Christiansen v The Director-General of Health

JurisdictionNew Zealand
CourtHigh Court
JudgeWalker J
Judgment Date04 May 2020
Neutral Citation[2020] NZHC 887
Date04 May 2020
Docket NumberCIV-2020-404-616

[2020] NZHC 887

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Walker J

CIV-2020-404-616

UNDER the Judicial Review Procedure Act 2016

And

IN THE MATTER of an application for judicial review of decisions made pursuant to an order under s 70(1)(f) of the Health Act 1956

Between
Oliver Charles Christiansen
Applicant
and
The Director-General of Health
Respondent
Appearances:

SWB Foote QC and AM Cameron for Applicant

A Martin and IS Auld for Respondent (appearing by AVL)

Health, Judicial Review — application for judicial review of a decision made pursuant to an order under s70(1)(f) Health Act 1956 (special powers of medical officer of health) — challenge to the Ministry of Health's refusal to allow him to cut short his mandatory 14-day isolation to see his dying father — application for an interim order requiring the respondent to release the applicant from managed isolation — Covid-19 — failure to take into account relevant considerations — Health Act (Managed Air Arrivals) Order — Judicial Review Procedure Act 2016 — New Zealand Bill of Rights Act 1990

The issues were: whether there had been a misinterpretation of the grounds on which the application for exemption was based and the scope of the power under the Order to grant exemptions; whether there had been a failure to take into account relevant considerations and whether an interim order should be made under s15 Judicial Review Procedure Act 2016 (“JRPA”) (interim orders).

The Court held the decision-makers had construed the exemption test too narrowly by omitting consideration of two available grounds. That omission related to the decision-makers' interpretation of both clauses 5(g)(i) and 5(i). Properly construed, there were two elements to clause 5(g)(i). They were disjunctive and explicitly included a provision for “other compassionate grounds”. The exceptional circumstances provision in clause 5(i) also received no mention by the decision makers.

The decision-makers' rejection of C's application appeared to be based on the ‘framework’ posted on the covid19.govt.nz website, which listed four narrow grounds for exemptions relating to medical conditions. A decision-making public body entrusted with a decision must not adopt rigid rules that disabled it from exercising discretion in individual cases. The framework the defendant based their decisions off had not reflected the wording in the empowering Order. It was unlawful to blindly follow a policy if that policy was not reflective of the actual position in law.

It was also strongly arguable that the decision-makers failure to specifically address C's submission that his case fell under the exceptional circumstances ground in cl 5(i) amounted to a failure to address a mandatory relevant consideration. Where a person made a submission to a decision-maker on a discretionary relevant factor, it became mandatory for the decision-maker to consider that factor and the submissions on it. There were compelling compassionate grounds. There was no jurisdictional bar to interim mandatory orders where necessary and appropriate. Restrictive conditions could address the public health and safety concerns. A material factor was that visitation was only at a private home and not in a public space.

Decisions must have a clear and certain basis. They must be proportionate to the justified objective of protecting NZ bearing in mind the fundamental civil rights at issue, freedom of movement and of assembly in accordance with the New Zealand Bill of Rights Act 1990.

An order was given requiring the Ministry to permit C to leave Managed Isolation prior to the end of his 14-day isolation period for the purposes of visiting his terminally ill father on condition that C travel by private car, unaccompanied, to his father's home address and remain there until his father passed and to maintain physical separation from other family members at the home address.

JUDGMENT OF Walker J
[REASONS]

This judgment was delivered by me on 4 May 2020 at 11.30 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Introduction
1

Oliver Christiansen challenges the Ministry's refusal to allow him to cut short his mandatory 14-day isolation to see his dying father. The application has been prepared, argued and determined as a matter of urgency. I issued a results judgment at the end of the hearing on Friday 1 May 2020. I granted interim relief and indicated that my reasons would follow. The interim orders I made are set out at the end of this judgment. These reasons are also prepared under urgency and will therefore be shorn of anything other than the critical facts and analysis to explain my reasoning.

2

The context is New Zealand's response to the COVID-19 crisis. Mr Christiansen arrived in New Zealand on 23 April 2020 on a flight from the United Kingdom. He was placed in ‘managed isolation’ in a city hotel as directed under the Health Act (Managed Air Arrivals) Order dated 9 April 2020 (the Order). 1 The hotel at which he resided is apparently designated a low-risk isolation facility. He has no symptoms of COVID-19 and is monitored by health professionals at the facility every two days.

3

His father was diagnosed with brain cancer in January 2020. The initial prognosis was that his father would decline over a relatively lengthy period. However, by mid-April, the prognosis changed. Mr Christiansen learned that his father had only a few weeks to live. He decided to leave his family in London and return to New Zealand to sit out the quarantine, and then spend his father's last days with him. Sadly, his father's condition declined suddenly and dramatically. The medical evidence was that his father will survive for no more than a few days, perhaps to the end of the week-end. 2

4

Mr Christiansen applied to the Ministry of Health for an exemption to permit him to travel from the city hotel to the family home where his father is spending his last days. There is no suggestion before me that his father would be going to the hospital. The other family members either at the family home or visiting are

Mr Christiansen's mother and two sisters. A palliative care nurse attends for a short period daily. I am informed by Mr Foote QC from the bar that the family ‘desperately’ support the application
5

Mr Christiansen's evidence is that he asked for a test for COVID-19 but was refused because he has no symptoms.

6

He and other individuals at the managed isolation facility are permitted to go outside in groups of 8–10 into an area in front of the facility and are escorted to a public park every second day. They are permitted to walk freely and unsupervised in the park but must practice social distancing.

7

Mr Christiansen was prepared to comply with any conditions required by the Ministry of Health, such as travelling to his father's residence in a private car, ensuring any necessary cleaning and/or quarantining of the vehicle, staying at his father's home and not leaving it at all for any reason until the expiry of a 24-hour period after his father dies and then returning to managed isolation, and wearing appropriate PPE as directed.

Decisions challenged
8

Mr Christiansen challenges three Ministry of Health decisions declining him permission to leave quarantine before expiry of the 14 days: 3

  • (a) A decision on 27 April 2020 sent at 10.31am by the Deputy-Director COVID-19 at the National Health Coordination Centre of the Ministry of Health ( first decision);

  • (b) A decision on 27 April 2020 sent at 11.52am by the Managed Isolation Team ( second decision);

  • (c) A decision on 30 April 2020 notified by the National Coordinator, National Health Coordination Centre of the Ministry of Health ( third decision).

9

Each decision was made under delegated authority from the Director-General of Health by a Ministry official or officials. This is the reason why the Director-General is the respondent. The gist of each decision is that Mr Christiansen did not qualify for exemption or reduction of the quarantine period because he did not fit the criteria of the Ministry of Health ‘framework’. Specifically:

  • (a) First decision — the criteria for exemption is medical transfers, and those with serious medical conditions that cannot be managed in the accommodation provided;

  • (b) Second decision — the criteria for exemptions is very limited and based on the health of the person who was arriving in the country;

  • (c) Third decision — exemptions are only granted to those requiring medical transfers and those with serious medical conditions that cannot be managed in the accommodation provided.

10

It is apparent on the face of the decision records that the decision maker(s) applied the narrow exemption criteria in the Ministry of Health framework found on the covid19.govt.nz website even though Mr Christiansen's application was based on other grounds referred to in the Order. I will return to this later in my judgment.

Respondent's position
11

The respondent, who moved speedily to accommodate this hearing, filed a memorandum just before the start of the hearing. 4 The memorandum dated 1 May 2020 states:

The [respondent] has reviewed the decision under review, and concedes that, on the face of the documentary record at least, the grounds of review described at paragraph 5 above can be made out. Accordingly the defendant has decided

the matter should be reconsidered to ensure that relevant factors are considered, under clause 5(i) of the Order. The [respondent] submits that this would be the appropriate remedy should the substantive application for judicial review be successful in any event.
12

Mr Martin for the respondent sought an adjournment of the hearing for three hours (until midday) and undertook to provide a new decision by that time. He proposed that should the outcome of the new decision making be the same, the issue...

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