Public health

Our lawyers have worked with public health services on a wide range of issues, reflecting the diverse and complex work undertaken. Over recent years our lawyers have been immersed in the legal and regulatory issues that have fallen out of the Covid-19 pandemic.

While most in the community experience the benefit of personal health services, it has taken a global pandemic for many to fully appreciate the significant contribution to our well being made by public health teams around the country. Our lawyers have worked with public health services on a wide range of issues, reflecting the diverse and complex work undertaken. We have advised on infectious disease management, smoke free legislation, food safety and health screening. We have represented public health providers in various courts, including liquor licencing appeals, public health related judicial reviews and a private prosecution of a public health officer. Our lawyers are experts in the management of personal information and operation of the Official Information Act.

Public health practitioners operate within a unique set of legal frameworks. Their interventions can be heavily scrutinised, whether by legal challenge, complaint or publicity. Public health staff must be familiar with their powers and functions, and equipped to comply with statutory, administrative and common law obligations. Our lawyers are immersed in the sector and have extensive experience supporting public health clinicians with case management and complex compliance issues.

When it comes to public health:

  • Serving public, not personal, interests changes everything
  • Much rests on careful information management
  • Good process is essential for sound decision making.
We work with the following groups in relation to Public health law:

Examples of work done by Claro lawyers

Covid-19 pandemic. Extensive advice on all aspects of the pandemic – and throughout the pandemic.  Advising regulators, Te Whatu Ora, private health providers and others.  Acting in disputes and professional disciplinary proceedings arising from the pandemic.

Seeking court orders under the Health Act 1956 in relation to a patient wanting to return to an uninhabitable home with no support. We acted for the Ministry of Health / Medical Officer of Health (DHB) seeking urgent orders in the Family Court regarding a complex and combative patient who was being evicted from a care facility. Orders were sought under both the Protection of Personal and Property Rights Act and section 126 of the Health Act 1956. There were questions around the patient’s decision-making capacity, the use of force and the right of the care facility to ‘expel’ the patient. Interim and then final orders were obtained. The patient was moved to an alternative facility.

Defending a Health Protection Officer (HPO) facing a private prosecution. We acted for a DHB in relation to a proposed private prosecution of an HPO accused of perjury. This related to evidence given by the HPO at a hearing where the proposed prosecutor had been charged and subsequently convicted of offences under the Food Act 1981. The court ultimately refused to accept the charges against the HPO for filing, finding that there was insufficient evidence before the court, and that there had been an abuse of process.

Judicial review of a DHB’s smoke-free policy preventing mental health patients in the DHB’s in-patient units from being able to smoke on DHB premises. We represented the DHB in the proceeding. The application, brought by two mental health patients and a former mental health nurse – challenged both the DHB’s decision-making process and the legality of the policy itself in a mental health context. The applicants alleged that the policy discriminated against mental health patients. The High Court dismissed the application in its entirety and found that the DHB’s decision-making process was robust; the policy was consistent with the DHB’s statutory functions and objectives under the NZ Public Health and Disability Act (including its public health functions); the policy was not discriminatory; and the policy was consistent with the DHB’s obligations under the Health and Safety in Employment Act.  The High Court’s decision is currently the subject of appeal before the Court of Appeal.

Sitting on an HIV Advisory Group, assisting a regional public health service with management of complex cases involving infected persons potentially placing others at risk. The groups worked with infectious disease and sexual health clinicians and advised on risk assessment, legal obligations and collection, use and disclosure of information.

Legionnaires disease deaths. We acted for a DHB in an inquest following a spate of deaths from Legionnaires disease. The public health team had identified the likely source of the disease; but the methodology for identifying the likely source was in issue at the inquest.

Sale and Supply of Liquor Act. We have acted for Medical Officers of Health opposing applications for liquor licences under the Sale and Supply of Liquor Act. This includes hearings before the District Licensing Committees and the Alcohol Regulatory and Licensing Authority. Evidence of alcohol related harm, and the likely increase in alcohol related harm if a licence is issued, are commonly central issues in such oppositions.

Appeals against decisions made under the interim licensing and approval regime of the Psychoactive Substances Act (prior to the legislative changes). We acted for the Psychoactive Substances Regulatory Authority – based within the Ministry of Health – advising on the statutory scheme, principles of statutory decision-making, evidential matters, and the manner in which appeals were to be conducted before the new statutory appeals committee. Our work required comprehensive knowledge of the Psychoactive Substances Act and regulatory appeals processes.

Our experts