Right to Humane Treatment in Detention and Prisoner Access to Health Care

Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis.

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health.

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel.


Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women's prison with an emphasis on release preparation and community integration.

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time.

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)).

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’.

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner.


Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

  • the commitment to the treatment that Ms Castles has already demonstrated;
  • her willingness to pay for further treatment; and
  • her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions.

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’.

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights.

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter.

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic).

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made.

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’.

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html.

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre