Cuttance v Attorney-General
[2022] NZHC 1766
•21 July 2022
THIS JUDGMENT HAS BEEN REDACTED.
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF WITNESS, SAVE FOR OCCUPATION, PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 AS SET OUT AT
[98] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2022-412-9
[2022] NZHC 1766
BETWEEN ELIZABETH ANNE CUTTANCE
Appellant
AND
ATTORNEY-GENERAL
Respondent
Hearing: 29 June 2022 Appearances:
M A Stevens QC for Appellant
K Laurenson and T Li for Respondent
Judgment:
21 July 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 21 July 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CUTTANCE v ATTORNEY-GENERAL [2022] NZHC 1766 [21 July 2022]
[1] On 28 March 2012, Mr Boyd Cuttance died in hospital suffering a rare form of chronic fungal meningitis. His condition was not diagnosed until a post-mortem was conducted. Prior to his admission to hospital on 15 January 2012, he had spent nearly seven weeks at the Otago Corrections Facility (OCF).
[2] His mother, Mrs Elizabeth Cuttance, considers the Department of Corrections (the Department) did not provide her son with proper medical care during his time at OCF. She brought a claim in the District Court, alleging:1
(a)the Crown breached Mr Cuttance’s rights under ss 8, 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA);
(b)the Crown breached its obligations under s 75(2) of the Corrections Act 2004; and
(c)the Crown breached a duty of care to her, as Mr Cuttance’s mother and next of kin, to ensure that he received a proper level of health care while in custody.
[3] She initially sought relief in the form of declarations and damages. However, the claim for damages was abandoned with Mrs Cuttance accepting it was time-barred.2 However, she pursued her claim for declarations that the pleaded duties and rights had been breached.
[4] The District Court found against Mrs Cuttance on all counts. She now appeals that decision, alleging various errors in the Judge’s reasoning. In summary, her grounds of appeal are:
(a)the Judge was wrong to conclude there was no private law remedy for a breach of s 75(2) of the Corrections Act;
1 These are summarised from the District Court judgment and list additional breaches of NZBORA to those set out in the first amended statement of claim.
2 Limitation Act 2010, s 11.
(b)the Judge was wrong to find Mrs Cuttance must show she had suffered a psychiatric disorder before she could obtain a declaration that Mr Cuttance had not been provided with medical care reasonably equivalent to the standard of care available to the public;
(c)the Judge was wrong to adopt a “but for” test to causation rather than the “risk based” test used in Wallace v Attorney-General;3 and
(d)the Judge made various errors when making his factual findings that the medical officer engaged by the Department of Corrections provided a reasonable standard of care.
Factual background
[5] In late 2011, Mr Cuttance was remanded on bail to his mother’s place following offending which had its cause in his alcoholism. During his period on remand, Mr Cuttance stopped drinking but began suffering significant debilitating headaches, sweating, loss of appetite and nausea. His mother took him to the Mosgiel Health Centre on several occasions to seek advice and assistance. He was told to go to the Dunedin Hospital Emergency Department (ED) if his condition deteriorated.
[6] In late October, he attended the ED on three occasions. The first admission was on 22 October 2011 when he was experiencing a headache which covered the top of his head, which was of a severity he described as eight out of 10. A CT scan was recommended by an ED consultant and also a lumbar puncture. The CT scan showed no intercranial abnormality so it was decided that the lumbar puncture was not required. There was, however, an indication of sinusitis in the sphenoid sinus.
[7] Three days later, on 25 October 2011, Mr Cuttance presented to the ED again with a worse headache, nausea and vomiting. He also described a sore, stiff neck and pressure on the sinuses. He was kept in hospital and put on an intravenous drip to hydrate him. He felt much better the following day and was sent home with pain relief
3 Wallace v Attorney-General [2021] NZHC 1963.
medication and antibiotics. The referral letter from the Mosgiel Health Centre to the ED, dated 25 October 2011, suggests the headaches were likely stress-related.
[8] On 30 October 2011, he was again admitted to the ED following vomiting, continuous frontal headaches, tingling in different limbs and intermittent blurring of vision. He was kept in hospital and hydrated. His condition improved and he was discharged with a nose spray and an antibiotic.
[9] Mr Cuttance was sentenced to imprisonment on 28 November 2011, and he underwent a health triage process on arrival at OCF. The risk assessment which was undertaken recorded his recent history of significant headaches, loss of appetite, bouts of nausea and feelings of hopelessness. The OCF health centre also sought and received Mr Cuttance’s medical information from the Mosgiel Health Centre and the Dunedin hospital. The receiving nurse booked Mr Cuttance to see a doctor the following day.
[10] Mr Cuttance had his first consultation with Dr X, one of the medical officers contracted by the OCF, on 29 November 2011. During their meeting, Mr Cuttance informed Dr X of his past and recent medical history, including the onset of intermittent headaches in the past six weeks. They also discussed his previous alcohol abuse and his recent abstinence, along with his history of anxiety and the fact he had been prescribed anti-depressant and anti-anxiety medications on different occasions. While he outlined his interactions with his GP and the ED, he advised that the headaches were “heaps better than they were” and that his recent blood tests were normal.
[11] Dr X checked for signs of meningitis (inflammation of the meninges, being the membrane lining the brain and spinal cord) but noted there was no stiffness, photophobia, or vomiting reported. It seemed to Dr X that the headaches were potentially tension headaches and, more recently, related to his sinusitis which had resolved. Dr X requested baseline blood tests and prescribed regular Panadol and Nurofen for his headaches. Dr X also continued Venlafaxine for Mr Cuttance’s anxiety and planned to reduce the Quetiapine, his anti-psychotic medication.
[12] On 7 December 2011, Mr Cuttance said he wanted to see a doctor and that he had not seen a doctor since he came to prison, although he was reminded he had seen the medical officer eight days before then. On 14 December 2011, Mr Cuttance requested to see the medical officer, and he was booked to do this on 20 December. On 15 December 2011, Mr Cuttance was seen by a nurse in his unit where he expressed concerns that his anti-psychotic medication had been stopped and his headaches had not settled. The nurse reminded him that a follow-up appointment with the medical officer was scheduled. Anti-inflammatory medication was prescribed so that Mr Cuttance could receive it on a regular basis.
[13] On 16 December 2011, Mr Cuttance requested to see the health centre manager or clinical team leader. He was seen in a nurse’s clinic at 2 pm. He came in clutching his head, saying his headaches had not improved. He thought his sinus troubles had returned and explained he was having trouble sleeping and was feeling anxious. It was noted he had a possible sinus infection and tension headaches. It was suggested he keep up his fluids and continue with current medications as he was booked to see the medical officer in the near future.
[14] Two days later, on 18 December, custodial staff asked the health centre to see Mr Cuttance because he was complaining of headaches and dizziness. A nurse examined Mr Cuttance, checked for signs of meningism, and noted he was to see the doctor in two days time.
[15] The medical officer, Dr X, saw Mr Cuttance again on 20 December 2011. He told Dr X that his headaches had been getting worse again. While on some days he may have no headache, on others it could be excruciatingly painful and constant. He denied any further vomiting and said he was keeping well hydrated, although his appetite was down. He said that at night going to bed was almost like falling unconscious.
[16] Dr X again checked him for any signs of meningism. Dr X noted that he presented as looking “very well, with a relaxed demeanour”, and he did not present as being in any pain or distress at the time of the consultation. Dr X conducted a thorough neurological examination. Dr X noted Mr Cuttance had some tenderness and tension
in the muscles at the back of his neck, but there was no stiffness or rigidity. Dr X reviewed Mr Cuttance’s hospital notes and was concerned about the recurrent nature of his headaches. While Dr X was reassured that the CT scan conducted while he attended the ED had not shown any intercranial abnormality, Dr X requested further blood tests to exclude signs of infection or an inflammatory process.
[17] Mr Cuttance indicated he had longstanding problems with his neck and this seemed to Dr X to be an explanation for his neck tenderness. Dr X asked for a physiotherapist to see Mr Cuttance regarding this. Dr X’s plan was if the headaches did not improve or settle with physiotherapy, and if the blood test did not reveal a problem, Dr X would refer Mr Cuttance to neurology outpatients. Dr X did not think a specialist referral was indicated.
[18] The blood tests ordered on 20 December 2011 showed no evidence of a raised white cell count that might have suggested an infection. His C-reactive protein test (CRP) came back well within the normal range, suggesting no inflammatory process was present.
[19] On 22 December 2011, a health request was received from Mr Cuttance saying his headaches were getting worse. The following day he was taken to the health centre and assessed by a nurse. He complained of a headache extending from the neck to both sides of the head, but again, showed no signs of meningism. He claimed his lips were tingling. The nurse said that pain relief should continue as prescribed and booked a physiotherapy appointment for mid-January.
[20] On 24 December 2011, Mr Cuttance approached the nurse saying his headache was bad and he needed his medications changed. He was told he needed to have a medical review before medications were changed. On Christmas Day, further health request forms came from Mr Cuttance. One explained that his dizzy spells were becoming more frequent with numbness in his lips.
[21] On 27 December 2011, Mr Cuttance approached the nurse on the medication run and asked to go to ED, saying his headache was worse. He said he was not able to eat because of the pain, was not sleeping, and had numb lips. He was told he would
not be sent to the ED unless it was a medical emergency, but it was arranged for him to be brought to the health centre. He was seen by a nurse in the health centre who reported that Mr Cuttance looked well and was relaxed. He expressed concerns to her about his ongoing issues with headaches and tingling lips and tongue, and he enquired about the lumbar puncture he felt should have been done in the ED. There was a discussion about the possibility of anxiety being the cause of his headaches, and they discussed the fact that Venlafaxine had a common side effect of headaches and transient nausea. An appointment was booked with the medical officer to discuss his medication.
[22] On 28 December 2011, Mr Cuttance asked to take both doses of Panadol at once, but was told he could not. On 29 December, Mr Cuttance was again complaining of headaches and vomiting overnight and asked to see a nurse or doctor. He refused to take one of his medications as he had been told that a main side effect of it was headaches.
[23] He was seen by the clinical team leader on 30 December 2011, again complaining about ongoing headaches. He asked for a referral for a mental health assessment. It was explained this needed to be requested through a medical officer and he had an appointment booked to see Dr X.
[24] On 30 December 2011, Mr Cuttance took Panadol but reported to a nurse he was losing his balance. On 29 and 30 December, he declined the Venlafaxine stating he was not taking it to see if it would help with the headaches. On 1 January 2012, he was seen by a nurse and he reported feeling better, saying that some of the side effects were going away but not the headache.
[25] On 6 January 2012, Dr X saw Mr Cuttance for a third time. He explained that he had stopped his anti-anxiety medication, Venlafaxine, and his headaches had become more localised to around the external area of his left ear. He reported things had improved to the point where Panadol could take the headache away completely for several hours. He mentioned a brief episode of numbness in his forearm, and Dr X performed an examination of his arm including power, reflexes and sensation, with normal findings recorded.
[26] During the consultation, Mr Cuttance spoke about his anxiety and his concern that something might have been missed on the CT scan, although he said he had realised it was very unlikely he had a tumour. He said he had been sleeping poorly as well as feeling anxious and worried.
[27] Dr X conducted a full physical examination and a neurological examination noting, once again, that there were no signs of meningism and his reflexes and sensations were all normal. Dr X noted that Mr Cuttance said his headaches had been more manageable, and his symptoms appeared to be settling. For this reason, Dr X no longer considered it necessary to refer Mr Cuttance to neurology for assessment.
[28] On 10 January 2012, Mr Cuttance was seen in the health centre for blood tests. He said his headaches had returned since he had switched medications. He was told it was still to early to tell, and he would be reviewed by the medical officer once the blood test results were back.
[29] On 15 January 2012, Mr Cuttance presented at the health centre and was noted to be unstable on his feet. He said he had been vomiting overnight and was not well. The nurse noted that he appeared to be hyperventilating, his speech was slurred, and he was not making much sense. They kept him under observation at the health centre until approximately 1 pm. He continued to display confusion and slurred speech, and he vomited once. Dr Sharma, one of the medical officers, was contacted and, because the cause of his confusion could not be ascertained, she said Mr Cuttance should be transferred to Dunedin Public Hospital.
[30] Once Mr Cuttance arrived at hospital, he became more unwell with a headache, neck pain and some confusion and hallucination. A clinical examination of him revealed signs of meningism, but no other abnormalities. A CT scan was done soon after he was admitted. It, too, did not show any abnormalities. A lumbar puncture was also done to take cerebrospinal fluid (CSF) to test whether the patient had meningitis. However, no organisms, whether bacteria, viral or fungal, were grown from the CSF. An MRI brain scan done the following day showed an area of abnormal tissue external to the brain.
[31] Over the next few weeks, Mr Cuttance had repeated CSF examinations, blood tests, and MRI and CT imaging of the brain to try and identify what was causing the gradual enlargement of the area of abnormal tissue external to the brain. Despite all these tests, the cause of Mr Cuttance’s symptoms was not determined. It seems the meningitis was difficult to treat because its cause could not be established.
[32] Mr Cuttance was treated with steroids and antibiotics in hospital. He was also treated with anti-tuberculosis and anti-fungal medication. Despite these treatments, Mr Cuttance’s health deteriorated, and he passed away on 28 March 2012 due to brain stem dysfunction related to meningitic illness. A post-mortem was conducted which identified the cause of death as “invasive Mucormycosis (Zygomycosis) resulting in localised Leptomeninigitis over the brain stem and extensive cerebral and cerebellar infarcts”. Dr John Mottershead, the consultant neurologist at Dunedin Public Hospital, explains that mucormycosis/zygomycosis is a type of fungus and is very rare as a cause of brain infection. He says Mr Cuttance is the only case he has ever seen of infection with this particular organism, and he has seen only one other case of fungal brain infection. He notes that such infections are rare in “immunocompetent people”, but Mr Cuttance may have been more susceptible to this infection because he was diagnosed with coeliac disease and because of his past alcohol consumption.
The District Court judgment
[33] Judge Kellar issued a comprehensive judgment, extending more than 50 pages, which addressed the 10 issues which counsel agreed arose from the pleadings. These covered the following legal issues:
(a)Did Mrs Cuttance need to identify a breach of duty of care, or a breach of the New Zealand Bill of Rights Act, by an individual Crown servant or agent as opposed to the Department of Corrections as a whole?
(b)Was a duty of care owed to Mrs Cuttance?
(c)What is the correct test for causation under s 8 of the New Zealand Bill of Rights Act?
(d)Does s 75 of the Corrections Act 2004 give rise to a private law cause of action for breach of statutory duty?
[34]They also covered the following factual issues:
(a)If a duty of care was owed to Mrs Cuttance, was it breached?
(b)Was there a breach of ss 8, 9 or 23(5) of the New Zealand Bill of Rights Act in respect of Mr Cuttance’s treatment in prison?
(c)If s 75 of the Corrections Act creates a cause of action for breach of statutory duty, was that standard breached?
[35] On the question of whether Mrs Cuttance needed to identify a breach of duty of care by an individual Crown servant or agent, as opposed to the Department of Corrections as a whole, the Judge held that the Department had no distinct legal personality from the Crown and cannot owe a duty of care on its own accord. Mrs Cuttance needed to point to an individual Crown servant or agent who is said to owe a duty. Although Dr X was an independent contractor, it was accepted that the obligation to provide primary health care to prisoners under s 75 of the Corrections Act was the responsibility of the Crown, one which could not be delegated, and it remained vicariously liable for acts or omissions performed by those whom it employed or contracted to fulfil that obligation.4
[36] In respect of the question as to whether servants or agents of the Crown owed Mrs Cuttance a duty of care, as opposed to Mr Cuttance, the Judge observed that this was a novel case and involved an inquiry into whether a duty of care existed. This inquiry is undertaken using the approach set out in North Shore City Council v Attorney-General (The Grange).5 This approach examines whether the loss was a reasonably foreseeable consequence of the defendant’s act or omission, whether it occurred within a relationship that was sufficiently proximate, and finally, whether
4 Cashfield Health Ltd v David and Heather Sinclair Ltd [1995] 1 NZLR 452 at [463].
5 North Shore City Council v Attorney-General (The Grange) [2012] NZSC 49; [2012] 3 NZLR 341 at [151]-[160].
there were any external policy factors that pointed against the imposition of a duty of care.
[37] The Judge accepted it was reasonably foreseeable that a failure to take care in providing health care or treatment to a prisoner was likely to cause the prisoner harm.6 However, he did not accept that the agents or servants of the Crown who provided medical treatment to Mr Cuttance as a prisoner also owed a duty to Mrs Cuttance to avoid causing her anger and grief. Policy considerations pointed against that. Furthermore, mere upset, grief or distress would not be compensable. Having regard to the decision in Van Soest v Regional Health Management Unit, he considered Mrs Cuttance would need to show she had suffered a recognisable psychiatric disorder or illness before she could advance a claim in respect of the medical treatment provided by the Crown.7 While recognising there were competing policy considerations at play, the Judge concluded that, absent evidence of psychiatric illness resulting from Mr Cuttance’s medical treatment, the agents or servants of the Crown did not owe a duty of care to Mrs Cuttance.8
[38] The next issue addressed in the judgment was whether there was a breach of s 8 of the NZBORA, which provides:
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
[39] The Judge differentiated between cases where a death resulted following a “careful clinical assessment”9 as opposed to cases where “the law or the actions of the state impose an increased risk of death”.10 He discussed the case of Wallace v Attorney-General,11 where the police shot and killed Mr Wallace after confronting him wielding a baseball bat and a golf club which he had used to damage property. The High Court in Wallace held there was no breach of s 8 as the police deprived Mr Wallace of life in self-defence, and therefore on grounds established by law and consistent with the principles of fundamental justice. However, Ellis J also said that
6 At [26].
7 Van Soest v Regional Health Management Unit [2000] 1 NZLR 179 (CA).
8 At [36].
9 At [38].
10 Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556 at [164].
11 Wallace v Attorney-General, above n 3.
where this duty is at issue, causation is established through a risk-based approach rather than causation in a tortious sense.12
[40] The Judge recorded that Mrs Cuttance alleged her son’s treatment, particularly the failure to refer her son to a specialist, increased the risk to his life, and this should be sufficient to establish a breach of s 8. However, as in Wallace, the Judge held that the onus rested on the plaintiff to show that the agents or servants of the Crown were responsible for depriving Mr Cuttance of life. The onus only shifted if that was proved, but the defendant raised some justification for doing so. He therefore accepted the Department’s submission that the but-for test was the appropriate test in this case. He said there was a distinction to be drawn between situations where the State plans the use of force (as in Wallace) and situations where (as here) the State is administering medical care and treatment to alleviate suffering.13
[41] The Judge considered the claims under ss 9 and 23(5) of the NZBORA together. Those sections provide:
9 Right not to be subject to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
23 Rights of persons arrested or detained
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[42] After considering the evidence, the Judge found it did not reach the threshold required to establish a breach of ss 8, 9 or 23(5) of NZBORA. Section 9 required treatment which “New Zealanders would … regard as so out of proportion to the particular circumstances as to cause shock and revulsion”.14 Section 23(5) prescribes against conduct which is “unacceptable in our society” and “which lacks humanity, but falls short of being cruel”.15 The Judge held there was nothing to suggest there was an egregious and significant failure to take steps to avoid risk to Mr Cuttance’s
12 At [542].
13 At [40]–[41].
14 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [172].
15 At [170] and [177].
life, nor was his medical care so inferior as to amount to cruel treatment.16 Although the Judge noted “there may have been an occasion when a nurse made a regrettable comment to Boyd that he subsequently reported to his mother”,17 he held that the comment (which was to the effect of telling Mr Cuttance to “harden up”) did not amount to a breach of ss 8, 9 or 23(5) of NZBORA.
[43] The Judge then considered whether s 75 of the Corrections Act 2004 gave rise to a private law cause of action for breach of statutory duty. That section provides:
Medical treatment and standard of health care
(1)A prisoner is entitled to receive medical treatment that is reasonably necessary.
(2)The standard of health care that is available to prisoners in a prison must be reasonably equivalent to the standard of health care available to the public.
[44] After considering the leading case of Harriman v Attorney-General, the Judge held that Parliament did not intend a civil right of action should be available for breach of this section of the Corrections Act.18 He noted that the Act provided a system for complaints, investigations and inspections, a fact which pointed against there being a statutory duty. Furthermore, even if he was wrong, then Mrs Cuttance faced the more fundamental hurdle to show that the duty was owed to her. The Judge held that if there was a private law remedy for breach of s 75 of the Corrections Act, then the statutory duty is owed to the prisoner and not to Mrs Cuttance.19
[45] The Judge then carefully traversed the evidence as to the medical treatment received by Mr Cuttance during his time in OCF. That evidence came from several sources. The primary evidence came from Ms Jillian Thompson, the Regional Clinical Director for the Department, who recounted Mr Cuttance’s health treatment at OCF, including all the interactions Mr Cuttance had with custodial staff members and nurses from the health centre, through to his transfer to Dunedin hospital on 15 January 2012.
16 At [176].
17 At [173].
18 Harriman v Attorney-General [2015] NZHC 3192.
19 At [60].
The Judge then outlined, in detail, Dr X’s evidence as to the three consultations had with Mr Cuttance as set out in [10]–[11], [15]–[18] and [25]–[27] above.
[46] The Judge went on to discuss the evidence of Dr Mottershead, the consultant neurologist who saw Mr Cuttance during his stay in Dunedin hospital. He noted Dr Mottershead’s opinion that, had the cause of the meningitis been identified earlier, they could have treated it earlier with anti-fungal medication. While this might have improved the outcome, Dr Mottershead said treatment of such infections is not always successful, as fungus is difficult to treat in the central nervous system even when identified. The Judge also noted Dr Mottershead’s opinion that he could not say what would have happened if Mr Cuttance had come to hospital at an earlier stage. In particular, he said this was an unusual case, and the improvements in the CRP test from its initially raised level would have been “falsely reassuring”.20 The Judge recorded Dr Mottershead’s view that it was difficult to know at what point meningism would have been clinically detectable, but he suspected it was present at least during the week prior to admission.21
[47] The Judge also summarised the expert evidence given by Dr Lewis for Mrs Cuttance. Dr Lewis reviewed all the records of Mr Cuttance’s treatment, both before, during, and after he was incarcerated. She considered there were significant symptoms of progressive deterioration and said it would be good medical practice to ask for help to understand symptoms which are persistent and progressive, and for which the doctors did not have an answer. She expressed the view that if Mr Cuttance had been prescribed and administered anti-fungal medication in December 2011, he would probably have survived. Of relevance to this appeal, Dr Lewis stated in evidence that she could not see that Dr X had looked at the entire records of the nurses at the health centre (known as the MedTech file), and she considered that Dr X was not therefore aware of the number of times Mr Cuttance had complained of headache and of other sensory changes, including numbness, tingling, dizziness and unsteadiness.
20 At [131].
21 At [132].
[48] Dr Lewis did accept that Mr Cuttance was “presenting better to Dr X than he presented to the Emergency Department”.22 However, she considered that, given the record of various symptoms, referral to a specialist could have been made by 20 December 2011. While Dr Lewis agreed with Dr Mottershead that one could not say at which point in time treatment would have resulted in a different outcome, her opinion was the earlier treatment could have been instituted, the more likely it would have resulted in a better outcome.23
[49] Finally, the Judge discussed Dr Lewis’s explanation of the difference between best practice and a reasonable standard of care, saying:24
She stated that best practice ‘is a standard where absolutely people would say that was fantastic, you really did all the right things and reasonable would be okay … you were doing all the things according to what you thought but you may not have thought of every possibility’.
[50] The Judge then discussed Dr Turnbull’s evidence, being the medical expert called by the respondent. She considered there was a lost opportunity to make the diagnosis of atypical meningitis when the attending doctor at ED decided a lumbar puncture was not needed. She was of the view that the symptoms and signs of fungal meningitis are usually non-specific and intermittent, and it was not until 14-15 January 2012 that Mr Cuttance’s symptoms became acute and he was properly transferred to Dunedin Hospital. In her view, the standard of care provided to Mr Cuttance in prison was equivalent to that which would be available through primary care in the community. While she considered the decision not to seek a second opinion after Dr X saw Mr Cuttance on 6 January was a “departure from best practice”, it was not so significant to be a departure from a reasonable standard of care. The Judge also noted that, in cross-examination, Dr Turnbull said she would expect the nursing notes to be considered when a doctor was consulting with anyone as they “form part of a continuing record”.
[51] Having set out the evidence as to the treatment Mr Cuttance received from when he first consulted his own medical practitioner in October 2011, through to the
22 At [142].
23 At [152].
24 At [153].
two months he spent in hospital after being imprisoned, the Judge then turned to whether there was a breach of the requirement to afford him a reasonable standard of care. He noted that “although best practice might have been for Dr X to have read the nursing notes on each occasion when Dr X examined Boyd and to have him referred to a specialist following her 6 January 2012 examination, those were matters of judgment on which opinions may vary”.25 He reached the view that those matters were not a breach of a reasonable standard of care.
[52] The Judge recorded that, despite the various medical interventions Mr Cuttance had over the period from October until March, the cause of his illness was notoriously difficult to detect, and it was not until the post-mortem was conducted that the true cause of his death was ultimately detected. The Judge was also not prepared to hold that the failure by the ED doctors to do a lumbar puncture was an opportunity lost, noting that those who made the decision had not been able to address it. The Judge was not prepared to find the fact that Mr Cuttance did not recall seeing a doctor when he had, was a warning sign. He accepted Dr X’s evidence that it is not uncommon for the men to not appreciate or recognise they have already seen a doctor, and, in any event, he did not show any signs of memory loss when he spoke to Dr X.
[53] In terms of Dr X not seeking a second opinion after the 6 January consultation, he was not prepared to find this was a departure from a reasonable standard of care, saying the decision to transfer Mr Cuttance to hospital or to seek a specialist opinion is a matter of judgment on which there is room for legitimate differences of opinion. He accepted Dr Mottershead’s view that the nursing staff and Dr X followed reasonable procedures, emphasising that it was difficult to know when meningism would have been clinically detectable. In all the circumstances, he concluded that Mrs Cuttance had not proved that the servants or the agents of the Crown had breached a duty of care to her, even if they owed her a duty of care, nor had she established that the servants or agents of the Crown breached s 75 of the Corrections Act.
[54] The Judge also considered that Mrs Cuttance had not established that, but for the decision not to make an earlier referral to the hospital or to a specialist, the cause
25 At [160].
of Mr Cuttance’s death would have been diagnosed and his life saved. As such, causation was not proved. There was also nothing to suggest that there was an egregious and significant failure to take steps to avoid the risk to Mr Cuttance’s life in a way that breached the relevant sections of NZBORA. Accordingly, the Judge declined to make any of the declarations which Mrs Cuttance sought.
The grounds of appeal
[55] As already noted, Mrs Cuttance challenges legal and factual aspects of the Judge’s decision on several grounds. It seems to me the most logical order in which to address the grounds are:
(a)The challenge to the Judge’s finding that Parliament did not intend to create a private law remedy for breach of s 75 of the Corrections Act, because the Act contains a complaints system.
(b)The challenge to the Judge’s finding that, for Mrs Cuttance to succeed, she must show that the Corrections medical staff and contractors only owed a duty to her, as a secondary victim, if she had suffered a recognisable psychiatric disorder or illness.
(c)The challenge to the Judge’s finding that the test for causation was the “but for” test rather than the “risk-based” test used in Wallace v Attorney-General.26
(d)The challenges to the Judge’s findings that Dr X provided a reasonable standard of care, when:
(i)Dr X failed to look at the nursing notes, which all the medical experts agreed should have been looked at because they provide useful information;
26 Wallace v Attorney-General, above n 3.
(ii)Dr X failed to appreciate there could be something seriously the matter, despite Mr Cuttance having ongoing symptoms and not having had a wide range of medical investigations nor a specialist’s opinion;
(iii)Dr X failed to maintain an open-minded attitude of uncertainty in the face of persistent and progressive symptoms;
(iv)Dr X failed to seek a second opinion on 6 January 2012 when that was a departure from best practice, observing that a reasonable standard of care is best practice.
[56] It is clear from these grounds, and confirmed through discussion with counsel at hearing, the Judge’s findings that there were no breaches of the relevant sections of NZBORA are not challenged. The grounds of appeal are primarily focused on whether there is a duty of care under s 75 of the Corrections Act to provide “medical care reasonably equivalent to the standard of care available to the public”, which can be the subject of an application for a declaration by Mrs Cuttance. Accordingly, I confine my findings to that issue.
Did the Judge err when he found that Parliament did not intend to create a private law remedy for breach of the Corrections Act?
The appellant’s submissions
[57] In arguing that an enforceable statutory duty is intended by s 75, Mrs Stevens referred to Harriman v Attorney-General,27 where Simon France J, citing Wool Board Disestablishment Co Ltd v Saxmere Co Ltd, said that a Court will not lightly imply such a right and to do so:28
… the reviewing Judge must be driven to the view that something is necessary to achieve the purpose of the statute and, therefore, objectively within the intention of the legislature, yet not provided for.
27 Harriman v Attorney-General, above n 18, at [21].
28 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2011] 2 NZLR 442 at [188].
[58] Mrs Stevens also acknowledged that the Courts have found there is no capacity to sue for breach of a statutory duty in relation to sections of the Corrections Act which involved prison control.29 This is because the Corrections Act has a public safety purpose which tells against it intending to create a private law cause of action, and there are other remedies available to a prisoner, including through the prison complaints system.
[59] Mrs Stevens argues that in contrast, health care is not a prisoner management matter, and the entitlement to receive health care that is reasonably equivalent to the standard of health care available to the public invites external review to achieve the purpose of the statute. In oral submissions, Mrs Stevens rejected the suggestion that the fact Mr Cuttance had recourse to the Health and Disability Commissioner, and there was oversight, in this case, by the Coroner, was sufficient to ensure the Department provided the requisite standard of health care to Mr Cuttance. In her view, there have been repeated failures by the Department to provide appropriate healthcare, and this pointed in favour of an enforceable statutory duty being recognised.
Discussion
[60] Before there can be an entitlement to a declaration that the Department has breached s 75, it must be established that s 75 creates a duty which is enforceable by a private law action. As the House of Lords has said:30
… [A] private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.
[61] While in Harriman v Attorney- General, Simon France J found that the public safety aspect of the Corrections Act told against the idea that it intended to create a private law cause of action, I accept that claim arose in a different context which involved the management of prisoners within the prison system. That said, there needs to be a basis on which it can be suggested that the Corrections Act intends to create an enforceable duty under s 75 in addition to any existing remedies available in law. In
29 Harriman v Attorney-General, above n 18; Genge v Visiting Justice at Christchurch Men’s Prison
[2017] NZHC 35 at [49].
30 X (Minors) v Bedfordshire County Council, [1995] 2 AC 633 (HL).
my view, that is the primary impediment to Mrs Cuttance’s claim. The Corrections Act creates an expectation that prisoners will not be disadvantaged in terms of medical treatment when compared with ordinary members of the public. However, there is nothing to suggest that prisoners should be advantaged in that regard.
[62] Under the Accident Compensation Act 2001, and its predecessors, members of the general public are constrained in their ability to sue for personal injury except for exemplary damages.31 Instead, the Accident Compensation Corporation (ACC) provides statutory cover for such injuries. ACC also covers treatment injuries, which are injuries that arise as a result of medical treatment.32 Treatment is defined in the legislation to include “a failure to provide treatment, or to provide treatment in a timely manner”,33 thus curtailing the ability to sue medical providers for negligence.
[63] However, medical practitioners can be the subject of a complaint to the Health and Disability Commissioner if there has been a breach of the Code of Health and Disability Services Consumers’ Rights. The Code is a regulation under the Health and Disability Commissioner Act. It includes the right to receive services of an appropriate standard.34 The right to make a complaint to the Health and Disability Commissioner is extended to family and other support people of the person who has received the health or disability service. In cases which raise serious concerns a formal investigation can be conducted, or the matter can be referred to the Health Practitioners Disciplinary Tribunal which has the power to impose a penalty in the form of a fine or compensation if a medical practitioner has been found guilty of medical malpractice.
[64] In my view, the fact a prisoner (or a prisoner’s family member such as Mrs Cuttance) can avail themselves of the complaints process under the Health and Disability Commissioner Act, points strongly against there being an additional and enforceable statutory duty under the Corrections Act to provide health care to a reasonable standard. I consider, therefore, s 75 of the Act is simply declaratory of the fact that a prisoner has no less entitlement to a reasonable standard of health care than
31 Auckland City Council v Blundell [1986] 1 NZLR 732.
32 Accident Compensation Act 2001, s 32.
33 Section 33.
34 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, right 4.
any other member of the public. The corollary of that is that he or she has available to them the same access to the complaints services provided by the Health and Disability Commissioner, and for treatment injury cover under the ACC regime.
[65] Consequently, I do not consider the Judge erred when he held that s 75 of the Corrections Act did not create a statutory duty enforceable by private action. As a consequence of that finding, the remaining grounds of appeal are moot. However, for completeness, I go on to address them in any event.
Did the Crown owe a duty of care to Mrs Cuttance?
Submissions for the appellant
[66] Mrs Cuttance asserts the Judge erred in finding that she must show that Corrections medical staff and contractors owed a duty of care to her and that also that breach of that duty must have caused her to suffer a recognisable psychiatric disorder or illness before she could sue. Mrs Stevens says this case should be distinguished from those where the plaintiffs are claiming damages for injury resulting from negligence, saying the need to prove a recognisable psychiatric disorder has been suffered is not applicable where a declaration is sought for breach of the obligation under s 75.
Discussion
[67] It is clear, had Mrs Cuttance sought damages for the mental distress she has suffered from alleged breach of duty to provide her son with a reasonable standard of care, she could not succeed. In Van Soest v Residual Health Management Unit, the Court of Appeal concluded that New Zealand should not depart from the established position in England and related jurisdictions, saying:35
… a claim by a secondary victim for mental suffering caused by awareness of death or injury to a primary victim through the negligence of the defendant will not lie unless the effect on the mind of the second victim has manifested itself in a recognisable psychiatric disorder or illness.
35 Van Soest v Residual Health Management Unit, above n 7, at [65].
[68] That then leaves Mrs Cuttance’s argument that a different test should apply because she is only seeking a declaration. The respondent argues that before any remedy can be considered, including a declaration, a relevant cause of action needs to be made out. In that regard, the respondent cites Birkenfeld v Kendall,36 where the Court refused to reverse a stay of proceedings where Ms Birkenfeld, a US citizen, had been injured by a New Zealand citizen while windsurfing overseas, and where the amount of damages payable, which was limited by virtue of the Maritime Transport Act 1994, had been tendered to the plaintiff. She sought to pursue the defendant simply to obtain a declaration that he was negligent.
[69] In that case, for policy reasons, the Court held that “costs of trial of proceedings for declaration should not be imposed on a defendant who has succeeded in a limitation application and tendered the amount of the limitation fund”.37 In the circumstances of the case, the Court held it was “neither necessary nor desirable for the judiciary by exercise of discretion under the Declaratory Judgments Act to impose a parallel system of investigation by lay judges which is not required for the purpose of compensation for injury”.38 The judgment does not, in my view, go so far as to preclude a declaration being sought without a live underlying claim.
[70] Accordingly, I do not consider the position is as straightforward as suggested by the respondent. Furthermore, the Declaratory Judgments Act 1908 states:
2 Declaratory judgments
No action or proceeding in the High Court shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the said Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.
[71] While Mrs Stevens did not rely on this Act, it suggests, at least in principle, that Mrs Cuttance could have standing to seek a declaration, even if she could not claim other relief. There are, however, policy reasons for not encouraging such applications in the context of medical services, particularly given the existence of a specialist body, the Health and Disability Commissioner which has capacity to
36 Birkenfeld v Kendall [2008] NZCA 531, [2009] 1 NZLR 499.
37 At [52].
38 At [55].
undertake such enquiries and make findings, and, in the case of a death, for the Coroner to do so. In my view, those factors point strongly against allowing Mrs Cuttance to proceed in these proceedings to seek declaratory relief.
[72] However, the point becomes moot in any event given my conclusions set out below on whether Mr Cuttance’s treatment fell below a reasonable level of care.
Did the Judge err in adopting the “but for” test to causation rather than the “risk-based” test in Wallace v Attorney-General?
Submissions for the appellant
[73] Mrs Stevens argued that the District Court Judge erred when he concluded that the test for causation should be the “but for” test rather than the “risk-based” test used in Wallace v Attorney-General, saying State actors have a duty to plan and control dangerous situations in a way that minimise a risk to life. Because the administration of medical care and treatment to Mr Cuttance under s 75 was intended to reduce the risk to his life, and this was reinforced by s 8 of the NZBORA which enshrines the right not to be deprived of life, the Department of Corrections had to take all steps within its power to reasonably avoid that risk and it did not do so. Because Mrs Stevens considers the claim is looking at the State’s role in the care of Mr Cuttance, which is not simply to relieve suffering, but to avoid risk to life, Mrs Cuttance need not show the alleged negligence was the cause of the death, but simply that the Department failed to do all in its power to avoid risk to Mr Cuttance’s life.
Dicussion
[74] Before discussing this issue, it is necessary to consider what was decided in Wallace. The case involved the police shooting of Mr Wallace after he struck shop windows, and then the windscreen of the police patrol car, when armed with golf clubs and a baseball bat. Mr Wallace’s mother brought a claim against the Crown, alleging Mr Wallace’s right to life had been breached. In the High Court, Ellis J said that s 8 encompassed “an obligation on the State to plan and control potentially life threatening operations reasonably” and, in the circumstances of that case, it meant the inquiry was whether “any of the impugned operational acts or omissions involved an egregious
and significant failure to do something that the officers could, in the circumstances, reasonably have been expected to do to avoid the risk to [Mr Wallace’s] life”.39 As that threshold was not reached, the claim failed.
[75] The Judge in this case noted that the risk-based test in Wallace for a breach of NZBORA required “an egregious and significant failure”40 to take steps to avoid a risk to life. He held that none of the acts or omissions by Corrections staff or Dr X could be seen as egregious or significant failures to take measures to avoid the risk to life. That specific finding as to whether there had been a breach of the NZBORA is not challenged, although the findings as to whether the standard of care was reasonable, are challenged. In my view, Wallace is clearly a decision regarding what is required by the State to comply with s 8 NZBORA. It has no application to a claim for breach of statutory duty under s 75 Corrections Act, even if such a claim was available, or for a tortious claim in negligence.
[76] The “but for” test for causation is well established in tort claims. It asks whether the plaintiff would have suffered the loss without the defendant’s wrongdoing. If the loss would have arisen even without the defendant’s wrongdoing, it normally does not give rise to legal liability.41 I accept though, that this is not an absolute rule, and there will be cases where for policy reasons, the creation of a risk of harm may be sufficient.42
[77] For example, in Fairchild v Glenhaven Funeral Services Ltd, the plaintiffs developed mesothelioma after being exposed to asbestos dust in the course of their employment with more than one employer.43 The medical evidence established that this condition was caused by inhaling asbestos dust and the risk increased according to the amount of dust inhaled, but there were practical difficulties in demonstrating when the victim might have inhaled the fibres which caused their death. In the House of Lords, the claimants were held to be able to recover in full against any of the employers as otherwise an injustice would be raised to the victim.
39 At [550]–[551].
40 At [176].
41 Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883 at [72].
42 Wilshire v Essex Area Health Authority [1988] AC 1074 (HL) at 1084.
43 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32.
[78] However, here, the claim is against the Crown, claiming deficiencies in the care provided by its contractor, Dr X. The issues that pointed against the use of a “but for” test in Fairchild are not present here. Indeed, if ACC legislation did not exist, and the claim was able to be brought against the doctor directly, there is no doubt that the “but for” test would apply, and there is no reason to apply a different standard if the claim is for breach of statutory duty. Accordingly, I am satisfied that the “but for” test to causation applies, and the Judge was correct to apply it.
Did the Judge err in finding Dr X provided a reasonable level of care?
[79] The appeal took issue with a number of factual findings of the Judge. It is appropriate to deal with these together as they are interrelated.
Failure to have regard to the nursing notes
[80] Mrs Stevens submits that three witnesses with medical expertise, being Nurse Thompson (the Regional Clinical Director for the Department of Corrections), Dr Turnbull and Dr Lewis, all expected that a doctor providing reasonable care would look at the history of the patient using nursing notes because they provide useful information for a doctor. The evidence was that Dr X did not recall looking at nursing notes and said it was not Dr X’s regular practice to do so. Mrs Stevens submits this failure was a direct cause of Mr Cuttance not being referred to specialist care at a time when his life could potentially be saved.
[81] In looking at whether this allegation constituted a departure from a reasonable standard of care, I start first with Dr X’s own evidence. It was put to Dr X that it was “highly likely you did not read the MedTech notes”, but Dr X’s answer was, “I don’t think that we can say one way or another, because I can’t recall”. Further on, when again it was put to Dr X that Dr X did not go through the notes to see what the history was, Dr X’s answer was “I wouldn’t necessarily do that. I would often take the history from the patient. There is no reason not to”. It is important to note that there was no finding by the Judge that Dr X did not refer to the notes, but simply an observation that Dr X could not recall if they did.
[82] More importantly though, the medical experts agreed the importance of reviewing the notes was to be aware of the patient’s history of symptoms. In that regard, I am satisfied that Dr X, whether Dr X saw the notes or not, took considerable care to elicit the relevant history from Mr Cuttance. Dr X did not merely consider his presentation on the day in isolation. For example, when Dr X met him on 29 November 2011, Dr X was aware of his recent headaches and his medications and says he “informed me of past and recent medical history, which included a recent onset of intermittent headaches for approximately six weeks”. Dr X also says they explored that history and got full details of it. At the second examination on 20 December 2011, Dr X again discussed with Mr Cuttance, in considerable detail, the ongoing pattern of headaches he had been experiencing.
[83] Finally, on the third examination on 6 January, Dr X was aware Mr Cuttance had been booked for a review by nursing staff after experiencing further headaches at the end of December 2011, and that he had stopped his anti-anxiety medication as it had a common side effect of causing headaches. Dr X was also aware of the episode of numbness in his forearm. Dr X explored his sleeping patterns and other concerns. Once again, it is clear Dr X took considerable time to understand the pattern of symptoms since Dr X had last seen him and which led to Dr X’s decision not to refer him to neurology for further assessment.
[84] Dr X was clearly aware of the need not just to note the symptoms presenting on the day, but to understand the pattern of symptoms leading up to that day, and Dr X was conscientious in doing that, whether Dr X got that information from the Medtech notes or otherwise. I was not alerted to anything which was contained in the nursing notes that, if Dr X had known about, would have inevitably led Dr X to make a different decision. In all the circumstances, there is nothing to suggest Dr X fell below a reasonable standard on this count, let alone that it was causative of Mr Cuttance’s death.
Other alleged failures to provide a reasonable standard of care
[85] Mrs Stevens also submits that Dr X failed to provide a reasonable standard of care when Dr X failed to appreciate Mr Cuttance’s condition was serious despite
ongoing symptoms and despite not seeking a specialist opinion. This is particularly so when Dr X failed to seek a second opinion after 6 January, which Mrs Stevens submits was a departure from “best practice”, which is the required standard of care.
[86] Mrs Stevens also submitted that Drs Turnbull, Lewis and Mottershead, concurred that a reasonable practitioner would maintain an attitude of uncertainty and an inquiring mind. Mrs Stevens claimed Dr X failed to do that. She argued Dr X repeatedly tested Mr Cuttance for signs of acute meningitis, despite the fact he did not exhibit those symptoms. In her view, this demonstrated that Dr X failed to maintain the open-minded attitude of uncertainty and inquiry which is needed to ensure the right treatment is provided.
[87] In Mrs Stevens’ view, the extreme rareness of the specific illness did not remove the responsibility to make inquiries, keep an open mind, and to look for a different diagnosis through seeking advice, particularly after the second consultation on 20 December 2011. In this regard, she refers to the evidence of Dr Lewis, who considered that the symptoms which had been exhibited by 20 December 2011 justified a specialist referral. In respect of Dr X’s decision to order more blood tests and direct a physio appointment and then observe the response, Dr Lewis said:
[Dr X ] hasn’t given any credence or weight to the other – to the medical record which contained all the nurses’ consultations and those records are terribly important in looking after Mr Cuttance, so that there’s – it’s just a matter of judgment, but, yeah, I think that had those things been looked at, both Dr Turnbull and myself are agreed that a referral could have been made at that time.
[88] These are broad ranging grounds of appeal which challenge the factual findings of the Judge. In that regard, the Judge accepted Dr Mottershead’s evidence that the nursing staff and Dr X followed reasonable procedures, particularly when it was difficult to know when Mr Cuttance’s chronic meningism would have been clinically detectable, as such meningitis is rare in neurology and more difficult to detect than acute meningitis. The Judge also accepted that improvements in Mr Cuttance’s condition in prison, and the intermittent nature of his headaches, gave medical staff a false sense of security. For example, the reduction in Mr Cuttance’s CRP result, going from 74 when he was in ED to normal range on 20 December 2011 was, as Dr Mottershead said, “falsely reassuring”.
[89] While Mrs Stevens submits that it was essential to have an inquiring open mind, I do not accept that Dr X failed in this regard. Dr X’s repeated tests for signs of meningism could not, in my view, be criticised. Acute meningitis is a life-threatening illness, and it was entirely appropriate for Dr X to check for this, and discount it, on each occasion. Dr X did, however, work hard to try and find a diagnosis, and that was acknowledged by Dr Turnbull in cross-examination. That is supported by the fact that the doctor sought blood tests to check for infection, considered whether the anti-anxiety medication – which had a known side effect of headaches – was responsible, and considered whether a neck injury could be causing the headaches and whether physiotherapy would alleviate it.
[90] While Dr Turnbull considered it was “departure from best practice”, not to have sought a second opinion by the second or third consultation, I would not depart from the Judge’s finding that such an issue was a matter of judgment, as conceded by Dr Lewis. In light of his improved presentation on those occasions, a reasonable doctor could have decided a specialist referral or a second opinion was not necessary. Whether an earlier referral of Mr Cuttance to a specialist in Dunedin Public Hospital would have given a chance of a better outcome, no-one could say unequivocally. Dr Lewis said “I agree with Dr Mottershead’s evidence, you cannot say at which point in time treatment would have resulted in a different outcome but it is entirely logical to believe that the earlier treatment could have been instituted the more likely it would be that there would be a better outcome”. However, that is not the same as saying that would have been the outcome for Mr Cuttance.
[91] This leads on to Mrs Stevens’ submission that if Dr X’s judgment was not “best practice”, then it fell below a reasonable standard of care. However, that turns on what is meant by a question of “judgment” or by the term “best practice”.
[92] In Whitehouse v Jordan, where a doctor was accused of negligence in using forceps during a delivery in a manner that resulted in the baby having brain injury, it was said:44
[A]n error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably
44 Whitehouse v Jordan [1981] 1 WLR 246 (HL) at 263.
competent professional man professing to have the standard and type of skill that the defendant held himself out as having and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.
[93] This reflects the fact that a professional person, acting with reasonable care and exercising professional judgment, cannot always be expected to take the correct action or give correct advice. It is only when the decision is one that would not have been made by a reasonably competent professional, that negligence may be argued. I do not consider the evidence in this case went so far as to say the failure to refer Mr Cuttance to a specialist, or to seek other medical investigations earlier, was something no reasonably competent doctor would have done. Rather, in part with the benefit of hindsight, it was opined that seeking a second opinion earlier would have been “best practice” in the sense explained by Dr Lewis, which was “a standard where absolutely people would say that was fantastic, you really did all the right things”. That is not the standard required.
[94] In terms of other tests that could have been done, there was a suggestion in Mrs Stevens’ submissions that a lumbar puncture should have been ordered. However, a lumbar puncture was done when Mr Cuttance was admitted to hospital on 15 January 2022, and it failed to identify the cause of the infection. I cannot find therefore, that doing that earlier would necessarily have improved the outcome for Mr Cuttance.
[95] In summary, I do not consider the Judge erred in finding Dr X provided a reasonable level of care. Even if Mrs Cuttance had standing to seek a declaration that the respondent breached its obligation to Mr Cuttance under s 75(1) of the Corrections Act 2004, I would not have found that to be the case on the facts.
Conclusion
[96] Mr Cuttance’s death was untimely and devastating to those close to him, in particular his mother, and lessons can be learned from his experience. The Coroner found that while “causes of the illness of Boyd Cuttance were obscure, the severity of his symptoms and the significant number of presentations, ought to have been a
warning to those responsible for his medical care”.45 However, the evidence does not go so far, either in the Coroner’s finding, or here, to suggest his death could, on the balance of probabilities, been avoided if he had been referred to hospital earlier.
[97] Accordingly, the appeal is dismissed. Costs are reserved. If costs cannot be agreed, cost submissions are to be filed and served by the Crown within 20 working days. Mrs Cuttance is to file and serve submissions in response within 10 working days of receipt of the Crown submissions. Costs will be determined on the papers unless I need to hear from the parties.
Name suppression
[98] Dr X’s name is suppressed in accordance with the decision of the District Court dated 26 January 2022.46 The publicly available version of this judgment will have Dr X’s name redacted.
Solicitors:
Crown Law, Wellington
Ross Dowling Marquet Griffin, Dunedin
Copy To:
Anne Stevens QC, Barrister, Dunedin
45 At [26].
46 Cuttance v Attorney-General [2022] NZDC 1195.
1
6
1