Ellis v Counties Manukau District Health Board N.Z. (H.C.) 2006
per Potter J.
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. 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:
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
 The Act is directed to persons who require compulsory psychiatric assessment and treatment. Voluntary patients are not subject to the Act.
 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:
 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.
 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.
 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].
 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.
 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.
 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.
 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.
 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.
 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.
. . .
 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 ...
 If assessed to be the former category, that “person” is free of the requirements of the Act.
[ force may be used to treat the patient s.122B(3) MHA]
 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.
. . .
 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.
 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.
 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.
 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 ...
 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.
 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.
[ force may be used to treat the patient s.122B(3) MHA]
 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.
 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.
 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]
 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.
 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.
 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.
 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
 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.
 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)).
 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
 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)
 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
 It relevant [sic.] also to note the requirement for judicial determinations at critical points in the process.
 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.
 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.
 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.
 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
 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)).
 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
 ... 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
 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.
 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.
 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.
 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. 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.
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