B v Crown Health Financing Agency

This was an action brought by six individuals (the appellants) who received mental health treatment at the Porirua Psychiatric Hospital as voluntary (informal) patients, but alleged they were mistreated by the hospital staff. As per the Mental Health Act 1911, 1969, and 1972, mental health patients face substantial procedural requirements to bring a proceeding against healthcare professionals. The Court held that until 1972, the staff’s treatment towards informal patients was done pursuant to the legislation and therefore the procedural requirements applied to the appellants. This was a limit on their constitutional right to access the court. Post-1972, the procedural requirements no longer applied; due to changing social stigma, voluntary mental health patients had the same right of access to court as general patients. FACTUAL AND PROCEDURAL BACKGROUND During the 1970s, the six appellants were patients at the Porirua Psychiatric Hospital (‘Hospital’), admitted with their agreement and not as committed patients. They alleged that they were mistreated by the hospital staff, including physical assault, sexual abuse, and punishment through long periods of solitary confinement. The appellants therefore sought compensation from the Crown. In New Zealand, provisions in the Mental Health Act 1911 as amended in 1935 and 1961, the Mental Health Act 1969, and that Act as amended in 1972, precluded patients from bringing claims against professionals acting in pursuance of the mental health legislation without first seeking leave of the Court. The Crown applied for the appellant’s actions to be struck out on the grounds that this procedural requirement had not been complied with. The appellants argued that the procedural requirements did not apply to informal patients who were not committed. At issue, in this case, is whether the complained actions of the medical professionals that occurred when the appellants were informal voluntary patients (as opposed to committed patients) were done pursuant to the mental health legislation. If so, the historical procedural barriers impeding mental health patients from seeking court remedies would apply to the appellants. The appellants further argued that as per s.27(3) of the New Zealand Bill of Rights Act 1990, the right of access to the courts is guaranteed. Therefore, the provisions concerning procedural requirements interfere with their constitutional right. At first instance, Associate Judge Abbott held that the procedural requirements of s. 6 of the Mental Health Act 1911 as amended in 1935, and s. 124 of the 1969 Act did not apply when patients were informal because treatment of informal patients was discretionary and therefore was not done pursuant to mental health legislation. On appeal, Simon France J reversed the decision holding that treatment of informal patients was authorized by the legislation and therefore was done pursuant to the legislation. Voluntary patients were subject to the same procedural barriers as compelled patients, meaning that the appellants faced additional obstacles to bring a claim against healthcare professionals. The Court of Appeal upheld Simon France J’s decision to this extent. RELEVANT LEGAL PROVISIONS Mental Health Amendment Act 1961: s. 3 (1): Notwithstanding anything in the principal Act, it shall be lawful for the Superintendent of any institution, on a request made in the prescribed form by any person who is not less than sixteen years of age, and who in the opinion of the Superintendent is able to understand the nature and effect of the request,— (a) To admit that person to the institution for care and treatment as a voluntary inpatient, or (b) To enroll him as a voluntary outpatient of the institution and from time to time to provide treatment for him there as an outpatient. Mental Health Amendment Act 1935: s. 6 (1): A person who does any act in pursuance or intended pursuance of any of the provisions of the principal Act shall not be under any civil or criminal liability in respect thereof, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless he has acted in bad faith or without reasonable care. s.6 (2): No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such act except by leave of a Judge of the [High Court], and such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable care. Mental Health Law Act of 1969, (1969 No 16): s. 14: Application of this Part – Nothing in this Part of this Act shall apply to hospitals carried on by Hospital Boards or to persons admitted thereto. s. 124 (1): Neither the Crown nor any person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall be under any civil or criminal liability in respect of any such act, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless the person has acted in bad faith or without reasonable care. s. 124 (2): No proceedings, civil or criminal, shall be brought against the Crown or any person in any Court in respect of any such act except by leave of a Judge of the High Court. Such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person in respect of whose act or omission it is sought to bring the proceedings has acted in bad faith or without reasonable care. New Zealand Bill of Rights Act 1990: s. 27 (3): Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals. DECISION AND REASONING The Court held that until 1969 under the Mental Health Act 1911 as amended in 1935 and 1961, any action that is done related to treating or controlling patients in the hospital, including informal patients, was done “pursuant” to the legislation and therefore the appellants were required to follow the procedural requirements of the Acts. S. 6 of the 1935 amendment to the 1911 Act protected the health-care professionals by enacting procedural requirements as long as the actions of the professionals were done in good faith and with reasonable care, and were done “in pursuance or intended pursuance of any of the provisions of” the mental health legislation. The Court reasoned that “pursuance" meant “under the authority of”. Since s. 3(1) explicitly authorized the treatment of informal patients, the actions of the health-care professionals towards the appellants were protected by s. 6 until 1969. The Court held that from 1969 until 1972, under the Mental Health Law Act of 1969, actions to admit and treat patients, including informal patients, were taken pursuant to the Act, and therefore the Act’s procedural restrictions applied to the appellants during this time period as well. The Court reasoned that the authority to admit and treat all patients was given by the Act as it had been under the 1961 legislation and s. 124 gave protection to staff in the same way as s. 6 did in the 1911 Act. The s. 124 procedural requirements therefore applied to the appellants. The Court held that extending the procedural requirement provisions of the Acts to informal patients like the appellants was constitutional. Although the New Zealand Bill of Rights Act 1990 grants the right of access to Courts in s. 27(3), this right is not impaired by the procedural requirement to apply for leave because leave will always be granted if there is an arguable case. Moreover, there was a legitimate policy objective to limit the rights of access to the courts. Litigation from mental patients against health-care professionals should be limited, and the professionals protected from harassment of groundless charges and litigation even if they made a mistake. The Court held that s. 124 ceased to apply to informal patients of any psychiatric hospitals transferred from central government control to the control of general hospitals on April 1, 1972, and therefore the procedural restrictions no longer applied to the appellants post-1972. On the ordinary meaning of s. 14, any provisions conferring authority to care for or control informal patients were disapplied if those patients were in the care of hospitals transferred to the control of general hospitals. Since, treatment and action towards informal patients were no longer authorized by statute or taken pursuant to the statute, the s. 124 procedural limitations no longer applied. Removing this protection was in line with modern understanding and approaches to mental health, and antiquated stereotypes about mental health patients, such as their vexatious litigious nature, were untrue. Therefore, informal patients were to have equal rights of access to the court as general patients.

Para 52: “The appellants have invited us to read down the scope of the protective provisions or the provisions authorizing care, treatment, and control in the legislation following the 1961 amendment. They refer to the guarantee in the New Zealand Bill of Rights Act 1990 of right of access to the courts under s 27(3), the duty of the courts to prefer rights consistent interpretations of statutes, and the common law presumption of interpretation that recourse to the courts for determination of rights is not to be excluded except by clear words. However, in Seal v Chief Constable of South Wales Police, Lord Bingham, on behalf of a majority of the House of Lords, held that the protection of those responsible for the care of mental patients from being harassed by litigation was a legitimate objective in limitation of rights of access to the court. He also said that the limitation involved in the English protective provisions did not impair the very essence of the right because the threshold for obtaining leave had been set at a “very unexacting level”. An applicant with an arguable case would always obtain leave.”
Para 69-70: “The statutory scheme for the admission and treatment of mentally unwell persons in New Zealand was deregulated in the 1969 Act. The change in legislative policy seemingly reflected concern over harmful social effects of overuse of the certification process, including associated social stigma, and greater awareness that mental illness is usually susceptible to treatment which should be encouraged. […] Prior to the transfer of control to hospital boards under the 1969 Act, the restrictions on bringing proceedings clearly applied and were effective. As they were a limitation on the right of access to the courts, the question of statutory interpretation in relation to the regime following the transfer of control is not whether the limitation was clearly removed, as the Court of Appeal posed it. The true question is whether the limitation on the right of access was clearly maintained as part of the new regime. We are not persuaded that it was.”
Para 72-74: It is entirely consistent with the purpose of deregulation, itself based in part on changing social attitudes to persons needing treatment for mental conditions, that the special protection given to doctors and hospital staff members against vexatious proceedings should no longer apply following the transfer of control of institutions to the general hospital system. […] We are satisfied that the policy of protecting staff against harassment from vexatious legal proceedings, which over the years was criticized by academic writers, did not survive deregulation insofar as it applied to informally admit patients unless and until steps were required to have them formally detained. Section 124 accordingly ceased to apply to informal patients after 1 April 1972, unless the application was made for them to be detained under s 16.”