THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HEALTH NEW ZEALAND (TE WHATU ORA) AND FRANCIS MANEWHA SHAW CAMERON SHAW, JANE MAXINE SHAW, RIKIHANA JAMES PORTER, TE ARA HOU RIKIHANA MIHIKOTUKUTUKU, DALE SHAW,...

[2024] NZHC 2959

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000588

[2024] NZHC 2959

UNDER

the Declaratory Judgments Act 1908

IN THE MATTER

of the advance directive of Francis Manewha Shaw dated 16 September 2022 and the

medical instructions provided by
Francis Manewha Shaw dated 9 August 2024

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Plaintiff

HEALTH NEW ZEALAND (TE WHATU ORA)

Second Plaintiff

AND

FRANCIS MANEWHA SHAW

Defendant

CAMERON SHAW, JANE MAXINE SHAW, RIKIHANA JAMES PORTER, TE ARA HOU RIKIHANA MIHIKOTUKUTUKU, DALE SHAW, PIKIHUIA HAENGA, MARTIN SHAW

Interested Parties

Hearing:

10 October 2024

Counsel:

A P Lawson and A M Powell for First Plaintiff I H V Reuvecamp for Second Plaintiff

F E Geiringer and G L Edgeler for Interested Parties

W L Aldred KC and K O M Fitzgibbon – Counsel appointed to assist the Court

Judgment:

10 October 2024

ORAL RESULTS JUDGMENT OF RADICH J

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v SHAW [2024] NZHC 2959 [10 October 2024]

[1]        I am going to determine the proceeding that is before me today by making the declarations sought, for the reasons that I will come on to give in a separate decision.

[2]        Having looked at the evidence that has been filed, in terms of competence, informed consent and Mr Shaw’s understanding of the health issues that he faces, I think it is appropriate to uphold the wishes that he has expressed. I think there is sufficient evidence of his capacity – or, certainly, no evidence to the contrary – that would warrant the Court to take a different approach.

[3]        I am satisfied that the terms of the advance directive are sufficiently clear. I am satisfied also, for reasons that I will give, that applying the relevant provisions of the Corrections Act, looking at the relevant rights under the New Zealand Bill of Rights Act 1990 and other provisions such as s 151 of the Crimes Act, the appropriate outcome is for the Court to uphold the advance directive.

[4]        This is a very difficult decision at many levels. It is a decision on which I have, over the last 24 hours since first becoming involved with the file, formed in my own mind quite different views because of the legal and ethical and social considerations that are involved dealing, at one level, with the precious nature of the right to life and the way in which Courts in many circumstances go to great lengths to uphold that – certainly in cases where acts, for example, of potential suicide are concerned. I do not see this as being an act akin to that of self-harm or suicide; I see the political reasons and the informed basis upon which Mr Shaw is proceeding as distinguishing it from that.

[5]        The cases internationally go different ways on this issue. Those in which Courts have required medical intervention, primarily, are cases in which the Court has had ongoing concerns about the validity of an advance directive or about consent and I see, on balance, the net effect of those cases supporting Mr Shaw’s entitlement here.

[6]        I will have a decision out as soon as I possibly can. I will aim to do that tomorrow. Counsel will understand that the relatively short time available will not allow the Court to provide the sort of elegant analysis of the relevant principles and

conflicting authorities that a case like this might deserve. But I will do my very best to give reasons and to do so tomorrow, acknowledging the fluid state of affairs as we understand them, even today, as circumstances relating to Mr Shaw and his position on intake of nutrients and fluids changes. The reasons will need to be addressed with those sorts of points in mind.

[7]        On the proceeding that is before is before us today, I will be making these two declarations:

(a)A   declaration   that   the   defendant’s   advance    directive    dated 16 September 2022 and medical instructions dated 9 August 2024 are valid.

(b)A declaration, unless instructed to the contrary, by the defendant, the advance directive mentioned in the first declaration, is such that the Chief Executive of the Department of Corrections and all staff and agents of the Department of Corrections including medical staff, and Health New Zealand and all staff and agents of Health New Zealand including health professionals, will have a lawful excuse, including for the purpose of s 151 of the Crimes Act 1961, for adhering to the defendant’s advance directive dated 16 September 2024 and the medical instructions dated 9 August 2024.

[8]        The whānau of Mr Shaw are thanked very sincerely by the Court for the responsible way in which they have contributed to this proceeding both in stages when there were earlier hearings and in terms of accommodations were then able to be made.

[9]        Mr Shaw’s whānau have also brought an originating application before the Court today for directions and for a writ of habeas corpus. It seeks to direct the Chief Executive of the Department of Corrections to move Mr Shaw to different accommodations in order to end his hunger strike or, in the alternative, to grant a writ of habeas corpus.

[10]      Time and circumstances do not permit the Court to be able to do justice to that application this evening. It was thought that there may well be ways in which amending or making adjustments to the terms of the declaration sought in the substantive proceeding could address concerns that arise and which are given voice through this application. A small adjustment has been made to the wording of the declaration that I have made in an endeavour to accommodate this to some degree by making it clear that the second declaration providing lawful excuse is linked directly to the first declaration upholding the advance directive. It may be that this does not satisfy entirely the whānau’s wishes.

[11]      Accordingly, if counsel for the whānau wish to proceed with the habeas corpus aspect of the application, the Court will attend to that at short notice. In the Habeas Corpus Act 2001 it is provided, in s 9, that an application for a writ of habeas corpus must be given precedence over all other matters before the Court, unless a Judge of the Court considers that the circumstances require otherwise and, in particular, a hearing date needs to be allocated no later than three working days after the date on which the application is filed.

[12]      Certainly, we have begun to hear that application today and to consider the issues that arise, for example, the extent to which the manner of a person’s detention, rather than the fact or basis for their detention, is something that could in the circumstances described in affidavits in this case give rise to a writ of habeas corpus.

[13]      If that is a matter that counsel for the whānau, and on instructions from the whānau, wish to proceed with – in particular, having perhaps had further discussions with counsel for the Department of Corrections over current arrangements – then the Court will make time available to do that. I can deal with that, if it is urgent, quite conceivably tomorrow afternoon, although that will affect to some degree the attention I can give to the decision on the substantive application. Alternatively, time can be found early next week to address it and to address the jurisdictional issues that may well arise with that application. As Mr Powell said, the ability to bring, through an originating application, an application of the type in question, rather than through judicial review proceedings, is a matter that is outstanding. Whatever the case, the circumstances are urgent and the Court will seek to accommodate any further interim

hearing on the non habeas corpus aspects of the application also, if that will be helpful. Counsel should liaise with the Registry to do that as need be.

[14]      In the meantime, I do encourage ongoing conversations on what appears to be a changing situation on a daily basis in terms of the health needs of Mr Shaw.

[15]      That brings matters to an end today. I will, as I say, work as well as I can now to reduce my reasons to writing.

[16]As I say, I very much appreciate the attendance of the members of the whānau

– and I know it has been a hard day for you and the circumstances that you are facing at the moment – it is so very hard. The Court understands that and acknowledges it and sends its support to you. As I say, the Court will continue to give urgent attention to matters as they are needed.

[17]      Thank you for being here and for bringing your moko and your children – it was lovely to have them in the room.

Radich J

Solicitors/Counsel:

Crown Law Office, Wellington for First Plaintiff Vida Law, Wellington for Second Plaintiff Woodward Law, Lower Hutt for Interested Parties

Wendy Aldred King’s Counsel, Wellington – Counsel appointed to assist the Court