Police v Tugaga [2011] WSSC 122 (21 October 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PAPALII NATU TUGAGA,
of Vaivase Samoa, Self Employed
Defendant

Counsel: L Taimalelagi for prosecution
P Fepuleai for the defendant

Hearing: 21 October 2011
Ruling: 21 October 2011

EX-TEMPORE RULING OF SLICER J

1. The Applicant seeks the return of his travel documents to permit him to travel to New Zealand for the purpose of medical treatment, and provides two documents indicating his state of health; the first by Dr. Aleki Fuimaono, who is the Head of the Surgical Unit of the National Health Services for Samoa and the second is from Professor Papalii CS Benjamin, the Director of the Universal Medical and Surgical Care Limited based in New Zealand.

2. The Court notes that the Applicant, born on 18 July 1954, has been given approval to have treatment under the Samoan Medical Treatment Scheme with an estimated cost for treatment of NZ$20,000 and the treatment may require a stay in New Zealand for two (2) months. An appointment has been made for him to see Professor Papalii Benjamin on 1 November 2011, and the Court accepts that it is unlikely that a referral to such a specialist would be done lightly or without some concern for the health and safety of the Applicant by the Administrator of the Treatment Scheme.

3. The report, dated 16 October, is unable to identify the cause of what is referred to as an obstructive jaundice which is said to follow an episode an abdominal pain and bowel problems after eating fish. An ultrasound scan showed dilated intrahepatic ducts with CBD but the cause unknown. The CT scan also does not show the cause of the dilation. The report goes on to state:

"...an urgent review is needed for him for the recommended investigation and for specialist review for further management. He will probably need ERCP +/- stenting."

4. The request is said in that report to be urgent. The prosecution opposes the application on the basis that the medical material does not show sufficient urgency or seriousness of the condition reported in the medical material provided.

5. The Court notes that the charge is a serious one; an allegation of the causing of grievous bodily harm to another on 5 March 2010, and that it became a condition of bail, by an order of the Chief Justice on 25 July 2011, that the Applicant surrender any travel documents. In relation to the question of flight or risk, the Court notes that the original Information was dated 12 May 2011 and a Warrant of Arrest issued on 30 May. The Court is not certain to the reason why it was necessary to issue a Warrant of Arrest but assumes, by reference to the passport, that it had not involved flight from the country (the passport showing no such movements).

6. The bases of the opposition by the prosecution are that medical evidence is not sufficient to show risk or harm and, when asked, Counsel indicated that officers of the Attorney General had not had the reports examined by another specialist; relying instead on their own interpretation of its contents in reaching medical conclusions. This failure required the Court to conduct its own examination and interpretation of the material. I will start by reference to the finding that there was a dilated intrahepatic condition which is a structure or channel for carrying glandular secretions from one part of the body to another. Its origin is in the liver. It can take a number of forms, and the Court notes that the reports refer to ERCPT, ERCP and stenting, and also for the necessity to perform an MRI scan and indicates that a CT scan has already been done in Apia. The CT scan did not clearly show the cause of the dilation. The consequences of such a dilation can be either damage to the liver or in some cases damage to the brain and I will start with my understanding of what is call hepatic encephalopathy, which is:

"...a condition in which brain function is impaired by the presence of toxic substances, absorbed from the colon which are normally removed or detoxified by the liver. It occurs when the liver is severely damaged...Treatment consists of stopping protein intake and administering antibiotics (to prevent bacterial production of toxins)."

7. Assuming that a possibility here is impairment of brain function then the matter is more serious than that regarded by the prosecution and indeed the fact that the reports refer to CT scans and possible MRI scans indicate that the specialists are at least concerned about brain function damage so that in itself would indicate significant risk.

8. The second form can be damage to the liver itself and the Court notes that the reports suggest the possibility that there is a need for a stent. A stent is a splint placed inside a duct or a canal, which includes the bowel duct, or an artery and it is used to move an obstruction which can be caused by tumor or, as here, damaged by some form of toxin, and the fact that the reports themselves refer to the possible necessity for a stent would indicate a serious condition and specialised treatment to remove any blockage. The Court also notes the use of the term ERCP (endoscopic retrograde cholangiopancreatography). The ERCP is a technique in which a catheter is passed into the bowel duct and is widely used in the diagnosis of obstructive jaundice and pancreatic disease, and it is commonly known that pancreatic disease can also take the form of cancer, which is one of the most rapid forms of cancer, producing death within a month.

9. The further research undertaken by the Court goes to the various forms of hepatic disorders, most of which relate to the liver function or the liver disorder. A respected medical text, Mosby's Medical Dictionary 6 Ed. at 804, also refers to a neuro-psychiatric manifestation of extensive liver damage caused by chronic or acute liver disease, and the waste toxic to the brain which is not neutralized in the liver before being shunted back into the peripheral circulation of the blood or substances required for cerebral function which are not synthesized in the liver, and therefore are not available to the brain. Commonly, ammonia, a byproduct of protein metabolism that is toxic to the brain, is not converted to urea by the liver. The condition is characterized by variable consciousness, including lethargy, stupor and coma, personality change, memory loss, hyperplasia and hyperventilation, respiratory alkalosis, mania convulsions and death may occur. The outcome varies according to the pathogenesis of the condition and the treatment. The text refers to interventions as including cleansing enemas, a low protein diet, hydration with an electrolyte solution and specific treatment for the underlying cause. It may also include the use of a particular substance to kill off bacteria and thus prevent elevated blood urea nitrogen levels.

10. The Court does not presume to pronounce upon the condition of the Applicant but its understanding of the language used by experienced medical practitioners indicates the need for further review and investigation. The prosecution suggests that the Court should simply allow the condition to take its course and if it gets worse then the prosecution would review its opposition or otherwise to the request. The Court is satisfied that the risk of such a course is great and the consequences potentially fatal.

11. The Court is aware of the seriousness of the charge and in a serious case the prospect of flight. However, it notes that he has traveled often in the past but less frequently since the year 2008. The Court will grant the application but requires a surety and will fix a return date. The Court is not prepared to take a course of inaction whereby a citizen of Samoa is put at great health risk, and which requires advanced treatment or at least investigation and analysis, which are beyond the resources of this community. It is also affected by the decision of a responsible officer that it is the State of Samoa which is prepared to pay for the investigation and treatment and I am sure that that decision was not taken lightly or capriciously. That decision itself impacts on the outcome of this application.

12. Accordingly, the application will be granted, subject to the provision of a suitable surety. The Court orders the return of his passport and the Court extends his bail or repeats the order of bail to reappear on 23 January 2012 and it is a condition of my granted bail that there be a surety provided Mere Salesa in the sum of ST$20,000.

JUSTICE SLICER