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Accident Compensation Cases

PF v Capital and Coast District Health Board (HC, 16/07/13)

Judgment Text

JUDGMENT OF COLLINS J 
D B Collins J
Introduction 
[1]
The question I have to answer is whether Mr F's proceeding against Capital and Coast District Health Board (CCDHB) should be struck out on the basis that his statement of claim does not disclose a reasonably arguable cause of action.1
| X |Footnote: 1
High Court Rules, r 15.1(1)(a). 
 
[2]
The answer to that question depends on how I answer the following subsidiary questions: 
(1)
Is it reasonably arguable that the treatment Mr F received from CCDHB breached ss 9 and 10 of the New Zealand Bill of Rights Act 1990 (NZBORA)?2
| X |Footnote: 2
Section 9 of the NZBORA provides: 
“Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. ”
Section 10 of the NZBORA provides: 
“Every person has the right not to be subjected to medical or scientific experimentation without that person's consent. ”
 
If so, 
(2)
Is his claim for damages barred by the Accident Compensation Act 2001? 
If not, 
(3)
Is his proceeding barred by the Limitation Act 1950? 
Context 
[3]
Mr F's statement of claim reads: 
“Background to cause (or causes) of action 
In 2006 I was put under the Mental Health Act and forced to take the drug r[i]speridone. The side effects that I developed from this drug required me to be immediately taken off this drug. This did not happen until early in 2007. 
Cause (or causes) of action 
Made a complaint to the Health and Disability Commissioner and also made a complaint to the UK Medical Council. 
Prayer for relief 
The financial compensation that I am looking for is $2,500 per day that I was on this drug. Because I was on this drug for just over a year this comes to $1 million. With a daily compounding interest rate of 5 per cent and inflation of 3 per cent then the new amount comes to $1,598,080 using the formula S=P(1+r/n) ^nt. ”
[4]
In a memorandum Mr F has explained that he is claiming damages under ss 9 and 10 of the NZBORA because, from January 2006 to February 2007, he was administered risperidone when he was treated by CCDHB under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCATA). It is part of Mr F's claim that he suffered side effects from risperidone. Mr F seeks damages calculated on a base rate of $2,500 for each day he was administered and/or prescribed risperidone. 
Did Mr F's treatment breach ss 9 and 10 of the NZBORA? 
[5]
Mr F's proceeding is based on the argument that when he was administered risperidone, CCDHB breached his right not to be subjected to cruel, degrading or disproportionately severe treatment, and his right not to be subject to medical or scientific experimentation guaranteed by ss 9 and 10 of the NZBORA. 
[6]
I have studied Mr F's medical files to ascertain if there is any basis upon which he could reasonably argue that his rights under ss 9 and 10 of the NZBORA were breached when he was administered and/or prescribed risperidone. I have also had the benefit of cogent submissions from Mr F. 
Mr F's relevant medical history 
[7]
Mr F was referred to CCDHB mental health services on 17 February 2005 and was assessed by the crisis assessment treatment team. He was diagnosed as suffering depression for which anti-depressants were prescribed. He was transferred to the Central Community Mental Health Team where he was treated over the ensuring four months until he withdrew from treatment on 27 May 2005. 
[8]
Mr F returned to the care of CCDHB on 21 January 2006 when he was admitted for an assessment under s 11 of the MHCATA. The medical records made at the time say Mr F was suffering from a deteriorating delusional disorder. A further assessment order was made on 26 January 2006 by a psychiatrist who certified that there were reasonable grounds for believing Mr F was mentally disordered and that it was desirable he be required to undergo further assessment and treatment. 
[9]
On 9 February 2006, a final assessment certificate was issued pursuant to s 14 of the MHCATA in which a psychiatrist certified that Mr F was not fit to be released from his compulsory status under the MHCATA. On the same day an application was made to the District Court for a compulsory treatment order. 
[10]
The application for a compulsory treatment order was heard by Judge Ellis on 16 February 2006. The reports prepared at the time included a psychiatric opinion that Mr F was suffering from schizophrenia. Judge Ellis adjourned the application until 2 March 2006 when Judge Johnston made a compulsory in-patient treatment order. Mr F was represented at that hearing. Although Mr F did not consent to the orders being made, he also did not oppose the making of a compulsory in-patient treatment order. 
[11]
Mr F remained an in-patient until 7 March 2006 when he became an outpatient. 
[12]
On 23 May 2006 Mr F ceased to be subject to any compulsory treatment regime. He became an informal patient of CCDHB at that time. 
[13]
Mr F was admitted to Timaru Hospital under the MHCATA on 14 April 2011. He was again made the subject of a compulsory treatment order and transferred to CCDHB's care from 19 May 2011 to 18 November 2011 when he was made the subject of a community-based compulsory treatment order. 
[14]
On 19 May 2012 the Family Court at Porirua issued an indefinite extension to the community-based compulsory treatment order. 
[15]
Mr F's medical notes show that he was first administered risperidone on 21 January 2006 and that he was given that medication on various occasions through to 20 February 2006 when he was an in-patient of CCDHB. 
[16]
After Mr F was discharged on 7 March 2006 he continued to be prescribed risperidone until it was discontinued on 20 February 2007. 
[17]
This summary of Mr F's interaction with CCDHB establishes: 
(1)
that his compulsory assessment and treatment was undertaken in accordance with the procedures set out in the MHCATA. My assessment that CCDHB complied with the procedural requirements of the MHCATA is consistent with Mr F's approach to his proceeding, in which he does not take issue with the procedural steps that CCDHB took in relation to him under the MHCATA. 
(2)
risperidone was: 
(a)
administered to Mr F when he was an in-patient; and 
(b)
prescribed to him when he was an out-patient and informal patient 
from 21 January 2006 to 20 February 2007. 
[18]
Risperidone was one of a number of drugs which was administered and/or prescribed to Mr F during the relevant period. 
[19]
Mr F believes that risperidone should not have been either administered or prescribed in his case because of the side effects he suffered when on this medication. The medical notes record that on occasions Mr F said that risperidone was: 
(1)
“messing with [his] head”;3
| X |Footnote: 3
7 February 2006. 
 
(2)
“causing anxiety”;4
| X |Footnote: 4
8 February 2006. 
 
(3)
causing “his eyes to roll up”;5
| X |Footnote: 5
13 February 2006. 
and 
(4)
causing “flickering of his eyes”.6
| X |Footnote: 6
20 February 2006. 
 
[20]
The notes also record that on a number of occasions Mr F did not say that he was suffering any adverse effects from risperidone. 
[21]
In a memorandum he has filed Mr F says he has “googled” risperidone and understands that “if a patient develops restless muscle movements in their eyes they must stop taking [risperidone] immediately … ”. Mr F says he: 
“couldn't stop [his] eyes from looking up; one evening was particularly bad. It felt like [he] wanted to pull [his] eyeballs out … Lorazepam was prescribed to [him] to help [him] with the side effects of risperidone, but this did not help with the side effects. When the amount of risperidone was reduced … the side effects were less severe, but the only solution to the side effects was to immediately stop the risperidone. ”
Dr Masters has explained the side effects of risperidone include the symptoms described by Mr F. Ocular hyperemia and eye rolling are well known side effects of risperidone. 
[22]
For present purposes I accept risperidone caused Mr F distressing and unpleasant side effects. However, he must still demonstrate that in the circumstances of his case, administering or prescribing risperidone constituted “cruel, degrading, or disproportionately severe treatment” or “medical experimentation” if his claim is to have any chance of succeeding. 
Section 9 NZBORA 
[23]
Section 9 of the NZBORA guarantees freedom from the infliction of torture and cruel, degrading or disproportionately severe punishment or treatment. The commentary to the White Paper which preceded the NZBORA explained that the origins of what became s 9 of the NZBORA could be traced back to the Bill of Rights Act 1689 (UK) which prohibited any form of treatment or punishment that was incompatible with the dignity and value of a human being.7
| X |Footnote: 7
Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984-1985] I AJHR A6 at [10.162]. 
Thus, the purpose of s 9 of the NZBORA is to ensure that all persons are treated with respect and dignity and not subject to physical or psychological harm through cruel, degrading and disproportionately severe punishment or treatment. 
[24]
The disjunctive “or” between “treatment or punishment” demonstrates s 9 of the NZBORA can apply to a wide range of medical treatments that are not punishments but which are nevertheless incompatible with human dignity because they are cruel, degrading or disproportionately severe. 
[25]
The Supreme Court has provided guidance on the scope of s 9 of the NZBORA in the context of a prison punishment regime. In Taunoa v Attorney-General,8
| X |Footnote: 8
Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
it was explained that treatment may be cruel when it “shocks the community conscience”. The Court also explained that degrading treatment involves some form of “gross humiliation”
[26]
Context is very important. The duration of the treatment, its consequences and its impact on the alleged victim are important considerations as is the age and state of health of the person who has been subject to the treatment in question. 
[27]
In the present case Mr F was administered risperidone in response to his serious mental health condition. Risperidone is a conventional drug which has been used in New Zealand for 20 years and is widely used by mental health specialists to treat the symptoms of schizophrenia and other psychotic disorders. 
[28]
Unfortunately, many medicines and medical treatments have undesired and unpleasant side effects. However, it would be extremely rare for any form of legitimate medical treatment to be cruel, degrading or disproportionately severe. 
[29]
The side effects suffered by Mr F were not cruel, degrading or disproportionately severe. At worst, they were part of the consequences which must be endured by those who require the benefits of drugs such as risperidone. I believe the treatment Mr F received was legitimate and orthodox for a person in his circumstances. In my assessment, administering risperidone to Mr F could never be categorised as cruel, degrading or disproportionately severe treatment. 
Section 10 NZBORA 
[30]
Section 10 of the NZBORA guarantees the right not to be subject to medical or scientific experimentation without consent. Section 10 of the NZBORA owes its origins to the Nuremberg Code and art 7 of the International Covenant on Civil and Political Rights. The strict terms of the Nuremberg Code were modified by the World Medical Association Declaration of Helsinki in 1964 which sets out the principles under which medical and scientific experiments should be carried out. The Helsinki Declaration distinguishes between research which is “essentially diagnostic or therapeutic for a patient” and medical research which is driven by purely scientific objectives.9
| X |Footnote: 9
David Collins Medical Law in New Zealand (Brooker & Friend, Wellington, 1992) at [4.3.3]. 
The principles of the Helsinki Declaration have been further refined in New Zealand by the Operational Standard for Ethics Committees issued by the Ministry of Health10
| X |Footnote: 10
Ministry of Health Operational Standard for Ethics Committees (2006). See Peter Skegg and Ron Paterson (eds) Medical Law in New Zealand (Thomson Brookers, Wellington, 2006) at [4.10]. 
and the Code of Patients' Rights.11
| X |Footnote: 11
Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996. 
 
[31]
New Zealand was the first jurisdiction to provide statutory recognition of a distinct stand alone right in relation to medical and scientific experimentation in its Bill of Rights.12
| X |Footnote: 12
Similar provisions to s 10 of the NZBORA were enacted in the Fijian Constitution (1998) and Constitution of the Republic of South Africa (1996). 
The commentary to The White Paper reveals that the drafters of what became s 10 of the NZBORA wished to emphasise that non-consensual medical experimentation is unacceptable in our society, in which human dignity and personal autonomy are highly valued.13
| X |Footnote: 13
White Paper at [10.164] and [10.166]; See also Sylvia Cartwright Report of the Committee of Inquiry into Allegations concerning the Treatment of Cervical Cancer at National Women's Hospital (August 1988). 
 
[32]
An examination of Mr F's medical files demonstrates he was not given risperidone as an experiment. Mr F was given risperidone because of its known therapeutic benefits. The fact that there were undesired and unfortunate side effects does not mean his treatment was experimental. On the contrary, Mr F was given risperidone by health professionals who expected that that drug and others he was administered would relieve him of the symptoms of his mental illness. There was nothing unorthodox, unusual or experimental about Mr F's treatment. 
Should Mr F's proceeding be struck out? 
[33]
I have proceeded on the basis that the pleaded facts and Mr F's explanation of his pleadings are correct. Nevertheless, because the proceeding is based upon non-existent breaches of ss 9 and 10 of the NZBORA I am driven to the conclusion that his proceeding is clearly untenable.14
| X |Footnote: 14
Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [33]. 
In reaching this conclusion I accept that the jurisdiction to strike out must be used sparingly but, in my view, this is a clear case in which the proceeding must be brought to an end. 
[34]
Because I have decided this case by answering the first question posed in paragraph [2](1) in favour of CCDHB, it is unnecessary for me to address the second and third questions in that paragraph. I will, however, provide a brief answer to those questions. 
Is Mr F's claim for damages barred by the Accident Compensation Act 2001? 
[35]
As currently framed Mr F's claim for damages does appear to be a claim for compensation for the physical and mental injuries he believes he suffered as a consequence of taking risperidone. As such, Mr F's proceeding could be viewed as a proceeding for personal injury, and therefore barred by s 317 of the Accident Compensation Act 2001 which provides: 
“317 Proceedings for personal injury 
(1)
No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— 
(a)
personal injury covered by this Act; or 
(b)
personal injury covered by the former Acts. 
 ”
[36]
However, while at one level it appears Mr F is endeavouring to seek compensation for physical and mental injuries, it is also possible his claim could be reformulated to make it clear that it is a claim confined to an alleged breach of Mr F's rights under ss 9 and 10 of the NZBORA.15
| X |Footnote: 15
See Wilding v Attorney-General [2003] 3 NZLR 787 (CA)Has Litigation History which is not known to be negative[Blue]  at [15]-[16]. 
 
[37]
I would therefore not be willing to strike out Mr F's claim solely on the ground that his claim for damages appears to have been advanced on a misunderstanding of the legal basis upon which public law damages can be legitimately sought. 
Is Mr F's claim barred by the Limitation Act 1950? 
[38]
Mr F's claim relates to events that pre-date the commencement of the Limitation Act 2010. Therefore, it is necessary to consider whether Mr F's claim is barred by the Limitation Act 1950.16
| X |Footnote: 16
Limitation Act 2010, s 59. 
 
[39]
Public law damages are subject to statutory limitation provisions “by analogy”.17
| X |Footnote: 17
P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA)Has Litigation History which is not known to be negative[Blue]  at [70]. 
 
[40]
The events in question are said to have occurred from January 2006 to 20 February 2007. Mr F's proceeding was commenced on 18 February 2013. Therefore, it is possible, that if leave were given to Mr F to bring his proceeding out of time, his claim might just meet the six-year deadline in s 4(7) of the Limitation Act 1950. 
[41]
However, I am more concerned that Mr F may have been suffering a disability within the meaning of s 24 of the Limitation Act 1950 during the period that CCDHB says the limitation period was running. The medical file produced in evidence provides a basis for finding that Mr F was suffering a disability for a significant portion of the six years that have elapsed since he was prescribed risperidone. 
[42]
I would not be willing to strike out Mr F's proceeding solely on limitation grounds where there is a question about whether his proceeding was commenced within the six-year time limit prescribed by s 4(7) of the Limitation Act 1950 and where he may have been suffering a disability during the period that CCDHB says the limitation period was running. I would require more evidence than has been presented at this strike-out stage to determine whether or not Mr F's claim is barred by the Limitation Act 1950. 
Conclusion 
[43]
CCDHB's application is determined by me concluding Mr F's treatment did not breach ss 9 and 10 of the NZBORA and that his proceeding must therefore be struck out on the basis that his statement of claim does not disclose a reasonably arguable cause of action. 


High Court Rules, r 15.1(1)(a). 
Section 9 of the NZBORA provides: 
“Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. ”
Section 10 of the NZBORA provides: 
“Every person has the right not to be subjected to medical or scientific experimentation without that person's consent. ”
7 February 2006. 
8 February 2006. 
13 February 2006. 
20 February 2006. 
Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984-1985] I AJHR A6 at [10.162]. 
Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
David Collins Medical Law in New Zealand (Brooker & Friend, Wellington, 1992) at [4.3.3]. 
Ministry of Health Operational Standard for Ethics Committees (2006). See Peter Skegg and Ron Paterson (eds) Medical Law in New Zealand (Thomson Brookers, Wellington, 2006) at [4.10]. 
Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996. 
Similar provisions to s 10 of the NZBORA were enacted in the Fijian Constitution (1998) and Constitution of the Republic of South Africa (1996). 
White Paper at [10.164] and [10.166]; See also Sylvia Cartwright Report of the Committee of Inquiry into Allegations concerning the Treatment of Cervical Cancer at National Women's Hospital (August 1988). 
Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [33]. 
See Wilding v Attorney-General [2003] 3 NZLR 787 (CA)Has Litigation History which is not known to be negative[Blue]  at [15]-[16]. 
Limitation Act 2010, s 59. 
P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA)Has Litigation History which is not known to be negative[Blue]  at [70]. 

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