Re S  1 NZLR 363
Re K  NZFLR 318
Re S  1 NZLR 363 and Re K  NZFLR 318, were both right to refuse treatment cases. Re S is an early decision, being 1991. Thus it was decided about a year after the New Zealand Bill of Rights Act 1990 (“NZBORA”) came into force.
In 2007, it is difficult to judge the continuing authority of Re S (see Brookbanks, infra, at p.73). But it remains important for this: the word “Everyone”, appearing in s.11 NZBORA, does not literally mean everyone. As far as the mental health jurisdiction is concerned, “Everyone” applies only those who are “competent” to refuse treatment. The right in s.11 only crystallizes when the person is competent (see Re K, para.).
This distinction creates a strange anomaly, the result being that a patient can be both “mentally disordered” as per s.2 of the MHA, yet at the same time considered to be “competent”. The definition for competence derives from the common law.
However, the concepts of mental disorder and competency are not mutually exclusive (see Re S at p.372 cited in Re K at para. ). It is probably important to view them separately. Where a patient is mentally disordered but yet “competent” the right to refuse treatment in s.11 NZBORA could, it seems, be invoked in the person's favour. They have a right to refuse treatment. Thus there remains a narrow window of opportunity for a patient to evade the compulsory treatment under the MHA.
This is of huge importance. It must be remembered throughout this discussion that Re S concerned the now repealed Mental health Act 1969, and not the 1992 Act presently in force in New Zealand. Only material excerpts from those judgments will be used:
Re S  1 NZLR 363
Auckland, New Zealand
15, 16 April; 17 July 1991
The provisions in the Mental Health Act 1969 continue to apply in spite of the passing of the NZBORA. But the provisions of the Mental Health Act are to be interpreted, “as far as possible”, in light of the NZBORA.
Re M  1 NZLR 29 followed.
The wide discretion conferred on the superintendent under s.66 of the Mental Health Act 1969 would be compromised and rendered ineffective if the word “Everyone” in s.11 of the NZBORA were to be read as including all “mentally disordered” persons who are committed patients. “Everyone”, in s.11, means “every person who is competent to consent”. On the facts, S was incompetent to make a decision as to whether to continue or discontinue medication. Because of this, his right under s.11 did not permit him to refuse medical treatment as an out patient. S's limited “detention” on leave was necessary due to his state of mind, that is, his lack of perception regarding the need for continuing treatment. His detention was not illegal (see Re S, p. 373 line 52, p. 375 line 38).
Application for discharge refused.
Observation: There is need “for a clear legislation intent” and to in what circumstances and by whom the rights and freedoms in the NZBORA, in relation to the mentally disordered, may be restricted.
Other cases mentioned in judgment
Kohn v Globerman (1986) 27 DLR (4th) 583 (Manitoba: CA).
M, (A Mental Patient), Re ( HC Wellington, M 716/85, 21 April, 1986, Grieg J).
R v Big M Drug Mart Ltd  1 SCR 295 (SCC).
R v Duguay, Murphy and Sevigny (1989) 67 CR (3d) 252 (SCC).
T, Re (HC, Auckland, M 2/87, 22 August 1988, Gault J).
This was an application made under s.74 of the Mental Health Act 1969 for an inquiry for an order to discharge the appellant.
Cur adv vult
Re K  NZFLR 318
In this later 2002 decision, Judge Inglis QC cited Re S (at para. : see also X v X  NZFLR 1125). However, Re S was deficient, in that it provided no suitable test to determine capacity. To resolve this, his Honour followed the UK Court of Appeal decision Re MB (Medical treatment)  2 FLR 426 (CA), adopting it's two- fold test for determining whether a person was “competent” to refuse medical treatment.
The main issue in Re K was whether Mrs K had the capacity or competence to decline to consent to the proposed medical treatment. This was to be answered by asking:
1. whether she was able to comprehend and retain information that was material to the decision, especially as to the likely consequences of having or not having the treatment in question and;
2. whether she was able to use the information and weigh it in the balance as part of the process of arriving at a decision.
On the facts, his Honour held that K had a significantly limited insight into the nature and condition of her illness. She therefore lacked the capacity to make a valid and reasoned assessment as to whether to accept or decline the proposed treatment (held in Re K, at para.(4)). So the application to extend the compulsory treatment order was made (see s.34(4) MHA -conferring jurisdiction on a District Court to extend the order). His Honour stated:
'The question whether she has that capacity or competence is to be answered according to the test stated above [from Re MB]. If in terms of that test she has that capacity or competence, then her refusal to accept treatment would mean that the present application would have to be dismissed. It would not matter that her refusal to consent to treatment might seem imprudent or perverse, for the capacity and thus the right to make decisions of this kind is not vitiated simply because it is exercised in a away that some might consider inadequate or unwise.' (at para. )
The incredible thing here is that if K had of satisfied the two fold capacity test above, the Judge would have dismissed the clinician's application: it “would have to be dismissed”. If K had been found to be competent, s.11 NZBORA could have been invoked in her favour. Having capacity, she would be included within the definition of “Everyone” (in s.11).
Determining capacity turns on the evidence adduced in each particular case. If that question was answered in the affirmative, the right to refuse treatment in s.11 would have resulted in the dismissal of the clinician's application. What does this mean? Does it mean that the provisions in the MHA do not override a competent person's refusal of medical treatment? Does it mean that when a patient is “mentally disordered” (s.2 MHA) yet “competent” they can invoke the right in s.11 NZBORA to refuse treatment for mental disorder?
As far as human rights in the mental health jurisdiction is concerned Re K seems a major advancement. However, it lacks authority, being only a Family Court decision, as opposed to being a decision from a superior court. Nevertheless, it seems, on the basis of Re K, that a patient who is mentally disordered yet competent could evade the compulsory treatment provisions of the MHA. The important thing to remember here is that the MHA itself makes no distinction between being mentally disordered and being competent. These innovations derive from the common law.
Did the legislature intend that the MHA should also include those who are competent? Should those who are competent be compelled to receive treatment - as well as those considered mentally disordered? Nowhere is that issue addressed in the legislation. Neither is a distinction found in the NZBORA in relation to being competent or incompetent- in regards to the word “Everyone” in s.11. When is the s.11 right to refuse treatment to be restricted? There was and still is need “for a clear legislative intent”, see the observation made by Barker J in Re S, as far back as 1991, above (at p.363).
Hypothetical patient scenario:
Assume, for the sake of argument, that a patient is subject to either one of the assessment periods (ss.11 or 13) . ( Ignore any practical concerns that time constraints would render court action virtually impossible).
Section 58 of the MHA applies to both of those periods of assessment and treatment. The section states:
58 Treatment while undergoing assessment
Every [patient] who is undergoing assessment pursuant to section 11 or section 13 of this Act shall be required to accept such treatment for mental disorder as the responsible clinician shall direct.
Note the words “shall be required to accept”; s.58 is mandatory in it's wording. Furthermore, s.122B(3) of the MHA provides a discretionary power to use force to treat a patient to whom s.58 applies. How is the mentally disordered yet “competent” patient able to evade the operation of s.58? Because the patient is competent, she now falls within “Everyone” in s.11 NZBORA. Section 11 NZBORA can be invoked. She has a right to refuse treatment for mental disorder under the MHA.
Still, there is a problem. Where does this leave section 4 of the NZBORA? Section 4 is a legislative direction to courts in New Zealand. It expressly upholds inconsistent legislation. Section 4 reads:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a)Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
If a court were to hold that the mentally disordered yet competent patient could invoke s.11 NZBORA to avoid compulsory treatment under s.58, would this not contravene s.4 NZBORA? For instance, if a court held s.58 MHA to be “invalid”, or “ineffective”, or if it “decline[d] to apply” s.58 this would contravene s.4. Does s.58 encompass all those who are mentally disordered and competent at the same time? Is the section all inclusive? It's wording is imperative, but it completely fails to address the issue of competency. Arguably, it was presumed that a mentally disordered person is also incompetent. Perhaps any reference to capacity was seen as superfluous.
The competency argument seems more convincing when a phrase in the inconsistent provision is vague. Take, for instance, s.59 of the MHA. That section reads:
59 Treatment while subject to compulsory treatment order
(1)Every patient who is subject to a compulsory treatment order shall, during the first month of the currency of the order, be required to accept such treatment for mental disorder as the responsible clinician shall direct.
(2)Except during the period of 1 month referred to in subsection (1) of this section, no patient shall be required to accept any treatment unless—
(a)The patient, having had the treatment explained to him or her in accordance with section 67 of this Act, consents in writing to the treatment; or
(b)The treatment is considered to be in the interests of the patient by a psychiatrist (not being the responsible clinician) who has been appointed for the purposes of this section by the Review Tribunal.
(3)Where, during the period of 1 month referred to in subsection (1) of this section, the responsible clinician is satisfied—
(a)That the patient will need further treatment of a particular kind beyond the expiry of that period; and
(b)That the patient is unlikely to consent to that treatment,—
the responsible clinician may, notwithstanding that the period has not expired, refer the case to the psychiatrist referred to in subsection (2)(b) of this section for consideration, so as to ensure that the opinion of that psychiatrist is available on the expiry of that period.
(4)The responsible clinician shall, wherever practicable, seek to obtain the consent of the patient to any treatment even though that treatment may be authorised by or under this Act without the patient's consent.
Here the focus is on s.59(2)(b). Should the vague paternalistic phrase “in the interests of the patient” used in s.59(2)(b) be able to trump a rational and competent patient's refusal of treatment? The phrase is obviously weak. Brookbanks states:
'The purported power to give a patient a right to refuse treatment after the expiration of the statutory one month [s.59(2)] is immediately taken away by the provision that the patient's refusal may be overridden by an independent psychiatrist appointed by the Mental Health Review Tribunal who considers, notwithstanding the patient's refusal, that further treatment is “in the interests of the patient”[s.59(2)(b)]. In other words, undefined parens patriae concerns are permitted to trump a competent patient's express right to refuse consent, even in the face of a vigorous and rational objection to the proposed treatment.' (Compelling civil commitment to treatment: a workable tension? (2002) Family Law Journal 72).
Brookbank's article was cited by Judge Inglis QC (at para. ). But neither his article, nor the Re K decision, confront the s. 4 NZBORA problem above. Even if a a patient is deemed competent and can invoke the right in s.11 to refuse treatment for mental disorder, how can s.11 override inconsistent mental health legislation? Surely, if s.11 were held to prevail over s. 58 or s.59(2)(b) of the MHA, this would breach s.4 of the NZBORA. It would be to do what s.4 expressly forbids.
SFD critique of Re K
The Judge simply asserted that if K were found to have been competent the application ”would have to be dismissed” (at para. ). It seems the clinician's application would have simply been dismissed and nothing more. K would have been no longer subject to the MHA. Is this correct? Even if K had been found to have the capacity to refuse treatment, surely compulsory treatment sections in the MHA could not simply be brushed aside?
The Judge never addressed the s. 4 NZBORA issue. This point was noted by a university law lecturer who specialized in medical law. Because of this, that lecturer finds the reasoning in Re K dubious indeed. Moreover, Re K also fails to state where and when the competency test applies, that is, to what exact sections in the MHA.
On the evidence, K clearly fell within the statutory definition of mental disorder. Therefore there was jurisdiction to extend the compulsory treatment order (para. ). It was held that K lacked capacity. She had failed the two-fold competency test. Surely, this is the reason the Judge did not go on to look at questions of law regarding inconsistency.
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