A judge has questioned the legality of the government's ban on managed isolation exemptions after a man was denied the chance to farewell his dying father.
Photo: Katarzyna Bialasiewicz photographee.eu / 123RF
Returning New Zealander Graeme Hattie flew back from the United Kingdom after hearing his father - who had bladder cancer for some time - was rapidly deteriorating.
Hattie was four days into his mandatory 14-day quarantine period when he was told his father had days, if not hours, to live.
He applied for early release on compassionate grounds but was twice rejected on the basis his case didn't fall into any of the remaining grounds for exemption.
Having been denied the chance to say goodbye to his father, Hattie is mounting a legal challenge against the government's blanket ban on compassionate exemptions from managed isolation.
The Health Minister ordered such exemptions be put on hold after it was revealed two sisters who were granted one had not been tested for Covid-19 before leaving their managed isolation facility despite the Director-General of Health having ordered that all incoming travellers be tested three days and 12 days after arrival.
The women, who travelled from Auckland to Wellington after the death of their own father, later proved to have the virus.
Hattie has filed Judicial Review proceedings alleging error of law and failure to consider his circumstances. The case was due to be heard in the High Court at Auckland on 8 July, while Hattie also waited to hear his result from a Covid-19 test.
In a minute released to RNZ, Justice Muir said Hattie's father had died the night before the legal challenge was to be heard and the case is now over.
"I express my condolences to the applicant in respect of this sad development. He should, however, always carry with him the knowledge that he could not conceivably have done more to console his late father in this final hours. He demonstrates the finest qualities possible in a son."
Justice Muir noted it was his provisional view that the blanket ban on compassionate leave appeared "inconsistent" with the Covid-19 Public Health Response (Air Border) Order 2020.
The judge said it was his reading the legislation, which permits a person to leave isolation or quarantine for any exceptional reason, included compassionate grounds.
He said there appeared to be an urgent need for the Director-General of Health to review the terms of the blanket ban.
Last week the minister in charge of quarantine and managed isolation facilities, Megan Woods said the reinstatement of compassionate exemptions and the work required to do that would be a priority for the government this week.
RNZ asked the Ministry of Health about the status of compassionate exemptions, whether they're currently under review and if the High Court judge's comments changed its approach.
In a statement, the ministry said it did not rely on the temporary suspension of compassionate exemptions in rejected Hattie's application.
"The Ministry did actively consider Mr Hattie's application and did not rely on the suspension when considering the request from his legal team.
"This period represents a temporary suspension of compassionate exemptions while appropriate policy and processes are worked through."
The ministry said it aknowledged the Hattie family's loss and "respected" the court's remarks on the case this week.
"We know families and whanau have faced some very difficult challenges because of the restrictions forced by Covid-19.
"At the same time, we have had to balance compassion with keeping New Zealand and New Zealanders protected from the threat of infection."