Castles v Secretary to the Department of

(2010) 28 VR 141; [2010] VSC 310

Supreme Court of Victoria

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Interrogate

Catchwords

1. Administrative Law
2. › Prisoners' rights
3. › Medical treatment
4. › Right to access reasonable medical care and treatment necessary for preservation of health
5. › Whether IVF treatment for age-related infertility is 'reasonable medical care and treatment necessary for the preservation of health'
6. › Corrections Act 1986 (Vic), s 47(1)(f)
1. Administrative Law
2. › Prisoners' rights
3. › Permits to leave prison
4. › Corrections administration permits for health purposes
5. › Whether Secretary could issue blanket permit for multiple future absences
6. › Whether refusal to grant any permit constituted denial of right to medical treatment
7. › Corrections Act 1986 (Vic), ss 57A, 57D
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Right to privacy and family
4. › Whether right to non-interference in privacy and family encompasses right to access assisted reproductive treatment
5. › Omission of right to found a family from Charter
6. › Whether omitted right can be read into existing Charter rights
7. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 13(a), 17(1)
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Rights of persons deprived of liberty
4. › Right to be treated with humanity and respect for human dignity
5. › Content of dignity right
6. › Whether dignity right encompasses right to medical treatment
7. › Relationship between dignity right and statutory right to medical care
8. › Charter of Human Rights and Responsibilities Act 2006 (Vic), s 22(1)

Quick Take

IVF treatment for age-related infertility constitutes 'reasonable medical care and treatment necessary for the preservation of health' within s 47(1)(f) of the Corrections Act 1986 (Vic), and prisoners have a right to such treatment at their own expense. The deliberate omission of a right to found a family from the Victorian Charter precludes reading such a right into the privacy right in s 13(a) or any other Charter right. The dignity right in s 22(1) of the Charter is distinct from the prohibition on cruel, inhuman or degrading treatment in s 10(b) and mandates positive obligations towards detained persons regarding access to health care. 'Proper consideration' of human rights under s 38(1) does not require a sophisticated legal exercise but requires evidence that the decision-maker seriously turned their mind to the possible impact on human rights.