Bay of Plenty District Health Board v Abernathy [2017] NZFC 6586

Published 16 May 2018

Application to revoke leave — whether leave was granted ultra vires — whether court has jurisdiction to revoke leave — whether respondent used alcohol in excess — whether less restrictive intervention available — Alcohol and Drug Addiction Act 1966, ss 8, 9, 10, 11, 17, 19 & 20 — Lowering v Walsh [2014] NZFC 9600 — VC v NC [2015] NZHC 2014. The respondent had been subject to detention under the Alcohol and Drug Addiction Act after he had made a voluntary application and later granted leave without conditions by a District Court Judge. The court was asked to revoke the leave granted to the respondent. The court found that the order made granting leave to the respondent was not validly made, however, it remained an order as it had not been appealed or judicially reviewed. The court then examined whether the leave could be revoked. As there were no conditions stipulated in the leave, the court was only able to revoke the leave if it found that the respondent had been taking or using alcohol in excess and balance that against whether there were other, less restrictive means reasonably available. The court took into account evidence that the respondent had consumed between two and three bottles of vodka a day continuously and corresponding medical evidence as to the effects of the alcohol consumption on the respondent's physical health in recent months. The court found that the respondent consumed excessive alcohol whilst on leave and that a less restrictive intervention was available and the court imposed conditions on the respondent's leave. Judgment Date: 24 August 2017. * * * Note: Names have been changed to comply with legal requirements * * *