Application for a Writ of Habeas Corpus by Dominic Kama, In Re [2007] TOSC 57; CV 496 of 2007 (21 June 2007)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV. 496 of 2007.

IN THE MATTER OF:

DOMINIC KAMA
Applicant

AND

IN THE MATTER
of an application for a
WRIT OF HABEAS CORPUS.

BEFORE THE HON. ACTING CHIEF JUSTICE ANDREW

Coram: Mr Corbett for the plaintiff and
Mr Kefu for the Crown

Date of hearing: 13th, 20th June 2007.
Date of judgment: 21st June 2007.

Judgment

This was an application for a Writ of HABEAS CORPUS in which the legality of the detention of the applicant in custody under the MENTAL HEALTH ACT 2001, ordered by the MENTAL HEALTH REVIEW TRIBUNAL, is challenged.

The availability of the writ of habeas corpus is assured by Constitutional guarantee: CONSTITUTION clause 9: see FIFITA v FAKAFANUA [1998] Tonga LR 127.

By O.41 RULE 1 of the Supreme Court Rules, the writ is available to an application for an order for the release of any person from unlawful and unjustifiable restraint or detention. By ORDER 40 RULE 3 an application for a writ of habeas corpus shall have precedence over all other proceedings before the Court.

The burden of proving the legality of the detention rests with the Crown : see ZAMIR v U.K. 40 DR 42 Para 102 and LIVERSIDE v ANDERSON [1941] UKHL 1; [1942] AC 206.

The background to this matter appears to be as follows:

There was a background of conflict between the applicant and the psychiatric unit at Vaiola Hospital. In particular this concerned the involuntary admission to the Psychiatric Unit of a former partner of the applicant and as to her care and treatment therein. On 1st May 2007 the applicant wrote a letter to the Chief Medical Officer at Vaiola Hospital complaining about the admission of this person and especially complaining about DR MAPA PULOKA, the officer in charge of the Psychiatric Unit and also a senior medical officer in the Ministry of Health. Dr PULOKA is an authorised psychiatrist under PART XI of the Mental Health Act. Concern was expressed as to the mental health of the applicant and perceived treats to the safety of the staff of the Psychiatric Unit. As a result DR PULOKA contacted the Police Magistrate who was the President of the Mental Health Review Tribunal (MHRT) and requested that the applicant be conveyed to the Psychiatric Unit of the Vaiola Hospital as a patient admitted involuntarily. The applicant was arrested under the direction of the Magistrate and was conveyed to the Psychiatric Unit at Vaiola Hospital. The Psychiatric assessment was made by DR PULOKA and by DR LOUTOA PO'ESE. The upshot of that was that the applicant was found to be suffering delusional disorder of the grandiose type and he was found to be suffering from a mental illness. Particular concern was expressed as to the perceived threats towards health personell and the Magistrate as to their safety. On 3rd May 2007 the Mental Health Review Tribunal (MHRT) issued an order under Ss 18 & 22 of the Mental Health Act 2001 (the act) stating that MR KAMA is "suffering from a mental disorder of a nature and degree which warrants his detention in a mental health facility for treatment and that this order is necessary in the interests of that person and/or some other person." The police were commanded to cause Mr Kama "to be taken and detained at HU'ATOLITOLI where he may be detained for a period of 28 days from today 3rd May 2007".

On 29th May the applicant, MR KAMA was again assessed by DR PULOKA and still found to be suffering from a mental illness. That report was submitted to the M.H.R.T. and on the same day of 29th May 2007 the M.H.R.T. issued a community treatment order under S.45 of the Mental Health Act 2001 "for Mr Kama to be treated in accordance with instructions from the doctors and will be treated for 6 months, reviewed every three months and the authorised psychiatrist shall review MR KAMA every month." The order is to be reviewed on 4th August 2007.

On 30th May 2007 the Mental Health Review Tribunal then issued an order that MR KAMA be detained at Hu'atolitoli prison for a period of 28 days starting from 30th May 2007. That Order refers to MR KAMA as suffering from a "mental disorder" rather than a mental illness but I am satisfied that this is a mistake as the order is made under Ss.18 dealing with mental illness and clearly MR KAMA was diagnosed as suffering from a mental illness". It was said that what led to his detention in a high security institution such as Hu'atolitoli prison rather than the psychiatric Unit at VAIOLA Hospital was the danger associated with his mental illness.

There is some dispute as to whether he can lawfully be held at the prison as opposed to the psychiatric unit at the hospital. The Privy Council in decision No.82 of 23rd April 1993 approved 'that the part of Hu'atolitoli prison where mentally disordered persons are currently being detained maintained and treated is hereby deemed to be a hospital for purposes of the Mental Health Act 1992. That Act was repealed by the Mental Health Act 2001, S.143(1) (the Act). But the Section is as follows:

"S.143 REPEAL AND SAVINGS
The Mental Health Act is hereby repealed".
S.143(2) is the saving provision and is in the following terms:
S.143(2) Any act, direction, order, approval or decision done, made or given before the commencement of this Act shall be deemed to have been done, made or given under this Act and shall continue in force and effect until amended or revoked". The effect of that is to preserve the decision deeming part of Hu'atolitoli prison to be a mental health facility for purposes of the Act.
I am satisfied that the applicant is not being unlawfully detained only because he is kept at the prison rather than the psychiatric unit at Vaiola Hospital. There are facilities for treatment at the prison.
The applicant submits that he was classified as having a mental disorder rather than a mental illness.
The distinction is important as there are different consequences under the Act. But I am satisfied that he was diagnosed as suffering from mental illness and dealt with under S.18 of the Act.
S.18 establishes the criteria for involuntary admission on grounds of mental illness and includes, inter alia, the requirement
(a) that the person has a mental illness.
(b) that as a result of that mental illness the person requires treatment which is available at the mental health facility to which he is to be, or has, been admitted.
(c) as a result of that mental illness the person is likely to cause harm to himself or others, or is likely to suffer serious mental or physical deterioration unless admitted to, or detained at, a mental health.
(d) .......
(e) there is no less restrictive means of ensuring that the person receives appropriate treatment for his mental illness.

There was evidence to say that this criteria existed and the grounds existed for the applicants involuntary admission. The psychiatric assessment was carried out and a recommendation was made and he was admitted to a mental health facility. His admission was reviewed by the M.H.R.T. and a period of further review was established. These are the requirements of PART III of the Act and they were complied with. I am satisfied that there were justifiable grounds for the detention; that the provisions of the Act were complied with and I cannot say that the applicant's detention was illegal or unlawful or unjustified.

This is not an appeal but an inquiry into the lawfulness of the applicants' detention. I am satisfied, as stated, that grounds existed for the findings of mental illness to have been made and the requirements and procedures for detention were complied with. The applicant has a right of appeal from the order of the Tribunal pursuant to S.141 of the Act and that would raise different consideration to the issue here which is solely the legality of the applicants' detention. The issue here is whether the order of detention is made within jurisdiction or ought to be quashed, but not with the question whether it is correct on its merits.
For all of these reasons I am not satisfied that the applicant's detention is unlawful.

DATED: 21 JUNE 2007 A/CHIEF JUSTICE