Government set to fight latest legal battle in Agent Orange case
Sir Wira Gardiner.
Photo:
Supplied
The High Court is scheduled next month to hear the Wira Gardiner Agent Orange case that is potentially hugely costly to the Crown.
Tā Gardiner, now deceased, claimed in 2021 his glioblastoma brain tumour must be treated as a defence service-related condition due to his exposure to the toxic chemical in Vietnam.
An appeals board late last year agreed.
But the
government then counter-appealed
over how the law was being interpreted.
That is now due to be heard in a fortnight, on 5 May.
"The court will issue its judgment when it chooses. NZDF has no control over that process, nor knowledge of when that will occur," NZDF told RNZ.
The case sparked a move to change how some military veterans' applications for financial support were assessed, and Veterans' Affairs brought in new processes. But the greater access for claimants did not stick.
"The new processes are likely to mean
greater delays in deciding some complex claims
.
"Veterans' Affairs has advised veterans of this."
The government considers it could be liable for an
extra $3.2 billion in veterans' support
.
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NZ Herald
17-05-2025
- NZ Herald
Doctor avoids conviction and suspension for drugging and filming med student
The doctor received a discharge without conviction at the Auckland District Court in 2021 after pleading guilty to a charge of making an intimate visual recording. He was also granted permanent name suppression. He was then taken to the Health Practitioners Disciplinary Tribunal where the Medical Council wanted him suspended from practice. Instead, the doctor was given a $70,000 fine and told he could return to work after he completed a recertification programme and complied with certain conditions on his practice. The Medical Council appealed that penalty to the High Court, saying the doctor displayed very poor judgment and misused his position of power as a mentor. But a judge has now ruled that the original penalty was sufficiently severe and won't be imposing a suspension on the doctor. 'This outcome minimises the real-world consequences of what was admitted in court,' the victim told NZME. 'The imbalance of power, the setting, and the breach of trust should have weighed heavily in sentencing. 'Similarly, the tribunal's decision to avoid licence removal felt like it put professional reputation above public safety, enabling someone dangerous to continue operating without appropriate consequences.' The doctor's lawyer, Harry Waalkens, said on his client's behalf that the suggestion the doctor was a danger was 'utterly baseless'. 'There was at no time a doctor-patient/professional relationship in existence,' Waalkens said. 'Moreover, the tribunal's decision itself (one of the most experienced in its composition) was in keeping with the relevant case law and principles. 'So too the High Court's rejection of the appeal against the tribunal decision – again, by a judge who is both highly experienced and respected." Hopes for 'more exciting sex' According to the tribunal's summary of facts, the doctor befriended the medical student following a lecture at his school. Their relationship escalated over several years and they often travelled overseas together. During these trips the doctor took sleep medication to help with jetlag and supplied that medication to the other man. On one of these trips, at the airport, the doctor gave the man medication, saying it would help him sleep. But it was Cialis, a drug used to help with erectile dysfunction and often used to enhance sexual performance in men. He later told the tribunal that he did this in the hope the pair would have more exciting sex. Also during this trip, the doctor used a portable security camera to video the medical student in the shower and take photos of him without his knowledge. The doctor filmed him again in the shower at his home, and he stored the videos on his phone. These were discovered when he lent his phone to the student, who then reported them to the police. Criminal charges were then laid. 'He was motivated by sexual gratification' In a recently released decision, the Health Practitioners Disciplinary Tribunal decided not to suspend the doctor, in part because of the niche area of medicine he practises in. NZME cannot identify the field he works in without violating court suppression orders. The Medical Council then appealed the tribunal's ruling and asked the High Court to take another look, and ideally impose a period of suspension as well as requiring him to undertake a sexual misconduct assessment and an education programme. One of the lawyers for the Medical Council, Catherine Deans, told the court last month that the tribunal placed too much emphasis on the doctor's unique specialities. 'The fact he practises in a niche field of medicine cannot trump the wider concerns,' she said. 'Particularly when he's displayed very poor judgment. He's misused his position of power as a mentor.' Deans said that the tribunal erred in its finding in a number of ways and that the doctor had not actually shown any documented remorse, other than simply saying he regretted his actions. She also said the doctor attempted to minimise his actions by referring to giving his victim Cialis as 'misplaced folly' and all in good fun. 'It is deeply concerning that a [medical professional] would ever think there was anything humorous about this.' Deans said the doctor also tried to place blame on his victim and said his complaints were the result of delusions or psychosis, and that he was mentally unwell. She also questioned how much rehabilitation the doctor had done, and pointed to a single paragraph in the tribunal's ruling where it mentioned he had talked to a psychologist about his relationship issues. 'It's not disputed that he was motivated by sexual gratification,' she said, 'And yet there is no evidence that his sexual motivations have been addressed. 'There's no evidence he's been rehabilitated [for] his covert and dishonest judgment in hiding a spy camera in the bathroom.' By contrast the doctor's lawyer, Waalkens, said it wasn't mandatory for the tribunal to impose a penalty, and his client had been penalised to the tune of $70,000. 'It was a sobering penalty across the board,' Waalkens said. 'Where on earth is there a need for more penalty to be imposed?' Waalkens said that there was a clear message of deterrence and accountability in the ruling, and it was a black mark he would have against his name forever. However, while the Medical Council's register of doctors lists the conditions on the doctor's name, it does not link to or reference the tribunal's decision specifically. Justice Geoffrey Venning heard the Medical Council's appeal. 'The principal purpose of the act is to protect the health and safety of the public by ensuring that health practitioners are competent and fit to practise,' Justice Venning said in his decision dismissing the application to suspend the doctor. 'Given the evidence and testimonials supporting [the doctor] it was open for the tribunal to conclude that, despite his actions, his high degree of professional competence and the much needed specialist care he provided for the benefit of the wider public supported a conclusion that suspension and additional conditions sought by the PCC were not required in this case.' NZME called the clinic where the doctor works and was told he is taking extended leave. Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
RNZ News
05-05-2025
- RNZ News
Woman wins court order that could let her starve to death
By Jeremy Wilkinson, Open Justice reporter of A 26-year-old woman has won the right to refuse medical treatment. Photo: 123RF A 26-year-old woman with a history of health problems has won an order to "let nature take its course" - a move that could allow her to starve to death in hospital where she is refusing food and medical intervention. The woman, whose name is suppressed, has a long and complicated history of health issues and has spent large portions of the past seven years in hospital. While she and her family believe she suffers from gastroparesis, a physical condition affecting the stomach, there has never been any medical evidence that she has the condition. Instead, she's been diagnosed with a factitious disorder, a mental health condition in which the sufferer consciously self-induces, feigns or exaggerates physical or psychiatric symptoms to receive medical care. It cannot be treated with medication. Despite this, neither the woman nor her parents has ever accepted that there is a psychological or psychiatric component to her condition. As a result, she has refused to engage in any kind of psychological therapy that might help. The woman has been subject to orders under the Protection of Personal and Property Rights Act since 2018, which permitted health professionals to treat her, including food via a tube. These orders have been extended eight times but expired in October last year. The following month, the woman collapsed at home and was re-admitted to hospital in Auckland, where she's remained since. During that time, she's undergone 30 surgeries for various infections and, since early this year, has limited her food intake and refused any further surgical intervention. The woman is described as being emaciated and frail, bed-bound and in a dark hospital room with closed curtains as natural light hurts her eyes. Te Whatu Ora has applied for another order under the Act, which would allow medical professionals to continue to treat her. However, the woman has opposed any such order being made and does not want any treatment administered against her will. Instead, she wants to let nature take its course, even if that results in her death. And now, in a recent ruling from the High Court at Auckland, she's been granted her wish. The woman told a court-appointed legal adviser living in a hospital long-term - as she has done for 1588 days (about four years and three months) in the past five years - was not, for her, a life. She is completely dependent on others for assistance and does not even have sufficient strength to lift herself up in bed. She says she no longer wants to be under the control of anyone else, including medical professionals. The woman told the adviser, who visited her in the hospital, that she'd been forced to undergo psychotherapy in the past, but it did not help, and she doesn't want to do it again. While the woman accepts that without further medical intervention, she will likely die, she said she isn't suicidal and doesn't want assisted death. Her parents have also accepted her decision not to consent to further treatment. When a treatment order was first imposed in 2018, one expert found that in most issues, the woman had full capacity, except when it came to healthcare decisions. "The pattern of poor decisions is life-threatening (she has left the hospital against medical advice, discontinued care, requested palliation for a treatable condition), and appears to have no insight (and is... resistant to input) around the basis for her condition," that expert found. "Therefore, I think she is impaired around her ability to understand the nature and consequences of her situation." A Family Court judge then granted a treatment order on the basis that she didn't "appreciate her situation and its consequences" and lacked the capacity to make informed decisions about her medical care. Fast forward to 2025 and three experts produced by Te Whatu Ora conceded she had the ability to understand the decisions she was making about her health, as well as the likely consequences. However, all three were concerned that she was basing her decision on what was essentially a misdiagnosis of gastroparesis, when in reality, all her symptoms were psychological, they said. After a hearing at the High Court at Auckland in April, Justice Graham Lang found that just because the woman refused to accept the factual diagnosis of her condition, it didn't mean she was mentally incapable of making decisions about her own healthcare. "She has obviously based her decisions on this erroneous belief. Further, she is unwilling or unable to countenance the possibility that her belief may be incorrect," Justice Lang said in his decision. "A person may validly agree to, or refuse, medical treatment even where they do not accept the diagnosis that has led to the offer of the treatment in question. "The critical issue is whether they truly understand the nature, purpose and effect of the proposed treatment. "Further, she knows that treatment and nutrition will keep her alive. This means she understands the gravity of the consequences that her decisions may produce." Justice Lang ruled the woman had the mental capacity to decide her own fate. Justice Lang also noted the woman had repeatedly refused to accept psychological intervention, so it was unlikely that any court order would convince her to seek it as a treatment path. "[Her] death is not an inevitability, although there appears little prospect at this stage that she will engage in the psychiatric care that offers her the best hope of improving her disorder," Justice Lang said. "However, she is now in a position where the Court would be required to choose between making orders that override [her] wishes in the hope of preserving a theoretical prospect of her living a fulfilling life, or allowing her the dignity of deciding for herself. "As matters currently stand, [she] has decided that her best interests lie in letting nature take its course. I consider the Court should respect that decision given that she has made it after receiving nutrition and treatment over many years with little apparent accompanying long-term benefit." Justice Lang said that in reaching that conclusion, he took into account that the woman is well aware she needs to eat to stay alive, and can ask at any time to get help. "It is for her to decide whether she wishes to avail herself of this option." A Te Whatu Ora spokesperson said it could not comment on individual patients, but confirmed that it would not be appealing the ruling. Human rights lawyer Michael Bott, a former Council for Civil Liberties national chairman, told NZME that freedom of choice meant the ability for people to make any decision they wanted. "It's the freedom to make bizarre choices, or choices that don't make sense to anyone else necessarily." Bott said that just because someone makes what is perceived to be the wrong decision doesn't mean the state should compel them to make the objectively "right" decision. Bott also said that if Te Whatu Ora thought the woman was mentally unwell it could have applied under the Mental Health (Compulsory Assessment and Treatment) Act for an order to force her to accept medical treatment. "As a general rule people make decisions about their health and they choose to either accept or reject the advice of the experts, in this case here she has a belief that trumps that," he said. "No one is going to change her view." * This story originally appeared in the New Zealand Herald .
NZ Herald
05-05-2025
- NZ Herald
Woman wins court order to refuse medical treatment and food
Despite this, neither the woman nor her parents has ever accepted that there is a psychological or psychiatric component to her condition. As a result, she has refused to engage in any kind of psychological therapy which might help. The woman has been subject to orders under the Protection of Personal and Property Rights Act since 2018, which permitted health professionals to treat her, including food via a tube. These orders have been extended eight times but expired in October last year. The following month, the woman collapsed at home and was re-admitted to hospital in Auckland, where she's remained since. During that time, she's undergone 30 surgeries for various infections and, since early this year, has limited her food intake and refused any further surgical intervention. The woman is described as being emaciated and frail, bed-bound and in a dark hospital room with closed curtains as natural light hurts her eyes. Te Whatu Ora has applied for another order under the Act, which would allow medical professionals to continue to treat her. However, the woman has opposed any such order being made and does not want any treatment administered against her will. Instead, she wants to let nature take its course, even if that results in her death. And now, in a recent ruling from the High Court at Auckland, she's been granted her wish. 'The pattern of poor decisions is life-threatening' The woman told a court-appointed legal adviser living in a hospital long term - as she has done for 1588 days (about four years and three months) in the past five years - was not, for her, a life. She is completely dependent on others for assistance and does not even have sufficient strength to lift herself up in bed. She says that she no longer wants to be under the control of anyone else, including medical professionals. The woman told the adviser, who visited her in the hospital, that she'd been forced to undergo psychotherapy in the past, but it did not help, and she doesn't want to do it again. While the woman accepts that without further medical intervention, she will likely die, she said she isn't suicidal and doesn't want assisted death. Her parents have also accepted her decision not to consent to further treatment. When a treatment order was first imposed in 2018, one expert found that in most issues, the woman had full capacity, except when it came to healthcare decisions. 'The pattern of poor decisions is life-threatening (she has left the hospital against medical advice, discontinued care, requested palliation for a treatable condition), and appears to have no insight (and is... resistant to input) around the basis for her condition,' that expert found. 'Therefore, I think she is impaired around her ability to understand the nature and consequences of her situation.' A Family Court judge then granted a treatment order on the basis that she didn't 'appreciate her situation and its consequences' and lacked the capacity to make informed decisions about her medical care. Fast forward to 2025 and three experts produced by Te Whatu Ora conceded she had the ability to understand the decisions she was making about her health, as well as the likely consequences. However, all three were concerned that she was basing her decision on what was essentially a misdiagnosis of gastroparesis, when in reality, all her symptoms are psychological. 'Best interests lie in letting nature take its course' After a hearing at the High Court at Auckland in April, Justice Graham Lang found that just because the woman refused to accept the factual diagnosis of her condition, it didn't mean she was mentally incapable of making decisions about her own healthcare. 'She has obviously based her decisions on this erroneous belief. Further, she is unwilling or unable to countenance the possibility that her belief may be incorrect,' Justice Lang said in his decision. 'A person may validly agree to, or refuse, medical treatment even where they do not accept the diagnosis that has led to the offer of the treatment in question. The critical issue is whether they truly understand the nature, purpose and effect of the proposed treatment. 'Further, she knows that treatment and nutrition will keep her alive. This means she understands the gravity of the consequences that her decisions may produce.' Justice Lang ruled the woman had the mental capacity to decide her own fate. Justice Lang also noted the woman had repeatedly refused to accept psychological intervention, so it was unlikely that any court order would convince her to seek it as a treatment path. '[Her] death is not an inevitability, although there appears little prospect at this stage that she will engage in the psychiatric care that offers her the best hope of improving her disorder,' Justice Lang said. 'However, she is now in a position where the Court would be required to choose between making orders that override [her] wishes in the hope of preserving a theoretical prospect of her living a fulfilling life, or allowing her the dignity of deciding for herself. 'As matters currently stand, [she] has decided that her best interests lie in letting nature take its course. I consider the Court should respect that decision given that she has made it after receiving nutrition and treatment over many years with little apparent accompanying long-term benefit.' Justice Lang said that in reaching that conclusion, he took into account that the woman is well aware she needs to eat in order to stay alive, and can ask at any time to get help. 'It is for her to decide whether she wishes to avail herself of this option.' A Te Whatu Ora spokesperson said it could not comment on individual patients, but confirmed that it would not be appealing the ruling. 'Freedom of choice' Human rights lawyer Michael Bott, a former Council for Civil Liberties national chairman, told NZME that freedom of choice meant the ability for people to make any decision they wanted. 'It's the freedom to make bizarre choices, or choices that don't make sense to anyone else necessarily.' Bott said that just because someone makes what is perceived to be the wrong decision doesn't mean the state should compel them to make the objectively 'right' decision. Bott also said that if Te Whatu Ora thought the woman was mentally unwell it could have applied under the Mental Health (Compulsory Assessment and Treatment) Act for an order to force her to accept medical treatment. 'As a general rule people make decisions about their health and they choose to either accept or reject the advice of the experts, in this case here she has a belief that trumps that,' he said. 'No one is going to change her view.'
