Application for declaratory judgment arising out of prisoner’s hunger strike – validity of advance directive refusing medical treatment – was the prisoner competent to make the advance directive? – applicable rights under New Zealand Bill of Rights Act 1990 – does the duty to prevent suicide apply?
Chief Executive Department of Corrections v Shaw [2024] NZHC 2976 per Radich J
Francis Shaw, a prisoner at Rimutaka Prison, has been on a hunger strike since 17 July 2024 and has declined all food since then. He has, however, consumed fluids from time to time, including tea, coffee, milo, smoothies and Up&Go.
On 4 August 2024, Shaw provided prison health staff with an advance directive (dated 16 September 2022) which confirmed that he did not want to receive any medical treatment when he was on a hunger strike and that he intended the directive to apply under all circumstances that might arise.
The directive explained that Shaw’s decision had been made freely after detailed consideration of the available options to address “constitutional injustices and demand a just constitution for New Zealand that restores the mana of all the parties to the Treaty of Waitangi”. It also stated that he would not accept any assessment of his mental health.
On 9 August 2024, Corrections staff completed a hunger strike management care plan for Shaw, which identifies in detail the impacts of the hunger strike on his body, the changes he might experience (including cognitive changes, infection, heart attack, kidney failure) and provides, in each case, Shaw’s instructions, rejecting the provision of medical attention.
The prison daily records of interactions with Shaw make it clear he was well aware that his hunger strike could result in multiple significant medical complications and lead to his death.
The Chief Executive of the Department of Corrections, prison managers and Corrections officers are required to ensure the safe custody and welfare of prisoners, including reasonably necessary medical treatment. The chief executive must ensure prisoner health needs are promptly met and, as far as practicable, their physical and mental health is maintained to a satisfactory standard.
Corrections also has a legal duty under s 151 Crimes Act 1961 to take reasonable steps to prevent prisoners (who fall within the definition of “vulnerable adults”) from injury.
Any person who has care and charge of a prisoner may be criminally responsible for omitting to discharge or perform the duty, if it were a major departure from the standard of care expected.
There could be criminal responsibility for manslaughter and for failing to protect a vulnerable adult.
In September 2024, the Chief Executive of the Department of Corrections and Health NZ applied to the court for declarations that Shaw’s advance directive and associated medial instructions were valid and that all their staff and agents would have a lawful excuse for adhering to them.
From 7 October 2024, Shaw refused to consume any liquids, including water. The High Court fixture was scheduled at short notice following confirmation from the prison doctor that Shaw could die within days if he did not start drinking again.
Applicable principles: New Zealand Bill of Rights Act 1990, ss 9, 11, 14, 15, 23(5); Corrections Act 2004, ss 5, 8, 12, 14, 69-78; Corrections Regulations 2005, reg 72; Crimes Act 1961, ss 2, 151, 160, 171 – validity of advance directive refusing medical treatment – do the provisions of the Corrections Act and Corrections Regulations affect Shaw’s fundamental right to refuse medical treatment? (no) – is Shaw’s right to make decisions about his medical treatment inconsistent with application of relevant rights under the Bill of Rights? (no) – would sedation, intubation and ventilation breach Shaw’s right to be treated with humanity and respect for the inherent dignity of the person? (yes) – was Shaw competent to make the advance directive? (yes) – does the duty to prevent suicide apply? (no)
Held: The court made the following declarations:
- that Shaw’s advance directive dated 16 September 2022 and medical instructions dated 9 August 2024 were valid.
- that unless instructed to the contrary by Shaw, the advance directive was such that the Chief Executive of the Department of Corrections and all staff and agents of the Department of Corrections, including medical staff, and Health NZ and all staff and agents of Health NZ, including health professionals, would have a lawful excuse, including for the purpose of s 151 of the Crimes Act 1961, for adhering to Shaw’s advance directive and medical instructions.
Note: The court drew a distinction between suicide (intentional killing of oneself where death is the desired and end result) and Shaw’s situation – where the hunger strike is driven by a political cause and his intention is to draw attention to that cause. Accordingly, the duty to prevent suicide case law does not apply.
See also: High Court rejects hunger striking prisoner’s bid to change cells
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