Health (Protection) Amendment Act 2016

11 New Part 3A inserted

Before Part 4, insert:

Part 3A Management of infectious diseases

Subpart 1—Overarching principles

92A Principles to be taken into account

(1)

The principles set out in sections 92C to 92H are to be taken into account by every person and every court performing a function under this Part.

(2)

Nothing in sections 92C to 92H is to be taken as indicating that the principles in those sections are set out in any order of importance.

(3)

To avoid doubt, an individual undertaking contact tracing in response to a request under section 92ZZD(2) is not performing a function under this Part.

92B Paramount consideration

The paramount consideration in the application of the principles in sections 92C to 92H is the protection of public health.

92C Respect for individuals

(1)

An individual must be treated with respect for the dignity of the individual when any functions, duties, or powers are exercised or performed in relation to him or her under this Part.

(2)

The person exercising or performing the functions, duties, or powers must take into account any known special circumstances or vulnerabilities of the individual, to the extent that the protection of public health permits this to be done.

92D Voluntary compliance

(1)

If an individual poses a public health risk, and that risk can be prevented or minimised by the individual’s voluntary compliance with certain measures, the individual must be given the opportunity to voluntarily comply with those measures before measures under this Part are applied to the individual.

(2)

A person or court exercising or performing any functions, duties, or powers under this Part must take into account whether the individual has had an opportunity to minimise the risk of transmitting the infectious disease, and whether he or she has done so, or the extent to which he or she has done so, particularly in response to—

(a)

any directions given to the individual:

(b)

any request or instruction from a medical practitioner, medical officer of health, or health protection officer.

(3)

Individuals and communities should be encouraged to take responsibility for their own health and, to that end, to participate in decisions about how to protect and promote their own health and the health of their communities.

92E Individual to be informed

A person exercising or performing any functions, duties, or powers in relation to an individual under this Part must, so far as is practicable in the circumstances, promptly inform the individual, in a way that the individual is most likely to understand, about—

(a)

the nature of the functions, duties, or powers being exercised or performed and their implications for the individual:

(b)

any steps planned to be taken in respect of the individual:

(c)

any right of the individual to appeal against the exercise or performance of the functions, duties, or powers and to apply for judicial review.

92F Principle of proportionality

Measures applied to an individual under this Part must—

(a)

be proportionate to the public health risk sought to be prevented, minimised, or managed; and

(b)

not be made or taken in an arbitrary manner.

92G Least restrictive alternative

In any case where this Part enables alternative measures to be applied to an individual, preference must be given to the least restrictive measure that, in the judgment of the person or court concerned, will achieve the objective of minimising the public health risk posed by the individual.

92H Measures to apply no longer than necessary

Measures applied to an individual under this Part must not be applied longer than is necessary to prevent or minimise the public health risk that the individual poses.

Subpart 2—Directions

92I Medical officer of health may give directions to individual posing public health risk

(1)

This section applies if a medical officer of health believes on reasonable grounds that an individual poses a public health risk.

(2)

The medical officer of health may give the individual any direction or directions listed in subsection (4) that the medical officer of health thinks are necessary to prevent or minimise the public health risk posed by the individual.

(3)

If the disease that the individual is believed to have is not a notifiable infectious disease, every direction given to the individual must have the prior approval of the Director-General.

(4)

The medical officer of health may direct the individual to—

(a)

participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the infectious disease:

(b)

refrain from carrying out specified activities (for example, undertaking employment, using public transport, or travelling within and outside New Zealand) either absolutely or unless stated conditions are observed:

(c)

refrain from going to specified places either absolutely or unless stated conditions are observed:

(d)

refrain from associating with specified persons or specified classes of persons:

(e)

take specified actions to prevent or minimise the public health risk posed by the individual:

(f)

stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(g)

accept supervision by a named person or a person for the time being holding a named office, including, without limitation,—

(i)

attending meetings arranged by that person; and

(ii)

providing that person with information on any action, occurrence, or plan that is relevant to the public health risk posed by the individual:

(h)

comply with instructions to prevent the spread of the infectious disease.

(5)

In no case may a direction require an individual to submit to compulsory treatment.

(6)

Subsection (7) applies if a direction requires an individual to refrain from carrying out a specified activity either absolutely or unless stated conditions are observed and a medical officer of health believes on reasonable grounds that the persons responsible for the activity need to be informed in order to prevent or minimise the public health risk posed by the individual.

(7)

The medical officer of health may contact any person who occupies a position of responsibility in relation to the activity and tell that person about 1 or more of the following matters:

(a)

the direction:

(b)

the public health risk posed by the individual’s engagement in the activity:

(c)

ways of minimising that public health risk.

(8)

If the Director-General so requires, the medical officer of health must send him or her a copy of all or any of the directions given by the medical officer of health under this section.

(9)

Despite anything in the Privacy Act 1993, if a person requires another person to provide information under this section,—

(a)

the person required to provide the information must comply with the requirement and be advised that the information must be provided for the effective management of infectious diseases; and

(b)

nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

92J Medical officer of health may give directions to contacts of individuals posing public health risk

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

an individual has been in contact with a person who has, or may have, an infectious disease; and

(b)

if the disease has been transmitted to the individual, the individual poses, or is likely to pose, a public health risk.

(2)

The medical officer of health may give the individual any 1 or more directions listed in subsection (4) that the medical officer of health thinks are necessary to prevent or minimise the public health risk posed by the individual.

(3)

If the disease that the individual is believed to have is not a notifiable infectious disease, every direction given to the individual must have the prior approval of the Director-General.

(4)

The medical officer of health may direct the individual to—

(a)

participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the infectious disease:

(b)

refrain from carrying out specified activities (for example, undertaking employment, using public transport, or travelling within and outside New Zealand) either absolutely or unless stated conditions are observed:

(c)

refrain from going to specified places either absolutely or unless stated conditions are observed:

(d)

refrain from associating with specified persons or specified classes of persons:

(e)

take specified actions to prevent or minimise the public health risk posed by the individual:

(f)

stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(g)

accept supervision by a named person or a person for the time being holding a named office, including, without limitation,—

(i)

attending meetings arranged by that person; and

(ii)

providing that person with information on any action, occurrence, or plan that is relevant to the public health risk posed by the individual:

(h)

comply with instructions to prevent the spread of the infectious disease.

(5)

In no case may a direction require an individual to submit to compulsory treatment.

(6)

Subsection (7) applies if a direction requires an individual to refrain from carrying out a specified activity either absolutely or unless stated conditions are observed and a medical officer of health believes on reasonable grounds that the persons responsible for the activity need to be informed in order to prevent or minimise the public health risk posed by the individual.

(7)

The medical officer of health may contact any person who occupies a position of responsibility in relation to the activity and tell that person about 1 or more of the following matters:

(a)

the direction:

(b)

the public health risk posed by the individual’s engagement in the activity:

(c)

ways of minimising that public health risk.

(8)

If the Director-General so requires, the medical officer of health must send him or her a copy of all or any of the directions given by the medical officer of health under this section.

(9)

Despite anything in the Privacy Act 1993, if a person requires another person to provide information under this section,—

(a)

the person required to provide the information must comply with the requirement and be advised that the information must be provided for the effective management of infectious diseases; and

(b)

nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

92K Direction for medical examination

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

an individual may have an infectious disease (for example, because the individual has been in contact with a person who has an infectious disease); and

(b)

the individual’s medical practitioner or a medical officer of health has requested the individual to undergo, within a specified period, a medical examination to establish whether the individual has the infectious disease; and

(c)

the individual has not undergone that examination within that period; and

(d)

if the individual has the infectious disease, the individual poses a public health risk.

(2)

The medical officer of health may direct the individual to undergo 1 or more medical examinations and may specify the places where those examinations are to be conducted and the health providers who are to conduct them.

(3)

The medical officer of health may also direct the individual, until those examinations are completed, to—

(a)

participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the infectious disease:

(b)

refrain from carrying out specified activities (for example, undertaking employment, using public transport, or travelling within and outside New Zealand) either absolutely or unless stated conditions are observed:

(c)

refrain from going to specified places either absolutely or unless stated conditions are observed:

(d)

refrain from associating with specified persons or specified classes of persons:

(e)

take specified actions to prevent or minimise the public health risk posed by the individual:

(f)

stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(g)

accept supervision by a named person or a person for the time being holding a named office, including, without limitation,—

(i)

attending meetings arranged by that person; and

(ii)

providing that person with information on any action, occurrence, or plan that is relevant to the public health risk posed by the individual:

(h)

comply with instructions to prevent the spread of the infectious disease.

(4)

In no case may a direction require an individual to submit to compulsory treatment.

(5)

Subsection (6) applies if a direction requires an individual to refrain from carrying out a specified activity either absolutely or unless stated conditions are observed and a medical officer of health believes on reasonable grounds that the persons responsible for the activity need to be informed in order to prevent or minimise the public health risk posed by the individual.

(6)

The medical officer of health may contact any person who occupies a position of responsibility in relation to the activity and tell that person about 1 or more of the following matters:

(a)

the direction:

(b)

the public health risk posed by the individual’s engagement in the activity:

(c)

ways of minimising that public health risk.

(7)

Any medical examination an individual is directed to undergo must be—

(a)

in accordance with current best practice in diagnosing the presence of, or immunity to, the infectious disease; and

(b)

the least invasive type of examination that is necessary to establish whether the individual has, or is immune to, the infectious disease.

(8)

The medical officer of health must send to the Director-General a copy of every direction given under this section.

(9)

Despite anything in the Privacy Act 1993, if a person requires another person to provide information under this section,—

(a)

the person required to provide the information must comply with the requirement and be advised that the information must be provided for the effective management of infectious diseases; and

(b)

nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

92L Direction to close educational institutions

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

1 or more persons attending an educational institution have, or may have, an infectious disease; and

(b)

there is a substantial risk that the infectious disease will be transmitted to other persons attending the educational institution; and

(c)

the risk of the infectious disease being transmitted to other persons attending the educational institution cannot be adequately managed solely by giving directions to the individual with the infectious disease.

(2)

The medical officer of health may give a direction to the person in charge of the educational institution to—

(a)

direct persons attending the educational institution to stay away from its property until further notice:

(b)

close part of the educational institution:

(c)

close the entire educational institution.

(3)

The medical officer of health must not give a direction under subsection (2) without first consulting the person in charge of the educational institution.

(4)

If the Director-General so requires, the medical officer of health must send him or her a copy of all or any of the directions given by the medical officer of health under this section.

92M Director-General may require copies of directions given under this Part

The Director-General may from time to time require a medical officer of health to provide him or her with a report on any directions given by the medical officer of health under this Part.

General provisions concerning directions and notices

92N Written directions and notices to be served on individual

(1)

A direction or notice under this Part must be in writing and must be served on the individual to whom it is given.

(2)

If the person to whom the direction or notice relates is under the age of 16 years or lacks legal capacity, a medical officer of health or a health protection officer must serve the direction or notice on the parent, guardian, or other person in charge of the person to whom the direction or notice relates.

(3)

However, if it is not reasonably practicable in the circumstances to serve the direction or notice on the individual in person, alternative steps must be taken to bring the direction to the attention of the individual as soon as possible.

(4)

In this section, notice does not include an urgent public health order or a court order.

92O Duration of directions

(1)

When giving a direction under this Part, a medical officer of health must specify the period for which the direction is to remain in effect.

(2)

A direction given by the medical officer of health must not remain in effect for more than 6 months, unless the direction is extended under section 92Q.

(3)

A direction ceases to have effect at the close of the earliest of the following days:

(a)

the last day of the period stated in the direction or in the extension of the direction:

(b)

the day (if any) on which the medical officer of health rescinds the direction under section 92S:

(c)

the day (if any) on which the direction is cancelled on appeal under section 92T:

(d)

the day (if any) on which the medical examinations required by a direction under section 92K(2) have been completed.

92P Medical officer of health must review directions

A medical officer of health must—

(a)

regularly review each direction that is in effect in the health district or districts for which the officer is responsible; and

(b)

consider whether the direction is still required; and

(c)

rescind the direction under section 92S if he or she is satisfied that the individual no longer poses a public health risk; and

(d)

if directed by the Director-General to do so, advise the Director-General why the direction needs to continue in effect.

92Q Directions may be extended

(1)

A medical officer of health may at a reasonable time before the expiry of a direction, by notice to the individual concerned, extend the direction for a period of not more than 6 months if he or she is satisfied that the conditions for giving the direction continue to be satisfied.

(2)

The medical officer of health may extend the direction on 1 or more occasions.

92R Repeated directions may be given

A direction under this Part may be given to an individual on 1 or more occasions.

92S Directions may be varied or rescinded

A medical officer of health may at any time, by notice to the individual concerned, vary or rescind a direction previously given.

92T Appeal against directions

(1)

An individual who is required to comply with a direction may appeal to the District Court against—

(a)

the direction, or any part of the direction:

(b)

a variation of the direction:

(c)

an extension of the direction.

(2)

On the appeal, the District Court may confirm, vary, or cancel the direction, variation, or extension.

(3)

The filing of the appeal does not affect the direction, variation, or extension unless the District Court otherwise orders.

(4)

A party to an appeal under this section may appeal against the court’s determination of the appeal in accordance with section 72 of the District Courts Act 1947.

92U Confidentiality

Despite anything in the Privacy Act 1993, information provided or obtained under a direction under this Part may not be used or disclosed by anyone except for the effective management of infectious diseases, but nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

Compliance with directions

92V Offence for failing to comply with directions

An individual commits an offence and is liable on conviction to a fine not exceeding $2,000 who, without reasonable excuse, fails to comply with a direction given by a medical officer of health under this Part.

92W Offence to obstruct compliance with directions

(1)

This section applies to—

(a)

a parent, guardian, or person in charge of an individual aged under 16 years; and

(b)

a person in charge of an individual who is lacking in legal capacity.

(2)

A person to whom this section applies commits an offence who intentionally obstructs that other individual’s compliance with a direction given by a medical officer of health under this Part.

(3)

A person who commits an offence against subsection (2) is liable on conviction to a fine not exceeding $2,000.

92X Duty of care relating to individuals under 16 years and persons lacking in legal capacity

(1)

This section applies to—

(a)

a parent, guardian, or person in charge of an individual aged under 16 years; and

(b)

a person in charge of an individual who is lacking in legal capacity.

(2)

If the individual aged under 16 years or lacking in legal capacity is suffering from any infectious disease, the person to whom this section applies must take reasonable steps and care to—

(a)

ensure that the individual is professionally attended by a medical practitioner, and facilitate diagnosis and treatment; and

(b)

prevent or minimise the risk of transmission of the disease by the individual.

(3)

Nothing in this section limits or affects the operation of any provisions of the Protection of Personal and Property Rights Act 1988 or any other Act that are applicable to a person or individual referred to in subsection (1).

92Y Force not permissible

In no case may force be used to secure compliance with a direction.

Subpart 3—Orders

Public health orders

92Z District Court may make public health order

On an application by a medical officer of health, the District Court may make a public health order in respect of an individual if the court is satisfied that the individual poses a public health risk.

92ZA Public health order may impose certain requirements on individual

(1)

The District Court may, in making a public health order, impose on an individual any 1 or more of the following requirements the court thinks are necessary to prevent or minimise the public health risk posed by the individual:

(a)

to be detained, at all times or at specified times, in a hospital or other suitable place or in specified parts of the hospital or place:

(b)

to stay, at all times or at specified times, at a specified place of residence:

(c)

to refrain from carrying out specified activities (for example, undertaking employment, using public transport, or travelling within and outside New Zealand) either absolutely or unless stated conditions are observed:

(d)

to be supervised by a named person or by a person for the time being holding a named office, including, without limitation,—

(i)

attending meetings arranged by that person; and

(ii)

providing that person with information on any action, occurrence, or plan that is relevant to the public health risk posed by the individual:

(e)

after the views of the individual have been taken into account, to be subject to public health surveillance, with or without the aid of electronic communication devices, by a named person or by a person for the time being holding a named office or by a named organisation:

(f)

to be treated for the infectious disease by a specified health provider:

(g)

to participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the infectious disease:

(h)

to refrain from going to specified places either absolutely or unless stated conditions are observed:

(i)

to refrain from associating with specified persons or specified classes of persons:

(j)

to take specified actions to prevent or minimise the public health risk posed by the individual.

(2)

Before the court imposes a requirement of the kind described in subsection (1)(f), the court must be satisfied that, short of detaining the individual indefinitely, treating him or her is the only effective means of managing the public health risk posed by the individual.

(3)

If an order requires an individual to be detained in a hospital or other place operated by a district health board, the district health board must permit the individual to be detained in the hospital or place.

(4)

The court may impose any requirement specified in subsection (1) subject to any conditions or restrictions that the court considers appropriate.

92ZB Matters that District Court may take into account in assessing public health risk

In assessing, for the purposes of an application for a public health order, whether an individual poses a public health risk, the District Court may, without limitation, take into account—

(a)

the infectious disease that the individual has or may have:

(b)

if the individual has had an opportunity to minimise the risk of communicating the infectious disease, whether he or she has done so, or the extent to which he or she has done so, and, in particular,—

(i)

if directions have been given to the individual, whether the individual has complied with, or the extent to which the individual has complied with, those directions:

(ii)

if a medical practitioner, medical officer of health, person acting under the direction of a medical officer of health, or health protection officer has requested the individual to take steps to prevent or minimise the risk, whether the individual has responded to those requests or the extent to which the individual has responded to those requests.

92ZC Duration of public health order

(1)

When making a public health order under section 92Z, the District Court must specify the period for which the order is to remain in effect.

(2)

A public health order must not remain in effect for more than 6 months, unless the order is extended under section 92ZD.

(3)

A public health order ceases to have effect at the close of the earliest of the following days:

(a)

the last day of the period stated in the order or in the extension of the order or, if no period is stated in the order, the day that is 6 months after the date on which the order is made:

(b)

the day (if any) on which the court cancels the order under section 92ZR:

(c)

the day (if any) on which the order is cancelled on appeal under section 92ZT or 92ZU:

(d)

the day (if any) on which the Registrar cancels the order after being satisfied that the medical officer of health has certified that the order is no longer necessary to manage the public health risk posed by the individual.

(4)

A requirement imposed by a public health order under section 92ZA ceases to have effect at the close of the earlier of the following days:

(a)

the day on which the order ceases to have effect:

(b)

the day (if any) on which the Registrar cancels the order after being satisfied that the medical officer of health has certified that the requirement is no longer necessary to manage the public health risk posed by the individual.

92ZD Public health order may be extended

(1)

The District Court may, at a reasonable time before the expiry of a public health order made under section 92Z, on the application of a medical officer of health, extend the order for a period of not more than 6 months if the court considers that extending the public health order is necessary to remove or minimise a public health risk.

(2)

The court may extend the public health order on 1 or more occasions.

92ZE Relationship between directions and public health orders

(1)

The District Court may make a public health order that corresponds to, or differs from, any direction previously given.

(2)

Any direction previously given to an individual ceases to have effect when a public health order is made in respect of that individual.

(3)

However, the making of a public health order in respect of an individual does not of itself cancel a direction for a medical examination under section 92K or a medical examination order under section 92ZH in respect of the individual.

(4)

A medical officer of health may not give a direction under this Part to an individual while a public health order made in respect of that individual is in force.

(5)

However, nothing in this section or in any other provision of this Part requires a prior direction before a public health order may be made.

Urgent public health orders

92ZF Medical officer of health may make urgent public health order

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

an individual poses a public health risk; and

(b)

the medical officer of health cannot adequately manage the public health risk by giving the individual a direction; and

(c)

to address the risk, the medical officer of health needs to take urgent action; and

(d)

it is not practicable to wait for the District Court to determine an application for a public health order.

(2)

The medical officer of health may sign and give, or authorise another person to give, the individual an urgent public health order that requires the individual to be detained at specified premises or specified parts of premises, subject to any stated conditions.

(3)

If the infectious disease that the individual is believed to have is not a notifiable disease, the urgent public health order must not be given to the individual without the prior approval of the Director-General.

(4)

The medical officer of health must write on the order the date and time it is given to the individual.

(5)

The medical officer of health must send to the Director-General a copy of the urgent public health order.

92ZG Duration of urgent public health order

(1)

An urgent public health order has effect for 72 hours from the time that it is given to an individual.

(2)

However, if the District Court determines an application for a public health order in respect of the individual before the close of the 72-hour period, the urgent public health order ceases to have effect on the court’s determination of the application.

Medical examination orders and orders concerning contacts

92ZH Medical examination orders

(1)

The District Court may, on the application of a medical officer of health, make a medical examination order in respect of an individual if the court is satisfied that—

(a)

the individual may have an infectious disease (for example, because the individual is, or has been, in contact with a person who has the infectious disease); and

(b)

the individual’s medical practitioner or a medical officer of health has asked the individual to undergo, within a specified period, a medical examination to establish whether the individual has the infectious disease; and

(c)

the individual has not undergone that examination within that period; and

(d)

the individual poses a public health risk.

(2)

The medical examination order must direct the individual to undergo whatever medical examinations the medical officer of health considers necessary to establish whether the individual has the infectious disease.

(3)

The medical examination order may also impose on the individual, until those examinations are completed, any 1 or more of the requirements stated in section 92ZA(1)(b), (c), (d), (h), (i), and (j) that the court thinks necessary to prevent or minimise the public health risk that the individual may pose.

(4)

The court may impose any requirement referred to in subsection (3) subject to any conditions or restrictions that the court thinks appropriate.

(5)

If the court makes a medical examination order under this section, any medical examination an individual is directed to undergo must be—

(a)

in accordance with current best practice in diagnosing the presence of, or immunity to, the infectious disease; and

(b)

the least invasive type of examination that is necessary to establish whether the individual has, or is immune to, the infectious disease.

(6)

The medical examination order ceases to have effect when the medical examination has been completed and it has been established whether the individual has the infectious disease.

92ZI District Court may make public health order contingent on examinations establishing infectious disease

(1)

When the District Court makes a medical examination order in respect of an individual, the court may also make a public health order under section 92Z.

(2)

The public health order—

(a)

must be made in accordance with section 92Z, with the court entitled to assume that the individual has the infectious disease for which he or she is to be examined; and

(b)

takes effect in accordance with subsection (3).

(3)

The public health order may provide that it takes effect only if a medical officer of health signs and dates a certificate that states that the individual has undergone the examinations in accordance with the medical examination order and that those examinations establish that the individual has the infectious disease for which he or she has been examined.

(4)

The order may be sealed only if the Registrar of the court has seen and filed the certificate described in subsection (3).

92ZJ Order for contacts

(1)

The District Court may, on the application of a medical officer of health, make an order in respect of an individual if the court is satisfied that—

(a)

the individual has been in contact with a person who has, or may have, an infectious disease; and

(b)

if the infectious disease has been transmitted to the individual, the individual poses, or is likely to pose, a public health risk.

(2)

The order may impose on the individual any of the requirements stated in section 92ZA(1)(b), (c), (d), (h), (i), and (j) that the court thinks are necessary to prevent or minimise the public health risk that the individual may pose.

(3)

The court may impose any requirement referred to in subsection (2) subject to any conditions or restrictions that the court considers appropriate.

(4)

If the terms of the order provide that the order may be brought to an end if the medical officer of health certifies to a Registrar of the court that the order is no longer necessary to manage the public health risk posed by the individual and the Registrar is satisfied that the medical officer of health has given an appropriate certification,—

(a)

the Registrar must cancel the order; and

(b)

the order ceases to have effect on cancellation.

(5)

In determining, for the purposes of subsection (4), that the individual no longer poses a public health risk, the medical officer of health must have regard to any known incubation period for the infectious disease.

Proceedings

92ZK Proceedings under this Part in District Court to be heard by Family Court Judges, if practicable

(1)

The District Court has jurisdiction to hear and determine—

(a)

appeals under this Part against directions given; and

(b)

applications for orders made under this Part.

(2)

Every proceeding referred to in subsection (1) must, if practicable having regard to the time required and to the availability of Judges and court staff and resources, be heard and determined by a Family Court Judge.

(3)

Any District Court Judge may hear and determine a proceeding referred to in subsection (1) that cannot practicably be heard and determined by a Family Court Judge.

(4)

The fact that a District Court Judge exercises jurisdiction under this section is conclusive evidence of the authority of the District Court Judge to do so.

(5)

Appeals under this section should be heard as soon as practicable.

92ZL Proceedings under this Part not open to public

(1)

Unless the Judge presiding at a hearing of a proceeding referred to in section 92ZK(1) otherwise directs, no person may be present during the hearing except the following:

(a)

the Judge:

(b)

officers of the court:

(c)

parties to the proceeding and their lawyers and any other person nominated by the individual who is the subject of the proceeding:

(d)

witnesses:

(e)

any other person whom the Judge permits to be present.

(2)

The parties or their lawyers on their behalf have the right to be heard, present evidence, and cross-examine witnesses in the proceeding.

(3)

A witness must leave the courtroom if asked to do so by the Judge.

(4)

The Judge may, by order, restrict or prohibit the public availability of all or any part of the court record and judgment.

(5)

This section does not limit any other power of the court to hear proceedings in private or to exclude any person from the court.

Compare: 1992 No 46 s 24

92ZM District Court may appoint lawyers to act for individuals under 16 years

Whenever an individual aged under 16 years or lacking in legal capacity is the subject of an application for an order under this Part, the District Court that hears the application may appoint a lawyer to act for the individual.

General provisions concerning orders

92ZN Application for order

(1)

A medical officer of health may apply to the District Court for an order under this Part in respect of an individual who the medical officer of health believes, on reasonable grounds, poses a public health risk.

(2)

If the infectious disease that the individual is believed to have is not a notifiable disease, the application must not be made without the prior approval of the Director-General.

(3)

The medical officer of health must send to the Director-General a copy of the application.

92ZO Prior consultation with individual and individual’s family or whānau

(1)

If a medical officer of health is considering applying to the District Court for an order under this Part, the medical officer of health must, whenever practicable, consult the individual and may, at the officer’s discretion, consult the individual’s family or whānau.

(2)

The purpose of consultation under subsection (1) is to enable the medical officer of health—

(a)

to ascertain if the need for an order can be avoided by voluntary compliance by the individual and, if the individual agrees, by any assistance on the part of the family or whānau; and

(b)

to ascertain, if an order is required, the extent to which the terms of the order and the way it is implemented can take into account the needs and wishes of the individual without prejudicing the protection of public health.

92ZP Case conferences

The consultation under section 92ZO may, at the discretion of the medical officer of health, take the form of a case conference, which may be conducted by telephone or video link.

92ZQ Medical officer of health must review orders

(1)

A medical officer of health must—

(a)

regularly review each order that is in effect in the health district or districts for which the officer is responsible; and

(b)

consider whether the order is still required; and

(c)

apply to the District Court to cancel the order under section 92ZR if he or she is satisfied that the order is no longer required; and

(d)

if directed by the Director-General to do so, advise the Director-General why the order needs to continue in effect.

(2)

A medical officer of health may apply to the District Court for variation of an order under section 92ZR(2).

(3)

If, following a review, a medical officer of health wishes to apply for an extension of the duration of an order, the application must be made under section 92ZD.

92ZR District Court may cancel or vary orders

(1)

The District Court may, on the application of a medical officer of health or of the individual concerned, cancel an order made under this Part if the court is satisfied that the order is no longer required.

(2)

The court may, on the application of a medical officer of health or of the individual concerned, vary the terms of an order by making a determination that the court is otherwise authorised to make under this Part and that the court considers desirable in the circumstances.

(3)

If the medical officer of health applies to the court to cancel an order, the order is suspended, and the individual subject to the order ceases to be required to comply with the terms of the order until the court has determined the application to cancel the order.

(4)

The medical officer of health must send to the Director-General a copy of every application under this section.

(5)

The court may deal with an application under this section on the papers if the parties agree.

92ZS Confidentiality

Despite anything in the Privacy Act 1993, information provided or obtained under an order under this Part may not be used or disclosed by anyone except for the effective management of infectious diseases, but nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

Subpart 4—Appeals and enforcement

92ZT Appeals to High Court

(1)

A medical officer of health and an individual in respect of whom an order has been made under this Part (other than an urgent public health order made under section 92ZF) may each appeal to the High Court against the decision of the District Court.

(2)

The medical officer of health may appeal against the dismissal of an application under this Part or against the District Court’s refusal to make an order, or impose a requirement, sought in the application.

(3)

The individual may appeal against—

(a)

the order, or any part of the order:

(b)

a variation of the order:

(c)

an extension of the order.

(4)

Subject to subsection (5), the High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.

(5)

On the without notice application of the appellant, the District Court may order that the appellant is not required under section 74(1) of the District Courts Act 1947 to give the Registrar of the High Court security for costs.

(6)

Subject to section 92ZU, the decision of the High Court on an appeal to that court under this section is final.

(7)

The medical officer of health must send to the Director-General a copy of every notice of appeal under this section.

(8)

Appeals under this section should be heard as soon as practicable.

92ZU Appeals to Court of Appeal

(1)

A party to any appeal under section 92ZT may, with the leave of the Court of Appeal, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in that appeal.

(2)

On an appeal to the Court of Appeal under this section, the Court of Appeal has the same power to adjudicate on the proceedings as the High Court had.

(3)

The decision of the Court of Appeal on an appeal to that court under this section, and on an application to it under this section for leave to appeal, is final.

(4)

Appeals under this section should be heard as soon as practicable.

92ZV Enforcement of order by medical officer of health

(1)

A medical officer of health may require an individual to comply with an order made under this Part that imposes requirements on the individual, and in doing so may be assisted by any number of assistants (who may be or include constables) and use any force that is reasonable in the circumstances.

(2)

However, in no case may force be used to require an individual to accept medical treatment.

(3)

The medical officer of health must promptly advise the Director-General of any force used for the purpose of requiring an individual to comply with an order.

92ZW Offence not to comply with order

(1)

An individual commits an offence who, without reasonable excuse, intentionally fails to comply with an order made under this Part that is binding on the individual.

(2)

An individual who commits an offence against this section is liable on conviction to a term of imprisonment not exceeding 6 months or to a fine not exceeding $2,000.

(3)

The District Court may, instead of imposing a sentence, make an order under one or both of sections 92Z and 92ZH.

(4)

This section does not limit the power of the District Court to punish the failure or refusal to comply with an order made by a court as a contempt of court.

92ZX Offence to obstruct compliance with order

(1)

This section applies to—

(a)

a parent, guardian, or person in charge of an individual aged under 16 years; and

(b)

a person in charge of an individual who is lacking in legal capacity.

(2)

A person to whom this section applies commits an offence who intentionally obstructs that other individual’s compliance with an order made under this Part.

(3)

A person who commits an offence against subsection (2) is liable on conviction to a fine not exceeding $2,000.

Subpart 5—Contact tracing

92ZY Purpose of contact tracing

The purpose of contact tracing is to obtain information about the contacts of persons with infectious diseases or suspected of having infectious diseases in order to—

(a)

identify the source of the infectious disease or suspected infectious disease:

(b)

make the contacts aware that they too may be infected, thereby encouraging them to seek testing and treatment if necessary:

(c)

limit the transmission of the infectious disease or suspected infectious disease.

92ZZ What contact tracing involves

Contact tracing, in respect of an individual with an infectious disease or suspected of having an infectious disease, involves—

(a)

ascertaining the identity of each of the individual’s contacts; and

(b)

communicating with each contact, so far as this is practicable and appropriate; and

(c)

ascertaining the circumstances in which the infectious disease or suspected infectious disease may have been transmitted to or by the contact; and

(d)

providing information and advice to the contact about the risks that the contact faces because of his or her exposure to the infectious disease or suspected infectious disease, including, where appropriate, advice about—

(i)

medical examinations for the infectious disease or suspected infectious disease; and

(ii)

the risk that the contact may have transmitted the infectious disease or suspected infectious disease to others; and

(iii)

the risk that the contact may pose to others; and

(iv)

appropriate exclusion, treatment, and prophylaxis; and

(e)

obtaining information about the contacts of that contact, including information required under section 92ZZC in relation to those other contacts.

92ZZA Who may be contact tracer

(1)

For the purposes of this Part, in any case involving proposed or actual contact tracing in respect of an individual, the contact tracer may be a—

(a)

medical officer of health:

(b)

health protection officer:

(c)

person suitably qualified in health or community work who is nominated to undertake contact tracing by a district health board or medical officer of health.

(2)

To avoid doubt, nothing in this Part makes it unlawful to undertake contact tracing otherwise than under this Part.

92ZZB Appropriateness of contact tracing

(1)

The contact tracer may form the view that contact tracing in respect of an individual with an infectious disease or suspected of having an infectious disease should be undertaken if the contact tracer considers that the purpose of contact tracing is likely to be achieved by doing so.

(2)

If the contact tracer is a medical officer of health, he or she may take into account any recommendation made by the individual’s medical practitioner.

92ZZC Duty of individual with infectious disease to provide information about contacts

(1)

If the contact tracer has, under section 92ZZB, formed the view that contact tracing in respect of an individual with an infectious disease or suspected of having an infectious disease should be undertaken, the contact tracer may require the individual to give the contact tracer information about the circumstances in which the infectious disease may have been transmitted to, or by, the individual.

(2)

Before requiring an individual under subsection (1), the contact tracer must inform the individual of the reasons for the requirement.

(3)

An individual with an infectious disease or suspected of having an infectious disease must, if required by the contact tracer, provide information about—

(a)

those people with whom he or she is, and has been, in contact:

(b)

the circumstances in which he or she believes he or she contracted, or may have transmitted, the infectious disease.

(4)

For the purposes of subsection (3), the information the individual with an infectious disease or suspected of having an infectious disease may be required to provide about each person with whom he or she has been in contact includes—

(a)

the name of each contact:

(b)

the age of each contact:

(c)

the sex of each contact:

(d)

the address and other contact details of each contact:

(e)

any other information required by regulations made under this Act.

(5)

If the individual is under 16 years of age, or lacks legal capacity, or the individual is deceased, the contact tracer may require that the applicable one of the following persons provide the information:

(a)

the parent, guardian, or person in charge of the individual who is under 16 years of age:

(b)

the person in charge of the individual who lacks legal capacity:

(c)

the individual’s legal representative.

92ZZD Consideration as to whether contact tracing can be undertaken by individual

(1)

Before requiring information from an individual under section 92ZZC, the contact tracer must consider whether the information is necessary, taking into account—

(a)

the seriousness of the public health risk posed by the individual; and

(b)

the ability and willingness of the individual to undertake the contact tracing.

(2)

If the contact tracer considers that it would be appropriate for the individual to undertake the contact tracing, the contact tracer must ask the individual to undertake the contact tracing, to the extent of the individual’s ability, and to report back to the contact tracer by a time specified by the contact tracer.

92ZZE When contact tracer may undertake contact tracing

(1)

This section applies whenever a contact tracer requires an individual to provide information under section 92ZZC and one of the following applies:

(a)

the contact tracer does not consider that it would be possible or appropriate for the individual to undertake the contact tracing; or

(b)

the contact tracer has asked the individual to undertake the contact tracing, and the contact tracer is not satisfied that the contact tracing has been undertaken or that it has been undertaken adequately.

(2)

If this section applies, the contact tracer may undertake the contact tracing.

(3)

The contact tracer must, wherever practicable, inform the individual of the course of action taken under subsection (2).

92ZZF Contact tracer may require certain persons to provide information

(1)

For the purpose of identifying the contacts of an individual who has been given a direction under section 92ZZC, a contact tracer may approach a person specified in subsection (2) and require that person to provide the contact tracer with the names and addresses of the contacts of the individual that are known to the person.

(2)

The persons are—

(a)

the employer of the individual:

(b)

an educational institution attended by the individual:

(c)

any business or other organisation that the individual has dealt with:

(d)

an event co-ordinator or other person likely to have a list of persons attending an event.

(3)

A person referred to in subsection (2) must provide information in response to a request made under subsection (1) despite anything in the Privacy Act 1993.

(4)

Despite anything in the Privacy Act 1993, if a person requires another person to provide information under this section,—

(a)

the person required to provide the information must comply with the requirement and be advised that the information must be provided for the effective management of infectious diseases; and

(b)

nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

92ZZG Duty of confidentiality

(1)

A contact tracer who approaches a contact under this Part or approaches a person under section 92ZZF must not, as far as practicable, disclose to the contact or that other person the identity of the individual who may have—

(a)

transmitted the infectious disease to the contact; or

(b)

exposed the contact to the risk of contracting the infectious disease.

(2)

Despite anything in the Privacy Act 1993, information provided or obtained by a contact tracer under this Part may not be used or disclosed by anyone except for the effective management of infectious diseases, but nothing in this section limits the right of an individual to access or disclose information about him or her under that Act or any other Act.

92ZZH Offence to fail to comply with direction to provide required information about contacts

(1)

A person commits an offence who, having been required to provide information under section 92ZZC or 92ZZF,—

(a)

without reasonable excuse, fails to give the required information; or

(b)

intentionally omits any part of that information or gives any information that the person knows to be false.

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $2,000.