Antunovic v. Dawson and Anr.

(2010) 30 VR 355; [2010] VSC 377
Download Judgment: English

Zeljka Antunovic, 35 years of age, suffered from a mental illness for which she was treated involuntarily under a community treatment order issued pursuant to the Mental Health Act of 1986. She lived at the Northfolk Terrace Community Center Unit for some time before deciding she wished to return home to live with her mother. The Mental Health Review Board reviewed her case, acknowledged her wish to go home, and did not include a residence condition in the order. Although her community treatment order did not require her to live at any particular place, Antunovic’s psychiatrist told her that she could not go home pursuant to the Mental Health Act and that, while she was free to leave during the day, she had to return to the facility each night.

Ms. Antunovic claimed the restraints were unlawful and applied to the court for a writ of habeas corpus or other order that would release her from the constraints. She contended that her common law right to personal liberty had been infringed. She also relied on her human right to freedom of movement and liberty under the Charter of Human Rights and Responsibilities Act 2006 (the “Charter”).

The Court found that the unit and doctor’s denial of Ms. Antunovic’s request to return home and requirement that she return to the facility each night constituted restraints within the scope of habeas corpus. The Court further determined that the purpose of habeas corpus was to protect personal liberty and that habeas corpus applied where anyone with custody, power, or control over another person imposed restraints on another’s personal liberty, where these restraints were not shared by the general public. The Court found that habeas corpus protected against both partial and total restraints. Under this expansive view of what restraints habeas corpus protects against, the Court concluded that the requirement that Ms. Antunovic live at the unit and return each night constituted a substantial restraint on her fundamental common law rights and liberties, as well as her freedom of movement in the Charter.

Morever, the Court found that these restraints were without lawful authority. After reviewing the history of a number of habeas corpus acts, ancient Imperial statutes, and the Magna Carta, the Court determined that neither private persons nor public authorities were able to impose restraints on the personal liberty of an individual without legal authority. When such restraints were placed without the proper authority, the courts had broad and flexible jurisdiction to protect the personal liberty by issuing a writ of habeas corpus or order for release from restraint. The Court further noted that, as there must be a presumption in favor of the liberty of the individual, the onus to justify the legality of the restraint rested on the respondent. The Court determined that the civil standard of proof applied to the issues of fact, but that a high degree of probability was required where personal liberty was at stake.

The Court noted that the rights of mentally ill persons were protected under the Act by various safeguards such as review and appeal functions of the board and that the unit and doctor did not have the authority to restrain Ms. Antunovic’s personal liberty to choose where to live and go without abiding by those channels.  Without a residence condition in Ms. Antunovic’s community treatment order, there was no  legal authority to dictate Ms. Antunovic's residence. Thus, the imposed restraints had no lawful foundation.

The Court determined that habeas corpus was a remedy available once good cause was established. As the restraint fell within the scope of habeas corpus and was unlawful, the Court had no discretion to refuse to grant the writ. Accordingly, the Court made orders against the unit and the doctor for Ms. Antunovic’s immediate release.

“Clause 39 of Magna Carta 1297, as in force in Victoria, expresses the fundamental principle of the rule of law, formal equality before the law73 and freedom from arbitrary and unlawful interference with personal liberty. These principles are the foundation of our democratic constitutional arrangements, inherent in the framework of the common law and now reflected in Charter.” Paragraph 45.

“The purpose of the writ is to give a remedy against unlawful restraints on personal liberty, which is not to be narrowly defined. The restraint may be imposed directly or indirectly. It may be partial or total. The question is whether the person imposing the restraint has the lawful custody, power or control of the person being restrained. The liberty protected by common law habeas corpus is broader than the liberty protected by the human right to personal liberty and security in s 21(1) of the Charter. For the purposes of habeas corpus, it is a restraint on personal liberty to imprison or detain somebody and also to impose restrictions on their liberty or freedom of movement which are not shared by the public generally.” Paragraph 113.

“[T]here is always an initial presumption in favour of liberty, so that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law. . . [T]he Court themselves [must] see that this obligation is strictly and completely fulfilled before they hold that liberty is lawfully restrained. ” Paragraph 114.

“Habeas corpus being available as of right once cause is shown, there is no discretion to refuse to grant the remedy.” Paragraph 131.

“Although Ms Antunovic is having involuntary treatment under the Mental Health Act, it is in the community under a community treatment order. There is no residence condition in her current community treatment order, and there was no such condition in the previous orders. The board has recently reviewed her case and did not impose such a condition. Nobody has lawful authority under the Mental Health Act to direct Ms Antunovic where to live or to prevent her from living where she wants to. The powers available under that Act to authorise such restraints, subject to the carefully specified checks and balances, have not been exercised. No other powers apply. The unit and the doctor are asserting a power which in law they do not have. ” Paragraph 184.

“The Mental Health Act contains procedures for dealing with where people with mental illness should receive treatment and live. Under those procedures, the least restrictive and intrusive option possible is to be preferred, and treatment in the community is to be preferred to treatment in detention in a hospital. Of course, any treatment must be necessary in the medical interests of the person.” Paragraph 200.

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