MoH quarantine exemption reviews – 5 decisions reversed but still “it’s breaking my heart”

After the High Court overruled a Ministry of Health refusal to give an exemption to a man in Covid managed isolation (quarantine) to see his dying father the Ministry reviewed other applications that had been made, and upheld about half of them but reversed their decision for five people.

The review found that in all cases when applying the same process they had used the first time the new team came to the same conclusions as the original decisions – but the Court found that this process was flawed so I don’t know why they wasted time reviewing cases based on a flawed process.

Results of 32 case reviews when applying ‘the updated criteria’ (as determined by the Court):

  • 5 people had the original decision to decline their application was changed (they were able to leave managed isolation and have an agreed self-isolation plan)
  • 2 people had already finished managed isolation when reviews began (no indication if the original decisions were wrong)
  • 1 person had withdrawn their application (no indication why, perhaps their relative had died)
  • 14 people had their original decision upheld and will be required to complete their 14-day managed isolation
  • 10 people have been asked to provide further information (5 are still overseas and yet to travel to New Zealand).

Six people having their decisions reversed (1 via the Court and 5 after review) is a big deal for those people, and the delays wil have been stressful.

The Ministry says they continue to receive a large number of new applications for an exemption from managed isolation from people arriving in New Zealand, and these are being processed according to the new criteria. As they should be.

Ministry of Health: Statement on exemption reviews

The Ministry of Health has completed the review of 32 applications made for an exemption from managed isolation on compassionate grounds that had previously been declined.

We undertook this review following the High Court case last week that overturned one such decision to ensure that the appropriate process had been followed for other similar applications for exemption.

In parallel, the Ministry of Health updated the exemptions application process and criteria to ensure these are explicit and take into account the findings of the High Court judgement.

The applications were all reviewed by a separate team based in the National Crisis Management Centre. When applying the same process used by the Ministry of Health, this team reached the same conclusions as the original decisions.

The review, using the updated criteria, has yielded (results as detailed above).

We acknowledge that this will be a difficult time for people who are required to stay in managed isolation and we continue to provide support to them.

Protecting the border from COVID-19 remains a top priority as part of New Zealand’s overall elimination strategy and we will continue to look very carefully at any request for an exemption from managed isolation.

It’s a shame it took court action to get the exemption criteria changed but at least it is being dealt with better now.

The court determined that the original criteria was not properly allowing for exceptional circumstances. Counsel for the man who won the court case, Oliver Christiansen, stated:

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.

The judge agreed:

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.

In my judgment, this exceptional case demands an effective and swift response by the Court to achieve overall justice.

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.

The original criteria used by the Ministry must have ignored or insufficiently taken into account compassionate grounds or exception circumstances.

But it looks like the problems aren’t over for everyone – Kiwi in quarantine pleads with government to see his dying wife one last time:

A Christchurch man is pleading for government officials to exempt him from quarantine so that he can see his dying wife one last time.

Mining contractor Bernie Ryan returned from Australia on Sunday after his wife Christine Taylor’s condition worsened.

He is currently under managed isolation at a hotel in Auckland, and said despite showing no illness symptoms and a letter of support from his GP, the Ministry of Health has repeatedly refused his request for exemption.

Taylor has terminal lung cancer and has been given hours to live.

“When I departed [for Australia] to go to work, my wife was unwell but she was making progress,” Ryan said.

Taylor was diagnosed with cancer 18 months ago.

“But anyway, things turned for the worst and I was luckily able to get a flight from Brisbane to Auckland, knowing that I would have the two-week stand down before I could get back to Christchurch,” Ryan said.

Ryan first applied for an exemption on the day he arrived in Auckland.

He said he was willing to travel with Personal Protective Equipment and maintain physical distancing.

“I applied for an exemption because of my circumstances and it took two days to get a reply back, which I think is standard, [and] they refused me,” he said.

“And then I tried again straight away via the health department [Ministry of Health] representative in the hotel, he sent it off to his co-ordinator who had said if there were special circumstances to send it through to him, and it was obviously agreed I had special circumstances.”

Ryan said he waited another couple of days and received a phone call from the Ministry of Health informing him that it would be impossible for him to go to Christchurch.

He said the refusal was devastating.

“Well … I cried, and basically a friend suggested that maybe we can get in contact with the media and if not for me, for other people that may have to go through this scenario,” Ryan said.

He asked the government to show sympathy towards New Zealanders in similar situations.

“Well, I’m a proud Kiwi, we’re the best country in the world, just [show] some compassion … instead of these generic emails I’ve been getting, what about just some compassion? And not every case is the same is basically is what I’m saying,” Ryan said.

“It’s breaking my heart really.”

The Ministry of Health said Ryan would have received a letter explaining why his application has been declined, and its exemptions team will contact him to explain further.

It looks like he has gone to media as a last resort, going to court would take more time and cost money.

It sounds really tough for Mr Ryan. And it sounds like compassion does not figure much in the Ministry criteria, still.

Ministry of Health ‘reviewing procedures’ for compassionate and exceptional quarantine rules

There was confusion between the Prime Minister and Ministry of Health yesterday after a court judgment was released that found the Ministry of Health should not have refused leave for a man to leave Covid quarantine to see his dying father – see Court rules man under Covid quarantine can visit dying father.

Both the PM and MoH gave assurances procedures would be reviewed after confusion between them over numbers of people granted compassionate of exceptional exemptions – 18 had applied but it turned out the be none had been granted.

RNZ: No exemptions from border rules given on compassionate grounds

None of the travellers returning to New Zealand to see a family member who is close to dying have been allowed out of managed isolation.

Figures provided to RNZ suggest 24 people have applied for an exemption to visit someone dying or close to dying and all have been turned down.

In some cases the traveller was still in isolation when their relative died.

About 50 other people who applied for an exemption from the mandatory 14-day isolation on other compassionate grounds were also rejected.

The Ministry of Health said the border rules could be “very distressing” but it was taking a precautionary approach.

It looks like it has been more than ‘precautionary’.

However, during a media briefing after her Cabinet meeting this afternoon, Prime Minister Jacinda Ardern told media 18 of 24 requests where a relative was dying had been accepted.

“Information that I’ve received from the Ministry of Health, though, sets out that there were 283 requests for an exemption to the conditions of isolation having been received by 30 April, and that 24 exemptions was sought in cases where relative was dying or close to dying, of which 18 were granted.

“That does suggest that there has been due consideration. That is advice I’ve received from the Ministry of Health, but I’m sure that they will be reflecting on this judgment.”

Questioned about the discrepancy, the Ministry said the Prime Minister’s figures were incorrect, and no exemptions had been granted for compassionate reasons.

“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.

“As of 30 April, the number of requests from a returned traveller, or travellers, for an exemption to the conditions of their isolation totalled 283. The number of those requests for exemptions granted was 18.

“To the same date, the number of ‘compassionate’ or similar requests for exemptions totalled 73. The number of these where this was to visit a relative dying or close to dying totalled 24. None of those 24 exemptions were granted.”

NZ Herald: Judge overrules lockdown, allows son to visit dying father

Speaking at her post-Cabinet press conference this afternoon, Prime Minister Jacinda Ardern said authorities needed to make sure “we learn” from the Christiansen and other rulings.

It appeared the response to his application was an automotive response, so it was her expectation the Ministry of Health would take the ruling into consideration.

‘Automotive response may be a typo, it doesn’t make sense. Does it mean automatic? That’s what was suggested in the judgment. That would be an awful way to deal with compassionate or exceptional circumstances. Or unemotive?

Stuff:  Jacinda Ardern asks for review of all cases where family members were denied permission to visit relatives

“The Prime Minister has spoken to the Minister of Health this evening and asked that each of these cases now be reviewed in light of the Court’s ruling.”

That will be too late in cases where people have already died.

The Ministry of Health would not comment on whether it had apologised to the Christiansen family.

Instead, the spokeswoman said each request for leave from isolation on compassionate grounds or exceptional reasons is considered on its individual merits.

“The fact that the Court decided to intervene in this case does not mean that it would take the same approach in respect of other decisions by the Ministry not to allow leave from isolation.”

She said the Ministry is reviewing its processes for considering requests for leave on compassionate grounds and exceptional reasons to prevent this issue arising again.

Dr Ashley Bloomfield is speaking about this on RNZ now and is explaining and defending the way the Ministry of Health has dealt with requests.

Ashley Bloomfield, the Director-General of Health, tells Morning Report that every case is considered individually, not automatically.

Dr Bloomfield says he spoke with the team who run the process and told them to carefully consider the man’s application.

Dr Bloomfield does not know how many people had now died in the 24 cases but assured a quick review of the cases.

The RNZ interview: https://www.rnz.co.nz/national/programmes/morningreport/audio/2018745167/coronavirus-ashley-bloomfield-on-isolation-exemptions


Update – RNZ report: Ashley Bloomfield defends staff after judge overturns quarantine decision

There were 283 requests for exemptions to 30 April, and of those 24 were on compassionate or similar grounds. None of those on compassionate grounds were granted, Bloomfield said.

But the High Court ruling didn’t mean the team had failed to apply the criteria, he said.

“What the staff do is they apply the criteria and look at all the information they have objectively and fairly … and with great empathy. They don’t just say this is a no, they have to – and they do – look through the information very carefully.

“What the judge was saying is that they didn’t feel from the information that was presented that it was obvious that that process had been followed.”

The decisions on mandatory isolation also had to be fair, and in line with the process for people applying to travel within the country.

“That has very strict criteria and many New Zealanders will know of people who during the lockdown in alert level 4 were unable to either attend funerals or visit dying relatives because we were on a really clear pathway to try and stop the transmission of Covid-19 in our communities to protect everybody.”

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.