Corrections, Health NZ exempt from prosecution as prisoner Francis Shaw's hunger strike enters 89th day

Belinda Feek, Open Justice reporter of

By Belinda Feek, Open Justice reporter of

An inmate who has been on a politically motivated hunger strike for 89 days has refused all medical intervention, even if he has a heart attack or stroke, saying he is well aware of the potential consequences of not eating and drinking.

Francis Manewha Shaw made his views clear in an "advanced directive" in August but the Department of Corrections and Health NZ were concerned about the consequences of not providing medical intervention and have taken the matter to court.

Now, a High Court judge has ruled Shaw, who is in his late 50s, was of sound mind when he formed his views and he has the right to decide what happens to him.

It has also granted the Department of Corrections and Health NZ an exemption from prosecution for not providing Shaw with medical care when he is no longer able to make informed decisions.

Shaw was jailed in July for 10 and a half months on charges of common assault, assault with a weapon, and possessing an offensive weapon. His statutory release date is 20 December, while his official end sentence date is 28 May next year.

He arrived at Rimutaka Prison on 15 July and two days later advised health staff at the prison that he was on a hunger strike and hadn't eaten since his arrival.

In Justice Paul Radich's decision, he outlines how Shaw gave prison staff an "advanced directive" on 4 August as confirmation of his hunger strike; the third one he's undertaken while serving a prison term.

The directive states that he doesn't want any medical treatment while he is on his hunger strike.

An advance directive is a written or oral directive where a person makes a choice about a possible future health care procedure, and that is intended to be effective only when he or she is not competent.

There was no statutory guidance about the requirements of a valid advance direction in New Zealand and common law had not developed far in dealing with them.

Custodial and medical staff have been monitoring Shaw closely but he has declined all food but voluntarily requested various fluids, including water, tea, coffee, Milo, smoothies, and Up&Go.

He has since been segregated for health oversight and on 7 October was moved from the health bed cell to another after he "rendered [it] unusable by destroying various parts of it, including the bed itself and the emergency call buttons".

"He is unhappy with his present accommodation," Justice Radich wrote in his decision.

Given Shaw's advance directive, Corrections and Health NZ sought to validate Shaw's instructions. They also wanted a "lawful excuse" for adhering to his advance directive and medical instructions - therefore escaping any liability.

The declarations sought were prospective in the sense that they would apply from the point in time at which Shaw no longer had, due to the effects of his hunger strike, decision-making capacity.

'My hunger strikes are political actions, not an illness'

Shaw has previously been on hunger strikes while behind bars, saying he wanted to see a separate Māori Parliament introduced and to raise awareness of a marae-based justice system.

In his most recent directive, which was modified from his previous ones in 2020 and 2022, he stated "to avoid any doubt that I do not want to receive any medical treatment during any period when I am on a hunger strike".

"I have made this decision freely after long and detailed consideration of the options available to me to address constitutional injustices and demand a just constitution for New Zealand that restores the mana of all the parties to the Treaty of Waitangi.

"I am very well informed about the health implications of a hunger strike.

"I have undertaken two extended hunger strikes while in prison previously. I intend the directive to apply under all circumstances that might arise during a hunger strike. My hunger strikes are political actions not evidence of illness."

He also said to a nurse on 18 August that he knew he might suffer a stroke at any time, and that organ damage, failure, or death could be caused.

On 21 August, he told a health adviser that he "felt he had maybe another week before things became so bad they could not be retrieved", and similar comments were made throughout September.

Department of Corrections and Health New Zealand filed proceedings with the courts on 19 September.

A hearing was held on the 25th where Shaw indicated through his whānau he may resume fluids if it was agreed that the proceedings be paused to allow his whānau to meet with him along with the Tumu Whakarae (chief executive) of Te Rūnanga o Toa Rangitira for the purpose, primarily, of advancing his political objectives.

During another hearing last week concerns were raised by the prison doctor that Shaw hadn't consumed any liquids since 7 October and "his health will deteriorate quickly if he does not start drinking again and that he could die within three to five days".

It is unclear if he has taken any fluids since that hearing on 10 October.

Justice Radich said in his decision he didn't see Shaw's right to make decisions about medical treatment as being inconsistent with his rights under the New Zealand Bill of Rights and was "quite satisfied on the evidence that there is nothing to suggest that Mr Shaw was not competent to, or did not have the capacity to make, the advance directive".

"His decision was his own, he had accurate and sufficient information about the decision that he was making, and sufficient information was communicated to him effectively.

"I am satisfied that Mr Shaw had the ability and capacity to make the advance directive, that the advance directive was valid, and that the respondents are entitled to give effect to it in the event that Mr Shaw was to lose capacity."

Shaw told Te Ao with Moana in 2020 that he went on that hunger strike while on remand because he wanted a Māori parliament and saw "no other alternative".

"We need a Māori parliament. I'm also of the opinion that it may cost a life or two and I was prepared to be that martyr."

However, on that occasion, he was released after 25 days of not eating.

"I was a little bit p***ed off that I got booted out of jail ... It really killed my hunger strike."

This story was first published by the New Zealand Herald.