Reid v Attorney-General
[2023] NZHC 2271
•22 August 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2022-485-000369
[2023] NZHC 2271
IN THE MATTER of the New Zealand Bill of Rights Act 1990 and the Judicial Review Procedure Act 2016 BETWEEN
ALISTER REID
Applicant
AND
THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) Respondent
Hearing: 26 June 2023 Appearances:
G E Minchin for the Applicant
F F Nizam and A W M Britton for the Respondent Applicant in person (via VMR)
Judgment:
22 August 2023
JUDGMENT OF TAHANA J
This judgment was delivered by me on 22 August 2023 at 9.30am Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Exco Legal, Wellington
Luke Cunningham Clere, Wellington
REID v THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) [2023] NZHC 2271 [22 August 2023]
INTRODUCTION
[1] Mr Alister Reid applies to judicially review the actions of the Department of Corrections (Corrections) regarding his transfer from Hawkes Bay Regional Prison (Hawkes Bay) to Rimutaka Prison (Rimutaka) on 9 March 2022. For part of the trip (from Hastings Police Station to Palmerston North Police Station), Mr Reid was transported in the same van as a female prisoner (the female prisoner) who tested positive for COVID-19. Mr Reid was subsequently placed into quarantine in Rimutaka because he was considered a close contact of the female prisoner.
[2]Mr Reid relies on four grounds of review:
(a)First, that Corrections acted unlawfully by placing the female prisoner in the van when she was positive with COVID-19 or alternatively, failing to confirm that the female prisoner had not tested positive for COVID-19 prior to being placed in the van in breach of s 75(2) of the Corrections Act 2004 (the Act).
(b)Second, that Corrections acted unlawfully by placing Mr Reid in solitary confinement but not requiring other prisoners who had travelled with Mr Reid to be placed in solitary confinement in breach of s 6(1)(f)(ii) of the Act.
(c)Third, that Corrections failed to comply with its COVID-19 procedures by failing to test the female prisoner for COVID-19 prior to her being transported with Mr Reid.
(d)Fourth, that Corrections acted unlawfully, in breach of s 29 of the Act by the Prison Inspector failing to inquire into:
(i)why Mr Reid was transported with the female prisoner when she was positive with COVID-19 or without her having been tested for COVID-19; and
(ii)why Mr Reid had not been provided with a mask while being transported.
[3] Mr Reid seeks declarations that Corrections has acted unlawfully and/or failed to comply with its COVID-19 procedures. He also seeks costs.
[4]Corrections denies each of the grounds of review and says that it acted lawfully.
BACKGROUND
COVID-19 settings
[5] In March 2022, New Zealand was operating under the COVID-19 Protection Framework (the Protection Framework), which was in place from 3 December 2021 to 13 September 2022 (and which replaced the alert level system that was in place from 21 March 2020 to 2 December 2021).1 The Protection Framework created a traffic light system with red, orange, and green settings.
[6] Corrections was operating under the “COVID-19 Custodial Environments Operating Procedures” (the COVID-19 Operating Procedures). There were three stages of COVID-19 settings for prisons, with Stage 1 being the lowest setting, and Stage 3 being the highest, used when community transmissions of COVID-19 were very high.
[7] Between 23 January and 8 March 2022, Hawkes Bay and Rimutaka were in Stage 2. On 9 March 2022, the day on which Mr Reid was transferred, they moved to Stage 3.
[8] Corrections had processes and procedures in place to address the risk of COVID-19 transmissions, as follows:
(a)Handover between agencies: there was a nationally agreed process (NAP) for assessing and sharing the risk of COVID-19 at handover
1 “History of the COVID-19 Protection Framework (traffic lights)” (last updated 10 October 2022) United against COVID-19 <www:covid.govt.nz>.
between agencies (Police, Oranga Tamariki, Corrections and the Ministry of Justice). The NAP required each agency to complete a handover form when handing over a detainee or prisoner. The version of the handover form in place as from 2 December 2021 provided for:
(i)a COVID-19 risk rating to be identified of high, medium, or low;
(ii)questions to be asked regarding testing prior to Police detention; and
(iii)that a rapid antigen test (RAT) be offered to a detainee and if the detainee had consented, the result of the RAT was to be recorded. If the detainee had declined a RAT, the Police were to ensure the offer of a RAT is repeated at the point of release from Police. Each offer of a RAT was to be recorded.
(b)Isolation pods: the Corrections “Court Hearings – All Stages” operating procedure stated that prisoners from Corrections’ facilities may be transported with prisoners coming from Police custody, so long as the prison transport had isolation pods, which are single occupancy cells.
(c)Masks: the Corrections “PPE Guide – Custody/Prison All Stages policy” (PPE Policy) specified mask usage for prisoners when outside their cells at Stage 3. This was not mandatory but was to be encouraged.
(d)Quarantine: the “Prisoner Receptions and Transfers Stages 1-3” (“the Transfers Procedures”) provided that when a new prisoner was deemed to be in the “red pathway” (which includes a person who is a close contact of a positive COVID-19 case), that prisoner is to be quarantined. The operating procedure for Quarantine Units dated 4 March 2022 (“the Quarantine Procedure”) specify the procedures for quarantine units.
Transfer from Hawkes Bay to Rimutaka
[9] At approximately 8.45 am on 9 March 2022, Mr Reid and another male prisoner (the male prisoner) were picked up by a Corrections van from Hawkes Bay for transport to Rimutaka.
[10] At approximately 9.15 am, the van collected the female prisoner at Hastings Police Station for transport to Palmerston North Police Station. Corrections received a completed handover form for the female prisoner. The completed handover form was not the version of the handover form specified in the NAP. The completed handover form:
(a)did not specify any COVID-19 risk rating despite the form indicating to circle one of “high”, “medium”, or “low” and referring to the reverse for rating definitions; and
(b)did specify “NIL” for each symptom of fever, coughing, difficulty breathing, fatigue, body aches and “any other intel.”
[11] It is unknown whether the female prisoner was offered a RAT at Hastings Police Station.
[12] The female prisoner was dropped off at Palmerston North Police Station at approximately 11.45 am. It is unknown whether the female prisoner was offered a RAT at Palmerston North Police Station. The female prisoner was transported in a different van from Palmerston North Police Station to Arohata Prison, where she tested positive for COVID-19. Corrections did not provide any evidence as to the time at which the female prisoner was picked up from Palmerston North Police Station and/or dropped off at Arohata.
[13] At approximately 12.15 pm, the van transporting Mr Reid and the male prisoner arrived at Manawatū Prison (Manawatū) for a comfort stop. Mr Reid and the male prisoner were placed in holding cells. They were not tested for COVID-19. Mr Reid says that he was in the cells for “about 30 minutes.” Mr Reid says that when
he was taken out of the cell at Manawatū he overhead a Corrections officer say that the female prisoner had tested positive for COVID-19.
[14] Mr Reid, the male prisoner and four other prisoners were put into the van and taken to Rimutaka.
Arrival at Rimutaka
[15] Mr Reid was tested upon arrival at Rimutaka and returned a negative result for COVID-19.
[16] Mr Reid and the male prisoner were deemed to be close contacts of the female prisoner and in the “red pathway,” as per the Transfers Procedure. They were both placed into solitary confinement and quarantined from other prisoners. Corrections say the reason for this is that despite being in an individual occupancy cell in the van, Mr Reid and the male prisoner had been in a small area with the female prisoner with limited ventilation for an extended period of time.
[17] The four prisoners who had been in the van from Manawatū to Rimutaka were not deemed to be close contacts of the female prisoner and were not placed into quarantine.
[18]Mr Reid and the male prisoner were placed into quarantine on 9 March 2022.
Quarantine
[19] On 15 March 2022, Mr Reid, while in quarantine, lodged a complaint to the Prison Manager alleging that he had been transported with a COVID-19 positive prisoner, had not been provided with a mask and was being quarantined for ten days when the rest of New Zealand only had to isolate for seven days.
[20] On 17 March 2022, the Prison Manager responded to Mr Reid’s complaint noting that he had been placed into quarantine after it was known that the female prisoner had tested positive. The response indicated that the Ministry of Health (MOH) guidelines dated 11 March 2022, provide “self-monitor for symptoms for ten
days.” It noted that Mr Reid was scheduled for his third and final test on 19 March 2023.
[21] By 20 March 2022, Mr Reid had returned two further negative RAT and was approved for removal from the quarantine unit. On 21 March 2022, Mr Reid was removed from quarantine.
[22] On 23 March 2022, Mr Reid complained by telephone to the Inspectorate about being transferred from Hawkes Bay to Rimutaka in a van with a COVID-19 positive prisoner and about his isolation for twelve days as opposed to seven days.
[23] The Inspectorate informed Mr Reid by letter dated 24 March 2022, that it considered the measures taken were reasonable in the circumstances of a pandemic.
ANALYSIS
First ground of review – s 75 of the Corrections Act
[24] Mr Reid alleges that Corrections failed to comply with s 75(2) of the Act by failing to provide him with healthcare reasonably equivalent to the standard of health care available to the public by:
(a)placing the female prisoner in the same van despite her having tested positive for COVID-19 or alternatively, failing to confirm that she had not tested positive for COVID-19 prior to placing her in the van at Hastings Police Station;
(b)becoming aware that the female prisoner had tested positive at Palmerston North Police Station and then not taking any steps to put in place measures to respond to that knowledge;
(c)failing to provide Mr Reid with a face mask; and
(d)requiring Mr Reid to spend twelve days in quarantine when the isolation under the Government’s COVID-19 Protection Framework was seven days, as of 11 March 2022.
Applicable law
[25]Section 75(2) of the Act provides that:
75 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.
Placing the female prisoner into the van
[26] There is no evidence that the female prisoner was tested for COVID-19 before being placed into the van at Hastings Police Station.
[27] It is difficult to identify the equivalent standard of health care against which Mr Reid’s care is to be compared under s 75. Mr Reid has not adduced any evidence as to the public health measures in place for public transport at the relevant time.
[28] Further, counsel for Corrections argues that s 75 only applies to the receipt of medical treatment in a prison and does not apply to any transfer between prisons.
[29] Section 38 of the Act provides that the Chief Executive of Corrections has the legal custody of a prisoner who is under the control of a security officer while that person carries out escort duties. Under s 38(3) legal custody commences as soon as the person is received or placed under the control of any security officer. Mr Reid was therefore in the custody of Corrections during his transportation.
[30] I accept that s 75 is likely directed at the health care available within prisons, but that does not absolve Corrections from responsibility for prisoners’ health when prisoners are within its legal custody but not inside a prison. Regulation 72 of the Corrections Regulations 2005 (the Regulations) provides that:
72 Duties of chief executive
The chief executive must ensure that—
(a)health centres are equipped and operated to provide adequately for the health needs of prisoners:
(b)the health needs of prisoners are promptly met, and that, as far as practicable, the physical and mental health of prisoners is maintained to a satisfactory standard:
(c)[Revoked]
(d)access to adequate medical treatment is available to meet the health needs of prisoners at any time.
[31] While Corrections opposes granting Mr Reid leave to amend the claim, I do not consider that there is any prejudice to Corrections in allowing the amendment. Corrections identified regulation 72 as relevant, so is fully aware of its application and had an opportunity to address the Court on this issue. I grant leave to allow the first ground of review to be amended to include breach of regulation 72.
[32] Regulation 72(b) requires that the health needs of prisoners are promptly met, and that, as far as practicable, the physical and mental health of prisoners is maintained to a satisfactory standard.
[33] Corrections argue that it met its obligation under regulation 72 by offering a mask to Mr Reid, receiving the Police handover form indicating the female prisoner had “NIL” symptoms and placing Mr Reid into an individual occupancy cell. Mr Reid was then put into quarantine and closely monitored. Those steps were taken to ensure that Mr Reid’s health was maintained. I do not consider that Corrections’ actions amount to a breach of regulation 72.
Corrections’ knowledge at Manawatū Prison
[34] Counsel for Mr Reid then says that he should have been offered a RAT at Manawatū when Corrections became aware that the female prisoner had tested positive.
[35] Mr Reid’s evidence is that when he was taken out of the cell at Manawatū, he overhead the Corrections escort say that that the female prisoner had tested positive for COVID-19. If that is correct, the female prisoner would have been tested at Palmerston North Police Station.
[36] Mr George Massingham, Prison Director at Hawkes Bay, deposes that Corrections did not know that the female prisoner was positive with COVID-19 before being transported. Mr Massingham does not provide evidence in response to Mr Reid’s evidence that he overheard a Corrections officer say that the female prisoner had tested positive at Palmerston North.
[37] Jennifer Shand, the Health Care Manager at Rimutaka, deposes that when Mr Reid arrived at Rimutaka he completed a RAT and that “he was later deemed to be a close contact” of the female prisoner who had tested positive upon arrival at her destination prison. That evidence indicates that Rimutaka were not aware of the female testing positive until after her arrival at her destination prison.
[38] The affidavits of each of Ms Shand and Mr Massingham do not respond to Mr Reid’s evidence as to the knowledge of Corrections officers at Manawatū. The evidence for Corrections does not address whether any handover form was completed at Palmerston North Police Station and handed to Corrections when the female prisoner was picked up and transported to Arohata. The transportation of the female prisoner was at the heart of the judicial review application, yet there was no evidence as to Corrections’ actions in relation to the female prisoner other than receipt of the handover form at Hastings Police Station and the fact she had tested positive at Arohata.
[39]The Supreme Court has observed that:2
The courts in both New Zealand and the United Kingdom have pointed out that the fact-dependent nature of judicial review means that those whose decisions are challenged have a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision
– the so-called “duty of candour”. It is not, of course, a legally enforceable duty, but rather a responsibility attaching to public decision-making. Where such evidence is not provided, a court may well draw adverse inferences, as the Court of Appeal did to some extent in the present case.
[40] Corrections should have provided evidence as to its knowledge when picking up the female prisoner at Palmerston North and should have responded to Mr Reid’s
2 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [105] (footnotes omitted).
allegation that he overhead a Corrections officer say that the female prisoner had tested positive at Palmerston North. In the absence of that evidence, it is open to the Court to draw an adverse inference.
[41] Despite Corrections lack of candour, I do not draw an adverse inference because of the evidence of Ms Shand. That evidence indicates that staff at Rimutaka had no knowledge that the female prisoner had tested positive until after she was tested at her destination prison. Further, even if Corrections had knowledge at Manawatū prior to transport to Rimutaka, Mr Reid would still have been subject to quarantine measures so that the only potential risk that would have been removed was travel in the same van as the male prisoner. I do not consider that the travel with the male prisoner from Manawatū to Rimutaka would have been in breach of regulation 72 or s 75 of the Act.
Use of a mask
[42] Despite not pleading a breach of s 5, in submissions, counsel for Mr Reid argues that Corrections’ breached s 5(a) of the Act by not offering Mr Reid a mask prior to his transfer, and that this fact contributed to Mr Reid being put into quarantine.
[43]Section 5(a) provides that:
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a)ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
…
[44] Mr Reid says that he was not offered a mask. Mr Massingham deposes that during transportation, Mr Reid was offered a mask, as all prisoners are. I accept that Mr Reid was more likely than not offered a mask.
[45] Further, I reject the submission that the absence of a mask contributed to the decision to put Mr Reid in quarantine. The evidence of Ms Shand is that Mr Reid was
placed into quarantine because he was a close contact of the female prisoner. That would have applied regardless of whether he had worn a mask.
[46]This ground of review is rejected.
Time spent in quarantine
[47] Mr Reid then says that placing him in quarantine on 9 March 2022 and releasing him from quarantine on 21 March 2022 contravened s 75, because the quarantine period was longer than the seven-day isolation period for the public.
[48] I do not consider that holding prisoners in quarantine for a longer period than the public resulted in Mr Reid been provided with a standard of health care that is not equivalent to that offered to the public. The appropriate level of health care depends on the relevant circumstances, and the explanation for the additional time was because of the increased risk of the spread of COVID-19 in a prison environment. In those circumstances, it was appropriate and in the interests of the health and safety of prisoners to ensure that sufficient time in isolation was provided.
[49]The length of quarantine did not therefore breach s 75 of the Act.
[50] Counsel for Mr Reid also says that Corrections breached s 5(b) of the Act by holding Mr Reid in quarantine for longer than required by the MOH guidelines. Section 5(b) provides that:
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a)…
(b)providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
…
[51] Counsel for Mr Reid refers to rules 44 and 45 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which provide:3
Rule 44
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
Rule 45
1.Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.
2.The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures. The prohibition of the use of solitary confinement and similar measures in cases involving women and children, as referred to in other United Nations standards and norms in crime prevention and criminal justice, continues to apply.
[52] The Court of Appeal has held that s 5(1)(b) of the Act does not mean the Nelson Mandela Rules have been adopted into New Zealand domestic law but noted that the Act and Regulations impose many requirements which are similar to, or the same as, those rules. 4 It is therefore necessary to consider the requirements of the Act.
The relevant provision is s 60, which provides that:
Segregation for purpose of medical oversight
(1)A prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if the health centre manager of the prison recommends that a direction of this kind is desirable for either or both of the following reasons:
(a)in order to assess or ensure the prisoner’s physical health, except against the risk of self-harm:
(b)in order to assess or ensure the prisoner’s mental health.
3 (footnotes omitted).
4 Attorney-General v Taunoa [2006] 2 NZLR 457 at [260].
(1A) Before a health centre manager makes a recommendation under subsection (1) that relates to a matter outside his or her scope of practice, he or she must consult a medical practitioner whose scope of practice includes that matter.
(2)If a direction is given under this section,—
(a)the prisoner concerned must promptly be given the reasons for the direction in writing:
(b)the chief executive must promptly be informed of the direction and the reasons for it.
(3)A direction under this section continues in force while the prisoner continues to be detained in the prison unless the prison manager or the chief executive revokes it.
(4)The prison manager may not revoke a direction under this section unless the health centre manager advises that there has ceased to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners.
(5)While a direction under this section is in force, the health centre manager must, unless he or she is satisfied that it is not necessary in the circumstances, ensure that a registered health professional visits the prisoner concerned at least once a day.
(6)[Repealed]
[54]Ms Shand deposes that:
On 20 March 2022, after Mr Reid had completed 10 days in the Unit, Health Services at Rimutaka approved his removal from the Unit.
On 21 March 2022, after it was indicated that quarantine was no longer required, the Assistant Health Centre Manager at Rimutaka Prison signed off Mr Reid’s removal from the Unit.
[55] Corrections says that it did not breach s 60 because the Prison Manager could not revoke the direction unless the health centre manager advised that there ceased to be any justification for quarantine. That occurred on 21 March 2022, and Mr Reid was then released from quarantine. I accept that there was no breach of s 60 of the Act. The issue, however, is whether the delay in releasing Mr Reid is contrary to the MOH guidelines adopted by Corrections, which required quarantine for only 10 days. Counsel for Mr Reid submits that he was in solitary confinement for more than the policy prescribed.
[56] The Courts have accepted that a prisoner has a legitimate expectation that polices will be followed and applied consistently.5 Further s 6(1) outlines the principles that guide the operation of the corrections system and include that:6
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
…
[57] Mr Reid therefore had a legitimate expectation that the MOH guidelines would be applied and that any decision as to when he would be released would be taken in a fair and reasonable way.
[58] Counsel for Corrections says it is not known why sign off occurred on 21 March 2022, and says 20 March 2022 was a Sunday so “sign off is unlikely to have been possible until the next working day.” There is no evidence from Corrections to indicate that this is the reason for the delay. Corrections’ evidence was silent as to why the nurse had approved Mr Reid’s release on 20 March and the assistant health manager had not signed off the release until 21 March 2022.
[59] Ms Shand’s evidence is that at the time, the Department had stringent guidelines in place which required isolation for “10 full days.” Based on those guidelines, 10 full days would include 10 March and 19 March with release on 20 March 2022. Mr Reid was released on 21 March 2022.
[60] I accept that it is inappropriate for the Court to interfere with operational decisions about day-to-day prison management.7 Corrections, however, provided no evidence to explain why there was a delay between Health Services providing their
5 Smith v Attorney-General [2017] NZHC 136 at [20] to [21].
6 Corrections Act 2004, s 6(1)(f).
7 See n 4 at [127].
approval for Mr Reid’s release and the sign off by the assistant health care manager. Counsel for Corrections suggested it was because it was a Sunday.
[61] While I accept it would be micro-management for the Court to intervene if Corrections had provided an explanation for the delay, here there is none, other than that it was a Sunday. I reject counsel’s suggestion that Corrections should be able to delay sign off if the assessment falls on a Sunday. That would allow prisoners to be kept in solitary confinement for longer than other prisoners, simply because of the day of the week on which a prisoner’s assessment falls. That would not be a fair and reasonable decision (as required under s 6(1)(f)) because it would result in the inconsistent treatment of prisoners based on the day of the week their assessment fell.
[62] I consider that Corrections’ failure to release Mr Reid from quarantine on 20 March 2022 did not comply with its policies, and while that delay may have been a managerial decision, no explanation was provided as to why the delay occurred. In the absence of an explanation for non-compliance with the policy, I do not consider that it is interference with prison management to require the prison to comply with its own policy.
Second ground of review - s 6 of the Corrections Act
[63] Mr Reid says that all the prisoners transferred from Manawatū to Rimutaka should have been put into quarantine on arrival and that the failure to do so breaches s 6(1)(f)(ii) of the Act.
[64]Section s 6 (1)(f)(ii) of the Act provides that:
(1)The principles that guide the operation of the corrections system are that—
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
…
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
…
[65] I do not accept that Mr Reid’s selection for quarantine was taken in an unfair or unreasonable way. The male prisoner was also quarantined. That decision was made because Mr Reid and the male prisoner were both close contacts of the female prisoner. The other four prisoners had not been in the van when the female prisoner was transported. That decision was made based on an assessment as to when a person is (and is not) a close contact.
[66] It was not arbitrary to differentiate between Mr Reid and the male prisoner (who had travelled with the female prisoner) and the other four prisoners (who had not travelled with the female prisoner). I reject this ground of review.
Third ground of review – compliance with COVID-19 procedures
Handover form
[67] Corrections and Police had in place a nationally agreed process which included an agreed handover form that required prisoners to be offered a RAT. The content of the handover form indicates that its purpose was to prevent the spread of COVID-19, thereby maintaining the health of prisoners. On the day in question, the prisons had moved to Stage 3, indicating the risk of community transmission was very high. This increased the necessity for adherence with the NAP.
[68] Police did not use the correct handover form, and there is no evidence that a RAT was offered to the female prisoner who subsequently tested positive that same day. Corrections argue that it had no responsibility for testing at Police stations and therefore it is not responsible for Police actions. Corrections’ submission ignores the fact that the NAP was a process to which it was a party and had agreed. In those circumstances, while Corrections was not obliged to undertake the testing, it was obliged to be satisfied that it only accepted prisoners who had been subject to the applicable NAP which required a RAT be offered. It was within Corrections’ power to refuse to transport a prisoner until the Police complied with the NAP by offering the prisoner a RAT. The purpose of the NAP would be undermined if Corrections ignored its requirements when accepting prisoners for transfer. The handover form
included the names of all agencies, including Corrections, so Corrections cannot absolve itself of responsibility by pointing to the Police’s non-compliance.
[69] The use of a RAT would have given Corrections more accurate information as to the potential risk of transporting the female prisoner with others. The importance of a RAT increased when community transmissions were very high, and at the time Mr Reid was transferred the prisons were in Stage 3.
[70] I therefore consider that Corrections’ actions in accepting a prisoner on the basis of an incorrect handover form which had not required that the prisoner be offered a RAT, did not comply with the NAP, thereby exposing Mr Reid to a potentially COVID-19 positive prisoner. Corrections itself accepts that Mr Reid and the male prisoner were close contacts of the female prisoner notwithstanding the use of individual cells in the van as they all shared the same ventilation system. This indicates that the use of the same ventilation system is a potential risk to the transmission of COVID-19 and highlights the importance of offering a RAT.
[71] In submissions, counsel for Mr Reid also alleged that the failure to test the female prisoner breached s 5(1)(a) of the Act, which provides that:
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a)ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
…
[72] I do not consider that Corrections has breached s 5(1)(a). Corrections had put in place COVID-19 procedures to protect prisoners against the risk of transmission, thereby enabling a safe and humane prison environment. I consider that accepting the prisoner on the basis of an incorrect handover form amounted to non-compliance with the NAP, and not a breach of s 5(1)(a).
Fourth ground of review – complaint
[73] Mr Reid alleges that the Prison Inspector failed to address his complaint and therefore breached s 29 of the Act.
[74] Section 29(1)(d) provides that the Inspector’s powers and functions include inquiring into all abuses or alleged abuses relating to the management of the sentence of a person who is under their control or supervision. Section 29(1)(a) provides that the Inspectors have the powers and functions conferred by subpart 6 of Part 2 (ss 152 to 160) of the Act.
[75] Section 152 of the Act sets out the objectives of the complaints system, which include to enable complaints to be dealt with internally on a formal basis; to ensure that complaints are investigated in a fair, timely, and effective manner; and to ensure that reasonable steps are taken to investigate complaints.
[76]Section 156 provides that:
(1) An inspector of corrections may investigate a complaint in any manner that the inspector considers appropriate (which may include, without limitation, referring the complaint to another person for consideration).
…
(3)If an inspector investigates a complaint, the inspector must conduct the investigation reasonably promptly, and must inform the complainant and the other persons concerned, promptly after the conclusion of the investigation and in a manner that the inspector considers appropriate, of—
(a)the result of the investigation; and
(b)any further action that the inspector proposes to take in respect of the complaint
…
[77]This Court has observed in Hudson v Attorney-General that:8
[75]I also agree with the respondent that s 152 of the Act does not provide a standalone ground of judicial review. Rather, it informs the way in which the Department exercises its statutory powers and
8 Hudson v Attorney-General [2020] NZHC 3231 at [75].
responsibilities under subpt 6 of pt 2 of the Act and as set out in s PC.01 of the Manual. Given my findings that Mr Hudson received assistance, that any errors made were accidental and that any errors did not hinder a proper understanding of his complaint, there is nothing to suggest that the Department erred in exercising its powers, even when informed by the principles of s 152.
[78] Counsel for Mr Reid argues that the Inspector erred by failing to take all reasonable steps in investigating the complaint (as required by s 152(1)(f)) by:
(a)failing to investigate whether Mr Reid was offered a mask; and
(b)finding that Mr Reid was put into solitary confinement once it was known that the female prisoner had tested positive. Mr Reid says Corrections knew at Manawatū and not when he arrived at Rimutaka.
[79]Mr Reid filed a prisoner complaint form which states:
A.I wish to make a Complaint about:
Corrections failed in its duty of care? by putting a [COVID] positive prisoner in our van from Hastings to Palmerston North and not even giving us a mask resulting in our being put in Rimutaka isolation [unit] on 23hr lock. Also we are being isolated for 10 days when the [country’s] isolation period has been lowered from 10 days to 7 days, why do I not enjoy that same [privilege]. Me and my lawyer look forward to your reply.
(Date: 15/03/2022)
[80]The above form also records the action taken as:
B.Action taken: Prisoner Referred to: Manager/Pco
Prisoner REID arrived into Rimutaka Prison ex HBRP on 09/03/22. When he arrived it was ascertained that another prisoner who was escorted at the same time after undertaking a RAT test returned a positive result. Once this was known, prisoner REID was placed into the COVID quarantine unit. He was placed there under the MOH and Corrections 10 day isolation guidelines. He was tested on the same day returning a negative result. As per the protocols, he was then required to be tested on day 5 and day 10. If these two further tests result in negative results he can be cleared from quarantine. MOH guidelines dated 11 March 2022 "self¬monitor for symptoms for ten days" MOH guidelines dated 12 March 2022 “After 7 days and as long as you are free of COVID-19 [symptoms], you will be free to leave isolation. Corrections are currently under Phase 3 which are more stringent that the MOH guidelines in order to minimise risk within prisons. Prisoner [REED] is scheduled for his third and final test on 19/03/22. If this returns as negative,
he will be considered for transfer out of quarantine dependant on the availability of a suitable bed.
(Date: 17/03/2022)
[81] Mr Reid sought review of the above response by the Prison Inspectorate by telephone on 23 March 2022. The Principal Inspector provided a written response dated 24 March 2022. That response notes that Mr Reid had raised two issues: that he had been transferred from Hawkes Bay in a van with a COVID positive prisoner and he had been in isolation for twelve days as opposed to seven days.
[82] Counsel for Mr Reid says Corrections’ response incorrectly stated that Mr Reid had been placed into quarantine once it was known that the female prisoner had tested positive. The evidence of Ms Shand is that they became aware the female prisoner was positive after Mr Reid arrived at Rimutaka. I do not therefore accept that the Inspector erred.
[83] Mr Reid also says that there was a failure to investigate Mr Reid’s complaint about not being offered a mask or that he had been placed in quarantine for 12 days and not 10 days. It is correct that the Inspector did not refer to the mask issue. I do not however, consider that the failure to refer to it means the circumstances of Mr Reid’s transfer were not considered. The Inspector’s notes of Mr Reid’s telephone call indicate that the key concerns appeared to be that he had been transported with a COVID-19 positive prisoner and that he had been put into quarantine for longer than what is required for the public. There is no indication that Mr Reid’s complaint related to non-compliance with the prison’s quarantine policy.
[84] I do not consider that the Inspector’s failure to refer to the mask issue or to non-compliance with MOH guidelines indicates that there is a breach of s 29. Their response was provided promptly and responded to the issues that were raised in the telephone call. I reject the fourth ground of review.
Result
[85] Mr Reid is successful on his third ground of review regarding non-compliance with COVID-19 procedures.
I declare that Corrections failed to comply with its COVID-19 procedures:
(a)by accepting the female prisoner for transfer when the prisoner had not been subject to the applicable nationally agreed procedure which required that prisoners be offered a rapid antigen test prior to transfer from Police to Corrections; and
(b)by holding Mr Reid in quarantine for a further day when its policy required isolation for 10 full days and in circumstances where Corrections did not provide any reasonable explanation for the delay.
[87] My preliminary view is that Mr Reid is entitled to costs on a 2B basis. If that is not accepted by the parties, costs are reserved for determination on the papers, and I make the following directions:
(a)Mr Reid is to file a costs memorandum within 10 working days of the date of this judgment;
(b)Corrections is to file any costs memorandum in response within five workings days thereafter; and
(c)costs memoranda are to be limited to no more than five pages each.
Tahana J
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