X v ATTORNEY-GENERAL [2022] NZHC 1531

X v ATTORNEY-GENERAL [2022] NZHC 1531 [30 June 2022]NOTE: THE NAME OF THE PLAINTIFF ISPERMANENTLY SUPPRESSEDIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-362[2022] NZHC 1531UNDER a claim for compensation and declarationunder the New Zealand Bill of Rights Act1990 and Corrections Act 2004BETWEEN XPlaintiffAND THE ATTORNEY-GENERAL (SUED INRESPECT OF THE DEPARTMENT OFCORRECTIONS)DefendantHearing: 17 and 18 March 2022Counsel: S J Fraser for PlaintiffD P Neild and V M Rea for DefendantJudgment: 30 June 2022JUDGMENT OF SIMON FRANCE J[1] Mr X was a serving prisoner at Christchurch Men's Prison (CMP) between5 December 2016 and 2 February 2022.1 In the proceeding he claims that variousactions towards him constitute breaches of s 23(5) of the New Zealand Bill of RightsAct 1990 (NZBORA) which provides that persons deprived of their liberty have theright 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.[2] The conduct claimed to have occurred and to constitute a breach of thisprovision includes:(a) a period in which Mr X was deprived of access to Ritalin as treatmentfor his ADHD;(b) being summonsed over a loudhailer to come for his medication, thebreach being embarrassing him in front of other prisoners andidentifying 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 takemedication (twice a day) involved leaving his unit, which wasaccompanied by a mandatory rub-down search on leaving and onreturning; and(e) having taken his pill, being required to run his finger around his gumsinside the mouth to show the pill had been swallowed. Mr X suffersfrom a skin condition which made this alleged unlawful requirementmore unpleasant.Facts[3] There is little dispute over what occurred. The Court heard evidence fromMr X, and from several persons connected to the prison: Mr Wood who is operationssystem advisor at CMP, Ms Whiteford who is health centre manager at CMP andMs 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 senseof grievance and a keen sense of his rights and entitlements. This colours the lensthrough which he views and recalls events. As I say, however, I do not consider hewas 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 wastaking Ritalin pursuant to a prescription. The prison declined to continue thecontrolled drug until its own medical assessors prescribed it.[6] Mr X was immediately referred to Forensic Psychiatric Services. In theinterim, 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 cessationthen 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 oneweek after initial arrival, but he had to go to court that day. It was rescheduled for19 December when he did meet with a person described as a forensic nurse. Theevidence establishes this person works with the psychiatrists.[8] Mr X's medical notes contain a summary of the meeting which was laterwritten up into a full report. The report traverses Mr X's history, including hisdiagnosis of ADHD persisting into adulthood. It is noted X reported that he haddifficulty with concentration since coming off the medication. The report writer notesMr X's presentation as calm with no restlessness or irritability. His mood wasappropriate and during the interview there were no apparent difficulties with attentionor concentration. The report concluded:At interview today, he reported some difficulties with restlessness,concentration and sleep which he attributed to cessation of medication sincearrival in custody. He appears to be adjusting to the prison environmentwithout significant difficulty. There was no evidence today at interview ofany major mood disturbance or symptoms of psychosis. There were no acuteconcerns with regards his risk to self. [Mr X] will not require follow-up bySpecialist Mental Health Services at this time.Plan[Mr X] was discussed with the prison MDT. He is to be discharged to theprison GP for follow-up. [Mr X] has been advised to discuss his medicationswith the prison GP.[9] It is common ground that it would be Forensic Services who would have toprescribe Ritalin. The absence of that recommendation in this report meant Mr Xcontinued 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. Thedoctor noted he had emailed Forensics for advice as there was evidence of depressionbecause 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 hismood, rather than simply prescribe Concerta [an alternative brand of the samedrug as Ritalin].[11] In June 2017, so some six months after he entered prison, Mr X made acomplaint to the Health and Disability Commissioner about a number of mattersincluding that he was not receiving Ritalin. Later in June Mr X met with Ms Whitefordto discuss the matters in his letter of complaint. At the end of July the Departmentresponded to the Health and Disability Commissioner. Concerning this topic, it wasnoted that since several months had passed since the last assessment, Ms Whitefordhad requested Forensic Psychiatric Services to review the situation.[12] The meeting with Forensic Psychiatric Services occurred on 10 August 2017and resulted in a prescription for Ritalin (one dose). Two weeks later Mr X wasreleased from custody. The decision-making process around this decision to prescribe,as understood and described by Ms Whiteford in her oral evidence, was notconvincing. It seems that the GP who saw Mr X in April had followed up with Mr X'scommunity provider prior to his imprisonment. Through this, the name of thepsychiatrist who prescribed Ritalin before Mr X went to prison was identified, and acopy of that prescription – called an authority because it is a controlled drug – wasobtained. Ms Whiteford understands that the restarting of Ritalin in August was basedon this old prescription, and was not the product of a revised assessment by those whohad seen Mr X since his time in prison.[13] As noted, Mr X left prison in August 2017, only to return in May 2018. On18 June he was again prescribed Ritalin (two doses). It seems that during his time ofrelease, and not long prior to returning to prison, Mr X had been seen by the samepsychiatrist whose initial assessment had previously been reactivated by the prison inAugust 2017. That psychiatrist had continued the Ritalin, and the prison accepted thisand renewed supplying it to Mr X.[14] The other aspect of Mr X's Ritalin complaint concerned the timing of when itwas provided to Mr X during the day. Mr X, and Ms Whiteford, believed the drugrequired a gap of five hours between doses. Mr X described the logistical difficultiesof this in prison, and how he found it stressful. He complained that some he was givenon less than a five hour gap. It was noted at the hearing, however, that the prescriptionactually required only a four-hour gap, a period consistent with the data sheet forRitalin. The source of the erroneous five hour understanding is not clear, but it wasan 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 anycontrolled 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 theirunit.[16] The effect of these arrangements was that Mr X had to leave his unit to go tothe health centre. For Mr X this was one visit a day initially when on one dose andtwo visits a day after his return in May 2018 when on two doses. Prison regulationsrequire 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 daythroughout 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 oftime and how it is experienced by the prisoner can depend on the particular officerdoing 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 insidetheir mouth and rub it around to indicate there is no pill being held in the mouth ratherthan swallowed. Opinions may no doubt vary on how intrusive or not that is in theordinary course of events. However, there is no doubt the situation is somewhatdifferent for Mr X.[20] Mr X has psoriasis and has had for some time. It affects his hands, and part ofthe arrangements in prison to accommodate his condition is the provision of gloves.This finger-sweeping requirement was therefore a more difficult experience for Mr Xthan it would be for most. In my view, even if finger sweeping were normally anacceptable practice, there would have been a need to consider its appropriateness forMr X because of his condition.[21] As it happens, however, it is not a normal or recommended practice. When itwas brought to the attention of Ms Whiteford, she sought input from Head Office andthen shortly after a message was conveyed to staff that it was a practice that was tostop. That is what occurred and it has not been repeated since.[22] A matter of dispute between the parties was the prevalence and frequency ofthe practice. For the purposes of the litigation Ms Whiteford made inquiries of nursesworking at the health centre at the relevant times. She identified that there was onlyone nurse who required the finger sweep. Ms Whiteford then analysed the rosters ofthat nurse as they coincided with Mr X. Her conclusion was that it would haveoccurred around 69 times.[23] Mr X disagreed, saying it was more regular than this. In oral evidence henamed three other nurses in addition to the one identified by Ms Whiteford whorequired the finger sweep. Ms Whiteford confirmed they were among the nurses shehad spoken to when preparing her evidence. It is not a dispute the Court can resolvewithout hearing from the people involved. It is not crucial in my view in that it is atleast 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. Therewas then a formal letter of apology and a further email to the health team confirmingit was not to occur.[25] In his brief of evidence Mr X also took objection to having to open his mouthhaving taken the pill for the nurse to check the pill has been swallowed. He describesit as degrading.[26] This is not a pleaded breach of s 25 of NZBORA but does I consider indicatea degree of unreality that pervaded aspects of Mr X's evidence. "Diversion" ofmedication is a real issue in prisons. It is the practice of prisoners supplying theirprescribed medicines to other inmates. It presents safety risks on many levels – to theperson not taking their prescribed medicine, to the person taking a non-prescribedmedicine, and to staff who must deal with the impacts of such practices. Mr X hashad 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 ofviewing an open mouth is authorised policy and understandable. I was left unclearwhether 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 inferencebased on the whole of his evidence. It led one of the department witnesses to commentin response that it is not possible to draft prison rules around an assumption ofcompliance.(d) Loudspeaker and druggie comment[28] Neither of these matters is capable, in my view, of seriously engaging withs 23(5). The descriptions will therefore be brief.[29] In larger units where many prisoners are mingling in an area, communicationover a loudspeaker can be required. There is a dispute over how Mr X was summonsedfor his appointments. This would occur in relation to the middle-of-the-day pill takingrather than the early morning medication since Mr X was for those occasions takenfrom 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 itpossible the objected-to statement was sometimes used. Identifying the reason in suchcircumstances can be instinctive so is likely to sometimes have happened. It is difficultto imagine, given the appointment was every day, that other inmates were unaware ofthe reason Mr X was being called. Although it probably happened on occasions, I alsoaccept it was prison policy not to identify the reason.[31] The second complaint is that on occasions, perhaps three times, officersaccompanying Mr X to the health centre called him a druggie. Mr X complained tothe prison authorities. An email was immediately sent to staff saying it wasinappropriate and to stop.Relevant law[32] The key authority is Taunoa v Attorney-General3 which considered in somedepth the relationship between s 23(5) and s 9 of NZBORA, the latter of whichidentifies the right not to be subjected to torture or to cruel, degrading ordisproportionately severe treatment. Section 9 captures conduct at the morereprehensible end of the spectrum.[33] The following passage from Butler and Butler summarises the requiredapproach:4The 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 lessreprehensible, but is still unacceptable in New Zealand society. It is conductthat 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 thecircumstances but not grossly so. Insofar as s 23(5) is concerned it isimportant to note that a breach of the minimum legislative requirementsapplicable to detainees does not automatically mean that there has also been abreach of s 9 or s 23(5). Section 23(5) requires an evaluative exercise, havingregard to the conditions under which the inmate is held, the extent to whichthese diverge from the conditions which ought to have applied if there hadbeen compliance with the legal requirements, and, in some circumstances, the2 In evidence-in-chief Mr X said it happened twice a day. In re-examination he talked of beingwoken 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, LexisNexis, 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 whichto measure the humane treatment of a detainee. But equally technical breachof 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) willvary according to the nature of the conduct said to constitute the breach. As Ellis Jnotes in S v Attorney-General5, some conduct will self-evidently be inconsistent withdignity or the humanity of the detainee and a single instance may suffice to constitutea 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 whetherit is policy-driven conduct or a departure from the same, and whether it has beencondoned. The circumstances will necessarily dictate the factors to the particularevaluation required but a constant is that there need not be an intention to cause harmor 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 enteredprison but it was immediately stopped;(b) the statement of the first GP who assessed Mr X that "Ritalin would notbe scripted here"; and(c) the fact that Ritalin was provided soon after he made a complaint to theHealth 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 Ritalinbecause of a wider policy of opposition at CMP to having controlled drugs like Ritalinin 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. Noris 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 duringthe period. For example, the community prescriber whose prescription was stoppedcould have been a potential witness. The only evidence on the point is Mr X'sassertion that he should have had it and needed it. Conversely there are a number ofmedical 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 sustainingthe 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 ofpossibly 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 haveRitalin. It was noted as an issue at the outset. A timely appointment was arrangedwith the group who could prescribe it. That group assessed the drug as not beingrequired. The subsequent interventions by general practitioners all addressed the issueand considered whether a further assessment was required. And after an appropriateperiod, Mr X was referred for further assessment.[42] This final referral coincided with the prison response to Mr X's complaint tothe Health and Disability Commissioner. It may have been, as submitted, a reactiveresponse to the complaint, but this would not make the process followed to that pointany less appropriate. Whether the referral would have occurred otherwise cannot beknown. The reality is that there was a referral, and it concluded a procedure that wasin my assessment appropriate.[43] A hesitation about the correctness of this analysis comes from the Department'sSafe Prescribing Guideline. After noting that new inmates may have their prescriptionreviewed, the Guideline continues:It is good practice and expected that the methylphenidate is continued in theinterim until the review is complete.[44] There was no clear explanation as to why this did not occur with Mr X, butperhaps the initial comments of the GP do explain it. However, a referral to ForensicPsychiatric 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 inquestion is less than two weeks. At that stage one again returns to the absence of anyevidence to say in fact Mr X needed to have the drug in that period. For that reasons 23(5) is not in my view engaged. It was at most a short-term flaw in process withno established consequence.[45] The claim concerning the non-provision of Ritalin fails on the facts and nofurther 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 atCMP meant Mr X had to leave his unit to get it. Movement in and out of a unitautomatically triggers the undertaking of a rub-down search. That means for Mr Xthat during his first period in prison it was two searches a day, and for the secondperiod, 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 alsos 21 (freedom from unreasonable searches). On the face of the pleading it appearedthe objection was to the number of such searches, and the fact that the cause of thenumber was CMP's method of controlled drug administration. In oral argument,Mr Fraser advanced a separate argument that the requirement under the PrisonOperations Manual for rub-down searches to be done each time a prisoner leaves andreturns to a unit is an unlawful fettering of the search power. Mr Neild objected to thisargument on the basis it was neither pleaded nor flagged, and the defendant wouldhave led evidence concerning the rationale for the rule, and how it is expected to beenforced, had the challenge be known.[48] I consider it is a legitimate objection. The particular rule identifies onesituation in prison life where a rub-down search is required. It does not cover all thepossible situations for rub-down searches. A challenge to its legitimacy needed to beproperly pleaded or at least clearly flagged. The disadvantage is not just to thedefendant but to the Court which is being asked to consider the legitimacy of animportant rule without the necessary evidence, including the correct witnesses to speakon such wider policy matters (rather than giving evidence on a specific prison policyto which they are connected), and without full submission. Accordingly, the searchissue 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 aclothed person in which the person conducting the search may do all orany 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 personbeing 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 ofparagraphs (a) to (c) of subsection (1), the person conducting a rub-downsearch 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) beingworn by the person being searched, except where that person hasno other clothing, or only underclothing, under that outer clothing;and(b) to remove any head covering, gloves, or footwear (including socksor stockings) being worn by that person.(3) Authority to conduct a rub-down search includes the authority to conducta visual examination (whether or not facilitated by any instrument ordevice designed to illuminate or magnify) of the mouth, nose, and ears,but does not authorise the insertion of any instrument, device, or thinginto any orifice of those kinds.[50] The primary provision governing the use of such searches is s 98(1) whichprovides:98 Search of prisoners and cells(1) An officer may, at any time, for the purpose of detecting any unauthoriseditem, 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 forsuspecting contraband. It is an open power arguably susceptible to be used on a routinebasis as a deterrent to the possession of unauthorised items. A contrast can be drawnwith s 98(3) which limits strip searches to circumstances where reasonable groundsfor belief in the existence of proscribed events must exist.[52] Section 94 concerns the manner in which searches must be conducted, andrelevant to this is s 94(2) which states:(2) A person who carries out a scanner search, rub-down search, or stripsearch must conduct the search with decency and sensitivity and in amanner that affords to the person being searched the greatest degree ofprivacy and dignity consistent with the purpose of the search.[53] The starting point must be that rub-down searches are a method of searchauthorised by the legislation. The purpose for which they are to be used is identifiedin the provision (detecting unauthorised items).7 There are, as noted, no other limits7 It is not necessary to consider whether s 98(1) constitutes the only purpose for which thesesearches may be used.such as the requirement for reasonable suspicion or belief before a search isundertaken. It follows that the fact that Mr X was the subject of a rub-down searchcannot of itself be an issue.[54] Nor is there evidence that would suggest a s 23(5) concern in relation to howthe searches were carried out. Mr X's evidence is that there are differences in how itis done, and how he experiences them. However, there is neither a pleading nor anidentification of instances that could of themselves be considered problematic. Itfollows that the present challenge is related to the number of searches. In this regardthe overall number of searches is directly a product of the length of time Mr X was incustody. 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 theunit that were required in order for Mr X to have his medication. The evidence is thatthe number of prisoners affected by this is quite low (10 to 12) and is determined bythose who need to be administered restricted drugs. I accept it is possible that if therules around distribution of these drugs were arbitrary or capricious, then given itwould be known that the method necessitated this number of rub-down searches towhich 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 thatinvolves a controlled drug.8 The Safer Prescribing Guideline issued by the Departmentdoes not require distribution from a health centre but notes that "highly tradeablemedicine such as [Ritalin] is often administered from the Health Centre".[57] Another policy document, the Medicines Management Policy, provides thatself-administration of such drugs would only occur in "very rare" situations. It furtherrequires 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 wallor 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 allprisoners taking controlled drugs unless their condition renders them incapable ofgoing to the health unit. The policy decision to distribute from the health unit, whichis effectively a requirement for the prisoner to come to the drug, is a local prison policyrather than one mandated by national policy. However, as the Safer PrescribingGuideline recognises, it would appear a common policy.[59] It is not in my view an arbitrary policy in itself, nor is it unreasonable in thecase of Mr X specifically. As regards the policy itself, the concern around these drugsin prison is well-founded. The method of administering is directly related to thoserisks, 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 underminesthe soundness of the policy.[60] As regards Mr X, he was initially a one-dose-a-day patient, before changing totwo doses. Neither prescription, in terms of the rub-down search issue, creates a levelof 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, buttwo required visits, meaning four searches, is not in my view a level at which concernarises.[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 fingersweeping and the Department does not proffer evidence in support of it. Whether inthe case of an ordinary patient it would be a practice of sufficient intrusiveness toconstitute a breach of s 23(5) need not be determined. It is in my view clear that inthe case of Mr X, requiring him unnecessarily to rub his psoriasis-affected fingeraround the inside of his mouth each time he took a pill was unpleasant conduct thatbreached s 23(5). I consider it to be a self-evident conclusion requiring no furtheranalysis. It merits the remedy of a declaration to that effect, since it was inherentlydegrading conduct, which was not supported by any policy or justification and was inthat sense gratuitous.[63] In addition to a declaration Mr X further seeks monetary compensation whichrequires consideration of the limits imposed by the Prisoners' and Victims' Claims Act2005 (PVCA). The inquiries required by s 13 of that Act are:(a) whether the prisoner made reasonable use of internal and externalcomplaint mechanisms but has nevertheless not obtained effectiveredress; and(b) whether another remedy or combination of remedies (other thanmoney) can provide redress that is sufficient.[64] In the present case the context is that Mr X's complaint, once made, led toimmediate cessation of the practice, an in-person apology, and a formal writtenapology. 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 (noother 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 August2016. That was for a period of two weeks before his release. He returned to prison inMay 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 thebasis of the number of occurrences, so obviously delay increases the number. This isparticularly significant given the practice ceased as soon as the complaint was madeand Ms Whiteford became aware of it. Second, it is clear Mr X is familiar withcomplaint mechanisms, both internal and external. He wrote, for example, to theHealth and Disability Commissioner.[67] Section 14 of the PVCA provides a number of mandatory relevantconsiderations:14 Guiding considerations for awarding of compensation(1) A court or tribunal must take into account the matters specified insubsection (2) in determining, in proceedings to which this subpartapplies,—(a) whether compensation is required to provide effective redress; and(if it is)(b) the quantum of an award of compensation required to provideeffective redress.(2) The matters referred to in subsection (1) are—(a) the extent (if any) to which the plaintiff, the defendant, or bothtook, within a reasonable time, all reasonably practicable steps tomitigate loss or damage arising from the act or omission on whichthe claim is based; and(b) whether the defendant's breach of, or interference with, the rightconcerned 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 interferencewith, the right concerned; and(e) the freedoms, interests, liberties, principles, or values recognisedand protected by the right concerned; and(f) any need to emphasise the importance of, or deter other breachesof or other interferences with, the right concerned; and(g) the extent (if any) to which effective redress in relation to that actor omission has been, or could be, provided otherwise than bycompensation; 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 thedefinition of specified claim in section 6.[68] Addressing these:(a) The complaint was unreasonably delayed. The delay matters becausethe complaint, once made, stopped the practice.(b) The breach was deliberate in the sense of it was a practice required byone or more nurses who knew his skin condition. The Court cannotdetermine bad faith having not heard from the witnesses, but there is noevidence which points to bad faith.(c) Other than delay in complaint, there is no relevant conduct of theplaintiff.(d) The consequence for the plaintiff was to experience a repeated practicethat involved conduct that was degrading.(e) The lens through which to assess the breach is that of a search. It wouldin my view be relatively minor type of search but for Mr X's skincondition which elevates the unacceptable nature of the conduct. Manywould be disgusted by being forced to rub a psoriasis-affected fingeraround 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 effectiveredress. I am particularly influenced in this conclusion by the direct correlationbetween delay in complaint and the extent of the breach experienced. I consider Mr Xto be aware of his ability to complain. I do not consider the conduct to be sufficientlyegregious to require compensation whatever the delay. Imagining a relatively briefnumber of instances before the practice was stopped, the remedies being profferedother 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 takenfrom cases where compensation has been awarded for strip searches and is assessedas 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 thedispute over the number of occasions on which the practice occurred. This in turnrevolves around how many nurses were requiring it to be done. As earlier noted, theevidence 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 anunreasonable discount.[72] Assuming, say, 20 occasions before it could have been stopped by a timelycomplaint, but recognising the primary fault always rests with those breaching theright, I consider a figure around $5,000 would have been appropriate. The defendantidentifies $4,000 to $5,000 as a range often found in cases involving less egregiousbreaches, and my assessment would coincide with that.9 The figure should reflect itwas a particularly unpleasant, albeit fleeting, imposition on Mr X. It is also right torecognise there would inevitably have been a linking in his mind between taking hismedication and being subjected to the practice. He would have known taking hismedication would involve the required conduct, so a degree of having to live with iton an ongoing basis existed.[73] To conclude on this, applying PVCA I conclude no further redress other than adeclaration 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 thiscomparatively low-level unacceptable conduct reached a level of frequency to engages 23(5) of NZBORA.[75] Concerning the druggie comment (made, it is said, three times), as soon ascomplaint was made, there was redress. Staff were immediately told such conductwas unacceptable and should stop. The few number of times it is said to havehappened 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 havehappened could constitute an issue. Departmental policy is that the reason for thedirective should not be given. It is impossible in my view to imagine other inmates9 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 anywayin taking medication. I accept there could be a risk in alerting other prisoners to thefact but the evidence does not suggest any pressure was thereby placed on Mr X byother prisoners.[77] The PVCA would be a difficulty for Mr X on this matter as no complaint wasever made. Monetary compensation would therefore be ruled out but was not anywaya reasonable possibility as appropriate redress.[78] Neither of these complaints engages s 23(5) nor merits redress beyond thatwhich happened, which was an immediate directive for the improper name-calling tostop.Alleged breaches of s 21 of NZBORA[79] The rub-down searches and the finger-sweeping are also pleaded as breachesof the right to be free from unreasonable search. In what is already a sufficientlydelayed judgment it is not necessary to address this issue.[80] Concerning rub-down searches, I have concluded they were not unnecessarilydone. What I declined to consider was the lawfulness of the policy those conductingthe searches were applying. Without that inquiry, this challenge could not be madeout. As pleaded, the unreasonableness was sourced in the number and the reason forthe number, being the health centre requirement. These have been addressed.[81] Concerning finger-sweeping, no further remedy would be appropriate even ifthe 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 arguefinger-sweeping would not be a breach because Mr X had not reasonable expectationof privacy. This would mean either it was not a search, or was not an unreasonablesearch. The lack of expectation of privacy is said to flow from the context of ingestinga controlled drug in a prison setting.Conclusion[82] I make a declaration that the requirement for Mr X to sweep the inside of hismouth with a finger affected by skin psoriasis on numerous occasion constitutes abreach of s 23(5) of NZBORA. The requirement was not pursuant to any policy andwas 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 Xwas subject, from the period during which Mr X was not provided Ritalin, theoccasions when Mr X was summonsed by the loudspeaker system to attend the frontdoor "for medication" and from the very few occasions a prison officer called him adruggie.[84] It is not necessary to address claims under s 21 of NZBORA. Concerning therub-down searches, my earlier conclusions necessarily mean they were notunreasonable. Concerning finger-sweeping, if a breach were found, it would not alterthe remedy.Costs[85] A large measure of success rests with the respondent. However, a breach ofNZBORA 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 costsnotwithstanding the general lack of success.[86] Mr X is entitled to a standard award of costs on a 2B basis, subject of courseto 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 subjectedto treatment that breached NZBORA. He has now been released from prison and isundertaking a specialist rehabilitation course. The success of that course would be amatter of public benefit. Disclosure of Mr X's name necessarily involves publicationof his status as a prisoner and aspects of his health. It would not be possible to suppressjust the latter since it is the essence of the claim being successful. The alternativewould be to suppress the judgment.[89] I consider the public interest is best served by availability of the judgmentrather than the availability of Mr X's name. I also consider the public interest is bestserved by encouraging rehabilitation. For these reasons I make an order suppressingthe name of the plaintiff._______________________Simon France JSolicitors:John Miller Law, Wellington for PlaintiffLuke Cunningham Clere, Wellington for Defendant