Court upholds a prisoner’s ability to hunger strike and refuse treatment

Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433 (25 June 2014)

This case concerns the rights a duties of the Canterbury District Health Board (DHB) and the Departments of Corrections (Corrections) concerning the level of medical treatment they must provide a serving prisoner on a hunger strike.

Facts

Mr All Means All was 57 years old. On May 28 2014 he was sentenced to four months imprisonment for six counts of threatening to kill. On entering the prison after his sentencing, he declared that he would begin a hunger strike immediately. He refused to eat or drink anything. His reason for doing so what that he believed that a detective lied in giving evidence at his trial, and he aimed to ‘encourage the truth to finally surface’ via the hunger strike.

On June 5 2014, the DHB filed an application to the court seeking a declaration to clarify its legal obligation in relation to Mr All Means All’s treatment or the non-provision of medical services to him. The judge appointed a counsel to assist the court and advocate on Mr All Means All’s behalf. On the basis of psychiatric examination, Mr All Means All was judged not to have a mental impairment or condition.

Two forms of declaration were sought by Corrections and the DHB.

The first, sought by Corrections, was a declaration that Mr All Means All may receive medical treatment by way of artificial hydration and nutrition when:

  • his health or life is in peril in the judgement of a clinician, and
  • he no longer is able to indicate whether he consents to treatment.

Alternatively, both the Department and the DHB sought a declaration that they have a lawful excuse for not providing medical treatment, so long as Mr All Means All continues to refuse consent to treatment.

Decision

The judgment was delivered by Panckhurst J, a single judge of the New Zealand High Court.

Declaration that the prisoner be given treatment against his will

The court accepted that the duties imposed upon Corrections personnel are primarily to ensure that sentences are served in a ‘safe, secure, humane and effective manner’ (Corrections Act 2004 s5(1)(a)). The court also accepted that prisoners are in a special situation where their fundamental rights are curtailed to some extent. They are reliance on others for the necessaries of life, sustenance and medical care, so the day-to-day welfare of Mr All Means All is the responsibility of the prison manager and staff.

Despite this, the court did not find any sufficient justifications for limiting the s11 right in the New Zealand Bill of Rights Act 1990 (NZBORA) and authorising medical treatment against Mr All Means All’s consent.

S11 states that ‘everyone has the right to refuse to undergo any medical treatment’. “Everyone”, however, is not to be read entirely literally. A person must have capacity and the competence to make an informed and rational decision.

The court refused to limit the s11 right in this instance for several main reasons.

  • An adult patient, sound of mind, is entitled to refuse to undergo treatment for whatever reason, even if the result of doing so means that the patient will die. Reference was made to the House of Lords decision in Airedale NHS Trust v Bland. Here, the principle of the sanctity of human life must yield to the principle of self-determination.
  • This is not akin to suicide – it is simply the patient declining to consent to treatment which might prolong his life. Death was not the intended end result of what he intended as a protest pressuring a person he considered guilty of misconduct.
  • NZ had plotted its own course in introducing the right to refuse consent to medical treatment in NZBORA.
  • The judge did not consider the reasoning in the various cases from other jurisdictions persuasive, much less demonstrative in justifying recognition of a common law limit upon the right to forgo medical treatment.

The court did issue a declaration that Corrections and DHB have a “lawful excuse” not to provide medical treatment without the consent of Mr All Means All.

The judge considered that a joint declaration in the following terms was appropriate:

“Persons owing a duty of care to Mr All Means All will have lawful excuse for not providing medical treatment to him while he continues not to give informed consent to such treatment, or an advance directive refusing consent is in place.”

Commentary

This decision has interesting implications for the rights of prisoners to refuse medical treatment and continue hunger strike protests. NZBORA s11 is similar to the right to not be subjected to medical treatment without full, free and informed consent in s10(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Accordingly, this New Zealand decision may be persuasive in interpreting Victorian rights.

However, the applicability of the decision may be questioned. Firstly, it is closely tied to its New Zealand context. The Cartwright Inquiry Report of 1988, The NZBORA and the Health and Disability Commissioner Act all emphasise patient rights and the perhaps paramount requirement for consent to medical services. Secondly, different courts may be more persuaded by US cases and European Court of Human Rights cases that supported state intervention and medical treatment in hunger strike cases. These cases favour the state’s interest in the preservation of life and the orderly administration of the prison system above the prisoners’ right to self-determination and privacy.  

The effect of this New Zealand decision in other jurisdictions waits to be determined.

The decision can be found here - http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2014/1433.html?query=%22Bill%20of%20rights

Beatrice Paull is a Legal Researcher at the Human Rights Law Centre.

 

MichelleBennettPrisoner Rights, Democratic Freedoms