DCJ decided that the appellant was not entitled to compensation. He commented that the system giving rise to the problem had been rectified, there was no physical damage, no manifestation of the appellant's allegation of psychological or emotional trauma, and that the appellant's status as a mentally healthy individual had been vindicated and maintained. The DCJ considered that in all the circumstances his finding that the transfer to Hillmorton Hospital was unlawful was sufficient redress and that compensation was not required to right the wrong arising from the procedural breach. Those findings were challenged by the appellant in the appeal to the High Court.

Firmin appeals to the High Court: Was there a breach of section 11 of the Bill of Rights Act?

Chisholm J, in his High Court judgment, stated that '[t]his raises a narrow issue' (at para. [13]). There was no dispute that there was a failure to comply with section 45(2) of the MHA, as neither Dr Miller nor Ms Kearns were authorised to make the application. The issue on appeal was whether this breach rendered the subsequent referral to Hillmorton Hospital unlawful thereby infringing section 11 NZBORA.

Chisholm J stated that non-compliance ( ie. the procedural breach ) did not automatically render subsequent acts unlawful. Whether that is the consequence in any given case will revolve around consideration of the particular requirement in it's statutory context and an assessment of the seriousness of the non-compliance: New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1NZLR 630 (CA) and AJ Burr Ltd v Blenheim borough Council [1980] 2 NZLR 1 (CA) at p.4 (see Firmin at para.[14]).

Recently in Sestan v Director of Area mental health Services Waitemata District Health Board (CA254/06, 12 December 2006) the Court of Appeal considered the implications of breaches of sections 7A(2) and 9(2)(d) of the MHA. The CA noted that the MHA is aimed at defining the rights of people who may be mentally disordered and that the Courts will not likely countenance breaches of the Act's provisions and obligations, the Court of Appeal observed:

'[89] ... It is important to view any non-compliance in the round rather than from a blinkered focus on isolated provision 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 asses what 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.'

Those remarks were made in the context of a habeas corpus case. However, Chisholm J considered they still provided him guidance in the Firmin appeal.

In response to the Attorney- General's proposition that the breach in this case was a 'minor technical breach', which did not render the process a nullity, the DCJ said:

'[34] I do not agree with that proposition. This is not a case where there was an error in properly completing a form or a deviation from a prescribed form, it was an application made by someone not prescribed in the statute itself as being the person who was empowered to make an application in respect of the class of person into which the plaintiff fell.'

The DCJ was satisfied that the appellant had been unlawfully detained at Hillmorton Hospital in contravention of his right to refuse treatment under section 11 NZBORA.

Counsel for the respondent Attorney-General (in the High Court), argued that the fact that a breach had occurred at the outset of a process did not automatically render the process unlawful. She submitted that s.45(2) MHA was concerned with the effective management of prisons rather than with the rights of persons liable to assessment and that given the findings of the DCJ the breach could only be construed as a technical breach only. She also found it difficult to see why any breach should be attributable to the Department of Corrections merely because they had made the application (see Firmin at para.[17]).

In response, counsel for the appellant emphasised the important right guaranteed by section 11 NZBORA and that it should be upheld. He noted that the procedure for compulsory assessment is not complicated and that in this case the application for assessment was irretrievably flawed from the outset. As such, the present case could be distinguished from the Sestan decision, supra. Counsel for the appellant rejected counsel for the respondent's submission that; s.45 is more concerned with the effective management of prisons rather than with the rights of a 'proposed patient' ( see 2A MHA). The appellant's counsel submitted, in this regard, that the custodial role of the superintendent is significant. With reference to the findings of fact relied upon by the respondent counsel, counsel for the appellant claimed that the failure to comply with the statutory provisions at least amounted to “a neglectful and negligent indifference to the relevant statutory provisions” and the the Department of Corrections must be responsible for the foreseeable consequences of it's application (Firmin at para.[18]).

However, Chisholm J agreed with respondent counsel's argument, which was that the fact that the breach occurred at the beginning of the process rather than during the course of the process does not automatically invalidate the process. Whether the process had been invalidated was dependent upon an overall assessment of the breach within it's statutory context. In some situations the the point at which the breach occurred might be highly relevant (Firmin at para.[19]). (not decisive?)

Section 45(2) of the MHA, which applies to applications for assessment in respect of persons detained in penal institutions, provides:

'(2) the superintendent of an institution, or any other officer of the institution authorised by the superintendent, may make an application under s 8A in respect of a person detained in the institution if the superintendent has reasonable grounds to believe that the person may be mentally disordered'. (see s.2 MHA definition of 'mental disorder' * extensive case law).

The application needs to be accompanied by a medical practitioner's certificate issued under s.8B MHA. In other cases anyone who believes that a person may be suffering from a 'mental disorder' can make an application: s.8 MHA. Again, the application needs to be accompanied by a medical practitioner's certificate: ss. 8A & 8B MHA. In Chisholm J's view the statutory scheme supported the respondent counsel submission that s.45(2) MHA reflects management considerations rather than the protection of prisoners rights. Chisholm J asserted it is the requirement for a medical certificate to accompany the application that is aimed at protecting the rights of the person liable to be assessed (Firmin at para.[20]).

Chisholm J stated that in this case, the prison superintendent discussed the appellant's situation with Dr Miller and agreed with his recommendation that an application should be made. While the superintendent did not specifically say so in her evidence, it could be safely inferred that in terms of s.45(2) she had reasonable grounds to believe the appellant may be mentally disordered. As Dr Miller said in response to a question from the Bench, the prison authorities are guided by the recommendation of the visiting psychiatrist. Chisholm speculated that the error made have arose in regards to an incorrect form that had been used which used the words: 'either the superintendent or a person nominated by the superintendent.' ( compare the wording in s.45(2), above). That form having now been corrected to align with the statutory requirement.

Whatever the reason for the breach, the DCJ found that all parties acted in good faith and without knowledge that s.45(2) had been breached. The DCJ also held that if the appellant had sought review pursuant to sections 11(7) & 12(12) of the MHA ( having already been advised of that right on two occasions during his14 day stay), the irregularity would probably have been discovered and there would inevitably been another application made this time by the right person (Firmin at para.[21]).

Concluding on this issue Chisholm J stated that once the breach is placed in it's overall context it is difficult to see it than anything other than a procedural breach that did not invalidate the subsequent processes. The prison superintendent was in a position where she could have made the application herself and if that course had have been followed it can be safely predicted that the outcome would have been the exactly the same. In other words, the error made did not undermine the statute's objective of defining and protecting the rights of people who may be mentally disordered. The fact that the error was made at the beginning of the process cannot alter that overall assessment (Firmin at para.[22]).

Chisholm J's judgment in the High Court

It follows, Chisholm J held, that the cross-appeal by the Attorney -General must be allowed. Then his Honour when on to say that if he was wrong in that conclusion he would consider the appellant's appeal against the DCJ's refusal to award compensation. Which he does in his judgment (commencing at para.[24]).

[The matters concerning compensation will not be discussed here on the SFD site]

Chisholm J concluded by stating that the DCJ had the advantage of hearing evidence from the witnesses first hand. Thus Firmin's appeal to the High Court had failed. The Attorney's cross-appeal was allowed by his Honour and the appellant's appeal dismissed. Chisholm J stating' that '[t]he overall outcome remains the same' (at para.[54]).

Critique of Chisholm J's judgment by SFD:

The material fact, or one of them in the Firmin case, was that neither the doctor or nurse fell within section 45(2) of the MHA. Therefore they had no lawful authority to make the application(s). Niether had any knowledge that they had or were acting unlawfully- they acted in “good faith” in total absence of any knowledge of the breach of s.45(2). However, their actions caused the appellant Firmin to undergo compulsory treatment under the MHA contrary to section 11 New Zealand Bill of Rights Act 1990.

The appellant's counsel submitted that the s.11 NZBORA right was of fundamental importance. He claimed that the process was uncomplicated and that the application for assessment was irretrievably flawed from the out set. He submitted that the present case was distinguishable from Sestan. Surely, this is correct. How can the subsequent process retrospectively cure or validate the initial breach? Even if it was found on the evidence that all parties acted in good faith and without knowledge of the breach- the fact of the breach remains.

It should also be noted assessments of "good faith" etc. are not expressly found in the NZBORA itself. Surely, once s.45(2) had been breached the entire process was then became unlawful. The subsection exists to provide a procedural safeguard for persons who may be liable to compulsory assessment. The appellant's counsel claimed that a failure to comply with the statutory provisions amounted to “a neglectful and negligent indifference to the relevant statutory provisions” (at para. [18]).

However, Chisholm J, instead of adopting this strict approach favouring the appellant, took a 'overall' perspective:

'I agree with Ms Sim that the fact that the breach occurs at the beginning of a process than during the course of the process does not automatically invalidate the process.' (at para.[19]).

For some reason his Honour placed weight on the need for medical certificate accompanying an application as a protection of the persons rights, rather than relying on s.45(2) itself (para.[20]). Instead of focusing on the breach, his Honour then goes on to state: '...it can be safely inferred that in terms of s45(2) she [the prison superintendent] had reasonable grounds to believe that the appellant may be mentally disordered.'

This form of hindsight reasoning should not be adopted when it comes to the protection of human rights. What, ex- hypothesi, the superintendent believed, even on 'reasonable grounds', is surely irrelevant. His Honour then further states that the error may have resulted from the application form and that this error has now been rectified bringing it in to line with the statutory requirement. How is this relevant? This is the problem with the 'overall' assessment. It deflects away from the breach, the breach of s.45(2). It is as if Chisholm J wanted to incorporate mitigating factors into the assessment. When it comes to human rights a robust approach to interpretation should be taken. Obviously these factors favoured the Attorney -General respondent's submissions. At para. [22] of his judgment Chisholm J asserts:

'Once the breach is placed in its overall context it is difficult to see how it can be regarded as anything more than a procedural breach that did not invalidate the subsequent process.'

Contrary to Chisholm J, counsel for the appellants approach is considered here to be the correct one. The process was flawed from the outset. Retrospective reasoning should not be engaged in when it comes to fundamental human rights like the right to refuse treatment in section 11 NZBORA. The hypothetical scenarios about the superintendent's belief at the time are irrelevant. Surely, section 45(2) MHA provided a procedural safeguard to a person in the appellant's position. The subsection confines, and specifies, that only certain persons are empowered to make an application, and no others. Arguably, what is inherent in the subsection, or implicit, is that substantive human rights must be protected.

Peter Firmin was deprived of his right to refuse medical treatment as enshrined in s.11 NZBORA. This was a result of indifference or negligence on the part of Dr Miller and the nurse. Chisholm J's judgment, with all due respect, sets a bad precedent. Rather than being a deterrent to all possible future breaches of s.45(2) and similar provisions, it promotes a lazy approach to following procedural requirements. It undermines the procedural protections that the legislation provides. This is not acceptable when it comes to substantive human rights.

The entire judgment can be downloaded in adobe pdf format from http://www.justice.govt.nz/

[STOP FORCED DRUGGING]

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-12-06T19:09:00.004+13:00

Use of Force flow chart diagram

click on diagram download and print -off

Mental Health (Compulsory Assessment and Treatment) Act 1992

Part 10: Enforcement . . .

122B Use of force

. . .

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

. . .

Section 122B(3) is referential, in that it throws the reader out to sections 58 and 59. Those sections further refer the reader to sections 11 and 13 respectively. It becomes like a maze. A cynic would argue this was intentional to confuse the reader. Parliament should have amended section 58 and section 59 and expressly stated that force may be used. Instead, the reader must locate the relevant sections and connect them up, and read them together in their context.

Do you think section 122B(3) MHA should be confined to emergencies, even though it does not expressly state this, how will the Courts interpret the subsection? The subsection should never have been enacted into law. It is vague, and confers a wide discretion to use force. Certainty in the law is essential. Furthermore, section 122B(3) lists no specific criteria to be taken into account in the exercise of the discretion to use force (see further the post entitled; who is the "person" in section 122B(3) & Note on Guidelines to the Mental Health (C.A.T.)Act1992).

At the time of writing ( 16 October , 2006) there appears to be no case law on the subsection. This seems incredible as it has been on the statute books since 1999 . The amendment Act of 2003 inserted the words 'section 58 or' into section 122B(3) - thereby extending the application of section 122B(3) to not only section 59, but also section 58. Thus, use of force can now be used also during the assessment periods, which are sections 11 and 13. The material aspects of these sections are reproduced in the flow chart diagram above.

The above use of force chart has be corrected:

Section 60 of the MHA has been added. Note that the legislature has not expressly included s.60 into the text of s.122B(3)(the use of force subsection). However, if a patient were subject to either s.58 or s. 59, the procedure outlined in s.60, would be relevant if ECT were proposed as treatment.

The procedure in s.60 (ECT) applies to both sections 58 and 59. If the treatment (ECT) is considered to be " in the interests of the patient" (see s.60(b)), then ECT can be administed. Can force be used to administer ECT ? It seems that it can be, as the text of s.60 expressly refers to both ss.58 and 59. And, as stated, the discretion to use force in s.122B(3) applies to a patient held under either section 58 or section 59. Section 60 (ECT) also appears in Part 5 of the MHA. Part 5 is headed "Compulsory treatment".

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-12-04T21:21:00.003+13:00

Ellis v Counties Manukau District Health Board N.Z. (H.C.) 2006

per Potter J.

Introduction:

What follows are excerpts from the judgment of Potter J in the High Court decision above. The facts to the case are not recited as they are not strictly relevant to issues of forced drugging. However, the decision provides a useful summary of the mental health legislation and other related statutes.

What is surprising is that her Honour fails to mention section 122B(3) of the Mental Health (C.A.T.)Act 1992. This is the crucial subsection which authorises the use of force on patients held under the MHA. Amendments have been made to the judgment, as the original judgment runs to 61 pages. Other amendments are inserted by the use of [square brackets]. Note, the bold statement in para.[88] of the judgement is, will all due respect, incorrect, or either the enforced drugging issues have been ignored - see critique on the case. Only the important paragraphs of the judgment have been reproduced here; they are as follows:

Statutory framework

Mental Health (Compulsory Assessment and treatment)Act 1992
...
The long title states:

An Act to redefine the circumstances in which and the conditions under which persons may be subjected to compulsory psychiatric assessment and treatment, to define the rights of such persons and to provide better protection for those rights, and generally to reform and consolidate the law relating to the assessment and treatment of persons suffering from mental disorder

[43] The Act is directed to persons who require compulsory psychiatric assessment and treatment. Voluntary patients are not subject to the Act.

[44] At the heart of the Act is the definition of “mental disorder” in section 2:

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:

[45] The Act establishes a framework for the assessment and treatment of persons who may be mentally disorder. If as a result of the assessments made, a person is assessed as being mentally disordered, as a final step an application for a compulsory treatment order may be made to the District Court.

[46] The rights of a proposed patients or patients in relation to treatmenty, in particular under s 11 of the New Zealand Bill of Rights Act 1990 “to refuse to undergo medical any treatment”, are specifically recognised in Part 5 of the Act which deals with compulsory treatment.

[47] Section 57 provides generally:

A proposed patients [sic] or patient may refuse consent to any form of treatment ,for mental disorder, except as provided in this Part or in s 110A [which relates to sedation urgently required].

[48] Exceptions to the general requirement for consent to treatment relate to the periods of assessment under ss 11 and 13 during which a patient is required to accept such treatment for mental disorder as the responsible clinician shall direct.

[49] There are also specific provisions dealing with treatment while a patient is subject to a compulsory treatment order. A patient is required to accept treatment as directed by the responsible clinician during the first month of the currency of the order. Thereafter there are provisions that respect the patient's right not to be required to accept treatment to which the patient does not consent, except in specified circumstances where stringent procedures involving review by an appointed psychiatrist have been followed.

[50] Section 59(4) provides a general requirement that the responsible clinician shall wherever practicable seek to obtain the consent of the patient to any treatment even though treatment without consent may be authorised under the Act.

[51] The Act prescribes a four stage process, starting with an initial assessment as to whether a person is mentally disordered, and concluding with a compulsory treatment order to enable the treatment of a mentally discorded person either as an outpatient or within a hospital.

Initial assessment

[52] Under s 8 “anyone” who believes that a person may be suffering from a mental disorder “may” fill out an application form asking the Director of Area Mental Health Services for an assessment of the person. The application is made when the Director receives an application form which complies with s 8A, accompanied by a medical practitioner's certificate under s 8B.

[53] The Director “shall make” the necessary arrangements for the “proposed patient” to undergo an assessment examination forthwith. The assessment examination is to be conducted by a psychiatrist or some other medical practitioner who is not the medical practitioner who issued the initial certificate.
. . .

[55] After the assessment examination the medical practitioner is required to issue a Certificate of Preliminary Assessment giving his or her opinion either that the proposed patient is not mentally disordered are there are reasonable grounds for believing that the proposed patient is mentally disordered and it is desirable that the proposed patient be required to undergo further assessment and treatment ...

[56] If assessed to be the former category, that “person” is free of the requirements of the Act.

First period
[ force may be used to treat the patient s.122B(3) MHA]

[57] If the proposed patient is found to be in the later category then under s 11 the medical practitioner “must” require the patient to undergo further assessment and treatment throughout the “first period” which by definition in s 2, is a period of five clear days. The medical practitioner may direct that the patient be admitted to and detained in a hospital for the purposes of assessment and treatment during the first period.
. . .

[59] Every patient who is undergoing assessment in the first or second period “shall be required” to accept such treatment for mental disorder as the responsible clinician directs (s 58). This is an exception to the general provision in s 57 that a proposed patient or patients may refuse consent to any form of treatment for mental disorder except as specifically provided. “Responsible clinician”in relation to a patient means the clinician in charge of the treatment of that patient.

[60] If at any time during the first period the responsible clinician considers that the patient can be continued to be assessed and treated adequately as an outpatient, the responsible “must”direct discharge and implement outpatient assessment and treatment during the remainder of the first period.

[61] 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”given written notice and the patient is released immediately from compulsory status.

[62] Under s 11(7) the patient or an appropriate person on his behalf may apply to the Court to have the patient's condition reviewed under s 16 ...

[63] Before the expiry of the first period, the responsible clinician is required to record his or her findings in a certificate of further assessment. If the opinion is that the patient is not mentally disordered, the responsible clinician is required to direct that the patient be released from compulsory status forthwith. Alternatively, if there remain reasonable grounds for believing that a person is mentally disordered and it is desirable that the patient be required to undergo further assessment and treatment, the second period of assessment and treatment is undertaken.

[64] Section 12(7) provides that on receiving a copy of the certificate of further assessment the patient or named persons on his or her behalf may apply to the Court for review of the patient's condition under s 16.

Second period
[ force may be used to treat the patient s.122B(3) MHA]

[65] This is a period of 14 clear days from the date of the certificate issued before the expiry of the first period. If the finding in the certificate of further assessment is that there remain reasonable grounds for believing that the patient is mentally disordered, the responsible clinician must require the patient to undergo further assessment and treatment throughout the second period. Again, as in respect of the first period, assessment and treatment may be as an outpatient. If the responsible clinician considers that outpatient treatment will not be adequate, detention of the patient may be directed for the purposes of assessment and treatment throughout the second period.

[66] If at any time during the second period the responsible clinician considers that a patient is fit to be released from compulsory status, he “must” give written notice requiring the patient to be released immediately from that status.

[67] If the responsible clinician is of the opinion that the patient is not fit to be released from compulsory status, before the expiry of the second period the responsible clinician must apply to the Court for a compulsory treatment order.

Compulsory treatment order
[force may be used to treat the patient s.122B(3)MHA]

[68] If an application for a compulsory treatment order is made the patient remains liable to assessment and treatment for a further period of 14 days after the expiry of the second period. A Judge may extend that 14 day period for a further period not exceeding one month. But if the application is not finally determined by the expiration of those two periods then the application “shall be dismissed” and the patient “shall be released” from compulsory status.

[69] Compulsory treatment orders are heard and determined by the District Court, wherever practicable by a Family Court Judge. The Court is required to determine whether or not the patient is mentally disordered. If the Court considers the patient is not mentally disordered it shall order that the patient be released from compulsory status forthwith. If the Court considers the patient is mentally disordered the Court is required to consider in all the circumstances of the case whether it is “necessary” to make a compulsory treatment order.

[70] Compulsory treatment orders shall be community orders “unless” the Court considers that the patient cannot be treated adequately as an outpatient. In that case an inpatient order is to be made, which will require the continued detention of the patient in a specified hospital.

[71] If an any time during the currency of the inpatient order the responsible clinician considers that the patient can be treated adequately as an outpatient the responsible clinician is required to direct the patient to be discharged from hospital (s 30(2)).

Section 16 procedure

[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 ( welfare guardian, the applicant for assessment, the principal caregiver, usual medical practitioner, but not including the responsible clinician). They may seek a review by the Court “at any time” during the first and second periods.

[73] Where the application is a first application ... the Court must grant the application to hold a review and a Judge must examine the patient as soon as practicable. As well as examining the patient, the Judge is required to consult with the responsible clinician and with at least one other health professional involved in the case and may consult with such other persons as the Judge thinks fit concerning the patient's condition (s 16 (4)).

[74] If the Judge is satisfied that the patient is fit to be released from compulsory status the Judge shall order that the patient be released from that status forthwith (s 16(5)) ...

Observations on the Act

[75] At the Second Reading of the Mental Health Bill on 12 March 1992 Hon Katherine O' Regan, then Associate Minister of Health, stated that the Bill was the third major legislative enactment in New Zealand this century pertaining to the treatment of the mentally ill. She said:

Attempting to strike the balance between the rights of patients and the rights of those who care for them is indeed the central dilemma of any mental health legislation ... The legislation is an attempt to strike that balance.

She observed that one of the key themes of the reforms was:

... the provision of treatment in the least restrictive environment, ...

She further stated:

The Bill makes significant changes to the Mental Health Act 1969. The three most significant changes relate to community treatment orders,the definition of mental disorder, and the reviews and appeals process. Unlike the Mental Health Act 1969, which emphasised compulsory detention – I underline the word “detention” - the Bill is primarily concerned with assessment of the need for treatment. If that is established, a decision is made about whether treatment should be provided on an out-patient or an in-patient basis. For out – patients, that important option for providing community treatment order services offers greater opportunity for treating such patients in the least restrictive environment.

At the Third Reading in June 1992 Hon David Caygill, then Minister of Health, introducing the Bill, stated that the Bill would replace the Mental Health Act 1969 and that:

The most conspicuous change of emphasis in the Bill is towards increased concern for civil liberties.

...

The process where a person becomes liable to compulsory treatment is
staged. The intention of that staged process is to reduce the duration of
compulsory treatment to a minimum.

(Parliamentary Debates (Hansard) Vol 485)

[76] Accordingly, the Act provides a staged process of assessment and treatment to provide for persons who may be mentally disordered but to infringe only to the extent necessary, the liberty of such a person. This approach is apparent in provisions which impact at every stage of the process:

the emphasis given to the release of any patient from compulsory status if at any stage of the process the person is assessed as not being mentally disordered; preference for outpatient over inpatient treatment at all stages. In the case of a compulsory treatment order, it “shall” be a community treatment order “unless” the Court considers that the patient cannot be treated adequately as an outpatient. only then can the patient be detained in a hospital and required to accept the treatment. And the patient “must” be discharged if at any time during the currency of the inpatient order, the responsible clinician considers the patient can be adequately treated as an outpatient; the requirement for any compulsory treatment order to be made within the designated timeframe, failing which the patient “must” be released; the requirement for consent to treatment to be obtained wherever practicable

[77] It relevant [sic.] also to note the requirement for judicial determinations at critical points in the process.

[78] First, if application for a s 16 review is made, a Judge must decide whether or not to grant the application (s 16(1C)). The Judge is required to consult with the responsible clinician and at least one other health professional involved in the case, but the decision to release or not, rests entirely with the Judge. Niether the responsible clinician nor other health professional is authorised to seek review. The ability to do so rests only with the patient or a person specified in s 10(4)(a) on his or her behalf. Thus the review is initiated and the decision on review is taken independently of the responsible clinician and health professionals. That is consistent with the intent of the Act to protect the rights of persons who become subject to it and to compulsory status under it.

[79] Second, a compulsory treatment order can only be made by a Judge. While the responsible clinician must apply for the order, if of the opinion that the patient is not fit to be released from compulsory status, the decision whether or not to make the order, and the kind of order to be made ( community treatment order or inpatient order), is for the Judge.

[80] The Act provides no power for the responsible clinician to detain a patient except for the limited purposes of the first and second periods. Even when the Court makes a compulsory treatment order, it is not to be an inpatient order which involves detaining the patient in a hospital, unless outpatient treatment will not be adequate. Treatment pursuant to an inpatient order “shall” be converted to outpatient treatment if the responsible clinician considers the patient can continue to be adequately treated as an outpatient.

[81] No duty is imposed by the Act on the responsible clinician, or anyone, to make an application for assessment under ss 8 and 8A, or a further or subsequent application ( i.e. to “re–section”). There is power to do so under s 8, but no duty. The responsible clinician's power to apply for assessment under ss 8 or 8A is the same as that of any member of the public who believes a person is suffering from a mental disorder.

Other statutory and regulatory provisions

New Zealand Bill of Rights Act 1990

[82] The rights of an individual affirmed by this Act which are relevant in the context of this case are:

Refuse medical treatment (s 11)

Freedom of movement (s 18)

Not be arbitrarily detained ( s 22)

Be treated with humanity and respect for the inherent dignity of the person ( s 23(5)).

[83] I have previously referred to the provisions of the Act, such as ss 57 and 58 which recognise and respect the right to refuse medical treatment. The other rights are respected by the general focus of the Act, to interfere as little as possible and only to the extent necessary with the liberty of a patient or proposed patient. The processes provided by the Act in relation to assessment, care and treatment reflect that any limitation on the liberty of an individual must be reasonable and “demonstrably justified”, as required by s 4 New Zealand Bill of Rights Act [ s. 5 NZBORA?]

New Zealand Public Health & Disability Act 2000

[84] ... Its objectives include promoting effective care or support for those in need or personal health or disability support services, and to uphold the ethical and quality standards commonly expected of providers of these services. The Act addresses the provision generally of health and disability services for voluntary patients through publicly owned health and disability organisations.

Health and Disability Commissioner (Code of Health & Disability Services Consumers' Rights) Regulations 1996

[85] The Code stated the rights of “consumers” (patients) to services that respect individual dignity and independence, are delivered with reasonable care and skill and in compliance with legal, professional, ethical and other relevant standards, minimise potential harm and optimise quality of life for the patient, and include information to enable informed choice to be made and informed to be given.

[86] Services are not to be received by a patient unless the relevant informed choice has been made or informed consent has been given except where any Act [ e.g. Mental Health Act] , the common law or the Code otherwise provides.

[87] If a patient has diminished competence, a provider may provide services without first obtaining informed choice or consent, if this is in the best interests of the patient, reasonable steps have been taken to ascertain the patient's views, and the provider believes on reasonable grounds that the provision of the services is consistent with the informed choice of the patient.

[88] None of these statutes and regulations is inconsistent with the [ Mental Health] Act ...

CRITIQUE OF THE ELLIS CASE

The last claim made by Potter J in para.[88] of the judgement seems incredible. That legal question should be re-worded to read; whether certain provisions in Part 5 of the Mental Health (C.A.T.) Act 1992, section 110A, and section 122B(3), override the right to refuse treatment in section 11 of the Bill of Rights Act ?

'The prevailing official view is that the Mental Health (Compulsory Assessment and Treatment)Act 1992 overrides the common law and statutory rights to undergo any medical treatment as enschrined in s 11 of the New Zealand Bill of Rights Act 1990 [ see in In Re MP (SRT 64/96 20 Aug. 1997 ]'(Brookbanks (2002) 4 FLJ 72 at p. 73 ).

Section 57 of the MHA states the presumption of the right to refuse treatment , however this is immediately taken away by the words '... except as provided in this Part or in section 110A'. Here, the important word is 'except'.

Further articles and cases can be cited regarding the status of section 11 NZBORA. The general rule is that section 11 (right to refuse medical treatment) does not operate. When the patient is subject to the above mentioned sections in the Mental Health (C.A.T.)Act 1992 they have no right to refuse medical treatment for mental disorder.

The entire judgment can be downloaded in adobe pdf format at www.justice.govt.nz

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.

[STOP_FORCED_DRUGGING]

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-11-18T14:31:00.010+13:00

GENERAL INFORMATION FOR MEDICAL CLINICS

[ STOP_FORCED_DRUGGING ]

This Media release is to bring to notice what Hillmorton psychiatric medical staff are statutorily authorized to do. Medical staff at that hospital, like many other such hospitals throughout New Zealand, have, in certain circumstances, statutory authority to use force against patients. Section 122B(3) of the MHA reads:

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

Pursuant to the above subsection 'person[s]' at Hillmorton have a statutory discretion to use '...such force as is reasonably necessary in the circumstances' to treat patients. Note, the use of force applies to patients held under either section 58 or section 59.

Section 122B(3) overrides the right to refuse medical treatment in section 11 NZBORA:

11. Right to refuse medical treatment – Everyone has the right to refuse to undergo any medical treatment.

Forced psychiatric treatment (contrary to s.11) is what Hillmorton medical staff are statutorily authorized to do under the MHA.

Photos of inside Hillmorton psychiatric hospital
Christchurch New Zealand around 2000. SFD believes
this particular wing is now disused.

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations.

However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

If this interpretation is the correct one, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this never expressly stated in s.122B(1) itself? Still, there are sound reasons for restricting s.122B(3) to emergency situations, as this interpretation would accord more with the usual bodily integrity arguments and also the Bill of Rights Act.

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-10-16T16:04:00.007+13:00

SFD

About the SFD blog

[STOP_FORCED_DRUGGING]

'The majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society.'

-- Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816.

'Madness is rare in individuals - but in groups, parties, nations, and ages it is the rule.'

- Nietzsche, Beyond Good and Evil; Prelude for a Philosophy of the Future, Vintage books , 1966, (1886) at p. 90.

Madness is certainly the rule in New Zealand with regard to the majority and Parliament's mental health laws. This blog was initially designed for personal use only, but why not become activist. The message is clear; all legislative provisions that compel a so -called 'mentally disordered' (see definition in s.2 Mental Health (C.A.T.) Act 1992) person to take drugs should be repealed. Parliament, should not have the jurisdiction to decide what drug another human being has to take and to compel them to take it. However, Parliament, with its supremacy, has theoretically and academically speaking , unlimited power. It almost escapes comprehension how Parliament's jurisdiction could extend to these vast limits.

You will note the posters on this blog using terms like 'fascist democracy'. In the 19th century John Stuart Mill stated in On Liberty : '... and in political speculations " the tyranny of the majority" is now generally included among the evils against which society requires to be on its guard' ( at p.62). The following passage encapulates New Zealand's tyranny:

‘As with most democratic governments, but even more so in New
Zealand, the Executive wields extraordinary power, including the
power to take away fundamental rights and freedoms, which are
protected only by goodwill and trust, and not by the courts. This
enormous and almost unchecked power of government, alone and
through Parliament, has been likened by a former Prime Minister
to that of the Stuart Kings before the Glorious Revolution of 1668.
It was characterized by other commentators as an almost perfect
example of a strict majoritarian model, an “elective dictatorship”,
and an “overpowerful parliament dominated by what is a result
and overpowerful executive”. This is clearly a very “thin” and
vulnerable democracy’.

(G.W.G. Leane H.R.Q. 26 (2004) 152, at p.167 :cf. J.S. Mill, On Liberty, 1859 at pp. 62 & 63; James Madison et al, The Federalist Papers (1788); Alexis de Tocqueville Democracy in America (1835).

In New Zealand, descriptions such as 'tyranny of the majority' and 'elective dictatorship' fit nicely. Another factor adding to all this is that the Legislative Council Abolition Act 1950 states 'The Legislative Council of New Zealand is hereby abolished...' (s.2(1)). Therefore, the New Zealand Parliament is unicameral, that is, it has only one chamber - the House of Representatives. Compare the UK which has the House of Commons and the House of Lords.

The majority of people in New Zealand, via a democratic mandate, elect their representatives into power. However they cannot be blamed after that for what those representatives, acting as Parliament, enact into law. The people are to blame for the initial act, that is, of electing their representatives into Parliament based on a handful of promises. If Parliament later chooses to break those promises there is little the majority can do, as Parliament retains its supremacy. However, where do the minority fit into to all this?

Do you think the minority, the ones held under the Mental Health Act, would have voted for representatives who sought to enact a piece of legislation that takes away their fundamental rights, such as the right to refuse treatment in section 11 of the New Zealand Bill of Rights Act 1990? Or, do you think they they would vote for a party they wished to enact legislation that authorized the use of force on them? ( see s.122B(3) MHA ). It is absurd to even suggest it. Who would vote for a party that promised to take away the rights of the very people who voted them into power? That is why the majority in this country are to blame, as they hold the power, through the sheer weight of numbers. They elect who they want.

Only a small percentage of the population are held under the provisions of the Mental Health (C.A.T.) Act 1992. Almost any person who comes within the statutory definition of 'mental disorder' in section 2 of the 1992 Act can be detained and forced to take psychiatric drugs. However, there are common law and statutory exceptions. For instance, section 4 of the Mental Health (C.A.T.) Act 1992 excludes certain categories of persons from the procedures prescribed in Part 1 (compulsory assessment and treatment) and Part 2 (compulsory treatment orders) of the Act, it reads:

4 General rules relating to liability to assessment or treatment

The procedures prescribed by Parts 1 and 2 of this Act shall not be invoked in respect of any person by reason only of—
(a)That person's political, religious, or cultural beliefs; or
(b)That person's sexual preferences; or
(c)That person's criminal or delinquent behaviour; or
(d)Substance abuse; or
[(e)Intellectual disability.]

Compare: Mental Health Act 1983 (UK), s 1(3)

( section 4 will be left for later discussion. This is a theoretical, not legal, overview)

To continiue, the argument is this; only a small defenseless group of individuals are held under the 1992 Act. Many of those detained are hidden from site and locked away in some psychiatric institution or live in compulsory community care in some house hidden in suburbia.

Do you think that that small dis -empowered minority will ever be able to effect any real change to the 1992 legislation? Even if there was a political party who sought to repeal or amend certain provisions in the 1992 Act would they have sufficient numbers in Parliament to do so? Could they form a coalition with another like minded party? How would the majority respond if this were to happen; or would the majority now be relegated to position of minority?

Another problem in this country is the total absence of a written constitution. There is no entrenched supreme law document. Canada has the Charter of Rights and Freedoms (Schedule B Canada Act 1982; see landmark decision R v Big M Drug Mart [1985] 1 S.C.R. 295 statute was held to be an unconstitutional violation of section 2 of the Charter ruled invalid under s.52 Constitution Act 1982; for United States see major U.S. Supreme Court decisions Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803); Roe v Wade 410 U.S. 113 (1973)).

New Zealand has the New Zealand Bill of Rights Act 1990. The later is a non - entrenched statute. Where there exists an inconsistency with other legislation , section 4 of the NZBORA, expressly upholds that other legislation. Thus the NZBORA is inherently weak. Special regard should be had to section 3 (application) NZBORA and the operative provisions, which are sections 4, 5, and 6. To summarize enormously, everything turns on questions of statutory interpretation. That is, questions, or points of law.

The Courts in New Zealand have no jurisdiction to review primary legislation. However, there have in the past been judicial murmurings. If a piece of legislation were so repugnant to human rights would the courts refuse to give effect to it; could, or indeed would, a Court of superior jurisdiction strike it down? That argument remains academic at this stage of New Zealand's legal development.

There is no doubt that section 11 of the NZBORA has been overridden by provisions in the Mental Health (C.A.T.)Act 1992. A patient held, for instance, under section 58 of the MHA cannot invoke the right in section 11 to refuse medical treatment. However, there is a narrow common law exception to this found in Re S [1992] 1 NZLR 363 (H.C.). A patient who is 'mentally disordered' as per s.2 MHA, yet 'competent', within the common law definition found in Re K [2003] NZFLR 318, may avoid compulsory treatment. Q: Should a 'competent' although 'mentally disorded' person be compelled to accept treatment for mental disorder? This area of law is highly contentious and unclear and so will be left to other posts on this blog.

So, the general rule is that a patient who is held, for instance, under section 58 or section 59 of the MHA must accept treatment for 'mental disorder' (s.2). Furthermore, there is statutory authorization found in section 122B(3) MHA to use '... such force as is reasonably necessary in the circumstances' against that patient in order to treat them.

What do you think the long term results will be when only a few citizens are subjected to this horrific legislative violation and the majority avoid it? All efforts must be made to stop forced drugging in New Zealand and elsewhere throughout the world.

[STOP_FORCED_DRUGGING]

DISCLAIMER FROM PERSONAL LIABILITY

[STOP_FORCED_DRUGGING]

THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-10-16T12:16:00.006+13:00

Q: Who is the "person" in
s.122B(3) MHA ?

Section 122B(3) of the Mental Health (CAT)Act 1992 reads:

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

What follows is a basic break down of the essential components of the subsection:

Firstly, the words 'A person' are very wide. Who is this person, or who are these persons? When taken literally it could be construed as only one person, as it expressly states 'A person.' Why has Parliament chosen not to list them? Was this a deliberate move to ensure the widest possible protection from liability?Surely, the persons should have been listed in order to provide clarity.

The person , or persons, must be 'treating' the patient. The word 'treating' or 'treatment' is not defined in the MHA. However, it must be treatment only for 'mental disorder', as defined in section 2 of the MHA and in extensive case law.

The subsection only applies to section 58 ( section 11 further assessment and treatment for 5 days; and section 13 further assessment and treatment for 14 days) and to section 59 ( community treatment orders ; inpatient, s.30/ outpatient, s.29 ). Note, section 122B(3), above, does not apply to section 60 (E.C.T.). So force can only be used to treat a patient to whom either section 58 or section 59 applies.

Force 'may' be used to treat the patient. Here, there is a statutory discretion. Section 122B(3) does not state that force must be used. 'A person' must exercise this discretion and arrive at a decision as to whether force should be used or not. The Guidelines to The Mental Health Act 1992, 2000, give some guidance as to what factors should be taken into account ( see p.58).

Section 122B(3) states the degree of force which may be used is '... such force as is reasonably necessary in the circumstances.' As stated elsewhere on this blog, that phrase is likely to be read down to read 'reasonable force'. The Corrections Act 2004 states '... use any physical force (and no more) that is reasonably necessary in the circumstances' (see s.103 (1)(b)). Note, how it reads '(and no more)' ? Does this provide any extra protection for the individual? If the degree or standard of force in section 122B(3) of the MHA is breached that 'person' or persons may be held criminally liable as authorized under section 62 of the Crimes Act 1961 (excessive force). Section 23 (5) of the New Zealand Bill of Rights Act 1990 should also be borne in mind, it reads; ' Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person'. Case law involving this can be found in Adams on Criminal Law Brookers, 3rd edn. 2001, at p. 1101.

What are the 'circumstances' as stated in s.122B(3) MHA? There is no clear definition, as the circumstances could be almost anything. Keep in mind that there needs to be no emergency before the powers arising under s.122B(3) are invoked. The word 'emergency' does not appear in the subsection. Was this an oversight by Parliament, or was it deliberate ? Force may be used at any time to treat a patient for mental disorder, provided section 58 or section 59 applies to that patient. This is a very wide discretion, too wide. Why has Parliament buried such a controversial subsection in the back of the Mental Health (CAT)Act, and moreover in the middle of section 122B? Section 122B(3) is so obscure it could easily be missed by the reader.

Another problem is that it is referential, in that it throws the reader out to sections 58 and 59. Section 58 further refers the reader to sections 11 and 13 respectively. This is centrifugence, or scatter. It becomes like a maze. Arguably , this was intentional to confuse people. Parliament should have amended section 58 and section 59 and expressly stated that force may be used. The reader must locate the relevant sections and connect them up, and read them together in their context. Do you think section 122B(3) MHA should be confined to emergencies, even though it does not expressly state this, how will the Courts interpret the subsection?

The subsection should never have been enacted into law. It is vague, and confers a wide discretion to use force. Certainty in the law is essential. Furthermore, it lists no specific criteria to be taken into account in the exercise of the discretion to use force. At the time of writing ( 16 October , 2006) there appears to be no case law on the subsection. This seems incredible, as s.122B was inserted on 1 April 2000 by section 68 of the Mental Health (CAT) Amendment Act 1999 (1999 No 140) . Section 3 of the amendment Act of 2003 inserted the words 'section 58 or' into s.122B(3) on 22 October 2003. Thereby extending the application of section 122B(3) to not only section 59, but also section 58. An attempt will be made to expose the problems with section 122B(3) MHA in the following fact pattern (fictional):

Hypothetical Fact Pattern:

Carol is held under section 58 of the MHA. She has been refusing to comply with medication for a few weeks. There is no emergency situation. Staff decide to use force under section 122B(3) MHA to treat Carol. Carol only becomes agitated when staff try to restrain her in order to administer an intramuscular injection. A psychiatric nurse restrains and injects Carol. Carol's responsible clinician restrains Carol. A social worker who was involved in Carol's treatment also assists and restrains Carol. A visitor, who just happened to be visiting on the ward, rushes to assistance and restrains Carol. The visitor is told to leave , but he insists on restraining Carol.

So there are four persons involved in this hypothetical. However, who is the 'person' for the purposes of section 122B(3) MHA? The essential components of the subsection must be met before a member of the staff can be considered a 'person' as per the subsection.

1. The psychiatric nurse is 'treating' Carol, and using reasonable force to do so. They fit the requirements of s.122B(3) MHA.

2. Carol's responsible clinician is not treating Carol per se, but rather restraining Carol. However , the clinician is of course involved in the treatment of Carol, but not at this specific time. This view is a very narrow view. A Court would probably assume the clinician was 'treating' Carol for the purpose of s.122B(3) MHA. However, the writer believes the subsection should be strictly construed to exclude all others who are not 'treating' the patient at the specific time, that is, when the power under the subsection is invoked.

3. The social worker was involved in Carol's treatment a few months ago, but is no longer involved. She is not 'treating' Carol in the strict sense, but instead restraining her. Is she 'A person' for the purposes of s.122B(3) ? This is a difficult one. Surely, it would be straining the wording of the subsection to include the social worker. It is difficult to predict how a Court would view this one. Perhaps she would be covered by the subsection.

4. The visitor, who just happens to be on the ward, has no connection with the treatment of Carol. He is not treating her. He has no authority in relation to Carol whatsoever. Therefore he is outside of the scope of the subsection. If, in the unlikely event, he were to be charged with assault against Carol, he may rely in the common law defence of necessity.

It is submitted that the word 'person' in s.122B(3) of the Mental Health (CAT)Act 1992 should be confined only to those persons who are actually treating the patient at that time, and no others. This not only affords some protection for the bolidy integrity of the person it also relects section 6 NZBORA. That section states that where a word is capable of two or more meanings, the meaning most in line with a right or freedom in the NZBORA, for instance (right to refuse treatment in section 11) must be preferred to the exclusion of any other ( see operative sections 4, 5, & 6 NZBORA).

Note on Guidelines to the Mental Health (C.A.T.)Act 1992, 2000

The Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992, April 2000, state;

'Before force is used it is strongly recommended that the use of de-escalation skills should always be considered, and if clinically approprite used.' (at p. 58).

The above recommendation applies to section 122B(3) and is a strong recommendation. However, it is only a non -binding 'recommendation' that de-escalation skills should always be 'considered'. Whether these de-escalation skills are actually used before force is used on a patient is a matter of clinical judgment. Once again, the Guidelines allow a clinical decision to be made. It is not mandatory for persons treating a patient to use de-escalation skills 'before' they use force to treat.

The Guidelines at page 72, give further factors to be taken into account in relation to the use of force in the 'circumstances'. However, the circumstances given in 4.2 to 4.5 deal with taking, detention (4.2) transportation (4.3) force to take /or detain a patient or proposed patient (4.4) and force to gain entry to property (4.5). As such, they are not relevant to using force to treat a patient.

The Guidleines are promulgated under section 130(a) of the Mental Health (C.A.T.)Act 1992. The Guidelines are obviously not legislation, nor subordinate legislation. It is difficult to determine their precise legal status. Basically, they seem to be a set of guidleines issued from time to time dealing, inter alia, with the purpose and procedures of the Mental Health (C.A.T.)Act 1992.

For the 'weight' to be given guidlines made under the Mental Health (C.A.T.)Act 1992 see the United Kingdom House of Lords decision R v Ashworth Hospital Authority [2005] UKHL 58. When considering the Secretary of State's Code of Practice issued under the Mental Health Act 1983 (UK), in particular seclusion, Lord Bingham of Cornhill noted that whilst such a code provides guidance, not instruction, the guidance should be given 'great weight'. The Code (under UK Act) is not instruction, however it provides much more than advice which the addressee is free to follow or not as they choose. A hospital should consider the guidance with significant care and should only depart from it if it has strong reasons for doing so ( Lord Bingham at para.[21]).

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.

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DISCLAIMER FROM PERSONAL LIABILITY

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-02-10T20:55:00.003+13:00

Application of New Zealand Bill of Rights Act to those exercising powers
in s.122B of the Mental Health (C.A.T.)Act 1992

NEW ZEALAND BILL OF RIGHTS ACT 1990

PART 1 - GENERAL PROVISIONS

3. Application—

3. Application — This Bill of Rights applies only to acts done —
(a) By the legislative, executive, or judicial branches of the government of New
Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

The term "acts done" in s.3 is broad, and includes omissions: R v Butcher and Burgess [1992] 2 NZLR 257. Nearly all criminal cases involve legislation, as such the Bill of Rights Act will apply. Law enforcement agencies, for example the police and mental health services would clearly fall within the ambit of 'government' (s.3(a)), or equally, as part of the executive branch of government; Adams on Criminal Law, at p. 1015. Those exercising powers that arise in s.122B(2) and (3) of the Mental Health Act would be caught by s.3 of the Bill of Rights Act. Those persons in s.122B(2) are ;

any person who retakes a patient subject to an inpatient order absent without leave (s.32(1) MHA).

'Duly Authorised Officer' ( see s.2 MHA) ( ss. 38(4)(d), 40(2), 50(4), 51(3), 53, 41(2)).

registered nurse (s.111(2)MHA).

'Director' (ss.50(4), 51(3), 53, ).

'Director of Area Mental Health Services' (s.2MHA) ( 50(4), 51(3), 53).

any person to whom the charge of the patient has been entrusted during the period of leave (50(4), 51(3), 53).

medical practitioner (ss.110C(2), 110C(1), 110A(2).

police (s.113A).

Police (ss.41(1), 41(2), 41(3), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(1), 110C(2)).

'person in charge'(s.2) of a 'hospital'(s.2) (s.113).

However, in s.122B(2) the above persons can only exercise the discretion to use reasonably necessary force in an emergency (s.122B(1) MHA). Of course 'emergency' is not defined in the MHA. As the use of force when excercising the powers in s.122B(2) is limited to emergency situations, the Bill of Rights may be read down, or in some cases not apply. Statutory interpretation is a very pragmatic process - therefore it is difficult to predict an outcome. Some of the rights in the Bill of Rights Act that are relevant are;

s.9 Right not to be subjected to torture or cruel treatment.

s.10 Right not to be subjected to scientific or medical experimentation.

s.11 Right to refuse medical treatment.

s.23(1) Everyone arrested or detained under any enactment shall be informed at the time of the arrest or detention of the reason for it (s.23(1)(a)

and;

Shall have the right to consult and instruct a lawyer without delay and to be informed of that right (s.23(1)(b)).

Compare section 70 Mental Health (C.A.T.)Act 1992;

70 Right to legal advice

Every patient is entitled to request a lawyer to advise the patient on his or her status and rights as a patient, or any other matters on which persons customarily seek legal advice, and, if the lawyer agrees to act for the patient, he or she shall be permitted access to the patient upon request.

Bill of Rights Act continued;

s.22 Right not to be abitrarily detained.

s.23(5) Everyone deprived of liberty shall be treated with dignity and respect.

s.19 Freedom from discrimnation - prohibited to discriminate on ground of 'Psychiatric illness' ( s.21(1)(h)(iii) Human Rights Act 1993).

A civil damages remedy lies against the State for a breach of a provision in the Bill of Rights Act: Simpson v A-G [Baigent's case][1994]3 NZLR 667.

Note

Section 122A of the MHA states:

[122A Certain sections of Crimes Act 1961 apply to powers to take and retake

Sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), and 113A contain a power to take or retake a person, a proposed patient, or a patient. In respect of each of these powers, sections 30, 31, and 34 of the Crimes Act 1961 apply—

(a)As if the power were a power of arrest; and

(b)With any necessary modifications.]

Where the terms "justified" and/or "protected from criminal responsibility" appear in sections 30, 31, 0r 34 of the Crimes Act they will exclude certain civil actions, as "justified" means not guilty of an offence and not liable to any civil proceeding (s.2); "protected from criminal responsiblity " means not liable to any proceeding except a civil proceeding (s.2). Thus certain civil actions such as battery and false imprisonment would be prevented. The term "justified" may prevent an action for breach of the NZBORA. This commentary should be read in conjunction with s.39 of the Crimes Act, which provides:

39 Force used in executing process or in arrest

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:

Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

Section 39 is directed to the overcoming of resistance (see s.62 Crimes Act, liability for excessive force).

Reasonable force:

In a civil action before a jury, the question "what amount of force is reasonable in the circumstances?" is a question of fact for the jury and not a question of law for the Judge: Hayward v O'Keefe [1993] 1 NZLR 181, 191. Where excessive force has been used, the defence will be excluded entirely: R v Clegg [1995] 2 WLR 80 (HL). Where the defendant's purpose may have been to arrest as well as, or instead of, self-defence, each defence might need to be separately considered: R v Kelbie [1996] Crim LR 802. For the burden of proof see Adams on Criminal Law, Brookers, 2002 edn. at CA 20.08. In Tocker v Police 21/12/93, Barker J, in the Hight Court, drew a connection between s.39 of the Crimes Act and s.23(5) NZBORA:

"Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person".

see further: Adams on Criminal Law, supra, at p. 132.

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DISCLAIMER FROM PERSONAL LIABILITY

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-02-08T10:25:00.001+13:00

MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992 PART 10 - ENFORCEMENT AND OFFENCES

122B.Use of force—

(1)A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.

(2)The powers are—

(a)A power to take or retake a person, proposed patient, or patient in any of sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), or 113A:
(b)A power to detain a person, proposed patient, or patient in any of sections 41(3), 41(4), 41(5), 109(4), 110C(2), 111(2), or 113:
(c)A power to enter premises in either of sections 41(2) or 110C(1).

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

(4)If force has been used under this section,—

(a)The circumstances in which the force was used must be recorded as soon as practicable; and
(b)A copy of the record must be given to the Director of Area Mental Health Services as soon as practicable.

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.

2006-02-07T10:32:00.003+13:00

Analysis of stautory powers in s.122B to take, retake, detain, and enter premises

MENTAL HEALTH ( COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992 ENFORCEMENT AND OFFENCES - PART 10

122B. Use of force —

(1)A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.

(2)The powers are—

(a)A power to take or retake a person, proposed patient, or patient in any of sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), or 113A:

(b)A power to detain a person, proposed patient, or patient in any of sections 41(3), 41(4), 41(5), 109(4), 110C(2), 111(2), or 113:

(c)A power to enter premises in either of sections 41(2) or 110C(1).

(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.

(4)If force has been used under this section,—

(a)The circumstances in which the force was used must be recorded as soon as practicable; and

(b)A copy of the record must be given to the Director of Area Mental Health Services as soon as practicable.]

Analysis of section 122B is as follows:

s.122B (1) A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.

122B(2)(a) - The powers are powers to take or retake a person, 'proposed patient' (s.2A MHA), or 'patient' (s.2), in any of the following sections -

32(1) - in an emergency, any person may use reasonably neccesary force to retake a patient who is subject to an inpatient order and absent without leave ( ss.30, 31, & 34 Crimes Act 1961 apply, as if they were a power of arrest (s.122A(a)) and with any necessary modifications ( s.122A(b) MHA).

38(4)(d) – in an emergency, a 'Duly Authorised Officer' ( s.2 MHA) may use reasonably necessay force to take a person to a medical practitioner ( ss.30, 31, & 34 C.A. apply , as above).

40(2) – in an emergency, a DAO may use reasonably necessary force to take a patient to a place where they are required to attend (ss.30, 31, & 34 C.A. apply, as above).

41(4) – in an emergency, police who have entered premises, may use reasonably necessary force to take person to medical examination and detain them at that place ( ss.30, 31, & 34, C.A. apply, as above).

41(5) – in an emergency, police, who have entered premises, may use reasonably necessary force for the purposes of s.40(2)(a)to take the proposed patient or patient to a place they are required to attend and detain them there ( ss.30, 31, 34, C.A. apply).

41(6) – in an emergency, police , who have entered premises under s.41(2), may use reasonably necessary force to take patient back to hospital ( ss.310, 31, 34, C.A. apply).

50(4) – in an emergency, any case to which s. 53(3) applies, a 'Director', 'Director of Area Mental Health Services', DAO ( see s.2 MHA), police, or person entrusted with charge of patient during leave may use reasonably necessary force to take patient to a specified hospital ( ss. 30, 31, 34, C.A. apply).

51(3) – in an emergency, a Director, D.A.M.H.S., DAO, police, or person entrusted with charge of the patient may use reasonably necessary force to retake 'special patient' (s.2) to hospital ( ss.30, 31, 34, C.A. apply).

53 – in an emergency, a Director, D.A.M.H.S., DAO, police, or person entrusted with charge of the patient, may use reasonably necessary force to retake a special patient escaped or absent without leave ( ss.30, 31, 34 C.A. apply).

109(1) – in an emergency, police may use reasonably necessary force to apprehend a person appearing to be 'mentally disordered' (s.2) in a public place ( ss.30, 31, 34, C.A. apply).

109(4) – in an emergency, and subject to s.109(3), police may use reasonably necessary force to continue to detain a proposed patient for assessment etc. ( ss.30, 31, 34, C.A. apply).

110C(2) – in an emergency, police who have entered under s. 110C(1), may use reasonably necessary force and at the request of a medical practitioner detain a person or proposed patient etc. ( ss.30, 31, 34, C.A. apply).

111(2) - in an emergency, a registered nurse may use reasonably necessary force to keep a person where they are - until a medical practitioner examines them ( ss.30, 31, 34, C.A. apply).

113A - police ( s.122B MHA & ss.30, 31, 34, C.A. apply to whole of s.113A).

122B(2)(b) – A power to detain a person, proposed patient, or patient , in any of the following sections -

41(3) – in an emergency, police , who have entered premises under s.41(2), may use such force as is reasonably necessary to detain a person ( ss. 30,31,34, C.A, do not apply here).

41(4) – in an emergency, police who have entered premises under s. 41(2), for the purposes of s. 38(4)(d), may use reasonably necessary force to take the person to a medical examination and detain them ( ss. 30,31.34, C.A, apply ).

41(5) – in an emergency, police , who have entered under s.41(2), may, for the purposes of s.40(2)(a), use reasonably necessary force to take a proposed patient or patient to a place they are required to attend and detain them there ( ss. 30, 31, 34, C.A. apply).

109(4) – in an emergency, subject to section 109(5), police may use reasonably necessary force to continue to detain a proposed patient until an assessment examination is conducted ( ss. 30, 31, 34 C.A. apply).

110C(2) – in an emergency, police , who have entered under s. 110C(1), may use reasonably necessary force, and may, at the request of a medical practitioner, detain a person or proposed patient ( ss. 30,31, 34 C.A. apply).

111(2) – in an emergency, subject to s.111(3), a registered nurse may use reasonably necessary force to detain a person where they are - until a medical practitioner has examined them ( ss.30,31,34, C.A. apply).

113 – in an emergency, a person in charge of a hospital may use reasonably necessary force to admit and detain a proposed patient etc. ( ss.30,31, 34 C.A. do not apply).

122B(2)(c) – a power to enter premises is conferred on police in either of the following two sections -

41(2) – in an emergency, police, called to the assistance of a DAO, may use reasonably necessary force to enter premises for the purposes described in s.38(4)(b) or (d) or s.40(2), and may enter premises where a person, proposed patient, or patient is etc. ( ss. 30,31,34 C.A. do not apply).

110C(1) – in an emergency, police, who have been called to assist a medical practitioner under s.110(4) or s.110A(5) or s.110B(4) , may use reasonably necessary force to enter the premises where a person or proposed patient is etc. ( ss. 30,31,34, C.A. do not apply).

Statutory authority to arrest or detain a mentally disordered person under the criminal law

Generally, any so - called mentally disordered person may be arrested by warrant, yet this takes time. The police can arrest without warrant any mentally disordered person reasonably suspected of having committed an offence punishable by imprisonment (see s.315 (2) Crimes Act 1961). Many offences carry a penalty of imprisonment, for example, disorderly behaviour (s.3 Summary Offences Act 1981) or common assault (s.9 S.O.A.) or wilful damage to other people's property (s.11 S.O.A.).

Police may also conduct a warrantless arrest when there is 'good cause to suspect' a person has committed a breach of the peace ( s.315(2) Crimes Act).

All of these powers under the criminal law do not cease to operate just because the person is considered to be mentally disordered at the time. Provided the standard governing the arrest was satisfied and the discretion ( eg. '...may arrest...' ) is properly exercised the arrest does not become unlawful because the person is later aquitted at trial or succeeds with a plea of insanity.

After the arrest of a possibly mentally disordered person the police may, as a matter of prosecutorial discretion, drop charges against the person. Or the police may call a DAO or doctor to commence the compulsory assessment process, or the person may be brought before a Court and the Judge may order that the person be remanded to a hospital for assessment ( eg. Person remanded under s.38 Criminal Procedure ( Mentally Impaired Persons )Act 2003 for psychiatric examination). Section 30 of that Act sets out the duration of detention where a defendant has been found unfit to stand trial;

Criminal Procedure (Mentally Impaired Persons) Act 2003
Part 2 Substantive provisions (s 7 to s 46)

30 Duration of detention as special patient or special care recipient where person unfit to stand trial

(1)The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—

(a)10 years from the date of the making of the order under section 24 if the defendant was charged with an offence that was punishable by imprisonment for life; or

(b)if paragraph (a) does not apply, a period from the date of the order under section 24 equal to half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.

(2)If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.

(3)An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—

(a)the defendant is brought before a court in accordance with a direction given under section 31; or

(b)a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.

(4)Subsection (3) is subject to sections 84 and 128 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or to section 105 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, as the case may require.

(5)An order under section 24 is to be treated as cancelled if every charge brought against the defendant in the proceedings in which the order was made is withdrawn or dismissed.

Compare: 1985 No 120 s 116(1)-(3)

Note the wording in subsection (1)(b); '... half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.' Here, the statutory presumption in section 25(c) of the Bill of Rights Act may be relevant, it states; ' The right to be presumed innocent until proved guilty according to law.'

Powers of detention arising under various other statutes

Other statutes also provide authority to detain in mental health situations. Some of these powers exist with or without a Court order.

Order under Criminal Procedure (Mentally Impaired Persons) Act 2003

Order under Summary Proceedings Act 1957 s.171(2) ( District Court may make order that defendant be detained in hospital : s.171(2)(a)&(b)).

Order for detention of aged and infirm etc. under s.126 of the Health Act 1956.

Order under parens patriae jurisdiction of the High Court : s 17 Judicature Act 1908.

Order for treatment under Protection for Personal and Property Rights Act 1988.

see further; Dawson J The Law of Emergency Psychiatric Detention [1999] NZ Law Review 275.

Justifications and excuses under the Crimes Act 1961

See Part III of the Crimes Act 1961 and section 20. Part III of that Act deals with matters of justification and excuse. A number of it's provisions expressly justify the use of reasonble force against a person, this would include a so - called mentally disordered person. See s.48, self - defence. If the use of force against the mentally disordered person was "justified" (see s.2 Crimes Act defintion) then the user of that force is not guilty of the offence and not liable to any civil liability. See further; Adams on Criminal Law 2001 3rd. Edn. Brookers at p.37; & also common law defences such as necessity.

Application of NZBORA to statutory powers of arrest or detention

As a general rule the Bill of Rights Act would apply to any person who exercises any statutory power. Therefore it is relevant to almost the entire discussion above. Click this link for Bill of Rights Act -

http://www.oefre.unibe.ch/law/icl/nz01000_.html

Some of the crucial sections dealing with arrest or detention in the Bill of Rights are as follows;

23(1)(a) – Everyone arrested or detained under any enactment must be informed at the time of arrest or detention for the reason for it.

23(1)(b) – Everyone arrested or detained under any enactment shall have the right to consult and instruct a lawyer without delay and to be informed of that right.

23(5) – Everyone deprived of liberty shall be treated with humanity and respect for the inherent dignity of the person.

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-01-26T15:50:00.004+13:00

The use of force in New Zealand mental health services

The Mental Health (Compulsory Assessment and Treatment) Act 1992 confers an express power to use force. Section 122B(3) states ;

'A person treating a patient to whom section 58 or section 59 applies
may use such force as is reasonably necessary in the circumstances.'

Now compare the general right in section 11 of the New Zealand Bill of Rights Act 1990 which affirms ( in s.2);

11. Right to refuse treatment – Everyone has the right to refuse to undergo any medical treatment.

The legislature has conferred upon the 'person[s]' in s.122B(3) a statutory discretion to use reasonably necessary force. Note, unlike subsection (2) of section 122B, here, the use of force is not confined to emergencies. Force may be used at any time for the purposes of treatment ( stated in Guidelines to the Mental Health (CAT) Act 1992 April 2000 at pp.57 & 58) - for 'mental disorder' ( as defined in s.2 MHA). That statutory discretion, found in s.122B(3), is contrary to the right in section 11 of the Bill of Rights, above. There is a definite inconsistency when s.122B(3) is viewed alongside section 11.

By dint of section 4 of the Bill of Rights s. 11 would most likely not operate. Section 4 expressly upholds inconsistent legislation such as s.122B(3) MHA. Whether the subsection does prevail over section 11 of the Bill of Rights Act is ultimately a question of statutory interpretation. In Re S [1992] 1 NZLR 363, Barker J, dealing with the Mental Health Act 1969 (repealed), observed; 'There is clear legislative intent as to when and by whom the rights and freedoms of the New Zealand Bill of Rights Act 1990, as regards the mentally disorded, may be restricted'( see p. 375 line 42). Surely that observation is just as relevant today in regards to the 1992 Act.

Although there is no clear legislative intent in the MHA in regards to the Bill of Rights Act, when the statutory text of section 122B(3)MHA is viewed alongside the right in section 11 of the Bill of Rights Act the inconsistency is immediately apparent. Of course the Bill of Rights Act is never expressly referred to anywhere in the MHA. Has Parliament overidden section 11 by necessary implication? Surely this is not so, as the MHA itself states; 'Except as expressly provided in this Act [the MHA] nothing in this Act shall limit or affect in any way the provisions of any other Act' ( s.136 MHA; emphasis added ). Obviously, s. 122B(3) MHA does not expressly state that; '... section 11 of the Bill of Rights shall not operate'. That last phrase would have been easy for Parliament to insert anywhere into the Mental Health (CAT) 1992.

Ultimately it seems that section 122B(3) of the MHA overrides the right in section 11 of the Bill of Rights by necessary implication. With the enactment of s.122B(3)MHA, the right in s. 11 of the Bill of Rights does not operate. Therefore the patient who is held under section 58 or 59 of the MHA may be subjected to such '...force as is reasonably necessary in the circumstances' - provided this force is being used to treat that patient for 'mental disorder'(s.2 MHA).

Why should patients be subjected to the discretionary use of force? Many have no control over their actions , many have no conscious volition. Even the Guidelines concede;'[S]uch persons, while being dealt with purely under the [Mental Health] Act, have not necessarily broken any rule of law'( Guidelines for Directors of Area Mental Health Services, April 2000 at p. 9). The application of force to a person is itself a form of violence, simply because force is being applied to them. Of course, the word 'force' is not defined in the Mental Health (CAT) Act 1992. However, the Guidelines to the Mental Health (CAT) Act 1992 April 2000 do state that if force has been used 'what type of force and by whom' should be recorded (at p.58, see also section 122B(4) MHA; a copy of the record of use of force should be attached to the patient's file, this copy may be sought under Rule 6 Health Information Privacy Code 1994 & s.14 NZBORA freedom to 'seek' and 'recieve' information).

How is the force to be applied , and what methods are allowable? Section 23(5) of the Bill of Rights Act 1990 should also be kept in mind, it states; 'Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person'.In the end, all subsection 122B(3) really states is the standard , or degree of force, that may be used on a patient, which is,'...force as is reasonably necessary in the circumstances'. If the subsection is breached, and excessive force is used, then that 'person' or those 'person[s]' may be held liable (see s. 62 of the Crimes Act 1961). Section 62 of the Crimes Act 1961 provides authority to penalise the use of excessive force. Yet the section prescribes no actual penalty itself for the use of excessive force. It has been said that'[e]xplicitness is necessarily compromised in offences that involve vague and open-ended concepts such as '...excessive...'( Simester & Brookbanks, Principles of Criminal Law (2nd Edn.) 2002 at p.30).

Another problematic word is 'reasonble'. What is 'reasonble'? The law never says. To some extent, the individual who uses force must, in advance, determine the law's standard for themselves and risk a Court disagreeing with them. ( Simester, supra, at p. 30). This reasoning surely also applies to the term '... force as is reasonably necessary in the circumstances'(in s.122B(3) MHA). '[W]here possible, these discretionary terms should be replaced by more concrete definitions of what counts as illegal, and what is legitimate'.(Simester, supra, at p. 30). Nevertheless, section 122B(3) of the Mental Health (CAT) Act 1992 confers a discretion to use force. The 'person[s]' authorised to use force in s.122B(3) have to use some form of guesswork. In hindsight, the question becomes; was the force used against the patient '...reasonably necessary in the circumstances'?

Each case will be confined to its particular facts, and therefore may be of limited precedent value ( See also section 114 of the Mental Health (CAT) Act 1992 – criminal liability for neglect or ill-treatment of proposed patients or patients). Subsection 122B(3) authorises force to be used apparently at any time to 'treat' a patient for 'mental disorder'. The entire section, that is, section 122B, was inserted into the 1992 Act (the princilpe Act) on 1 April 2000 by section 68 of the Mental Health (CAT) Amendment Act 1999 (1999 No 140). About three years after this the words '..section 58 or...' were inserted into s.122B(3) on 22 October 2003, by section 3 of the Mental Health (CAT) Amendment Act 2003 (2003 No 85).

Where did medical professionals derive their power to use force to treat a patient before section 122B (3) was inserted into the 1992 Act? It appears there was no statutory authority to use force to treat a patient in the 1992 Act before s.122B(3) came into force. Whatever the answer, 'person[s]', conveniently unlisted in s.122B(3), can now use '...force as is reasonably necessary in the circumstances'. However, this is likely to be read down and construed as meaning 'reasonable force'. Thus 'reasonable force' may be used at any time to treat a patient during the assessment periods (s.58 MHA), and during the currency of a compulsory treatment order (s.59 MHA). The use of force under s.122B(3) may be mitigated to some extent by the Guidelines which state ' Before force is used it is strongly recommended that the use of de - esculation skills should always be considered, and if clinially appropriate used'.( at p. 58). Note the words '...if clinically appropriate used', leaving the decision to medical professionals alone.

It is strange that with such a controversial subject , that is, the use of force in mental health services, the statutory authorisation to use force is hidden away in some obscure subsection at the back of the Mental Health(CAT)Act 1992 in s.122B(3). If the reader locates sections 58 and 59 of the MHA first - they will find nothing about use of force. The reader will instead have to traverse about 50 pages to the back of the Act and search for subsection 122B(3).Or, if the reader locates s.122B(3) first, then that subsection itself being referential, throws the reader back some 50 pages to sections 58 and 59. Why could not sections 58 and 59 themselves have been amended and an express power to use force inserted into them? This may have avoided any subsequent confusion.

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-01-26T15:34:00.002+13:00

Community Treatment Orders in New Zealand (a CTO)

The Mental Health (CAT) Act 1992 confers jurisdiction on a District Court to make a community treatment order (CTO). A CTO should not be confused with an inpatient order. Section 29(1) of the MHA states;

A community treatment order shall require the patient to attend at the patient's place of residence, or at some other place specified in the order, for treatment by employees of the specified institution . .. , and to accept that treatment.

The treatment given under s.29(1) must be for "mental disorder" ( as defined in s.2 MHA & extensive caselaw). Apparently the word 'treatment',in section 29(1), should not be construed too narrowly and includes all remedies available to health professionals to manage mental illness (see CHH v R(1995) 13 FRNZ 294. Although '[e]very patient is entitled to medical treatment and other health care appropriate to his or her condition'.( s.66 MHA). Before making the order the Court must be satisfied that the patient will be provided with' care and treatment on an outpatient basis that is appropriate to the needs of the patient' and that 'the social circumstances of the patient are adequate for his or her care within the community' ( see s.28(4)(a)&;(b) MHA).

Under s.29(1) of the MHA the patient is "required to accept" treatment for "mental disorder" on the directions of the "responsible clinician" (defined in s.2 MHA) during the first month of the currency of the CTO. Treatment after this first month can only continue where a "psychiatrist" (defined in s.2 MHA) , not being the responsible clinician, considers ongoing treatment to be '...in the interests of the patient...' ( s.59 (2)(b) MHA; an identical phrase also appears in s.60(b) MHA - ECT ). In every other case the patient's informed and written consent to treatment must be obtained (s.59(2)(a) MHA).

Under s.29(2) of the MHA employees of the service, that is the employees specfied in the District Court order (CTO), '...may, at all reasonable times enter the patient's place of residence or other place so specified for the purpose of treating the patient' (s.29(2) MHA). Note that entry here is limited to 'all reasonable times'. Thus the time of entry must be 'reasonable'. Section 29(2) itself confers no express power on employees to use force to enter a patient's residence or to force a patient to attend at any other place specified in the order. Although,'person[s]', presumably employees of the service, 'may' use reasonably necessary force at any time to treat a patient pursuant to section 122B(3) MHA. If force has been used under s.122B(3)of the MHA, that person, or those persons, may be held liable for the use of excessive force ( as authorised by s.62 Crimes Act 1961).

Under s.40(2) a Duly authorised officer (defined in s.2 MHA) may take 'all reasonable steps' to take a patient to the place where they are to be treated. Although, s.40(2) does not expressly authorise a DAO to use force to take a patient to a place they are required to attend for treatment. If a DAO attempts to do anything under s.40(2), above, the police may be called to assist under section 41(3) MHA, and may, pursuant to section 122B(1) use '...force as is reasonably necessary in the circumstances' to take the patient to the place where they are required to undergo treatment (see s.122B(2)(b) MHA). However, the police may only exercise this power in an emergency (s.122B(1) MHA).

The Bill of Rights applies to acts and probably omissions of DAOs' and the police if they exercise any '...power,or duty conferred or imposed on that person or body by or pursuant to law'( see s.3(b) NZBORA; 'powers' are conferred on DAOs'by s.93 MHA). As such, if a citizen is detained under the MHA the right to consult and instruct a lawyer without delay will have particular relevance here ( s.23(1)(b) NZBORA cf. s.70 MHA Right to legal advice & for breach of s.70 see s.75 MHA). Pursuant to section 113A of the MHA a Judge or Registrar 'may' issue a warrant if a patient who is subject to a CTO refuses to attend at any place for treatment (s.113A(1)(b)(i)&(ii) MHA and see the Guidelines at p. 57.

Of course many of the above statutory powers are inconsistent with section 11 of the New Zealand Bill of Rights Act 1990 ; everyone has the right to refuse to undergo medical treatment. Still, there is some judicial authority that states a person who is 'competent' to refuse medical treatment can have section 11 enforced in their favour : Re K [2003] NZFLR 318. The word 'Everyone' , in section 11 , includes only those who are 'competent' to refuse treatment : so held in Re S [1992] 1 NZLR 363. A patient may be mentally disordered within the statutory definition in section 2 of the MHA, yet nevertheless be 'competent' to refuse treatment, as defined at common law. However, for a patient to be both mentally disordered and competent must be rare indeed.

A patient who is subject to a CTO may be required to accept treatment in a particular community setting. However, in Department of Health v D (1999) 18 FRNZ 233; NZFLR 514, Judge Robinson found that there is no statutory authority for a responsible clinician to state where a patient should reside for treatment whilst subject to a CTO, that is, where the patient should live in the community. The Ministry of Health claims a CTO made by a Judge can specify that an aspect of the patient's treatment is to include supervision and monitoring in a particular residential facility.

The actual wording of the Court order and it's degree of specificity should be carefully scrutinized. The wording used by the Judge is absolutely crucial. How specific is the wording? What precisely does the order state? Where the Court makes a CTO it must give or send a copy of that order to the patient (s.28(5) MHA). If, under section 29(1) of the MHA, a Court can make an order specifying that a patient is to live in a particular residential facility, then this appears inconsistent with section 18 of the Bill of Rights Act, which states, very generally;

s.18 Freedom of movement – (1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand...

How can the patient have freedom of movement and residence if they are directed by the Court order to live at a certain residence and accept treatment? There 'appears' to be no cases on point where section 18 has been argued in this respect, and see again section 4 of the Bill of Rights Act. Having freedom of residence would mean a Court would be unable to make an order specifying where the patient were to live. It is submitted that the words in section 29(1) which read '...or at some other place specified in the order...' should be expressly repealed, as should the commensurate words in section 29(2) MHA. This would bring s.29(1) of the MHA more into line with s.18 of the Bill of Rights Act.

An overview of sections 33 to 36 of the Mental Health (C.A.T.)Act 1992

A CTO must continue in force for six months '... commencing on the day on which it is made and must then expire' ( s.33 MHA).

Withn 14 days before the date on which that CTO is to expire the responsible clinician 'may' seek a review of the case under section 76 of the MHA (s.34(1) MHA). If, after that s.76 review , the responsible clinician is satisfied that the patient is not 'fit to be released from compulsory status' ( see s.2 definition MHA; this opinion must be personally formed by the clinician : LB v R [1994] NZFLR 60). the clinician 'may' apply to the District Court for the currency of the order to be extended for a further six months - to commence on the day after the date on which the original order would, ex hypothesi, have expired (s.34(2) MHA).

The District Court must treat the clinician's application for an extention of the order as if it were made under section 14(4) of the MHA. Sections 15 and 17 to 33 apply '... with any necessary modifications' (s.34(3) MHA).

If, on such an application, the District Court Judge extends the currency of the order for a further six months, the provisions of section 33 must apply, except that, if the Court further extends the order it must have effect indefinately, and the patient must remain subject to the order, unless and until he or she is released from compulsory status (s.34(4) MHA; see Re K [2003] NZFLR 318.).

If , during the currency of a CTO, the responsible clinician considers the patient is 'fit to be released from compulsory status' ( see s.2 MHA definition) that clinian must , there is no discretion, direct that the patient be released from compulsory status (s.35(1) MHA; compare section 22 of the Bill of Rights Act - the right not to be arbitrarily detained).

If, on the other hand, the clinician decides that the patient is not 'fit to be relaeased from compulsory status' (s.2), yet a 'district inspector' ( see s.2 MHA definition) or 'official visitor' ( see s.2 MHA) or a friend or relative disagrees, the inspector or official visitor must, or the friend or relative may refer the case to the Review Tribunal pursuant to section 79 of the MHA ( reviews of persons subject to community treatment orders; s.35(2) MHA see Re EC [1999] NZFLR 711 (D.C.) for discussion of MHA sections 15, 18, 29, 33, 34, 35, 76, 79, & s. 11 NZBORA ). For examples of successful applications to the Mental Health Review Tribunal see Re VAT[1998]NZFLR 710 & Re RM [1998]NZFLR 568.

If a Review Tribunal decides a patient is not 'fit to be released from compulsory status' there is a statutory right of appeal to the Dictrict Court ( see s.79, in particular, sub.ss. (10) to (15)). A judicial inquiry lies under section 84 of the MHA by a Judge of the High Court; Re Vincent [2001] 1 NZLR 590 ( failed s.84 MHA application based on illegal detainment; cf. s.23(1)(c)of the Bill of Rights Act( right to have validity of arrest or detention determined without delay by habeas corpus - and to be released if arrest or detention is unlawful;see also the tort of false imprisonment; Brookshore v Hopkins (1773)Lofft 240; Anderson v Burrows (1830) 4 C&P 210;Innes v Wong [1996] 3 NZLR 238;In NZ, public law compensation may be sought by the detainee under Baigent principles; Simpson v A-G [Baigent's case][1994] 3 NZLR 667; see further s. 22 Bill if Rights Act - right not to be arbitrarily detained).

Where a patient is directed to be released from compulsory status under section 35 MHA, the CTO must be deemed to expire in that behalf in the direction ( s.35(3) MHA).

A CTO also ceases to have effect in certain other cases ( see s.36 MHA). For an excellent discussion of rights and procedure of the MHA see Mc Bride,T New Zealand Civil Rights Handbook, 3rd Edn. 2001, especially Chp. 5.

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.

2006-01-26T14:52:00.005+13:00

No section 7 NZBORA scrutiny of Mental Health Bill

7. Attorney - General to report to Parliament where Bill appears to be inconsisten t with Bill of Rights - Where any Bill is introduced into the House of Representatives, the Attorney – General shall, -

(a) In the case of a Government Bill, on the introduction of that Bill; or
(b) In any other case, as soon as practicable after the introduction of the Bill,-

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights.

In R v Poumako (2000) 17 CRNZ 530; 5 HRNZ 652 (CA), Thomas J noted, at para. 96, that the legislation discussed in Poumako had failed to be scrutinised pursuant to s.7 of the Bill of Rights Act. This was so , because a report from the Attorney – General is only required when a Government Bill is introduced into the House of Representatives (s.7(a)), or ' as soon as practicable' (s.7(b)) after the introduction of any other sort of Bill.

Section 7 does not apply to subsequent amendments made by supplementary order paper (SOP) during the committee stage or third reading of a Bill. As such, an amendment to a Bill by SOP fails to receive scrutiny under s.7. In Poumako Thomas J claimed this was one factor to justify the Court making a declaration that the legislation breached s.25(g) of the Bill of Rights Act.

This e - mail is a response from the NZ Ministry of Justice - Mental Health Bill not scrutinized for consistency with NZBORA, as Mental Health Bill predates NZBORA.
____________________________________________________

Dear ******

The Mental Health (Compulsory Assessment and Treatment) Act 1992 was introduced to the Parliament as the Mental Health Bill on 8 December 1987, and predates the enactment of the Bill of Rights Act which did not come into force until 25 September 1990.

Section 7 of the New Zealand Bill of Rights Act 1990 requires the Attorney-General to table a report upon introduction of a Bill to Parliament if he or she considers that any provision of the Bill appears to be inconsistent with any of the rights and freedoms affirmed in the Bill of Rights Act.

Because the Mental Health Bill predates the Bill of Rights Act the Bill was not considered for consistency with the Bill of Rights Act, and no reports were tabled by the Attorney-General about the Mental Health Bill.

-----Original Message----Sent: Thursday, 19 January 2006 3:07 p.m.To: Reception (MOJ)Subject: question about NZBORA
Hi, do you have a copy available of the Attorney General's report filed pursuant to s.7 of the Bill of Rights Act in regards to inconsistencies with the then Mental Health (CAT) Bill ? Was such a report made? If so, a copy is sought under the Official Information Act 1982. Money may be paid if necessary. Regards, *******
============================
This e-mail message and attachments do not necessarily reflect the views of the New Zealand Ministry of Justice and may contain information that is confidential and may be subject to legal privilege. If you are not the intended recipient, you are hereby notified that you must not use, disseminate, distribute or copy this e-mail message or its attachments. If you received this message in error, please notify the Ministry of Justice by telephone (call collect: 00-64-4-918-8800) or return the original message to us by e-mail, and destroy any copies.Thank you.=========================

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THE WRITER OF THIS BLOG ACCEPTS NO CIVIL LIABILITY WHATSOEVER FOR THE CONTENTS OF THIS BLOG: NEITHER IS THE WRITER RESPONSIBLE FOR ANY LIABILITY FOR INACCURACIES REGARDING ANY INFORMATION ON THIS BLOG LEGAL OR OTHERWISE: THIS BLOG WAS NOT, AND NEVER HAS BEEN AND NEVER WILL BE INTENDED AS SUBSTITUTE FOR LEGAL ADVICE >IT MERELY EXPRESSES SOME GENERAL OPINIONS ON LEGAL MATTERS AND SERVES THAT VERY LIMITED PURPOSE: DO NOT RELY ON IT.