Monday, June 04, 2007

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


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)



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: ' 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





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