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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




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SYNOPSIS OF COURT OF APPEAL DECISION

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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.







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