JM v Te Whatu Ora (Health New Zealand) [2023] NZHC 1237 (24 May 2023)

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-000241
[2023] NZHC 1237

UNDER	the Habeas Corpus Act 2001
IN THE MATTER	of an application for a writ of habeas corpus
BETWEEN	JM Applicant
AND	TE WHATU ORA (HEALTH NEW ZEALAND) Respondent

Hearing:	23 May 2023
Appearances:	R J T George for Applicant W S Taffs for Respondent
Judgment:	24 May 2023

This judgment was delivered by me on 24 May 2023 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules

[1] On 18 May 2023, JM filed an application for a writ of habeas corpus seeking his release from an inpatient compulsory treatment order made under s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) by Judge Lindsay on 16 May 2023.¹

[2] JM says he is being unlawfully detained at Hillmorton Hospital. Non- compliance with s 18(4) of the Act is alleged. Section 18 prescribes what a Judge must do in considering an application for a compulsory treatment order. Subsection (4) provides:

(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.

[3] A “responsible clinician” is defined in s 2(1) of the Act as the clinician in charge of the treatment of the patient. Section 7 of the Act provides that a Director of Area Mental Health Services (Director) shall ensure at all times there is in respect of each patient a responsible clinician.

[4] An application under s 14(4) of the Act for a compulsory treatment order was first called in the District Court on 9 May 2021. The application was heard by Judge Hambleton at Hillmorton Hospital. A minute was issued by the Judge on the same date confirming that Dr Daniel Allan was present at the hearing. Dr Allan was recorded as the responsible clinician. Also present was Pamela Finn, recorded as the second health professional. The Judge observed that the application had been filed by Dr Susan Nightingale on 27 April 2023 and that Dr Allan had appeared because his colleagues, Dr Laura Hammersley (who was described as the responsible clinician up until 9 May) and Dr Nightingale, were unavailable. Dr Allan understood that JM was

[5] The s 14(4) application was determined by Judge Lindsay on 16 May 2023. Again, the hearing was held at Hillmorton Hospital. Dr Carol Dean appeared as the responsible clinician, having first met JM that day. The second health professional, Andrea Firth, also appeared. She too only met JM on 16 May.

[6] Mr George advises the Court that Mr Bailey, then appearing for JM, raised the issue of compliance with s 18(4) on the grounds that Dr Dean was not JM’s responsible clinician and Ms Firth was not involved in his case. An adjournment was sought.

[7] The Judge did not address the objection or application to adjourn but observed that the direct contact between the two health professionals and JM:²

... has been limited and I have had to question whether I am comfortable proceeding with the hearing on the basis of what I am going to describe as limited contact between Dr Dean and the patient, but also the second health professional.

[8] The Judge described the role of the Judge at the hearing of a s 30 application as being to undertake a first-hand assessment of the person subject to the application. Judge Lindsay referred to JM’s history with mental health services and to a report, dated 14 April 2023, recording concerns expressed by a probation officer that JM was presenting in a paranoid state and similar concerns of an accommodation provider that JM presented with paranoia, hyper-vigilance and had been talking in riddles. The report detailed police inquiries and reports of JM being agitated and presenting with psychoses.

[9] The Judge referred to evidence given by Dr Dean that, having met with JM, she was “concerned about a couple of things”. That included JM’s self-account that he had not taken his prescribed medication and the fact that he was presenting as psychotic.

[10] The Judge then referred to evidence of a representative of Housing First, who described JM’s presentation as changing markedly and deteriorating in the week or so after he left the hospital to reside in units which, I infer, were operated by Housing First.

[11] The Judge heard directly from JM who maintained there was nothing wrong with him. Having regard to both JM’s words and demeanour Judge Lindsay noted JM had a level of paranoia held not only towards people in authority but perhaps to someone within his housing environment, such that the Judge was concerned about JM remaining untreated. The Judge described JM as presenting as, at times, disruptive, hostile, elevated and emotionally dysregulated. Judge Lindsay concluded that JM suffers from an abnormal state of mind best characterised by delusions and that, when unwell, he poses a danger to the health and safety of others and perhaps to himself. Consequently, the Judge concluded that JM has seriously diminished capacity for self-care, and an order under s 30 was appropriate.

[12] Mr Taffs advises the Court that the Judge had the benefit of consultation with Dr Dean and Ms Firth, a report from Ms Fraser-Milne (clinical manager), a 9 May report from Ms Patel (a nurse on JM’s ward), and two clinical reports from Dr Nightingale.

[13] This application was set down for hearing with urgency. Submissions on behalf of the applicant were filed in advance of any evidence filed by the respondent. Evidence was not filed on behalf of JM. Mr George did annex to his submissions a copy of a “Change of Responsible Clinician” form (transfer form). Very shortly before the hearing, Mr Taffs, on behalf of Te Whatu Ora, filed affidavits from Dr Dean and Ms Firth addressing the procedural issues raised on behalf of the applicant. I summarise that evidence.

[14] Dr Dean is a consultant psychiatrist in the East/South Adult Community Mental Health Team in Christchurch. She has been a consultant psychiatrist for 12 years. Dr Dean deposes that she has been approved by the relevant Director to act

[15] Dr Dean refers to the practice, approved by the Director, that a patient’s assigned (ordinary) responsible clinician will attend any judicial hearings but, in the event that clinician cannot attend (for example, due to sickness or leave), another suitably qualified person may temporarily assume the role of responsible clinician. She refers to the transfer form that is signed by both the current and to-be-assigned responsible clinician recording the transfer of that designation. Dr Dean deposes that notwithstanding best efforts, there are occasions when the form is not completed, for example when one of the two clinicians is away sick or on leave. She acknowledges that no such form was completed in relation to the 16 May hearing. Dr Dean says she assumed the role of responsible clinician in preparation for the 16 May hearing and prepared for the hearing as the responsible clinician. She describes the absence of the transfer form as an “administrative error”.

[16] Dr Dean confirms by way of background that the previous responsible clinician for JM was Dr Sue Nightingale. Dr Nightingale had applied for an inpatient treatment order on 27 April 2023 and had filed a clinical report with that application. Dr Dean refers to staffing issues within the East Unit and, in particular, short staffing of consultant psychiatrists.

[17] In relation to the 9 May hearing, Dr Dean deposes that Dr Nightingale was unavailable. It was arranged for Dr Hammersley to attend the hearing, but she became ill and could not do so. In the material provided, I have sighted a Change of Responsible Clinician form dated 9 May 2023, transferring care from Dr Nightingale to Dr Hammersley. I have also sighted a transfer document dated 9 May, transferring care from Dr Hammersley to Dr Allan.

[18] The 9 May hearing was adjourned but could not be heard on a day when Dr Nightingale was working as the court lists for those days were at capacity. Dr Dean confirms that arrangements were then made for her to attend the 16 May hearing in the capacity of responsible clinician. She says that in preparation for that role, she:

[19] Dr Dean confirms that she felt comfortable to perform the role of responsible clinician. She described Dr Nightingale as a superb clinician and said she had no concerns about Dr Nightingale’s reports or notes. She found it easy to understand the applicant’s presentation and the need for the Mental Health Act processes. Dr Dean says that she met with JM prior to the hearing and conducted a brief psychiatric assessment that was terminated when the applicant was repeating that he did not need medication and would not take it. She was concerned about the applicant’s presentation and his comments, and believed he was presenting as unwell. She says she had a discussion with Ms Firth prior to the hearing and resolved that an inpatient order was needed due to the risk of violence associated with JM’s psychosis. She says Ms Firth agreed with her assessment. Dr Dean did not consider an adjournment was appropriate having regard to JM’s mental state and her awareness that Dr Nightingale was a locum who was leaving the employment of Te Whatu Ora in two days.

[20] Ms Firth is a consultant psychiatrist and clinical nurse specialist for the East Adult Community Mental Health Team. In her evidence, she refers to Ms Fraser Milne as the clinical manager of that team. Ms Fraser Milne wrote the second health report in the absence of JM’s assigned case manager who was on leave.

[21] In her capacity as clinical nurse specialist, Ms Firth oversees the co-ordination and execution of community care for the East Team. That includes interacting with the inpatient team on a regular basis. She says that as a consequence of those regular meetings, she was aware of JM. She had viewed emails between the inpatient team and been involved in emails with the inpatient team reviewing JM’s notes after he had been highlighted as likely to require outpatient follow-up. She was aware, through these avenues, that JM had been engaged with mental health services numerous times over the past 23 years and that on admission he had appeared to be very unwell and required time in both seclusion and the locked high-care area to manage his behaviours.

[22] Ms Firth deposes that in preparation for the 16 May hearing, she read the report written by Ms Fraser Milne and the reports from the consultant reviews on the inpatient ward.

[23] Ms Firth had signed a report dated 16 May 2023 prepared by Ms Fraser Milne.

[24] Mr George, on behalf of JM, submits there was non-compliance with s 18(4) in two respects. First, the Judge did not consult with the responsible clinician. Mr George submitted that as at 16 May 2023, Dr Dean was not JM’s responsible clinician. Second, the Judge failed to consult with at least one other health professional involved in the case. Mr George submits Ms Firth was not involved in JM’s case.

[25] Mr George refers to ST v Chief Executive of Canterbury District Health Board, where Mander J found that a nurse who had been aware of ST’s presence on the ward as a casual nurse but had not been working directly with ST was not a health

[26] Mr George submitted the dual failings amounted to significant non-compliance with s 18(4), giving rise to an unlawful s 30 inpatient order. He submitted that an application for habeas corpus is appropriate because it raises a particularised jurisdictional question. He seeks an order releasing JM from Hillmorton hospital.

[27] Mr Taff’s submits the evidence of Dr Dean and Ms Firth address the alleged non-compliance with s 18(4).

[28] Mr Taffs submits that completion of the transfer form was not necessary in order to assign responsible clinician status to Dr Dean. He submits that Ms Firth was involved in JM’s case given her role exercising oversight over the case, coupled with her having read relevant reports.

[29] Mr Taffs submits the issues raised by the applicant are not appropriately amenable to habeas corpus given the basis for JM’s detention is fully set out in the minute of the Judge, and there is a significant dispute as to whether there has been non-compliance with s 18(4). He submits that the application for a writ of habeas corpus should be dismissed.

[30] The requirement to consult with the responsible clinician and another health professional are integral components, alongside the independent examination by a Judge, of the protections afforded to a patient subject to forced detention. The long title to the Act refers expressly to providing “better protection” for the rights of persons subjected to compulsory psychiatric assessment and treatment.

[31] In PS v North Shore Family Court,⁵Asher J observed there was no discretion to a Judge to dispense with the personal examination by a Judge of the patient. Similarly, there is no discretion for the Judge to dispense with consultation with the responsible clinician and a health professional.

[32] Although Judge Lindsay expressly recognised the limited contact between Dr Dean and JM, and between Ms Firth and JM, the Judge did not refer to s 18(4) of the Act or address the consequences of the limited contact.

[33] It is perhaps not surprising that JM is frustrated that the mandatory judicial consultation prescribed by s 18(4) took place with medical personnel JM only met on the morning of the s 30 hearing.

[34] I will address the two critical questions posed by Mr George and then consider the appropriateness of a writ of habeas corpus in light of my findings.

[35] Mr George frankly acknowledged that if the respondent was able to produce a transfer form recording the transfer of responsible clinician status from Dr Nightingale to Dr Dean, the compliance issue raised on behalf of the applicant would have been addressed.

[36] The transfer form itself is not prescribed by statute. Rather, it is an internal document utilised by Te Whatu Ora. It is an internal record intended to give notice to an inpatient as to the identity of the clinician with overall responsibility for their care. It is a document signed by the existing responsible clinician and by the clinician to whom responsible clinician status is transferred.

[37] I agree that it is an integral component of the Act that the Director must ensure that at all times there is an assigned responsible clinician in respect of each patient.⁶ Mr George is right that a responsible clinician has the power to detain that patient and to administer medication. Accordingly, Mr George submits that the Court ought to

[38] In ST v Chief Executive of Canterbury Health Board, a writ of habeas corpus was sought on the grounds of non-compliance with s 18(4) of the Act.⁷Whilst it was acknowledged that the responsible clinician appeared at the hearing and consulted with the Judge, it was submitted that the other health professional was not a person involved in either the care or treatment of the patient, therefore giving rise to an unlawful s 30 order. In that case, the respondent conceded that the health professional had no involvement in the treatment or care of the patient. Mander J concluded that, in light of the concession made, non-compliance with s 18(4) was established and the case was amenable to habeas corpus.

[39] In the present case, the respondent makes no such concession and relies on the evidence of Dr Dean to demonstrate she was the responsible clinician for JM on 16 May. The focus is on the omission to complete a transfer form. In my view, the failure to complete a transfer form was an administrative oversight. In any event, I do not consider the completion of the form to be determinative as to Dr Dean’s status as a responsible clinician. The purpose of requiring the responsible clinician to appear at the hearing is to enable that person to consult with the presiding Judge. In order to meaningfully consult, that clinician must have knowledge of the subject patient and be able to offer an opinion to the presiding Judge as regards appropriate care and treatment.

[40] I accept the evidence of Dr Dean. She was asked to attend the 16 May hearing as JM’s responsible clinician. Although she did not meet JM prior to the hearing, she had, in advance of 16 May, reviewed the report of the initial responsible clinician, Dr Nightingale, had a discussion with Dr Nightingale regarding JM on 15 May, and had a discussion with Andrea Firth prior to the hearing. Significantly, Dr Dean felt comfortable performing the role of responsible clinician and carried out her

[41] The Director is obliged to ensure that a responsible clinician is assigned to a patient. I agree it is inevitable that from time to time it will be necessary to assign a new responsible clinician to address changes in clinical personnel, unavailability, illness and similar circumstances. The Act does not prescribe a process for the assignment of the responsible clinician.

[42] The alleged invalidity is said to arise from the failure to complete a transfer form. I agree with Mr Taffs that any such failing reflects an error of form not substance. Significantly, the applicant does not dispute that Dr Dean is suitably qualified and authorised to act as his responsible clinician. No issue is raised as to the manner in which Dr Dean carried out her responsibilities as the responsible clinician. I am satisfied that Dr Dean was the responsible clinician for JM on 16 May.

[43] I accept the position is not as clear in relation to the role performed by Ms Firth. Counsel did not refer to any authorities dealing with the meaning of “involved in the case”. I am satisfied that Ms Firth did have familiarity with JM’s case and had, in advance of the hearing, considered and signed what was described as a second health report prepared by the clinical manager of the East Adult Community Mental Health Team, Ms Fraser Milne. The facts are easily distinguishable from ST.⁸I am satisfied that Ms Firth was involved in JM’s case.

[44] I agree that face-to-face engagement with the patient might ordinarily feature as evidence of meaningful involvement in a patient’s care and has obvious advantages. But in order to engage in a meaningful consultation with a judge for the purposes of s 18(4), I do not consider it to be essential. Knowledge of the patient and their care and treatment, achieved through oversight of the ward and through a review of clinical

[45] No clear breach of s 18(4) has been established so as to justify a determination that JM’s detention is unlawful and that a writ of habeas corpus is appropriate.

[46] Although strictly unnecessary given my finding that the detention of JM is not unlawful, I address the issue of the suitability of an application for habeas corpus in this case. This issue was considered in ST. In that case, the Judge had consulted with the responsible clinician, but it was accepted that a nurse who appeared at the s 30 hearing and who had no prior involvement in the care or treatment of the patient did not qualify as an involved health professional. Mander J found the applicant had been careful in couching her application in very confined terms and that in light of the respondent’s concession, the issue was sufficiently limited to be categorised as jurisdictional in nature and therefore amenable to determination by way of habeas corpus. The concession was critical.

[47] This issue also arose in B v Auckland District Health Board,⁹where the Court of Appeal endorsed its earlier conclusion in Sestan v Director of Area Mental Health Services Waitemata District Health Board, which was as follows:¹⁰

[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 from a blinkered focus on isolated provisions which ignore the statutory context.

[90] We do not accept that whenever it is demonstrated that there is any degree of non-compliance with a specific provision the only consequence will be the total invalidity of all subsequent actions. The Court must assess what happened, why it happened and how it happened, remembering that the protection of a vulnerable person, and potentially the community, is at the heart of the legislative framework.

[91] A person in the position of Mr Sestan is entitled to seek a habeas corpus, but where the critical issue is whether a person is mentally disordered there will be few circumstances in which it is the appropriate means of challenging or reviewing official

action. By its nature, the speed with which an application must be determined and the limited opportunity there is for information to be put before the Court means that the mechanisms contained within the MHCTA will, in normal circumstances, be much more efficient and appropriate...

[48] In Sestan, the Court considered a complaint of unlawful detention under part 1 of the Act. The Court did not consider the issues raised were appropriately dealt with in a summary determination observing that the depth of the investigation required will indicate the suitability of habeas corpus.

[49] In Manuel v Superintendent of Hawkes Bay Regional Prison,¹¹in considering the very same issue, the Court of Appeal said:

[49] ... There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings...

[50] I have concluded that the arguments in this case are not suitable for habeas corpus. Whether the omission to complete the transfer form invalidated the assignment of Dr Dean as the responsible clinician and /or that engaging face-to-face with JM prior to 16 May was essential to qualify as a health professional for the purposes of s 18(4), raises issues that are not so narrow as to be categorised as jurisdictional in nature. The issues raised in this case are far more nuanced than in ST.

[51] Also factoring against habeas corpus is that the essential issue in this case was whether JM is fit to be released from compulsory care. The Judge found JM posed risks to both the community and to himself if he was released. Those findings were available to the Judge on the evidence presented. I do not consider this to be one of those rare case where a habeas corpus is the appropriate means to challenge the decision of the Judge.

¹¹Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

[53] It is clear that the East/South Adult Community Mental Health Team faces resourcing issues giving rise to the unavailability of assigned responsible clinicians to attend judicial hearings. This has the potential to lead to conflict within the ward for patients facing judicial hearings attended by clinicians with whom they have had little or no direct involvement. That scenario is undesirable.

[54] It is also clear that the judicial lists to hear applications under the Act are frequently at capacity. As a consequence, there are difficulties scheduling hearings that permit the appropriate responsible clinicians and health professionals to appear at the hearings. Health professionals play a central and critical role in assisting the court in dealing with applications under the Act. Administrative processes should prioritise the allocation of hearing dates which permit those actively involved in the care and treatment of the patient to appear at the hearings.

High Court of New Zealand Decisions

JM v Te Whatu Ora (Health New Zealand) [2023] NZHC 1237 (24 May 2023)