Applications to be exempt from quarantine on compassionate grounds are considered on their merits and no blanket approach is applied, the Director-General of Health says after the High Court overruled a Ministry of Health decision.
A High Court ruling on Friday, released publicly on Monday, overruled a decision not allowing Kiwi Oliver Christiansen exemption from quarantine rules to visit his dying father. It found the "decisions to decline permission are on their face legally flawed" and the "exceptional" case "had the hallmarks of automatic rejection based on circumscribed criteria rather than a proper exercise of discretion."
The ruling has led to a review of the 24 cases of people in quarantine or managed isolation asking for an exemption on compassionate grounds to visit a dying relative. On Monday, Prime Minister Jacinda Ardern told reporters 18 such people had been granted permission, but it later emerged she had been given the incorrect number and no one - until the High Court ruling - had been granted an exemption on compassionate grounds.
The Director-General of Health Dr Ashley Bloomfield told The AM Show on Tuesday that exemptions have been granted on other grounds, however.
"We have had several hundred requests for exemptions for people who have flown into the country and are in either quarantine or in managed isolation at the airports and hotels around the place. Of those, there have been 18 exemptions granted, mostly on medical grounds. For example, people who have medical conditions so they can't really be looked after in that hotel setting," he said.
"We have had a total of 24 inquiries or applications for exemption on compassionate grounds such as the one the judge has made a ruling on and none of those have been granted or hadn't been until last Friday when the family took it for a judicial review."
Dr Bloomfield said his team works to apply specific criteria to each case "objectively" and "fairly", which he said they do with "empathy".
"What they have to balance up, of course, is the information they have got and the risk that might portray or might carry for the public. When we know that people coming in from overseas are the source of all potential new infections in New Zealand, they have to do that real careful balancing act to weigh up those requests with the overall objective of trying to break the chain of transmission in New Zealand.
"I think what the judge looked at was whether it was clear we had followed that process of objectively looking at all the information and looked at that information on its merits and the judge felt it wasn't clear we had done that."
The Director-General of Health said he has already asked for the criteria used to be looked at and for the team to check the process was correctly applied in the other cases.
He denied a "blanket approach" was used in all cases and that the High Court's view on a "single case" provided a "benchmark" for other cases.
"This was not a blanket, one-size-fits-all process. Each application was looked at on its merits and all the information. The person who went for the judicial review provided further information and I very quickly asked the team, I said 'please go back and review. Make sure you are carefully and objectively considering the additional information in putting forward that decision.'"
"We will go back, we will look at all the previous decisions as well just to be sure we got the process right and that we are taking into account the findings of the court."
In her ruling, Justice Tracey Walker said she considered the "public health and safety concerns and the potential ramifications of the grant of relief" but also added that decisions must "be proportionate to the justified objective of protecting New Zealand".
Multiple conditions were laid out for Christiansen's release, such as requiring he return to managed isolation within 24 hours of his father's passing, distance himself from other family members, use only a private vehicle, and wear personal protective equipment.
Christiansen, who returned to New Zealand from London to be with his father, told Newshub that "court really became the last throw of the dice".
"For me and my family, it turned out to be critically important. We were battling with the process for eight days. Mercifully I managed to make it home and then 36 hours later my father passed away. So we didn't have any time to lose," he said.
His lawyer Simon Foote QC said the Ministry of Health needs to consider the ruling in the future.
"They need to use that discretion in a more compassionate way than they did with Mr Christiansen," he said.
Due to the COVID-19 pandemic, anyone entering the country is required to remain in a form of quarantine for at least 14 days. These border measures are expected to continue for a long period of time while the world grapples with the deadly virus.
