MacMillan v Chief Executive of the Department of Corrections
[2021] NZHC 2320
•6 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1514
[2021] NZHC 2320
UNDER the High Court Rules and the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for interim injunction and an application for judicial review
BETWEEN
ANDREW RONALD MacMILLAN
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 1 September 2021 Appearances:
Applicant in person
S Kinsler and A-R Davies for the Respondent
Judgment:
6 September 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 6 September 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Applicant
Mr S Kinsler and Ms A-R Davies, Meredith Connell, Wellington and Auckland
MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2320
[6 September 2021]
[1] Mr MacMillan, a serving prisoner, has commenced judicial review proceedings against the Chief Executive of the Department of Corrections and seeks interim orders relating to his medical treatment.
Factual background
[2] Mr MacMillan is in custody at the Otago Correctional Facility, having been recalled in 2020 to serve a sentence of life imprisonment.
[3] Mr MacMillan has been on pain medication due to an injury many years ago. While in custody, from at least 2016 until his release in 2019, he was prescribed DHC.1 He was also given this medication on his release.2
[4] Mr MacMillan’s complaint is that, following his recall to prison, this pain medication has been removed. The doctor responsible had previously removed the same medication from Mr MacMillan in 2010–2011, whereas other prison doctors have prescribed it.
[5] Mr MacMillan says this medication works and the effects of not having it are that he wakes up three to four times a night from pain, has trouble wiping his bottom, cannot use his right arm to wash himself, it hurts to dress himself and tie his shoelaces, repetitive motion such as writing causes pain and he suffers from anger and depression. His right shoulder, neck and upper arm hurt so much that his whole right arm is becoming redundant. He has woken at night crying from the continuous pain. He says the sleep deprivation is like torture.
Grounds of review
[6] Mr MacMillan claims that his medical treatment is in breach of his human rights. In particular, he refers to Articles 5 and 25 of the Universal Declaration of Human Rights,3 which provide:
1 Dihydrocodeine, a form of codeine that releases over time. Mr MacMillan was first prescribed DHC in 2007.
2 It appears Mr MacMillan was recalled in mid-2020, and released again on parole on 1 July 2020, and was prescribed DHC over this period. He was recalled on 3 September 2020.
3 Universal Declaration of Human Rights GA Res 217 A(III) (1948).
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 25: Everyone has the right to a standard of living adequate for the health and well-being of himself ... including … medical care …
[7] He also claims a breach of r 30 of the United Nations Rules known as the Nelson Mandela Rules,4 which provides:
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;
…
[8] At the hearing, Mr MacMillan also submitted that the respondent had removed DHC (an opiate) on the basis of its policy relating to misuse of medication, but misuse could be addressed by ensuring the medication was swallowed. In any event, he submitted that the policy required a suitable alternative medication to be provided, which had not occurred.
Respondent’s position regarding medical treatment
[9] The respondent acknowledges that the Corrections Act 2004 provides that the standard of health care available to prisoners must be reasonably equivalent to that available to the public,5 but notes that the Department of Corrections Safer Prescribing Guidelines released in February 2021 state that:6
4 United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) GA Res 70/175 (2015).
5 Corrections Act 2004, s 75.
6 Department of Corrections Safer Prescribing Guidelines: Guidance for Clinicians (February 2021) at 7.
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] DHC is classed as “red” in the Safer Prescribing Guidelines,7 meaning that it is generally considered inappropriate to prescribe such medications in prisons because their misuse potential and potential for harm is considered unacceptable and greater than the benefit, and there are potentially safer and equally effective alternative medications available. The Guidelines deal specifically with prescription of opiates.
[11] In relation to Mr MacMillan’s treatment, the respondent’s position is that, consistent with a recommendation years ago, since Mr MacMillan’s recall a treatment plan has been put in place to wean Mr MacMillan off DHC. Mr Kinsler, for the respondent, submitted that Mr MacMillan’s pain has been addressed appropriately by medical staff at Corrections, and that medical decisions not to prescribe Mr MacMillan DHC are in line with the Guidelines and medical best practice.
Interim orders sought
[12]Mr MacMillan’s interlocutory application seeks the following orders:
(a)An urgent injunction ordering the respondent to revisit past medications that worked, as to give the applicant a chance to have a quality of life.
(b)An independent pain review from a pain clinic.
(c)To have a report done on the health and mental health implications of being in pain 24/7.
7 Department of Corrections Safer Prescribing Guidelines: Guidance for Clinicians (February 2021) at 41.
(d)Damages of $1,000 a month, for the breach of [Mr MacMillan’s] human rights, Articles 5 and 25, and breach of Nelson Mandala Rules of Confinement, 30(A) and (B) [sic].
[13] As I explained to Mr MacMillan at the hearing, any issue of damages is for the substantive hearing, not interim relief.
Approach to interim orders
[14]Section 15 of the Judicial Review Procedure Act 2016 provides:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
(3)However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b)the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[15] Interim orders under s 15 can be granted when the applicant has a position to preserve and the circumstances justify the grant of interim relief. If the Court is satisfied that an interim order is reasonably necessary to preserve the position of the applicant, the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.8
Discussion
[16] Necessity to preserve the applicant’s position is the statutory threshold before the discretion can be exercised to grant relief. Section 15 also prescribes the kind of interim orders that may be made. Thus, three questions arise. First, is an interim order necessary to preserve Mr MacMillan’s position? Secondly, are the orders sought of the kind that may be made under s 15? Thirdly, should the discretion to grant interim orders be exercised in all the circumstances?
[17] Mr Kinsler referred to Reekie v Chief Executive of the Department of Corrections,9 where a similar issue arose. Among other things, the applicant in that case was seeking to have a medication regime to which he was previously subject immediately reinstated. Ellis J considered that the issue was not susceptible to the making of interim orders as the applicant did not seem to have a relevant position to be preserved.10 I note that the medication issue in that case had been partly resolved by a change of dosage, whereas here Mr MacMillan says that the decision of one prison doctor to remove DHC is inconsistent with the decisions of other Corrections doctors and no suitable alternative has been proposed.
8 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3], citing Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.
9 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412, [2012] NZAR 775.
10 At [23].
[18] Even assuming that Mr MacMillan has a position to preserve in the sense of an entitlement to suitable pain medication, the interim orders sought are not of the kind that may be made under s 15. The relevant interim orders that may be made are limited to prohibiting a respondent from taking further action consequential on the exercise of the statutory power. As Mr Kinsler submitted, there is no action presently being proposed by the Crown that is consequential on the exercise of the statutory power that the Court can declare that it should not take. In that sense, this case is similar to Reekie.11 This is not an “extraordinary” case in which the court could possibly make mandatory interim orders.12
[19] Judicial review is about lawful decision-making. The Court’s role is not to second-guess decisions which involve judgement and, in this case, clinical expertise. Even at a substantive hearing, the appropriate remedy, if treatment decisions were found to be unlawful, would be to require the relevant decision-maker to reconsider the impugned decision in accordance with law. Mr MacMillan cannot obtain by way of interim orders relief that he could not obtain at a substantive hearing.
[20] Finally, Mr Kinsler advised that Mr MacMillan is to receive a second opinion from a new clinician, Dr O’Neill, who is now to report by 16 September 2021 following a delay due to the COVID-19 lockdown (an appointment was scheduled for 19 August 2021). As well as considering reinstatement of DHC, that review will include consideration of whether referral to an independent specialist pain clinic should be recommended (with the decision about such referral to be made by ACC/the DHB rather than Corrections).
[21] For these reasons, I consider that the interim orders sought are unnecessary and beyond the scope of s 15.
Result
[22]The application for interim orders is dismissed.
11 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412, [2012] NZAR 775 at [19].
12 At [20].
[23] If an issue as to costs arises, it may be dealt with by brief memoranda and I will determine it on the papers.
Gault J
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