X v Attorney-General
[2022] NZHC 1531
•30 June 2022
NOTE: THE NAME OF THE PLAINTIFF IS PERMANENTLY SUPPRESSED IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-362
[2022] NZHC 1531
UNDER a claim for compensation and declaration under the New Zealand Bill of Rights Act 1990 and Corrections Act 2004 BETWEEN
X
Plaintiff
AND
THE ATTORNEY-GENERAL (SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS)
Defendant
Hearing: 17 and 18 March 2022 Counsel:
S J Fraser for Plaintiff
D P Neild and V M Rea for Defendant
Judgment:
30 June 2022
JUDGMENT OF SIMON FRANCE J
[1] Mr X was a serving prisoner at Christchurch Men’s Prison (CMP) between 5 December 2016 and 2 February 2022.1 In the proceeding he claims that various actions towards him constitute breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides that persons deprived of their liberty have the right to be:
treated with humanity and with respect for the inherent dignity of the person.
1 Mr X was not in custody between 20 August 2017 and 7 May 2018.
X v ATTORNEY-GENERAL [2022] NZHC 1531 [30 June 2022]
[2] The conduct claimed to have occurred and to constitute a breach of this provision includes:
(a)a period in which Mr X was deprived of access to Ritalin as treatment for his ADHD;
(b)being summonsed over a loudhailer to come for his medication, the breach being embarrassing him in front of other prisoners and identifying him as on medication;
(c)being referred to, occasionally, by prison officers as a “druggie”;
(d)being subjected to thousands of rub-down searches. Each visit to take medication (twice a day) involved leaving his unit, which was accompanied by a mandatory rub-down search on leaving and on returning; and
(e)having taken his pill, being required to run his finger around his gums inside the mouth to show the pill had been swallowed. Mr X suffers from a skin condition which made this alleged unlawful requirement more unpleasant.
Facts
[3] There is little dispute over what occurred. The Court heard evidence from Mr X, and from several persons connected to the prison: Mr Wood who is operations system advisor at CMP, Ms Whiteford who is health centre manager at CMP and Ms McDaid who is Mr X’s case manager at CMP.
[4] I consider all to be truthful witnesses. I observe Mr X has a significant sense of grievance and a keen sense of his rights and entitlements. This colours the lens through which he views and recalls events. As I say, however, I do not consider he was untruthful, just occasionally incorrect or wrongly viewing the context.
(a) Ritalin
[5] When Mr X entered CMP as a remand prisoner in December 2016 he was taking Ritalin pursuant to a prescription. The prison declined to continue the controlled drug until its own medical assessors prescribed it.
[6] Mr X was immediately referred to Forensic Psychiatric Services. In the interim, on the third day he saw a GP who noted the Ritalin request and recorded:
… This would not be scripted here. Should there be problems with cessation then other options will be investigated but initial option is simply cessation.
[7] Mr X was due to see Forensic Psychiatric Services on 12 December, so one week after initial arrival, but he had to go to court that day. It was rescheduled for 19 December when he did meet with a person described as a forensic nurse. The evidence establishes this person works with the psychiatrists.
[8] Mr X’s medical notes contain a summary of the meeting which was later written up into a full report. The report traverses Mr X’s history, including his diagnosis of ADHD persisting into adulthood. It is noted X reported that he had difficulty with concentration since coming off the medication. The report writer notes Mr X’s presentation as calm with no restlessness or irritability. His mood was appropriate and during the interview there were no apparent difficulties with attention or concentration. The report concluded:
At interview today, he reported some difficulties with restlessness, concentration and sleep which he attributed to cessation of medication since arrival in custody. He appears to be adjusting to the prison environment without significant difficulty. There was no evidence today at interview of any major mood disturbance or symptoms of psychosis. There were no acute concerns with regards his risk to self. [Mr X] will not require follow-up by Specialist Mental Health Services at this time.
Plan
[Mr X] was discussed with the prison MDT. He is to be discharged to the prison GP for follow-up. [Mr X] has been advised to discuss his medications with the prison GP.
[9] It is common ground that it would be Forensic Services who would have to prescribe Ritalin. The absence of that recommendation in this report meant Mr X continued in prison without it.
[10] In April 2017 Mr X was seen by another GP who concluded that, notwithstanding the absence of Ritalin, Mr X seemed very focused and settled. The doctor noted he had emailed Forensics for advice as there was evidence of depression because of the recent death of Mr X’s mother, but otherwise considered:
… I think we should see how he goes with packages of care, etc and watch his mood, rather than simply prescribe Concerta [an alternative brand of the same drug as Ritalin].
[11] In June 2017, so some six months after he entered prison, Mr X made a complaint to the Health and Disability Commissioner about a number of matters including that he was not receiving Ritalin. Later in June Mr X met with Ms Whiteford to discuss the matters in his letter of complaint. At the end of July the Department responded to the Health and Disability Commissioner. Concerning this topic, it was noted that since several months had passed since the last assessment, Ms Whiteford had requested Forensic Psychiatric Services to review the situation.
[12] The meeting with Forensic Psychiatric Services occurred on 10 August 2017 and resulted in a prescription for Ritalin (one dose). Two weeks later Mr X was released from custody. The decision-making process around this decision to prescribe, as understood and described by Ms Whiteford in her oral evidence, was not convincing. It seems that the GP who saw Mr X in April had followed up with Mr X’s community provider prior to his imprisonment. Through this, the name of the psychiatrist who prescribed Ritalin before Mr X went to prison was identified, and a copy of that prescription – called an authority because it is a controlled drug – was obtained. Ms Whiteford understands that the restarting of Ritalin in August was based on this old prescription, and was not the product of a revised assessment by those who had seen Mr X since his time in prison.
[13] As noted, Mr X left prison in August 2017, only to return in May 2018. On 18 June he was again prescribed Ritalin (two doses). It seems that during his time of release, and not long prior to returning to prison, Mr X had been seen by the same psychiatrist whose initial assessment had previously been reactivated by the prison in August 2017. That psychiatrist had continued the Ritalin, and the prison accepted this and renewed supplying it to Mr X.
[14] The other aspect of Mr X’s Ritalin complaint concerned the timing of when it was provided to Mr X during the day. Mr X, and Ms Whiteford, believed the drug required a gap of five hours between doses. Mr X described the logistical difficulties of this in prison, and how he found it stressful. He complained that some he was given on less than a five hour gap. It was noted at the hearing, however, that the prescription actually required only a four-hour gap, a period consistent with the data sheet for Ritalin. The source of the erroneous five hour understanding is not clear, but it was an error. Giving it to Mr X on a four hour gap in fact complied with his prescription. This is not an issue requiring further consideration.
(b) Rub-down searches
[15] Ritalin is a controlled drug. The arrangements in place at CMP were that any controlled drug had to be administered under strict supervision at the health centre. This is different from other medicines which can be distributed to the prisoner in their unit.
[16] The effect of these arrangements was that Mr X had to leave his unit to go to the health centre. For Mr X this was one visit a day initially when on one dose and two visits a day after his return in May 2018 when on two doses. Prison regulations require that movements in or out of a unit must be accompanied by a rub-down search. So, for each health centre visit there were two rub-down searches, meaning four a day throughout the second part of this time in prison.
[17] There was a minor dispute in the evidence over how long such searches take. The Department says around 15 seconds; Mr X thinks longer but accepts the length of time and how it is experienced by the prisoner can depend on the particular officer doing the search.
[18]Mr X claims the frequency of searches breaches s 23(5).
(c) Finger sweeping
[19] This is a practice whereby the prisoner is required to put their finger inside their mouth and rub it around to indicate there is no pill being held in the mouth rather
than swallowed. Opinions may no doubt vary on how intrusive or not that is in the ordinary course of events. However, there is no doubt the situation is somewhat different for Mr X.
[20] Mr X has psoriasis and has had for some time. It affects his hands, and part of the arrangements in prison to accommodate his condition is the provision of gloves. This finger-sweeping requirement was therefore a more difficult experience for Mr X than it would be for most. In my view, even if finger sweeping were normally an acceptable practice, there would have been a need to consider its appropriateness for Mr X because of his condition.
[21] As it happens, however, it is not a normal or recommended practice. When it was brought to the attention of Ms Whiteford, she sought input from Head Office and then shortly after a message was conveyed to staff that it was a practice that was to stop. That is what occurred and it has not been repeated since.
[22] A matter of dispute between the parties was the prevalence and frequency of the practice. For the purposes of the litigation Ms Whiteford made inquiries of nurses working at the health centre at the relevant times. She identified that there was only one nurse who required the finger sweep. Ms Whiteford then analysed the rosters of that nurse as they coincided with Mr X. Her conclusion was that it would have occurred around 69 times.
[23] Mr X disagreed, saying it was more regular than this. In oral evidence he named three other nurses in addition to the one identified by Ms Whiteford who required the finger sweep. Ms Whiteford confirmed they were among the nurses she had spoken to when preparing her evidence. It is not a dispute the Court can resolve without hearing from the people involved. It is not crucial in my view in that it is at least common ground it occurred on a significant number of occasions.
[24] In terms of ending the practice, the response of the defendant was prompt. Ms Whiteford inquired into it, had the practice stopped and apologised to Mr X. There was then a formal letter of apology and a further email to the health team confirming it was not to occur.
[25] In his brief of evidence Mr X also took objection to having to open his mouth having taken the pill for the nurse to check the pill has been swallowed. He describes it as degrading.
[26] This is not a pleaded breach of s 25 of NZBORA but does I consider indicate a degree of unreality that pervaded aspects of Mr X’s evidence. “Diversion” of medication is a real issue in prisons. It is the practice of prisoners supplying their prescribed medicines to other inmates. It presents safety risks on many levels – to the person not taking their prescribed medicine, to the person taking a non-prescribed medicine, and to staff who must deal with the impacts of such practices. Mr X has had a warning for such conduct, having been caught hiding a pill on one occasion.
[27] Allowing a health professional to inspect the inside of the mouth by means of viewing an open mouth is authorised policy and understandable. I was left unclear whether Mr X’s sense of feeling degraded came from the fact of opening his mouth, or the perceived lack of trust in his compliance. The latter is an available inference based on the whole of his evidence. It led one of the department witnesses to comment in response that it is not possible to draft prison rules around an assumption of compliance.
(d) Loudspeaker and druggie comment
[28] Neither of these matters is capable, in my view, of seriously engaging with s 23(5). The descriptions will therefore be brief.
[29] In larger units where many prisoners are mingling in an area, communication over a loudspeaker can be required. There is a dispute over how Mr X was summonsed for his appointments. This would occur in relation to the middle-of-the-day pill taking rather than the early morning medication since Mr X was for those occasions taken from his cell. Mr X says the loudhailer call was “Mr X to the front for medication”. The prison says the policy would be to just call him to the front.
[30] Mr X’s explanation of these matters was not always accurate2 but I consider it possible the objected-to statement was sometimes used. Identifying the reason in such circumstances can be instinctive so is likely to sometimes have happened. It is difficult to imagine, given the appointment was every day, that other inmates were unaware of the reason Mr X was being called. Although it probably happened on occasions, I also accept it was prison policy not to identify the reason.
[31] The second complaint is that on occasions, perhaps three times, officers accompanying Mr X to the health centre called him a druggie. Mr X complained to the prison authorities. An email was immediately sent to staff saying it was inappropriate and to stop.
Relevant law
[32] The key authority is Taunoa v Attorney-General3 which considered in some depth the relationship between s 23(5) and s 9 of NZBORA, the latter of which identifies the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment. Section 9 captures conduct at the more reprehensible end of the spectrum.
[33] The following passage from Butler and Butler summarises the required approach:4
The result is that the test for establishing a breach of s 9 is a high one. Section 23(5), by contrast, is breached by state conduct that is less reprehensible, but is still unacceptable in New Zealand society. It is conduct that does not rise to the level of outrageousness required to engage s 9. Section 23(5) captures conduct that lacks humanity, but falls short of cruelty, conduct that is demeaning, and/or conduct that is clearly excessive in the circumstances but not grossly so. Insofar as s 23(5) is concerned it is important to note that a breach of the minimum legislative requirements applicable to detainees does not automatically mean that there has also been a breach of s 9 or s 23(5). Section 23(5) requires an evaluative exercise, having regard to the conditions under which the inmate is held, the extent to which these diverge from the conditions which ought to have applied if there had been compliance with the legal requirements, and, in some circumstances, the
2 In evidence-in-chief Mr X said it happened twice a day. In re-examination he talked of being woken in the mornings over his cell intercom to get ready to go to the health centre.
3 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
4 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary 2nd ed, Lexis Nexis, Wellington, 2015) at [20.12.5] (footnotes omitted).
extent to which those legal requirements are insufficient to meet the s 23(5) standard. That said, legislative standards are an appropriate standard by which to measure the humane treatment of a detainee. But equally technical breach of those standards may not amount to a breach of s 23(5).
[34] The task of identifying whether conduct constitutes a breach of s 23(5) will vary according to the nature of the conduct said to constitute the breach. As Ellis J notes in S v Attorney-General5, some conduct will self-evidently be inconsistent with dignity or the humanity of the detainee and a single instance may suffice to constitute a breach. Her Honour there cites the intentional infliction of injuries as an example.6
[35] Where the conduct is not self-evidently a breach, the context will be important. Matters such as frequency and duration come into play, as will matters such as whether it is policy-driven conduct or a departure from the same, and whether it has been condoned. The circumstances will necessarily dictate the factors to the particular evaluation required but a constant is that there need not be an intention to cause harm or denigrate in order for a breach to occur.
Alleged breaches
(a) Non provision of Ritalin
[36]The three drivers of Mr X’s complaint are:
(a)he was on Ritalin pursuant to a valid prescription when he entered prison but it was immediately stopped;
(b)the statement of the first GP who assessed Mr X that “Ritalin would not be scripted here”; and
(c)the fact that Ritalin was provided soon after he made a complaint to the Health and Disability Commissioner.
5 S v Attorney-General [2017] NZHC 2629.
6 At [216].
[37] Together these lead to a submission that Mr X was wrongly denied Ritalin because of a wider policy of opposition at CMP to having controlled drugs like Ritalin in a prison setting. It is submitted the policy was prioritised over his individual needs.
[38] The evidence does not establish Mr X was ever wrongly denied Ritalin. Nor is there evidence that any harm was caused to him by the non-provision of the drug.
[39] First, there is no medical evidence to say Mr X should have had the drug during the period. For example, the community prescriber whose prescription was stopped could have been a potential witness. The only evidence on the point is Mr X’s assertion that he should have had it and needed it. Conversely there are a number of medical assessments at the time to say Mr X was doing well without the drug.
[40] Second, the decision in August to reinstate the drug is not capable of sustaining the inference that the drug should have been prescribed earlier. As the evidence stands, the recommencement of the drug was a reactivation of the community prescription of possibly a year earlier. It seems not to have been the product of a fresh assessment, nor to have had regard to the intervening assessments that the drug was not necessary.
[41] Third, there was no disregarding, by the prison, of whether Mr X should have Ritalin. It was noted as an issue at the outset. A timely appointment was arranged with the group who could prescribe it. That group assessed the drug as not being required. The subsequent interventions by general practitioners all addressed the issue and considered whether a further assessment was required. And after an appropriate period, Mr X was referred for further assessment.
[42] This final referral coincided with the prison response to Mr X’s complaint to the Health and Disability Commissioner. It may have been, as submitted, a reactive response to the complaint, but this would not make the process followed to that point any less appropriate. Whether the referral would have occurred otherwise cannot be known. The reality is that there was a referral, and it concluded a procedure that was in my assessment appropriate.
[43] A hesitation about the correctness of this analysis comes from the Department’s Safe Prescribing Guideline. After noting that new inmates may have their prescription reviewed, the Guideline continues:
It is good practice and expected that the methylphenidate is continued in the interim until the review is complete.
[44] There was no clear explanation as to why this did not occur with Mr X, but perhaps the initial comments of the GP do explain it. However, a referral to Forensic Psychiatric Services was scheduled to occur within a week of Mr X entering prison. The assessment then made was that the drug was not needed, and so the period in question is less than two weeks. At that stage one again returns to the absence of any evidence to say in fact Mr X needed to have the drug in that period. For that reason s 23(5) is not in my view engaged. It was at most a short-term flaw in process with no established consequence.
[45] The claim concerning the non-provision of Ritalin fails on the facts and no further analysis of a s 23(5) breach is required. No error has been established.
(b) Rub-down searches
[46] As noted, the issue here is that the way in which Ritalin was administered at CMP meant Mr X had to leave his unit to get it. Movement in and out of a unit automatically triggers the undertaking of a rub-down search. That means for Mr X that during his first period in prison it was two searches a day, and for the second period, because there were two doses of Ritalin, it was four such searches a day.
[47] The searches are pleaded as breaches of both s 23 of the NZBORA and also s 21 (freedom from unreasonable searches). On the face of the pleading it appeared the objection was to the number of such searches, and the fact that the cause of the number was CMP’s method of controlled drug administration. In oral argument, Mr Fraser advanced a separate argument that the requirement under the Prison Operations Manual for rub-down searches to be done each time a prisoner leaves and returns to a unit is an unlawful fettering of the search power. Mr Neild objected to this argument on the basis it was neither pleaded nor flagged, and the defendant would
have led evidence concerning the rationale for the rule, and how it is expected to be enforced, had the challenge be known.
[48] I consider it is a legitimate objection. The particular rule identifies one situation in prison life where a rub-down search is required. It does not cover all the possible situations for rub-down searches. A challenge to its legitimacy needed to be properly pleaded or at least clearly flagged. The disadvantage is not just to the defendant but to the Court which is being asked to consider the legitimacy of an important rule without the necessary evidence, including the correct witnesses to speak on such wider policy matters (rather than giving evidence on a specific prison policy to which they are connected), and without full submission. Accordingly, the search issue will be addressed within the limits of the pleading.
[49]Rub-down searches are defined in s 89 of the Corrections Act 2004:
89 Definition of rub-down search
(1) For the purposes of this Act, a rub-down search means a search of a clothed person in which the person conducting the search may do all or any of the following:
(a)run or pat his or her hand over the body of the person being searched, whether outside or inside the clothing (other than any underclothing) of that person:
(b)insert his or her hand inside any pocket or pouch in the clothing (other than any underclothing) of the person being searched:
(c)for the purpose of permitting a visual inspection, require the person being searched to do all or any of the following, namely—
(i)open his or her mouth:
(ii)display the palms of his or her hands:
(iii)display the soles of his or her feet:
(iv)lift or rub his or her hair.
(2) For the purpose of facilitating any of the actions referred to in any of paragraphs (a) to (c) of subsection (1), the person conducting a rub-down search may require the person being searched—
(a)to remove, raise, lower, or open any outer clothing (including (without limitation) any coat, jacket, jumper, or cardigan) being worn by the person being searched, except where that person has
no other clothing, or only underclothing, under that outer clothing; and
(b)to remove any head covering, gloves, or footwear (including socks or stockings) being worn by that person.
(3) Authority to conduct a rub-down search includes the authority to conduct a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but does not authorise the insertion of any instrument, device, or thing into any orifice of those kinds.
[50] The primary provision governing the use of such searches is s 98(1) which provides:
98 Search of prisoners and cells
(1) An officer may, at any time, for the purpose of detecting any unauthorised item, conduct—
(a)a scanner search of any prisoner:
(b)a rub-down search of any prisoner:
(c)a search of any cell in a prison.
[51] On its face there is no requirement that the person searching have a reason for suspecting contraband. It is an open power arguably susceptible to be used on a routine basis as a deterrent to the possession of unauthorised items. A contrast can be drawn with s 98(3) which limits strip searches to circumstances where reasonable grounds for belief in the existence of proscribed events must exist.
[52] Section 94 concerns the manner in which searches must be conducted, and relevant to this is s 94(2) which states:
(2) A person who carries out a scanner search, rub-down search, or strip search must conduct the search with decency and sensitivity and in a manner that affords to the person being searched the greatest degree of privacy and dignity consistent with the purpose of the search.
[53] The starting point must be that rub-down searches are a method of search authorised by the legislation. The purpose for which they are to be used is identified in the provision (detecting unauthorised items).7 There are, as noted, no other limits
7 It is not necessary to consider whether s 98(1) constitutes the only purpose for which these searches may be used.
such as the requirement for reasonable suspicion or belief before a search is undertaken. It follows that the fact that Mr X was the subject of a rub-down search cannot of itself be an issue.
[54] Nor is there evidence that would suggest a s 23(5) concern in relation to how the searches were carried out. Mr X’s evidence is that there are differences in how it is done, and how he experiences them. However, there is neither a pleading nor an identification of instances that could of themselves be considered problematic. It follows that the present challenge is related to the number of searches. In this regard the overall number of searches is directly a product of the length of time Mr X was in custody. The more immediate relevant focus is on the four-a-day figure.
[55] As has been noted, the four searches are a product of the two trips outside the unit that were required in order for Mr X to have his medication. The evidence is that the number of prisoners affected by this is quite low (10 to 12) and is determined by those who need to be administered restricted drugs. I accept it is possible that if the rules around distribution of these drugs were arbitrary or capricious, then given it would be known that the method necessitated this number of rub-down searches to which Mr X has been subject, a breach of s 23(5) might have ensued.
[56] The evidence establishes the obvious, namely, that care is needed in prison (and elsewhere, of course) around the storage and distribution of medication that involves a controlled drug.8 The Safer Prescribing Guideline issued by the Department does not require distribution from a health centre but notes that “highly tradeable medicine such as [Ritalin] is often administered from the Health Centre”.
[57] Another policy document, the Medicines Management Policy, provides that self-administration of such drugs would only occur in “very rare” situations. It further requires that the drugs are to be stored in a locked cupboard, or controlled drug safe, either of which must be constructed of metal or concrete and securely fixed to a wall or floor.
8 Ritalin is a class B controlled drug under sch 2, Part 2 of the Misuse of Drugs Act 1975.
[58] The evidence establishes that the practice applied to Mr X is applied to all prisoners taking controlled drugs unless their condition renders them incapable of going to the health unit. The policy decision to distribute from the health unit, which is effectively a requirement for the prisoner to come to the drug, is a local prison policy rather than one mandated by national policy. However, as the Safer Prescribing Guideline recognises, it would appear a common policy.
[59] It is not in my view an arbitrary policy in itself, nor is it unreasonable in the case of Mr X specifically. As regards the policy itself, the concern around these drugs in prison is well-founded. The method of administering is directly related to those risks, and the numbers impacted by it are small. The inevitable consequence – a rub- down search, coming and going, does not involve a level of intrusion that undermines the soundness of the policy.
[60] As regards Mr X, he was initially a one-dose-a-day patient, before changing to two doses. Neither prescription, in terms of the rub-down search issue, creates a level of oppressive conduct that would make it necessary for the prison to consider a case- specific alternative. How many doses a day might do so need not be determined, but two required visits, meaning four searches, is not in my view a level at which concern arises.
[61]For this reason I conclude there is no breach of s 23(5).
(c) Finger sweeping
[62] This matter is capable of brief analysis. There was no policy of finger sweeping and the Department does not proffer evidence in support of it. Whether in the case of an ordinary patient it would be a practice of sufficient intrusiveness to constitute a breach of s 23(5) need not be determined. It is in my view clear that in the case of Mr X, requiring him unnecessarily to rub his psoriasis-affected finger around the inside of his mouth each time he took a pill was unpleasant conduct that breached s 23(5). I consider it to be a self-evident conclusion requiring no further analysis. It merits the remedy of a declaration to that effect, since it was inherently degrading conduct, which was not supported by any policy or justification and was in that sense gratuitous.
[63] In addition to a declaration Mr X further seeks monetary compensation which requires consideration of the limits imposed by the Prisoners’ and Victims’ Claims Act 2005 (PVCA). The inquiries required by s 13 of that Act are:
(a)whether the prisoner made reasonable use of internal and external complaint mechanisms but has nevertheless not obtained effective redress; and
(b)whether another remedy or combination of remedies (other than money) can provide redress that is sufficient.
[64] In the present case the context is that Mr X’s complaint, once made, led to immediate cessation of the practice, an in-person apology, and a formal written apology. To that can be added the declaration of breach that I consider should be made. Against that background, the issues that require further determination are:
(a)whether Mr X made reasonable use of complaints mechanisms; and
(b)whether the package of remedies just identified is sufficient redress (no other remedy except money being available).
[65] Mr X says the practice was a regular event since he first went to prison. However, I assume it should be dated from when he started receiving Ritalin in August 2016. That was for a period of two weeks before his release. He returned to prison in May 2018 but only first complained 14 months later on 26 July 2019.
[66] The delay is relevant here for several reasons. Damages are claimed on the basis of the number of occurrences, so obviously delay increases the number. This is particularly significant given the practice ceased as soon as the complaint was made and Ms Whiteford became aware of it. Second, it is clear Mr X is familiar with complaint mechanisms, both internal and external. He wrote, for example, to the Health and Disability Commissioner.
[67] Section 14 of the PVCA provides a number of mandatory relevant considerations:
14 Guiding considerations for awarding of compensation
(1) A court or tribunal must take into account the matters specified in subsection (2) in determining, in proceedings to which this subpart applies,—
(a)whether compensation is required to provide effective redress; and (if it is)
(b)the quantum of an award of compensation required to provide effective redress.
(2) The matters referred to in subsection (1) are—
(a)the extent (if any) to which the plaintiff, the defendant, or both took, within a reasonable time, all reasonably practicable steps to mitigate loss or damage arising from the act or omission on which the claim is based; and
(b)whether the defendant’s breach of, or interference with, the right concerned was deliberate or in bad faith; and
(c)the relevant conduct of the plaintiff; and
(d)the consequences for the plaintiff of the breach of, or interference with, the right concerned; and
(e)the freedoms, interests, liberties, principles, or values recognised and protected by the right concerned; and
(f)any need to emphasise the importance of, or deter other breaches of or other interferences with, the right concerned; and
(g)the extent (if any) to which effective redress in relation to that act or omission has been, or could be, provided otherwise than by compensation; and
(h)any other matters the court or Tribunal considers relevant.
(3) In this section, the right concerned has the meaning given to it by the definition of specified claim in section 6.
[68]Addressing these:
(a)The complaint was unreasonably delayed. The delay matters because the complaint, once made, stopped the practice.
(b)The breach was deliberate in the sense of it was a practice required by one or more nurses who knew his skin condition. The Court cannot
determine bad faith having not heard from the witnesses, but there is no evidence which points to bad faith.
(c)Other than delay in complaint, there is no relevant conduct of the plaintiff.
(d)The consequence for the plaintiff was to experience a repeated practice that involved conduct that was degrading.
(e)The lens through which to assess the breach is that of a search. It would in my view be relatively minor type of search but for Mr X’s skin condition which elevates the unacceptable nature of the conduct. Many would be disgusted by being forced to rub a psoriasis-affected finger around one’s mouth, regularly.
(f)There is no need here to deter, or emphasise the importance of a right. The prison’s response was immediate and appropriate.
[69] I am satisfied the remedies already given and to be given provide effective redress. I am particularly influenced in this conclusion by the direct correlation between delay in complaint and the extent of the breach experienced. I consider Mr X to be aware of his ability to complain. I do not consider the conduct to be sufficiently egregious to require compensation whatever the delay. Imagining a relatively brief number of instances before the practice was stopped, the remedies being proffered other than the money would have clearly been sufficient redress.
[70]If wrong in my conclusion, I address compensation. Mr X sought just over
$25,000 based on a formula of number of occasions times $300. The $300 is taken from cases where compensation has been awarded for strip searches and is assessed as 30 per cent of a $1,000 per strip search figure.
[71] The correctness of the global claim of $25,000 is affected by resolution of the dispute over the number of occasions on which the practice occurred. This in turn revolves around how many nurses were requiring it to be done. As earlier noted, the
evidence does not allow resolution of that. In general, I agree the context is “search”. Strip searching is very different and much more invasive, but 30 per cent is not an unreasonable discount.
[72] Assuming, say, 20 occasions before it could have been stopped by a timely complaint, but recognising the primary fault always rests with those breaching the right, I consider a figure around $5,000 would have been appropriate. The defendant identifies $4,000 to $5,000 as a range often found in cases involving less egregious breaches, and my assessment would coincide with that.9 The figure should reflect it was a particularly unpleasant, albeit fleeting, imposition on Mr X. It is also right to recognise there would inevitably have been a linking in his mind between taking his medication and being subjected to the practice. He would have known taking his medication would involve the required conduct, so a degree of having to live with it on an ongoing basis existed.
[73] To conclude on this, applying PVCA I conclude no further redress other than a declaration is needed. If wrong in that, I would have awarded a global sum of $5,000.
(d) Loudspeaker and druggie comment
[74] I have previously indicated I do not consider the evidence establishes this comparatively low-level unacceptable conduct reached a level of frequency to engage s 23(5) of NZBORA.
[75] Concerning the druggie comment (made, it is said, three times), as soon as complaint was made, there was redress. Staff were immediately told such conduct was unacceptable and should stop. The few number of times it is said to have happened indicates this directive was complied with. It is sufficient redress.
[76] As regards the loudhailer, I do not consider the number of times it may have happened could constitute an issue. Departmental policy is that the reason for the directive should not be given. It is impossible in my view to imagine other inmates
9 Attorney-General v Udompoun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA); Murray v Gebbie [2009] NZAR 630 (HC); and Oosterman v Attorney-General DC Rotorua CIV-2006-063-000385, 1 July 2008.
were being told something they did not already know, and there is no shame anyway in taking medication. I accept there could be a risk in alerting other prisoners to the fact but the evidence does not suggest any pressure was thereby placed on Mr X by other prisoners.
[77] The PVCA would be a difficulty for Mr X on this matter as no complaint was ever made. Monetary compensation would therefore be ruled out but was not anyway a reasonable possibility as appropriate redress.
[78] Neither of these complaints engages s 23(5) nor merits redress beyond that which happened, which was an immediate directive for the improper name-calling to stop.
Alleged breaches of s 21 of NZBORA
[79] The rub-down searches and the finger-sweeping are also pleaded as breaches of the right to be free from unreasonable search. In what is already a sufficiently delayed judgment it is not necessary to address this issue.
[80] Concerning rub-down searches, I have concluded they were not unnecessarily done. What I declined to consider was the lawfulness of the policy those conducting the searches were applying. Without that inquiry, this challenge could not be made out. As pleaded, the unreasonableness was sourced in the number and the reason for the number, being the health centre requirement. These have been addressed.
[81] Concerning finger-sweeping, no further remedy would be appropriate even if the evidence were found to engage a second right. It would remain the same conduct, unacceptable for the same reasons For the record, I note the defendant seeks to argue finger-sweeping would not be a breach because Mr X had not reasonable expectation of privacy. This would mean either it was not a search, or was not an unreasonable search. The lack of expectation of privacy is said to flow from the context of ingesting a controlled drug in a prison setting.
Conclusion
[82] I make a declaration that the requirement for Mr X to sweep the inside of his mouth with a finger affected by skin psoriasis on numerous occasion constitutes a breach of s 23(5) of NZBORA. The requirement was not pursuant to any policy and was not necessary. This conclusion is limited to the particular facts of Mr X.
[83] I find no breach arising from the number of rub-down searches to which Mr X was subject, from the period during which Mr X was not provided Ritalin, the occasions when Mr X was summonsed by the loudspeaker system to attend the front door “for medication” and from the very few occasions a prison officer called him a druggie.
[84] It is not necessary to address claims under s 21 of NZBORA. Concerning the rub-down searches, my earlier conclusions necessarily mean they were not unreasonable. Concerning finger-sweeping, if a breach were found, it would not alter the remedy.
Costs
[85] A large measure of success rests with the respondent. However, a breach of NZBORA as regards the detention of a prisoner, and his treatment within the prison, has been made. I consider part of the appropriate remedy is an award of costs notwithstanding the general lack of success.
[86] Mr X is entitled to a standard award of costs on a 2B basis, subject of course to what his actual costs as a legally aided person are.
Name suppression
[87]Mr X sought name suppression.
[88] He has successfully established that during his time in prison he was subjected to treatment that breached NZBORA. He has now been released from prison and is undertaking a specialist rehabilitation course. The success of that course would be a matter of public benefit. Disclosure of Mr X’s name necessarily involves publication
of his status as a prisoner and aspects of his health. It would not be possible to suppress just the latter since it is the essence of the claim being successful. The alternative would be to suppress the judgment.
[89] I consider the public interest is best served by availability of the judgment rather than the availability of Mr X’s name. I also consider the public interest is best served by encouraging rehabilitation. For these reasons I make an order suppressing the name of the plaintiff.
Simon France J
Solicitors:
John Miller Law, Wellington for Plaintiff
Luke Cunningham Clere, Wellington for Defendant
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