A High Court judge overturned a ban on a man in ‘managed isolation’ in an Auckland hotel visiting his dying father – and ordered he could drive across town, stay with his Dad and then return to the quarantine.

Justice Tracey Walker ruled on Friday that the Ministry of Health had not applied the discretion required under the Health Act (Managed Air Arrivals) Order and it was unfair to deny the man, Oliver Christiansen, the chance to see his father. Stuff reports the visit has now occurred ahead of Christiansen senior’s death on Saturday night.

Oliver Christiansen, who had returned from London on April 23 when his father’s brain cancer condition worsened and been put into mandatory isolation, had been denied permission three times before challenging the health ministry’s decisions.

Justice Walker said: “This places the Court in an unusual position. However, my assessment is that overall justice demands an effective and swift response by the Court in these exceptional circumstances. 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.”

She ordered that Christiansen be allowed to leave quarantine before his 14 days were up in a central city facility and drive, alone, in a car to his father’s home. 

He had to stay at the private address until his father passed, isolating himself from others at the house, and return within 24 hours of the death to the quarantine facility using the same car.

Christiansen had to wear personal protective equipment, including gloves and a face mask and comply with monitoring requirements from the police.

The judge issued her order on Friday but it has just been publicly released.

She found the Ministry of Health did not use its discretion in this case. “In this particular case, there is a very strong argument, in my judgment, 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.1

She said the ministry had “responsibly acknowledged” that on the face of the documentary record, one of the grounds of [judicial] review can be made out. The respondent advises that it is in the process of urgent reconsideration.”

The judge said on Friday it was urgent that her decision be made.  In the full judgment Monday afternoon she laid out Christiansen’s grounds for seeking judicial review – including that the health ministry’s three denials all said he could not leave quarantine because such dispensation could only be on the grounds of his own medical condition.

Christiansen, however, was applying under a ‘compassionate exemption’ under the ministry’s order.  He told officials his father had been saying: “Where is my boy, where is my boy”.

Justice Walker found: “A decision-making public body entrusted with a decision must not adopt rigid rules that disable it from exercising discretion in individual cases. Decision-makers cannot rely on fixed frameworks which “close [their] mind to the possibility that special circumstances may exist outside those categories”, particularly when the law in question gives the decision-maker some flexibility.”

Because she found the ministry erred in law and failed to take into account all relevant considerations, the judge did not rule on whether it had been unreasonable, as Christiansen’s lawyers suggested.

However she said: “These are extraordinary times. I am inclined to the view that the context of this application, the nature of the fundamental rights in issue, the wide-ranging powers under the Health Act and the current crisis all support, if not demand, more expansive supervision by the Courts.”

Christiansen was not even tested for Covid-19 in quarantine before the ministry declined his requests. The judge said: “It is worth re-emphasising that the applicant is completely asymptomatic and his health status has been checked every few days but he has not undergone a Covid-19 test, despite his many requests to do so.”

In allowing Christiansen to leave quarantine and visit his father, Justice Walker said it was arguable she was simply restoring his position had the health ministry handled his application correctly under the law. 

“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.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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