MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2320

MacMILLAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2320[6 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1514[2021] NZHC 2320UNDER the High Court Rules and the JudicialReview Procedure Act 2016IN THE MATTER of an application for interim injunction andan application for judicial reviewBETWEEN ANDREW RONALD MacMILLANApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 1 September 2021Appearances: Applicant in personS Kinsler and A-R Davies for the RespondentJudgment: 6 September 2021JUDGMENT OF GAULT JThis judgment was delivered by me on 6 September 2021 at 3:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarParties / Solicitors:The ApplicantMr S Kinsler and Ms A-R Davies, Meredith Connell, Wellington and Auckland[1] Mr MacMillan, a serving prisoner, has commenced judicial review proceedingsagainst the Chief Executive of the Department of Corrections and seeks interim ordersrelating to his medical treatment.Factual background[2] Mr MacMillan is in custody at the Otago Correctional Facility, having beenrecalled in 2020 to serve a sentence of life imprisonment.[3] Mr MacMillan has been on pain medication due to an injury many years ago.While in custody, from at least 2016 until his release in 2019, he was prescribed DHC.1He was also given this medication on his release.2[4] Mr MacMillan's complaint is that, following his recall to prison, this painmedication has been removed. The doctor responsible had previously removed thesame medication from Mr MacMillan in 2010–2011, whereas other prison doctorshave prescribed it.[5] Mr MacMillan says this medication works and the effects of not having it arethat he wakes up three to four times a night from pain, has trouble wiping his bottom,cannot use his right arm to wash himself, it hurts to dress himself and tie his shoelaces,repetitive motion such as writing causes pain and he suffers from anger anddepression. His right shoulder, neck and upper arm hurt so much that his whole rightarm is becoming redundant. He has woken at night crying from the continuous pain.He says the sleep deprivation is like torture.Grounds of review[6] Mr MacMillan claims that his medical treatment is in breach of his humanrights. In particular, he refers to Articles 5 and 25 of the Universal Declaration ofHuman Rights,3 which provide:1 Dihydrocodeine, a form of codeine that releases over time. Mr MacMillan was first prescribedDHC in 2007.2 It appears Mr MacMillan was recalled in mid-2020, and released again on parole on 1 July 2020,and was prescribed DHC over this period. He was recalled on 3 September 2020.3 Universal Declaration of Human Rights GA Res 217 A(III) (1948).Article 5: No one shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment.Article 25: Everyone has the right to a standard of living adequate for thehealth and well-being of himself ... including medical care [7] He also claims a breach of r 30 of the United Nations Rules known as theNelson Mandela Rules,4 which provides:A 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 by thefact of imprisonment, including, but not limited to, the risk of suicide or self-harm and withdrawal symptoms resulting from the use of drugs, medicationor alcohol; and undertaking all appropriate individualized measures ortreatment;[8] At the hearing, Mr MacMillan also submitted that the respondent had removedDHC (an opiate) on the basis of its policy relating to misuse of medication, but misusecould be addressed by ensuring the medication was swallowed. In any event,he submitted that the policy required a suitable alternative medication to be provided,which had not occurred.Respondent's position regarding medical treatment[9] The respondent acknowledges that the Corrections Act 2004 provides that thestandard of health care available to prisoners must be reasonably equivalent to thatavailable to the public,5 but notes that the Department of Corrections Safer PrescribingGuidelines released in February 2021 state that:64 United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)GA Res 70/175 (2015).5 Corrections Act 2004, s 75.6 Department of Corrections Safer Prescribing Guidelines: Guidance for Clinicians (February2021) at 7.This 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] DHC is classed as "red" in the Safer Prescribing Guidelines,7 meaning that itis generally considered inappropriate to prescribe such medications in prisons becausetheir misuse potential and potential for harm is considered unacceptable and greaterthan the benefit, and there are potentially safer and equally effective alternativemedications available. The Guidelines deal specifically with prescription of opiates.[11] In relation to Mr MacMillan's treatment, the respondent's position is that,consistent with a recommendation years ago, since Mr MacMillan's recall a treatmentplan has been put in place to wean Mr MacMillan off DHC. Mr Kinsler, for therespondent, submitted that Mr MacMillan's pain has been addressed appropriately bymedical staff at Corrections, and that medical decisions not to prescribe Mr MacMillanDHC are in line with the Guidelines and medical best practice.Interim orders sought[12] Mr MacMillan's interlocutory application seeks the following orders:(a) An urgent injunction ordering the respondent to revisit past medicationsthat worked, as to give the applicant a chance to have a quality of life.(b) An independent pain review from a pain clinic.(c) To have a report done on the health and mental health implications ofbeing in pain 24/7.7 Department of Corrections Safer Prescribing Guidelines: Guidance for Clinicians (February2021) at 41.(d) Damages of $1,000 a month, for the breach of [Mr MacMillan's] humanrights, Articles 5 and 25, and breach of Nelson Mandala Rules ofConfinement, 30(A) and (B) [sic].[13] As I explained to Mr MacMillan at the hearing, any issue of damages is for thesubstantive hearing, not interim relief.Approach to interim orders[14] Section 15 of the Judicial Review Procedure Act 2016 provides:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.(3) However, if the Crown is a respondent,—(a) the court may not make an order against the Crown undersubsection (2)(a) or (b); but(b) the court may, instead, make an interim order—(i) declaring that the Crown ought not to take any furtheraction that is, or would be, consequential on theexercise of the statutory power:(ii) declaring that the Crown ought not to institute orcontinue any proceedings, civil or criminal, inconnection with any matter to which the applicationrelates.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[15] Interim orders under s 15 can be granted when the applicant has a position topreserve and the circumstances justify the grant of interim relief. If the Court issatisfied that an interim order is reasonably necessary to preserve the position of theapplicant, the Court has a wide discretion to consider all the circumstances of the case,including the apparent strengths or weaknesses of the applicant's claim for review, andall the repercussions, public and private, of granting interim relief.8Discussion[16] Necessity to preserve the applicant's position is the statutory threshold beforethe discretion can be exercised to grant relief. Section 15 also prescribes the kind ofinterim orders that may be made. Thus, three questions arise. First, is an interim ordernecessary to preserve Mr MacMillan's position? Secondly, are the orders sought ofthe kind that may be made under s 15? Thirdly, should the discretion to grant interimorders be exercised in all the circumstances?[17] Mr Kinsler referred to Reekie v Chief Executive of the Department ofCorrections,9 where a similar issue arose. Among other things, the applicant in thatcase was seeking to have a medication regime to which he was previously subjectimmediately reinstated. Ellis J considered that the issue was not susceptible to themaking of interim orders as the applicant did not seem to have a relevant position tobe preserved.10 I note that the medication issue in that case had been partly resolvedby a change of dosage, whereas here Mr MacMillan says that the decision of oneprison doctor to remove DHC is inconsistent with the decisions of other Correctionsdoctors and no suitable alternative has been proposed.8 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at[3], citing Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at430 per Cooke J.9 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412, [2012] NZAR775.10 At [23].[18] Even assuming that Mr MacMillan has a position to preserve in the sense of anentitlement to suitable pain medication, the interim orders sought are not of the kindthat may be made under s 15. The relevant interim orders that may be made are limitedto prohibiting a respondent from taking further action consequential on the exercise ofthe statutory power. As Mr Kinsler submitted, there is no action presently beingproposed by the Crown that is consequential on the exercise of the statutory powerthat the Court can declare that it should not take. In that sense, this case is similar toReekie.11 This is not an "extraordinary" case in which the court could possibly makemandatory interim orders.12[19] Judicial review is about lawful decision-making. The Court's role is not tosecond-guess decisions which involve judgement and, in this case, clinical expertise.Even at a substantive hearing, the appropriate remedy, if treatment decisions werefound to be unlawful, would be to require the relevant decision-maker to reconsiderthe impugned decision in accordance with law. Mr MacMillan cannot obtain by wayof interim orders relief that he could not obtain at a substantive hearing.[20] Finally, Mr Kinsler advised that Mr MacMillan is to receive a second opinionfrom a new clinician, Dr O'Neill, who is now to report by 16 September 2021following a delay due to the COVID-19 lockdown (an appointment was scheduled for19 August 2021). As well as considering reinstatement of DHC, that review willinclude consideration of whether referral to an independent specialist pain clinicshould be recommended (with the decision about such referral to be made by ACC/theDHB rather than Corrections).[21] For these reasons, I consider that the interim orders sought are unnecessary andbeyond the scope of s 15.Result[22] The application for interim orders is dismissed.11 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412, [2012] NZAR775 at [19].12 At [20].[23] If an issue as to costs arises, it may be dealt with by brief memoranda and I willdetermine it on the papers.________________________________Gault J