Chief Executive of the Department of Corrections v. All Means All

[2014] NZHC 1433
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In this case, the Chief Executive of the Department of Corrections (“Department”) and the Canterbury District Health Board (“DHB”) sought a declaration of their rights and duties when providing medical treatment to prisoners. Specifically, they wished to receive a declaration that they have a right to provide medical treatment by way of artificial hydration and nutrition when the prisoner’s health or life is threatened or when they are not able to indicate whether a prisoner consents to treatment. Alternatively, applicants sought a declaration that they have a lawful excuse not to provide medical treatment when a prisoner refuses to consent to treatment.

Mr. All Means All, a 57-year-old, began a hunger strike on his first day in prison. He believed the detective lied when giving evidence against him at trial and thought his hunger strike would force the truth to come out. He was admitted to the hospital and released back into the prison several times. He had four psychiatrists examine his mental health, and all four concluded that he did not have any major mental disorder, meaning he retained the capacity to consent to or to refuse medical care.

As concern for his health grew, the Department and the DHB sought the declaration to better understand their responsibilities to Mr. All Means All and other prisoners.

On the issue of whether to authorize artificial hydration and nutrition, the Court held that prisoners who have the capacity to make reasonable decisions have a right to refuse consent for medical treatment. The Court based this decision on Section 11 of the New Zealand Bill of Rights Act 1990, which states that all people with the capacity and competence to make an informed and rational decision have the right to refuse medical treatment. All people also have the right to freedom of thought, which includes the right to hold your own opinions. Though the common law of other jurisdictions has held differently, the Court held that those decisions did not apply in the New Zealand context given Section 11’s emphasis on the right to refuse medical treatment.

The Court found that the applicants would have a lawful excuse for not providing medical treatment to Mr. All Means All if he continued not to give informed consent to treatment, or if he provided a directive in advance that he was refusing consent.

“The objective of the limitation, here the preservation of Mr All Means All’s life, must be of such importance as to warrant overriding the fundamental right to refuse medical treatment. The means, here the provision of artificial hydration and nutrition, must be reasonable and demonstrably justified.” Para. 35.

“It seems to me that New Zealand has plotted its own course, at least in terms of the emphasis it has accorded to informed consent. Counsel’s researchers revealed no other country which has a provision equivalent to s 11, enshrining the right to refuse medical treatment. In consequence, cases in other jurisdictions which have had to consider this very issue do so, not by reference to an express provision of their constitution or charter, but by reference to other more general of their fundamental rights.” Para. 46.

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