Court rules man under Covid quarantine can visit dying father

A judicial review challenging the Health Act (Managed Air Arrivals) Order dated 9 April 2020  has been successful in the High Court. A man who had arrived in New Zealand and was required to go into quarantine for 14 days was prevented from visiting his dying father in palliative care at his home , but the court has ruled he could visit his father in private palliative care.

Judicial review of Director-General’s refusal to allow plaintiff to leave mandatory quarantine to visit father at end stage of life. Failure to consider compassionate grounds or exceptional circumstances justified interim relief to allow visit.

Oliver Christiansen challenges the Ministry’s refusal to allow him to cut short his mandatory 14-day isolation to see his dying father.

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). 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.

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.

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.

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

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

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.

A key paragraph:

This is an exceptional situation. It is strongly arguable that the interim order places Mr Christiansen in the position he would have been in had the respondentaddressed his application as it should have been addressed. As Mr Foote and Mr Cameron put it their crisp written synopsis:

There is a strong case that had the respondent applied the Health Act Order correctly, Mr Christiansen’s circumstances would be recognised as coming within one or both of the exemption categories: either compassionate grounds with a low risk of transmission, or exceptional circumstances.

It is difficult to comprehend what other situations would suffice to meet these categories if the present applicant’s circumstances do not.

My emphasis.

Jumping to the judgment Summary:

In conclusion, I am satisfied that the merits strongly favour Mr Christiansen. The decisions to decline permission are on their face legally flawed on more than basis. Had the correct approach been followed, Mr Christiansen’s application may have successfully come within the compassionate grounds (with low risk of transmission) or exceptional circumstances categories.

A rigid policy that does not include exceptional circumstances, especially where the empowering law provides for those exceptions, is the antithesis of what was intended under the Order, objectively read.

I have also considered the question of the appropriate deference to the expertise of the decision makers in a time of unprecedented public crisis. No matter how necessary or demonstrably justified the COVID-19 response, decisions must have a clear and certain basis. They must be proportionate to the justified objective of protecting New Zealand 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.

In this particular case, there is a very strong argument that the permission for Mr Christiansen to visit his dying father was not considered on the correct legal grounds and did not take account of relevant mandatory considerations. It had the hallmarks of automatic rejection based on circumscribed criteria rather than a proper exercise of discretion required by the Health Act (Managed Air Arrivals) Order. Indeed, the respondent responsibly acknowledges that on the face of the documentary record, one of the grounds of review can be made out.

In my judgment, this exceptional case demands an effective and swift response by the Court to achieve overall justice. I have in mind here particularly the imminence of Mr Christiansen’s father’s passing and the very material factor that visitation is only at a private home and not in a public space.

This order was made:

Requiring the respondent to permit Mr Christiansen to leave Managed Isolation prior to the end of his 14-day isolation period at the Central City facility for the purposes of visiting his terminally ill father.

Conditions were imposed to ensure compliance with safe contact and Mr Christiansen was requited to return to quarantine after his father died to complete the 14 days.

This looks like a good decision on compassionate if not legal grounds.

It’s a shame to had to be taken to court to get a sensible outcome, but at least this sets a precedent and should help others who may be in similar circumstances or other circumstances where compassion and safety can be properly addressed.

Hopefully those who make the decisions will now give more consideration to the law and to the reasonable needs of people.

Judgment here.

 

 

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35 Comments

  1. Alan Wilkinson

     /  4th May 2020

    A shame the courts are required to bring the [deleted, that’s unfair] of the bureaucracy to heel.

    Reply
    • Alan Wilkinson

       /  4th May 2020

      I’m not sure who that is unfair to – the bureaucrats or the unmentionable?

      Reply
      • This rule was a cruel and heartless one. The mother of the young man dying of melanoma who was refused the right to visit him must have suffered unspeakable agony. She wasn’t even let to see the body; even if she had Covid, it couldn’t affect a body.

        Reply
        • Alan Wilkinson

           /  4th May 2020

          Nothing worse than a fool with a rule.

          Reply
          • Gezza

             /  4th May 2020

            A rare but possibly overdue slap for you, perhaps, sirrah. Didn’t godwin by any chance, did you, Sir Alan?

            Reply
            • Alan Wilkinson

               /  4th May 2020

              Certainly not, Sir G. Much closer to home.

      • Duker

         /  4th May 2020

        Ill have to agree there.
        The details of his emails back and forth show failure to read, understand and buck passing.

        Continually ignoring his request to travel out isolation for compassionate grounds (dying father) and saying he doesnt qualify for reducing isolation as ‘he personally’ doesnt have medical grounds. This seems to have gone a long way up the chain, which is even more worrying

        kakfaesque would be too kind, it was blazing incompetence

        Reply
        • Even Kafka couldn’t have invented this; nor could George Orwell.

          It’s Little Dorrit’s Circumlocution Department only 100x worse.

          Reply
  2. Duker

     /  4th May 2020

    Obviously a very good decision, which was clear , covered the legal principles in great depth.
    “This looks like a good decision on compassionate if not legal grounds.”

    The Judge makes clear in [44] onwards there are errors in law ( in the sense the bureaucrats werent following the law)

    And its new Judge only appointed a year ago


    https://www.lawsociety.org.nz/news-and-communications/latest-news/news/new-high-court-judge-appointed4

    Reply
    • Duker

       /  4th May 2020

      I hope it hasnt broken any rules about peoples background…and we only can hear from faceless names with no personal but public information ?

      Reply
  3. A comment from Kiwiblog (I think by a lawyer):

    Thats is as fine an example of Jobsworthism you will read about anywhere.
    The Justice Walker gave the MOH quite a kicking for their blinkered approach.
    I hope a costs order is sought by the Applicant.

    https://www.kiwiblog.co.nz/2020/05/was_the_lockdown_legal.html#comment-2705856

    jobsworth (Oxford): an official who upholds petty rules even at the expense of humanity or common sense.

    Reply
    • Another:

      They did just about everything wrong, and had to concede at least one point at the High Court. In essence, although the plaintiff wanted out of quarantine on compassionate grounds (which were utterly compelling) they only considered a medical exemption.

      And in the most brilliant piece of Catch 22, when the plaintiff asked to have a test to see if he had the virus, they wouldn’t test him because he had no symptoms. So they were saying to him that there was a risk that he had the virus, but because he was showing no signs of it, they wouldn’t test him That was with his father expiring from brain cancer and calling for his son!! What pieces of shit. Kindness my arse.

      They behaved like little bureaucratic nazis, which is exactly what this Government is encouraging them to do. How much human tragedy must we trade for the lives of 20 old people who were at death’s door already? Power hungry politicians without an ounce of empathy.

      Some harsh assumptions, but the gist seems fair enough.

      Reply
      • Duker

         /  4th May 2020

        Isnt bureaucratic nazis an insinuation that shouldnt be allowed here , especially as its sourced from a ‘dirty politics blogger’

        Reply
        • Gezza

           /  4th May 2020

          Let’s see

          You’ve previously tried to tell me what sort of comments should be allowed – seemingly only those like yours,
          and
          Now you’re trying to tell the blogmeister what should be moderated.

          Why don’t you start your own blog & then you can happily tell everybody how brilliant you are and ban anybody and anything you don’t like?

          Reply
      • Alan Wilkinson

         /  4th May 2020

        Or to put it another way, how much freedom must we sacrifice on the altar of safety?

        Reply
        • Most of it, of course, silly.

          Reply
        • Duker

           /  4th May 2020

          There was no ‘case for Freedoms’, just as the judge says
          “[68] In this particular case, there is a very strong argument that the permission for
          Mr Christiansen to visit his dying father was not considered on the correct legal
          grounds and did not take account of relevant mandatory considerations. ”

          The exceptions were there in the Epidemic orders ( exceptional reasons) but the staff didnt seem to even give them cursory attention , just rejecting on different grounds that the man hadnt applied for .

          Its part of our Freedoms that a Judge can follow all the legal conditions in the Epidemic notices and laws , as written by parliament and still come up with a very just decision.
          In fact on that Point , The Judge has not disputed any part of the Orders and the widest sense not contested their ‘legality’
          The exceptions were legally available in the Director General of Healths ‘orders’ under Section 70 of the Health Act (page 3/4 at the end of the judgement)
          QED.

          Reply
          • Some epidemic; 200 people out of 5,000,000. Well, 4,800,000. One in 24,000.

            Reply
          • Alan Wilkinson

             /  4th May 2020

            This was a particularly egregious case where the Department repeatedly refused to implement its own Regulation. However the rest of us have been disgracefully imprisoned without due cause or justification for an extended time.

            Reply
            • Duker

               /  4th May 2020

              It’s not detention let alone imprisonment at all …the judges have said so. Do try to keep up
              Your quasi legal babblings have reached new lows…of course it’s not comprehension that drives you…. But hope you get ongoing support

            • Alan Wilkinson

               /  4th May 2020

              F.O. Duker. I don’t need a judge to tell me when I’m in detention. Or you.

            • Duker

               /  5th May 2020

              The word you are looking for is ….is …is
              Quarantine …hahahahaha… it means 40 days

            • Alan Wilkinson

               /  5th May 2020

              I found the word I was looking for long ago. It was “dickhead”.

  4. Maggy Wassilieff

     /  4th May 2020

    How could the PM state that there had been 18 exemptions made for quarantined folks to see dying relatives when there had been ZERO, (and anyone listening to the news for the last few days knew this)?

    Ardern said at the press conference 18 people who had recently returned to New Zealand had been allowed out to visit ill family members.

    However a statement was later released saying she was provided inaccurate information on the number of exemptions on compassionate grounds that have been granted by the Ministry of Health. The actual number was zero.

    Are her minions clueless, or can’t the PM read properly?

    “The layout of Ministry of Health figures supplied to the Prime Minister’s Office may have contributed to confusion over compassionate exemptions. The Ministry sincerely apologises for this.”
    https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12329451

    Reply
    • Alan Wilkinson

       /  4th May 2020

      The creeps haven’t apologised for their disgraceful decisions.

      Reply
      • Gezza

         /  4th May 2020

        The best PMs know to make sure their Ministers:

        *Learn their stuff & grill their departmental advisers before making any announcements based on information supplied by them
        * Make Departmental CEO’s so sweaty with fear, their staff will never dare put up muddled or inaccurate information.

        Who is the Minister of Health? Can someone remind me? Is he any good at these things?

        Reply
        • Duker

           /  5th May 2020

          Is that how things worked in Muldoons time ?
          The Public Sector Act changed all that, and now the permanent political class is the senior bureaucrats themselves.
          At most ministers can now ask the PH for ‘a report’, the people in Ministers office are on secondment or are political hangers on , and you cant make them work in ‘fear’. The results of fear meant a ministers career would hit a slippery patch. Hekia Parata was notorious for it and what did she achieve? Meka Whaitiri didnt achieve much either

          Reply
  1. Ministry of Health ‘reviewing procedures’ for compassionate and exceptional border rules | Your NZ
  2. A better looking challenge of Covid lockdown legality | Your NZ

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