Chamberlain v Minister of Health

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 07 February 2018
• Neutral Citation: [2018] NZCA 8
• Court: Court of Appeal
• Docket Number: CA460/2017
• Date: 07 February 2018

Between

Shane Barry Chamberlain

First Appellant

and

Diane Moody

Second Appellant

and

Minister of Health

Respondent

[2018] NZCA 8

Court:

Harrison, Asher and Brown JJ

CA460/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

Judicial Review — application to review a decision by the Ministry of Health not to provide fulltime funded care to the respondent provided by his mother

Counsel:

P J Dale for Appellants

P T Rishworth QC and V McCall for Respondent

• A The appeal is allowed.

• B The decision granting the first appellant a maximum of 17 hours of funded family care weekly for disability support services provided by the second appellant is set aside.

• C The respondent is directed to reassess the first appellant's application in a manner consistent with the purposes of the New Zealand Public Health and Disability Act 2000 and the content of the family care policy as set out in this judgment.

• D The respondent is ordered to pay costs to the appellants on a band A basis as for a standard appeal together with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1 Shane Chamberlain is a middle-aged man with a profound level of intellectual disability. 1 His elderly mother, Diane Moody, has been his fulltime carer for almost all his life. The Ministry of Health funds Shane for his mother's performance of 17 hours of care weekly as well as funding for third parties to perform additional services. Shane and his mother claim that he is entitled to funding for family care up to the maximum of 40 hours weekly. Both say that the Minister of Health, through the contracted agency of private assessors, has erred in exercising a statutory power of decision.

2 Shane, acting through his litigation guardian Jane Carrigan, and Mrs Moody appeal against Palmer J's judgment in the High Court declining his application for a declaration that the Minister's funding decision was unlawful for want of consistency with the relevant family care policy (the Policy) under the New Zealand Public Health and Disability Act 2000 (the Act). 2 The appeal requires our determination of the meaning of phrases used in layers of statutory provisions and derivative instruments to identify the relevant disability support services eligible for funding. Palmer J described these documents, with a degree of understatement, as “complex and difficult to follow”. 3 The resultant challenge for impaired persons in understanding the nature and scope of their eligibility is obvious.

3 The ultimate question, however, is confined. It is whether the Judge was correct that Shane's funding eligibility is limited to his mother's performance of discrete services identifiable within the phrases “personal care” and “household management” where they are used in the relevant specifications; 4 or whether, as the appellants submit, these categories of eligibility must encompass the provision of broader services such as safety supervision and intermittent care in the light of the purpose for which family care is funded.

Background facts

4 The relevant facts are derived principally from Mrs Moody's detailed and uncontested affidavit.

5 Shane is 51 years of age. He suffers the result of severe birth-related complications caused by the misuse of forceps during delivery. He is paralysed down his right side. He was also born with Williams Syndrome, a developmental disorder caused by genetic abnormality which affects many parts of the body. It was not diagnosed until he was aged about 30 years.

6 Shane is Mrs Moody's eldest child. She is now 76 years old. She and her former husband divorced in 2003 and he died in 2007. She has cared for Shane in the family home all her life except for a few years when he was in an adult care facility.

7 Shane is incapable of normal day-to-day self-care. He has no genuine or meaningful understanding of anything other than his most basic likes or dislikes. He is able to give his name, although it is difficult to understand him. He gives his age as nine years and says he lives in Taupo. In reality he resides in Beach Haven, Auckland. He is able to count with assistance up to 20. He can also recite the alphabet with assistance. He has no traffic sense and is unable to cross a road or catch a bus on his own. He does not drive and is unable to do up his seatbelt.

8 Shane is unable to read or write and has no conceptual understanding of either medium. He is able to listen to the reading of a book but at the basic level of a child's

story like the Three Little Pigs. Shane is also autistic, and he is easily mesmerised by certain things — such as a big picture of monkeys in a book. He is able to go to the cinema with his mother but only on a restricted basis. He spends most of his time sitting in his bedroom. He listens endlessly to his radio, or CD music and stories. He loves Chinese television and his favourite DVDs involve aeroplanes and the Muppets

9 Shane's behaviour is also repetitive, another autistic characteristic. He loves fixed-wing aircraft and helicopters — living near the Whenuapai airbase provides him with entertainment. He has age-inappropriate special toys of the type an 18-month-old child would enjoy, such as talking animals. His favourite activity is using the family spa and swimming pool. In the winter, he will sit in the spa for hours at a time or by the pool holding a hose over it to fill it up. Mrs Moody must keep him within sight always.

10 Mrs Moody takes Shane out of the house whenever and wherever possible. He likes attending concerts by the Royal New Zealand Navy Band and visiting the zoo where he sits for hours watching elephants — he has no interest in the other animals, not even monkeys. He loves concrete trucks and enjoys sitting at the Devonport Wharf to watch passenger ferries. He is, however, unable to go to public swimming pools because of difficulties controlling his bowels.

11 Mrs Moody is able to take Shane to visit centres like Taupo and Palmerston North. She last took him overseas to Rarotonga in 2009. He is enjoying these trips less with age.

12 Shane sleeps fairly well but he must get up regularly during the night to go to the toilet. He can manage most of these nocturnal visits on his own because his mother has installed motion-sensor lights. However, his internal organs regularly fail him and Mrs Moody must clean up the lavatory the following morning. While he usually returns to bed following these visits, it is not unusual for Shane to sit in his chair and turn on his television or the radio. Some nights he suffers reflux or leg cramps, requiring his mother to be up to care for him.

13 Mrs Moody's daily routine starts by cleaning out the lavatory and bathroom and preparing breakfast for Shane, followed by showering and dressing him. He loves milky coffee and during the course of a morning will have as many cups as he is allowed. Mrs Moody must make the coffee for him. If the day is spent at home, Shane will usually alternate between his room and the spa pool. If he is in the spa his mother must ensure that he is always hydrated.

14 Mrs Moody prepares Shane's lunch around midday, followed by afternoon tea and an early dinner, usually about 5 pm. This routine helps to contain his reflux. His propensity for choking requires her to be particularly careful in food preparation and she must watch him consume his meals.

15 Shane has suffered from lifelong ill-health, particularly affecting the heart and cardiovascular system, which is typical of those born affected with Williams Syndrome. He only began to walk at five years of age. He has scoliosis and walks with a distinctive gait. He is vulnerable to falls, causing joint and bone fractures and bruising. He has asthma and uses an inhaler from time to time. He is particularly susceptible to anxiety and reacts badly to many drugs — Mrs Moody suspects his history of self-harm by biting can be attributed to hallucinatory reactions from prescription medication.

16 Mrs Moody describes hospital visits with Shane as “fraught affairs” where she is unable to leave him alone. He has had two operations to improve his urine flow or lack of it. He often has diverticulitis — an inflammation of the bowel — and he endures a generally sensitive stomach to certain foods. He suffers a chronic lack of bowel control which is worsening with age. His mother is required to take him frequently to hospital, doctor, specialist, dental and other medical appointments.

17 Between the ages of 21 and 25 years, Shane spent his days at the IHC Sheltered Workshop in Northcote where he participated in programmes with other adults who shared his profound intellectual disabilities. Mrs Moody withdrew him from this institution after he was violently assaulted by another attendee. Despite trying other facilities, she has been unable to find suitable care for Shane since that incident.

18 Mrs Moody says this about Shane's care:

I know if Shane was living in residential care he would be a very different person. His health and his anxiety would be two areas that I am sure would be adversely impacted upon, just by the very nature of residential care (changing staff/different staff during the day and alternating flatmates). I'm sure Shane would be placed on anti-anxiety drugs for the benefit of staff and possibly other residents. I have no doubts that medication would effectively be the end of him. Even if it wasn't, Shane would really struggle with the lack of continuity. In summary I am in no doubt that if Shane lived in residential care, he would have been a lot sicker. Part of keeping on top of Shane's health is being very “in tune” with changes in his body, and understanding when he appears to be sickening. Realistically with rotating staff, and his inability to identify his own ailments both would combine to ensure that many of his health conditions would not be...