MacMillan v Chief Executive of the Department of Corrections
[2021] NZHC 3406
•13 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001514
[2021] NZHC 3406
UNDER the High Court Rules and the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
ANDREW RONALD MacMILLAN
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 9 December 2021 Appearances:
Applicant in person
E Watt for the Respondent
Judgment:
13 December 2021
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 13 December 2021 at 12:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (E Watt), Auckland Copy to: Applicant
MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3406
[13 December 2021]
[1] The applicant, Andrew Ronald MacMillan, is currently a prisoner at Otago Correctional Facility, where he is serving a sentence of life imprisonment. In a statement of claim dated 21 June 2021, and received in the High Court at Auckland on 28 July 2021, Mr MacMillan alleges, in essence, that changes to his pain medication are unlawful.
[2]The specific orders sought by Mr MacMillan in the statement of claim are:
(a)That the directions of three other prison doctors be counted for, and listened to over, one.
(b)That a direction from ACC Pain Clinic be obtained.
(c)That the respondent must offer a fair and reasonable pain management with medication that is proven to work.
[3] In subsequent written submissions, Mr MacMillan seeks damages of $11,000 and Court costs of $1,550 for what he says are breaches of the Department of Corrections Medicine Management Policy, Articles 5 and 25 of the Universal Declaration of Human Rights (UDHR) and Rule 30 of the Nelson Mandela Rules (NMR).
[4]The respondent Chief Executive of the Department of Corrections says that:
(a)The decisions made about Mr MacMillan’s pain medication are not reviewable, as there is no relevant statutory power of decision or exercise of public power.
(b)Further, in the event that the Court finds that a reviewable decision was made, that decision was made lawfully, and appropriately.
(c)Finally, the relief sought by Mr MacMillan is not available.
Factual background
[5] Mr MacMillan was sentenced to life imprisonment in 1998. He was released on parole on 1 July 2020 and recalled on 2 September 2020 to continue to serve his sentence of life imprisonment. Mr MacMillan suffers pain in his right arm, back and neck as a result of a car accident many years ago. It appears that Mr MacMillan was prescribed dihydrocodeine (DHC) as a medical response to his chronic pain at some point in 2007. DHC is an opiate, and a form of codeine that releases over time. Mr MacMillan acknowledges that he has “gone off it and back on it” over the years as it loses its effectiveness. He said: “you have to be realistic” as you can only take so much “before all it’s doing is nothing”.
[6] On 1 July 2020, when Mr MacMillan was released on parole, he was prescribed two DHC 60 mg to take in the morning and two at night. Mr MacMillan’s complaint is that, following his recall to prison on 2 September 2020, this pain medication has not been re-prescribed.
Medical treatment in prison
[7] Section 75(2) of the Corrections Act 2004 requires that the standard of healthcare that is available to prisoners in a prison must be reasonably equivalent to the standard of healthcare available to the public.
[8] The Department of Corrections has published a Medicines Management Policy (Policy),1 which was last updated in April 2018. Mr MacMillan complains, in particular, of a breach of para 8.8. It provides:
8.8 In the first instance prescribers will prescribe a clinically safe alternative to medicines that are known to be misused or traded. If there is no safe or effective alternative, the prescriber is responsible to take reasonable steps to ensure the patient themselves will take the medicine as it is prescribed. For example, where possible prescribing the medicine in a liquid formulation or ordering tables to be crushed for administration.
[9] Drawing on the Policy in February 2021, the Department of Corrections issued a guidance document for clinicians prescribing medications in the New Zealand prison
1 Corrections Health Services “Medicines Management Policy” (April 2018).
environment entitled “Safer Prescribing Guidelines” (Guidelines).2 As to the requirement that treatment provided in prisons must be reasonably equivalent to the standard of healthcare available to the public, the Guidelines state:
4 Standard of Health Care
…
This equivalence is fundamental, but equivalence does not have to imply ‘sameness’. Prisons are complex environments with challenging populations and in providing equivalence some areas of health delivery are adapted to mitigate risk. The choice of medication is one area where clinicians who work within prisons need to consider equivalence carefully. The primary responsibility is for the patient to be prescribed the most effective clinically indicated medication, however, there is a responsibility to consider any environmental risks that may be present.
[10] Prescription of controlled substances, in particular, is complex in a prison environment. One challenge is the prevalence of substance use disorders and mental health disorders in the prison population. Another challenge is the potential for patient’s misuse of prescribed medication within prisons. Some medications acquire a commodity value and are often traded.
[11]As to the prescription of opiates, the Guidelines state:
21 Pain
…
Prescribers should be acutely aware of the problems associated with analgesia abuse and dependence. The main area of concern is opiate based analgesia. There is seldom an indication for opiates to be used in the treatment of non- cancer chronic pain.
Analysis
[12] The respondent Chief Executive of the Department of Corrections has filed extensive affidavit evidence regarding Mr MacMillan’s medical treatment in prison. It is, however, unnecessary for me to traverse such evidence as it is my view that the decision not to prescribe DHC is not a reviewable decision. At the hearing before me, Mr MacMillan accepted that a Court could not direct a doctor to prescribe or not prescribe medication. It is nevertheless useful to explain why.
2 Department of Corrections “Safer Prescribing Guidelines: Guidance for Clinicians” (February 2021).
[13] Judicial review is the exercise of a High Court’s inherent jurisdiction to rule on the legality of public acts. While the Judicial Review Procedure Act 2016 (the Act) provides procedural provisions to assist in the efficient determination of applications for judicial review, it does not create the Court’s jurisdiction. The Act provides the procedures which enable the review of the exercise, failure to exercise, or purported or proposed exercise of a statutory power. The meaning of statutory power is set out in s 5 of the Act. It provides:
5 Meaning of statutory power
(1)In this Act, statutory power means a power or right to do any thing that is specified in subsection (2) and that is conferred by or under—
(a)any Act; or
(b)the constitution or other instrument of incorporation, rules, or bylaws of any body corporate.
(2)The things referred to in subsection (1) are—
(a)to make any regulation, rule, bylaw, or order, or to give any notice or direction that has effect as subordinate legislation; or
(b)to exercise a statutory power of decision; or
(c)to require any person to do or refrain from doing anything that, but for such requirement, the person would not be required by law to do or refrain from doing; or
(d)to do anything that would, but for such power or right, be a breach of the legal rights of any person; or
(e)to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person.
[14] The meaning of statutory power of decision in s 5(2)(b) is further set out in s 4 as:
4 Interpretation
…
statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—
(a)the rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b)the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether that person is legally entitled to it or not.
[15] Notwithstanding the origin of this review power in the inherent jurisdiction of the Court, and the broader non-technical approach to be taken to the determination of what decisions can be reviewed, the jurisdiction has its limits.
[16] In this case, Mr MacMillan does not specify a reviewable exercise, failure to exercise, or a proposed or purported exercise of a statutory power by the Chief Executive of the Department of Corrections. Instead, he points to the decision of Dr Gamal El Din to decline to prescribe him DHC and/or his failure to prescribe alternative pain management medication which was effective. The alternative medication prescribed was Ibuprofen (a non-steroidal anti-inflammatory drug) and Nortriptyline (a medication used to treat neuropathic pain). This was a clinical decision in relation to prescription, made by an independent medical doctor. It is not a decision which derives from a statutory power, and it is not a public decision, even when made in a prison environment.
[17] In Shortland v North Health Ltd (No 1), Salmon J held that clinical decisions of doctors made in good faith are not reviewable:3
There is no suggestion that the respondent’s medical staff are acting in bad faith. That being the case, they must be allowed to act in accordance with their clinical judgment. It is totally inappropriate for the Court to attempt to direct a doctor as to what treatment should be given to a patient. It must be remembered that the respondent is not refusing to treat this patient. Rather, it is exercising a professional judgment through its medical staff as to the appropriate treatment to adopt.
[18] I agree. In any event, I am also of the view that the decision of Dr Gamal El Din to decline to prescribe DHC to Mr MacMillan was based on his clinical assessment and on best practice. The clinical decision not to prescribe DHC to Mr MacMillan was reasonable, and in line with the Guidelines. It was an appropriate medical decision in line with medical best practice, both within prisons and in the community.
[19] Both in prisons and the community, opiate-based pain relief such as DHC is not clinically indicated for non-cancer chronic pain. DHC is a drug of concern within prisons and categorised as a “red” medicine in the Guidelines. Red medicines are
3 Shortland v North Health Ltd (No 1) HC Auckland M 75-97, 20 September 1997 at [13].
generally considered inappropriate in prisons as the risk of misuse and potential harm is considered unacceptably high, and to outweigh any benefit. This is particularly persuasive where there are safer and equally effective alternative medications available.
[20] On 14 October 2020, the decision by Dr Gamal El Din not to prescribe DHC was reviewed by the Prison Inspectorate and an Inspector was satisfied that the management of Mr MacMillan was appropriate. Mr MacMillan was also seen by a second doctor, Dr O’Neill, on 12 August 2021, who confirmed that long term opioids are not appropriate treatment for non-cancer chronic pain such as Mr MacMillan’s. Dr O’Neill discussed alternative treatments and increased or altered Mr MacMillan’s prescription for other pain management medications. He increased the dosage of Nortriptyline and swapped the Ibuprofen for Diclofenac (another non-steroidal anti- inflammatory drug). Dr O’Neill also made a referral to the ACC pain specialist clinic, which subsequently refused the referral.
[21] Finally, the nature of the relief sought by Mr MacMillan is not available on judicial review. If an actionable error of law was identified, the appropriate remedy would be a direction that the relevant decision-maker make a fresh decision consistent with the law. As a matter of fact, this has functionally occurred. Mr MacMillan was seen by Dr O’Neill on 12 August 2021 and 2 September 2021, for a review of his pain symptoms. Additionally, the claim also invites the Court to supervise, and intervene in, operational decisions with respect to a particular prisoner. Mr MacMillan’s care and management plan is not static. Rather, as with all prisoners, it is under constant review. A direction to prescribe DHC to Mr MacMillan would, in the absence of very clear facts, risk straying into a court assessment of the merits of a specialised field of expertise. Medical professionals cannot be compelled to treat patients in a manner inconsistent with their clinical judgment.
[22] In addition to para 8.8 of the Policy (above at [8]), Mr MacMillan relies on what he says are breaches of Articles 5 and 25 of the UDHR and Rule 30(a) and (c) of the NMR to claim damages and costs.
[23]Articles 5 and 25 of the UDHR provide:
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 25
1.Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
[24] Rule 30 of the NMR (formerly known as the United Nations Standard Minimum Rules for the Treatment of Prisoners) provides:
Rule 30
A physician or other qualified health-care professionals, whether or not they are required to report to the physician, shall see, talk with and examine every prisoner as soon as possible following his or her admission and thereafter as necessary. Particular attention shall be paid to:
(a)Identifying health-care needs and taking all necessary measures for treatment;
…
(c)Identifying any signs of psychological or other stress brought on by the fact of imprisonment, including, but not limited to, the risk of suicide or self-harm and withdrawal symptoms resulting from the use of drugs, medication or alcohol; and undertaking all appropriate individualized measures or treatment.
[25] The UDHR and the NMR are declaratory only. In any event, the respondent is not in breach of any of these standards. The respondent has undertaken substantial and continuing engagement with Mr MacMillan about his pain management. Mr MacMillan has also been referred to the pain clinic at Waikato Hospital in 2010 and 2012 while at Spring Hill Correctional Facility and to the pain clinic at Burwood Hospital in 2016 while at Rolleston Correctional Facility. ACC has declined a referral to its pain clinic, but the respondent has recently referred Mr MacMillan to the pain clinic at Otago Hospital for a further assessment.
[26] The 2010 report from the pain clinic at Waikato Hospital noted that Mr MacMillan had been requesting more codeine, which was not supported due to the risk that Mr MacMillan could become opioid dependent. The 2012 report recommended that Mr MacMillan be weaned off codeine slowly over time. The 2016 report acknowledged that medication is of no significant benefit for most patients with chronic pain, and that many patients struggle to accept this fact. The report advised that chronic pain patients should only use medication if it was effective. The same report recorded that Mr MacMillan was then taking four different analgesics, and advised he test which ones, if any, were actually effective for him personally, whether alone or in combination, by stopping each analgesic in turn and resuming it only if his pain significantly worsened as a result.
[27] This is where Mr MacMillan’s claim that the respondent has breached his rights to “safe and effective” treatment for his chronic pain falls down. There may well be no medication that is safe and effective. However, the respondent continues to engage with Mr MacMillan to try and formulate a treatment plan which will offer him some relief. Therefore, Mr MacMillan’s rights have not been breached and there is no basis for an award of damages or costs.
Result
[28]The application for review is dismissed.
Woolford J
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