Monroe v Health New Zealand Te Whatu Ora
[2025] NZHC 115
•11 February 2025
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2023-404-2816
[2025] NZHC 115
UNDER Judicial Review Procedure Act 2016 BETWEEN
AISLYN MONROE
Plaintiff
AND
HEALTH NEW ZEALAND | TE WHATU ORA
First Defendant
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI
Second Defendant
THE PRESIDENT OF THE PAEDIATRIC SOCIETY OF NEW ZEALAND
Third Defendant
Hearing: 4 February 2025 Appearances:
The plaintiff in person
C Browne and P Baine for the first defendant
E Dowse and R McConnell for the second defendant M Braddock and M Calvert for the third defendant
Judgment:
11 February 2025
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on 11 February 2025 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
MONROE v HEALTH NEW ZEALAND | TE WHATU ORA [2025] NZHC 115 [11 February 2025]
[1] The defendants apply to strike out judicial review proceedings brought against them by Ms Monroe.1 The proceedings concern a system used by Health New Zealand (HNZ) referred to as the “Medical Warning System” (MWS) and to “Child Protection Alerts” (CPAs) issued under the system.
The Medical Warning System and Child Protection Alerts
[2] The MWS operates on a computer system held by HNZ. Before the creation of HNZ in 2022, the MWS operated on a computer system held by the Ministry of Health on behalf of the District Health Boards (DHBs) that HNZ replaced.
[3] The MWS provides healthcare providers with alerts about risk factors that may be important when making decisions about patient care. The alerts that the system provides include CPAs.
[4] CPAs were added to the MWS in 2011. They were added to address a concern that there was no mechanism to share information on a nationwide basis regarding potential child abuse encountered by medical practitioners.
[5] CPAs were added following the signing of a memorandum of agreement between the Ministry of Health, the Paediatric Society, and the DHBs. When the memorandum was signed in May 2011, not all the DHBs participated, but by December 2016, all the DHBs had signed the memorandum and were participating in the CPA system.
[6] There is a standardised procedure in relation to CPAs. It begins with a report of concern (ROC). A medical practitioner who has concerns about a child makes a ROC. The ROC goes to both Oranga Tamariki and HNZ.
[7] On receiving the ROC, Oranga Tamariki follows its own separate procedures that do not involve HNZ and have nothing to do with the MWS or CPAs. It independently decides what action, if any, it should take in response to the ROC in discharge of its legislative role.
1 The plaintiff and her children’s names have been replaced with pseudonyms in this judgment.
[8] At the same time, the ROC causes HNZ to separately consider, without any involvement from Oranga Tamariki, whether a CPA should be placed on the MWS. A copy of the ROC is referred to a local multidisciplinary team who decide whether the ROC should result in a CPA being placed.
[9] If approved for inclusion, the CPA remains in the system until the child’s 18th birthday, unless a successful application is made to remove it.
[10] It is recognised that siblings of an abused child are also at risk of abuse. As a result, if a CPA is placed in relation to a child, it will generally result in a CPA in relation to any siblings of the child who are under 18 years of age.
[11] It is important to note that the CPA does not place any restrictions on a medical practitioner who sees the child. A CPA merely provides information to medical practitioners. Its purpose is to ensure that any medical practitioner who sees a child is aware that there is a risk the child is being abused, and has access to potentially relevant documentation, such as the records of the meeting of the multidisciplinary team. It is entirely a matter for the medical practitioner’s professional judgement as to what regard should be had to the CPA and what, if any, impact it should have on the treatment provided.
[12]Each CPA begins with the following statement:
• The information contained in this document is confidential and should not be printed or copied.
• Child Protection Alerts are placed on a child’s NHI to indicate information from a particular point in time. It is acknowledged that circumstances change, therefore at the time of reading the information may no longer be current.
• The alert acts as an aid to assessment, not a diagnostic tool and should be considered as part of the current presentation and assessment. If a child has an alert, all subsequent injuries/incidences should not be presumed to result from abuse. Likewise, a child with injury/concerns should not be presumed safe because there is no alert.
• The alerts remain on the child’s record until they are 18 years old. Alerts are also placed on pregnant women as appropriate.
• We do not routinely disclose to parents/caregivers that an alert has been placed, however you should reply honestly if asked. This decision was
made at a national level due to the risk that a child might not be brought forward for treatment/assessment if parents are concerned about the presence of the alert.
[13] Access to information on the MWS, including CPAs, is restricted to healthcare providers and is subject to the Health Information Privacy Code 2020. A comprehensive privacy impact assessment was carried out which found that the system of placing CPAs is compliant with the Health Information Privacy Code.
CPAs in respect of Ms Monroe’s children
[14] On 21 August 2017, an ROC was issued by a paediatrician who had a concern that Ms Monroe’s son, Miles, was being over medicalised because of medical interventions Ms Monroe was seeking for him.
[15] On 25 August 2017, a CPA was placed in relation to Miles. As a consequence, on 28 August 2017, a CPA was also placed in relation to Ms Monroe’s daughter, Marilyn.
[16] In February 2021, the CPAs for both children were updated to note that the children were under the guardianship of the Family Court for oversight of their medical needs. I explain this further below.
[17]In 2021, Miles turned 18 and the CPA was removed from his record.
Complaint to the Health and Disability Commissioner
[18] Ms Monroe complained to the Health and Disability Commissioner about HNZ’s care of Miles and the CPA placed on his file. However, the complaint was closed in May 2022 without any action being taken against HNZ.
Family Court proceedings brought by Oranga Tamariki
[19] The ROC in relation to Miles caused Oranga Tamariki to investigate whether he was being over medicalised. Ultimately, this led to Oranga Tamariki bringing proceedings in the Family Court to obtain guardianship orders in relation to the two children.
[20] In 2019, the Family Court made orders placing the children under Oranga Tamariki’s guardianship with respect to medical decisions.
[21] The guardianship orders in relation to Miles ended when he turned 18. However, the guardianship orders in respect of Marilyn, who is currently 13, were expanded. In 2022, the Family Court appointed a paediatrician to oversee her health and specific orders were made regarding her medical care. These included orders limiting the medical providers from which Marilyn could receive treatment to certain named providers.
[22] The 2022 orders did not resolve the issues concerning Marilyn’s care. Oranga Tamariki remained concerned about medical treatment Ms Monroe was seeking for Marilyn despite the orders. Oranga Tamariki applied to the Family Court again and obtained a variation of the guardianship orders to allow it to place Marilyn with a foster family. This order is subject to appeal but currently remains in place.
The strike out applications
[23] The defendants apply to strike out on the basis that the proceedings disclose no reasonably arguable cause of action, are likely to cause prejudice or delay, and are an abuse of process.2
Decision
[24] The defendants are correct that the statement of claim discloses no reasonably arguable cause of action. It is 150 pages long and contains a large amount of information. However, it does not identify any exercises or non-exercises of a statutory power for review. Nor does it identify any grounds of review in relation to such exercises or non-exercises of statutory power.
[25] In the circumstances, the only issue is whether the proceedings should be struck out or whether Ms Monroe should be given an opportunity to amend the statement of claim to attempt to correct its deficiencies. I have concluded that it should be struck out for two reasons.
2 High Court Rules 2016, r 15.1.
[26] First, Ms Monroe has already been given two opportunities to amend the statement of claim to correct its deficiencies. Both times the Court provided her with guidance to assist her.3 Both times the statement of claim became longer but its deficiencies were not cured.
[27] Second, having considered Ms Monroe’s statement of claim and her written submissions and having discussed the case with her at the hearing, I have not been able to identify a reasonably arguable cause of action that she might be able to plead.
[28] Ms Monroe confirmed to me at the hearing that the focus of her concerns is the CPA system. She provided me with a list of legislation that she considers the system breaches.4 She said that, because it is illegal, the system should be shut down, and that the decision she seeks to review is HNZ’s decision to operate the system at all.
[29] Ms Monroe said that the system is illegal both in the way that it has been set up and the way that it operates in practice. However, she was not able to articulate any specific reason why the system might breach the legislation to which she referred. Nor am I able to perceive any such breaches now that I have a general understanding of how the system works and Ms Monroe’s concerns.
[30]For these reasons, I can see no reasonably arguable claim against HNZ.
[31] The positions of Oranga Tamariki and the Paediatric Society are stronger still. HNZ operates and controls the CPA system, but Oranga Tamariki and the Paediatric Society’s involvement in relation to it is limited.
[32] As I have explained, Oranga Tamariki receives the ROCs that commence the CPA process within HNZ, but it is not otherwise involved in the process. It provides no input into CPAs and has no access to anything on the MWS, including CPAs.
3 The guidance was provided in a minute of Gault J dated 14 February 2024 and a minute of Jagose J dated 10 July 2024.
4 New Zealand Bill of Rights Act 1990; Human Rights Act 1993; Health and Disability Commissioner Act 1994, including the Health Information Privacy Code 2020; Privacy Act 2020; Oranga Tamariki Act 1989; Harmful Digital Communications Act 2015; Official Information Act 1982; Public Service Act 2020; and Legislation Act 2019.
[33] As I have explained, the Paediatric Society was involved in the setting up of the CPA system in that it was a party to the memorandum of agreement signed in May 2011. Also, the Paediatric Society’s members are of course users of the system. However, the involvement of the Paediatric Society itself in relation to the CPA system has only ever been advisory. It has only ever provided advice regarding the system.
[34] I mention two final matters for completeness. First, Ms Monroe made it clear she is very concerned about specific medical assessments that have been made in relation to her children. However, such medical assessments are not subject to judicial review.5
[35] Second, Ms Monroe is also very concerned about the guardianship orders Oranga Tamariki has obtained in the Family Court. However, those are matters that are being dealt with in her appeal. Judicial review proceedings on these grounds likely duplicate those of the extant appeal.6
[36] For these reasons, Ms Monroe’s claims against all three defendants must be struck out.
Result
[37]I grant the strike out applications.
[38] As the successful parties, the defendants are entitled to costs. However, Oranga Tamariki does not seek costs. I order Ms Monroe to pay costs to HNZ and the Paediatric Society. The costs should be paid for a Category 2 proceeding. Time allocation B is appropriate in relation to each step taken in the proceeding. Reasonable disbursements are also payable.
Blanchard J
5 Crichton v Ministry of Health [2023] NZHC 1420 at [25(c)].
6 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [583].
Solicitors:
Wilson Harle, Auckland Crown Law, Wellington
Duncan Cotterill, Auckland
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