MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3406

MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3406[13 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-001514[2021] NZHC 3406UNDER the High Court Rules and the JudicialReview Procedure Act 2016IN THE MATTER of an application for judicial reviewBETWEEN ANDREW RONALD MacMILLANApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 9 December 2021Appearances: Applicant in personE Watt for the RespondentJudgment: 13 December 2021JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 13 December 2021 at 12:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (E Watt), AucklandCopy to: Applicant[1] The applicant, Andrew Ronald MacMillan, is currently a prisoner at OtagoCorrectional Facility, where he is serving a sentence of life imprisonment. In astatement of claim dated 21 June 2021, and received in the High Court at Auckland on28 July 2021, Mr MacMillan alleges, in essence, that changes to his pain medicationare unlawful.[2] The specific orders sought by Mr MacMillan in the statement of claim are:(a) That the directions of three other prison doctors be counted for, andlistened to over, one.(b) That a direction from ACC Pain Clinic be obtained.(c) That the respondent must offer a fair and reasonable pain managementwith medication that is proven to work.[3] In subsequent written submissions, Mr MacMillan seeks damages of $11,000and Court costs of $1,550 for what he says are breaches of the Department ofCorrections Medicine Management Policy, Articles 5 and 25 of the UniversalDeclaration of Human Rights (UDHR) and Rule 30 of the Nelson Mandela Rules(NMR).[4] The respondent Chief Executive of the Department of Corrections says that:(a) The decisions made about Mr MacMillan's pain medication are notreviewable, as there is no relevant statutory power of decision orexercise of public power.(b) Further, in the event that the Court finds that a reviewable decision wasmade, that decision was made lawfully, and appropriately.(c) Finally, the relief sought by Mr MacMillan is not available.Factual background[5] Mr MacMillan was sentenced to life imprisonment in 1998. He was releasedon parole on 1 July 2020 and recalled on 2 September 2020 to continue to serve hissentence of life imprisonment. Mr MacMillan suffers pain in his right arm, back andneck as a result of a car accident many years ago. It appears that Mr MacMillan wasprescribed dihydrocodeine (DHC) as a medical response to his chronic pain at somepoint in 2007. DHC is an opiate, and a form of codeine that releases over time.Mr MacMillan acknowledges that he has "gone off it and back on it" over the years asit loses its effectiveness. He said: "you have to be realistic" as you can only take somuch "before all it's doing is nothing".[6] On 1 July 2020, when Mr MacMillan was released on parole, he was prescribedtwo DHC 60 mg to take in the morning and two at night. Mr MacMillan's complaintis that, following his recall to prison on 2 September 2020, this pain medication hasnot been re-prescribed.Medical treatment in prison[7] Section 75(2) of the Corrections Act 2004 requires that the standard ofhealthcare that is available to prisoners in a prison must be reasonably equivalent tothe standard of healthcare available to the public.[8] The Department of Corrections has published a Medicines Management Policy(Policy),1 which was last updated in April 2018. Mr MacMillan complains, inparticular, of a breach of para 8.8. It provides:8.8 In the first instance prescribers will prescribe a clinically safealternative to medicines that are known to be misused or traded. Ifthere is no safe or effective alternative, the prescriber is responsible totake reasonable steps to ensure the patient themselves will take themedicine as it is prescribed. For example, where possible prescribingthe medicine in a liquid formulation or ordering tables to be crushedfor administration.[9] Drawing on the Policy in February 2021, the Department of Corrections issueda guidance document for clinicians prescribing medications in the New Zealand prison1 Corrections Health Services "Medicines Management Policy" (April 2018).environment entitled "Safer Prescribing Guidelines" (Guidelines).2 As to therequirement that treatment provided in prisons must be reasonably equivalent to thestandard of healthcare available to the public, the Guidelines state:4 Standard of Health CareThis equivalence is fundamental, but equivalence does not have to imply'sameness'. Prisons are complex environments with challenging populationsand in providing equivalence some areas of health delivery are adapted tomitigate risk. The choice of medication is one area where clinicians who workwithin prisons need to consider equivalence carefully. The primaryresponsibility is for the patient to be prescribed the most effective clinicallyindicated medication, however, there is a responsibility to consider anyenvironmental risks that may be present.[10] Prescription of controlled substances, in particular, is complex in a prisonenvironment. One challenge is the prevalence of substance use disorders and mentalhealth disorders in the prison population. Another challenge is the potential forpatient's misuse of prescribed medication within prisons. Some medications acquirea commodity value and are often traded.[11] As to the prescription of opiates, the Guidelines state:21 PainPrescribers should be acutely aware of the problems associated with analgesiaabuse and dependence. The main area of concern is opiate based analgesia.There is seldom an indication for opiates to be used in the treatment of non-cancer chronic pain.Analysis[12] The respondent Chief Executive of the Department of Corrections has filedextensive affidavit evidence regarding Mr MacMillan's medical treatment in prison.It is, however, unnecessary for me to traverse such evidence as it is my view that thedecision not to prescribe DHC is not a reviewable decision. At the hearing before me,Mr MacMillan accepted that a Court could not direct a doctor to prescribe or notprescribe medication. It is nevertheless useful to explain why.2 Department of Corrections "Safer Prescribing Guidelines: Guidance for Clinicians" (February2021).[13] Judicial review is the exercise of a High Court's inherent jurisdiction to rule onthe legality of public acts. While the Judicial Review Procedure Act 2016 (the Act)provides procedural provisions to assist in the efficient determination of applicationsfor judicial review, it does not create the Court's jurisdiction. The Act provides theprocedures which enable the review of the exercise, failure to exercise, or purportedor proposed exercise of a statutory power. The meaning of statutory power is set outin s 5 of the Act. It provides:5 Meaning of statutory power(1) In this Act, statutory power means a power or right to do any thingthat is specified in subsection (2) and that is conferred by or under—(a) any Act; or(b) the constitution or other instrument of incorporation, rules, orbylaws of any body corporate.(2) The things referred to in subsection (1) are—(a) to make any regulation, rule, bylaw, or order, or to give anynotice or direction that has effect as subordinate legislation;or(b) to exercise a statutory power of decision; or(c) to require any person to do or refrain from doing anythingthat, but for such requirement, the person would not berequired by law to do or refrain from doing; or(d) to do anything that would, but for such power or right, be abreach of the legal rights of any person; or(e) to make any investigation or inquiry into the rights, powers,privileges, immunities, duties, or liabilities of any person.[14] The meaning of statutory power of decision in s 5(2)(b) is further set out in s 4as:4 Interpretationstatutory power of decision means a power or right conferred by or underany Act, or by or under the constitution or other instrument of incorporation,rules, or bylaws of any body corporate, to make a decision deciding orprescribing or affecting—(a) the rights, powers, privileges, immunities, duties, or liabilitiesof any person; or(b) the eligibility of any person to receive, or to continue toreceive, a benefit or licence, whether that person is legallyentitled to it or not.[15] Notwithstanding the origin of this review power in the inherent jurisdiction ofthe Court, and the broader non-technical approach to be taken to the determination ofwhat decisions can be reviewed, the jurisdiction has its limits.[16] In this case, Mr MacMillan does not specify a reviewable exercise, failure toexercise, or a proposed or purported exercise of a statutory power by the ChiefExecutive of the Department of Corrections. Instead, he points to the decision ofDr Gamal El Din to decline to prescribe him DHC and/or his failure to prescribealternative pain management medication which was effective. The alternativemedication prescribed was Ibuprofen (a non-steroidal anti-inflammatory drug) andNortriptyline (a medication used to treat neuropathic pain). This was a clinicaldecision in relation to prescription, made by an independent medical doctor. It is nota decision which derives from a statutory power, and it is not a public decision, evenwhen made in a prison environment.[17] In Shortland v North Health Ltd (No 1), Salmon J held that clinical decisionsof doctors made in good faith are not reviewable:3There is no suggestion that the respondent's medical staff are acting in badfaith. That being the case, they must be allowed to act in accordance withtheir clinical judgment. It is totally inappropriate for the Court to attempt todirect a doctor as to what treatment should be given to a patient. It must beremembered that the respondent is not refusing to treat this patient. Rather, itis exercising a professional judgment through its medical staff as to theappropriate treatment to adopt.[18] I agree. In any event, I am also of the view that the decision of Dr Gamal ElDin to decline to prescribe DHC to Mr MacMillan was based on his clinicalassessment and on best practice. The clinical decision not to prescribe DHC toMr MacMillan was reasonable, and in line with the Guidelines. It was an appropriatemedical decision in line with medical best practice, both within prisons and in thecommunity.[19] Both in prisons and the community, opiate-based pain relief such as DHC isnot clinically indicated for non-cancer chronic pain. DHC is a drug of concern withinprisons and categorised as a "red" medicine in the Guidelines. Red medicines are3 Shortland v North Health Ltd (No 1) HC Auckland M 75-97, 20 September 1997 at [13].generally considered inappropriate in prisons as the risk of misuse and potential harmis considered unacceptably high, and to outweigh any benefit. This is particularlypersuasive where there are safer and equally effective alternative medicationsavailable.[20] On 14 October 2020, the decision by Dr Gamal El Din not to prescribe DHCwas reviewed by the Prison Inspectorate and an Inspector was satisfied that themanagement of Mr MacMillan was appropriate. Mr MacMillan was also seen by asecond doctor, Dr O'Neill, on 12 August 2021, who confirmed that long term opioidsare not appropriate treatment for non-cancer chronic pain such as Mr MacMillan's.Dr O'Neill discussed alternative treatments and increased or altered Mr MacMillan'sprescription for other pain management medications. He increased the dosage ofNortriptyline and swapped the Ibuprofen for Diclofenac (another non-steroidal anti-inflammatory drug). Dr O'Neill also made a referral to the ACC pain specialist clinic,which subsequently refused the referral.[21] Finally, the nature of the relief sought by Mr MacMillan is not available onjudicial review. If an actionable error of law was identified, the appropriate remedywould be a direction that the relevant decision-maker make a fresh decision consistentwith the law. As a matter of fact, this has functionally occurred. Mr MacMillan wasseen by Dr O'Neill on 12 August 2021 and 2 September 2021, for a review of his painsymptoms. Additionally, the claim also invites the Court to supervise, and intervenein, operational decisions with respect to a particular prisoner. Mr MacMillan's careand management plan is not static. Rather, as with all prisoners, it is under constantreview. A direction to prescribe DHC to Mr MacMillan would, in the absence of veryclear facts, risk straying into a court assessment of the merits of a specialised field ofexpertise. Medical professionals cannot be compelled to treat patients in a mannerinconsistent with their clinical judgment.[22] In addition to para 8.8 of the Policy (above at [8]), Mr MacMillan relies onwhat he says are breaches of Articles 5 and 25 of the UDHR and Rule 30(a) and (c) ofthe NMR to claim damages and costs.[23] Articles 5 and 25 of the UDHR provide:Article 5No one shall be subjected to torture or to cruel, inhuman or degradingtreatment or punishment.Article 251. Everyone has the right to a standard of living adequate for the healthand well-being of himself and of his family, including food, clothing,housing and medical care and necessary social services, and the right tosecurity in the event of unemployment, sickness, disability,widowhood, old age or other lack of livelihood in circumstances beyondhis control.2. Motherhood and childhood are entitled to special care and assistance.All children, whether born in or out of wedlock, shall enjoy the samesocial protection.[24] Rule 30 of the NMR (formerly known as the United Nations StandardMinimum Rules for the Treatment of Prisoners) provides:Rule 30A physician or other qualified health-care professionals, whether or not theyare required to report to the physician, shall see, talk with and examine everyprisoner as soon as possible following his or her admission and thereafter asnecessary. Particular attention shall be paid to:(a) Identifying health-care needs and taking all necessary measures fortreatment;(c) Identifying any signs of psychological or other stress brought on bythe fact of imprisonment, including, but not limited to, the risk ofsuicide or self-harm and withdrawal symptoms resulting from the useof drugs, medication or alcohol; and undertaking all appropriateindividualized measures or treatment.[25] The UDHR and the NMR are declaratory only. In any event, the respondent isnot in breach of any of these standards. The respondent has undertaken substantialand continuing engagement with Mr MacMillan about his pain management.Mr MacMillan has also been referred to the pain clinic at Waikato Hospital in 2010and 2012 while at Spring Hill Correctional Facility and to the pain clinic at BurwoodHospital in 2016 while at Rolleston Correctional Facility. ACC has declined a referralto its pain clinic, but the respondent has recently referred Mr MacMillan to the painclinic at Otago Hospital for a further assessment.[26] The 2010 report from the pain clinic at Waikato Hospital noted thatMr MacMillan had been requesting more codeine, which was not supported due to therisk that Mr MacMillan could become opioid dependent. The 2012 reportrecommended that Mr MacMillan be weaned off codeine slowly over time. The 2016report acknowledged that medication is of no significant benefit for most patients withchronic pain, and that many patients struggle to accept this fact. The report advisedthat chronic pain patients should only use medication if it was effective. The samereport recorded that Mr MacMillan was then taking four different analgesics, andadvised he test which ones, if any, were actually effective for him personally, whetheralone or in combination, by stopping each analgesic in turn and resuming it only if hispain significantly worsened as a result.[27] This is where Mr MacMillan's claim that the respondent has breached his rightsto "safe and effective" treatment for his chronic pain falls down. There may well beno medication that is safe and effective. However, the respondent continues to engagewith Mr MacMillan to try and formulate a treatment plan which will offer him somerelief. Therefore, Mr MacMillan's rights have not been breached and there is no basisfor an award of damages or costs.Result[28] The application for review is dismissed.____________________________Woolford J