EB v Southern District Health Board [2018] NZFC 6374

Published 21 February 2020

Appeal from decision of Mental Health Review Tribunal — compulsory inpatient treatment — intellectual disability — mental disorder — autism spectrum disorder (ASD) — antisocial personality — mood disorder — assaultive behaviour — Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 2, 4, 16 & 83 — Waitemata Health v A G [2001] NZFLR 1122 (CA) — Re Mental Health [Serious Danger] [2012] NZFLR 1, 56 (MRHT) — In the matter of D [1995] NZFLR 28 — R M G [Mental Health] (DC Auckland, MH 136/96, 8 April 1998) — Re Decision NRT 274/94, 3 July 1994 — R v T (1993) 10 FRNZ 195 — Re H (Mental Health) 1993 10 FRNZ 422 — Waitemata Health Board v B (2005) 25 FRNZ 709, 711 —Waitemata Health v Attorney-General [2001] NZCA 312; [2001] NZFLR 1122; (2001) 21 FRNZ 216 — Mental Health Law in New Zealand, 3rd Ed, Bell and Brookbanks. The appellant was subject to a compulsory inpatient treatment order for an indefinite period. In November 2017 a Mental Health Review Tribunal found the appellant was not fit to be released from compulsory status, and this hearing was a de novo appeal of that decision (meaning the appellant's current consideration and relevant evidence was to be assessed instead of examining the Review Tribunal's decision). Under s 16 of the Mental Health (Compulsory Assessment and Treatment) Act (the Act) the Judge was required to examine the patient and consult with the responsible clinician and at least one other involved health professional. The Judge could also consult any other relevant people about the patient's condition. If the Judge was satisfied the patient was fit to be released from compulsory status then an order would be made. "Fit to be released from compulsory status” is defined in s 2 of the Act as meaning no longer mentally disordered and fit to be released from the requirement of assessment or treatment under the Act. Since age 20, the appellant had spent most of his life in psychiatric institutions. While in community placements he was frequently involved with police and had been charged with assault nine times (including stabbing, common assault and threatening to kill). In 2012 the compulsory inpatient treatment order was made. Two doctors gave evidence as to whether the appellant was fit to be released from that order. The first doctor had been the appellant's responsible clinician for 12 years and believed the appellant was not fit to be released, finding the appellant had a mild intellectual disability, mood disorder (depression and anxiety), autism spectrum disorder (ASD) with antisocial personality traits, and a long history of aggressive, threatening and assaultive behaviours that were not regulated in a controlled environment, let alone out in the community. The second doctor was a Court-appointed expert who believed the appellant had a mild cognitive disability with low mood that was in remission. As such he was not mentally disordered and not eligible to be kept under a compulsory treatment order. Both doctors acknowledged the appellant's situation was a complex mixture of intellectual, mental and environmental factors. The Judge favoured the evidence of the responsible clinician. As the appellant remained mentally disordered he was not fit to be released from compulsory status. The appeal was dismissed. Judgment Date: 30 August 2018. * * * Note: names have been changed to comply with legal requirements. * * *