Castles v Secretary of the Department of Justice [2010] VSC 310

11 August 2010

Prisoner access to IVF treatment in detention

This Supreme Court decision considered the Charter Act in relation to a female prisoner's request for access to IVF treatment.  The prisoner, Ms Castles requested permission to continue IVF treatment commenced before her imprisonment.  The Secretary of the Department of Justice refused permission, and Ms Castles challenged the Secretary's decision.

Various Charter Act rights were raised in the plaintiff's arguments before the Court including the privacy right, protection of families and children, equality right and the right to humane treatment when deprived of liberty.

Emerton J found that the privacy right (s.13) was not engaged, nor the s.17 right to protection of children and families, as these rights did not extend to a right to become a parent.  She also found there had been no breach of the s.8 right to equality and that the Secretary had given consideration to Ms Castle's human rights in accordance with s.38(1) of the Charter Act.  The decision indicates that it would be sufficient, in most circumstances, to satisfy the s.38 requirement if the decision-maker turned her mind to the possible impact of the decision on a person's human rights.

The issues were not, in the end, determined on the Charter Act.  The s.22 right to humane treatment when deprived of liberty was considered the most relevant Charter Act right in this case.  It was found that this right was satisfied by the right to access medical treatment as it is outlined in s.47(1)(f) of the Corrections Act 1986 which entitles prisoners to access reasonable medical care and treatment necessary for the preservation of health.  The IVF treatment is necessary for the reproductive health of Ms Castles.

The Court determined that the IVF treatment should be accessible on a visit-by-visit basis provided appropriate consideration has been given to the safety and welfare of Ms Castles and members of the public and that facilities for her transport were available.