The whānau of a man on a hunger strike to protest constitutional injustices says he was close to death when the court ruled Francis Shaw has the right to make his own decisions, even if he could die.
Shaw, a Rimutaka Prison inmate, is now 92 days into his hunger strike.
“He was going to die if he didn’t have any fluids, that’s a definite,” his brother Cameron said.
Shaw, who was jailed for 10 and a half months on charges of common assault, assault with a weapon, and possessing an offensive weapon, told prison staff on July 17 he was on a hunger strike and had not eaten since arriving there two days earlier.
On August 4 he issued a directive to Corrections that he was aware of the health implications of a hunger strike but did not want medical treatment.
“I have made this decision freely after long and detailed consideration of the options available to me to address constitutional injustices and demand a just constitution for New Zealand that restores the mana of all the parties to the Treaty of Waitangi.
“I am very well informed about the health implications of a hunger strike. I have undertaken two extended hunger strikes while in prison previously. I intend the directive to apply under all circumstances that might arise during a hunger strike. My hunger strikes are political actions not evidence of illness,” his written directive said.
Shaw also told a nurse he hoped it “would create a response that would unite Māori in the push to self-determination”.
Corrections staff put Shaw into segregation so they could monitor his health. On October 7 he was moved from a bed in the intervention and support unit to one in another cell after damaging a bed. He was unhappy with that accommodation and stopped taking fluids.
The Department of Corrections chief executive and Health NZ sought a declaratory judgment from the High Court asking for confirmation that Shaw’s advance directive and medical instructions were valid and that Corrections and Health NZ staff would not be legally liable for adhering to his wishes.
Their application to the High Court was expedited in three days and heard last Thursday as Shaw’s condition had deteriorated and there were concerns he may die within three to five days if he did not start drinking again.
Cameron told NZME his brother had originally refused to take fluids because Corrections denied his request to be moved back to his cell from the intervention support unit (ISU).
“He wanted to go back to his normal cell and this is where the whole argument started.”
Cameron said the whānau agreed with Justice Paul Radich’s decision, which was made last Thursday and released publicly earlier this week, declaring Shaw’s directive was valid and all relevant staff would have a lawful excuse for adhering to it, even in the event of Shaw’s incapacitation.
“It’s weird, because we were fighting Corrections yet we wanted the same thing.”
Cameron said Shaw was not moved back to his cell after Thursday’s ruling and his health continued to deteriorate as he refused to take fluids over the weekend.
“Friday his voice was slurred, by Sunday he could hardly speak and this is a person who would talk your ears off. It was looking like he was going to die in the hospital. On Sunday, he was going to die if he didn’t have any fluids, that’s a definite.”
Cameron said Corrections were concerned Shaw would be too far away from medical support but that was irrelevant now the High Court had ordered his brother’s directive stands and not to intervene with medical assistance.
He said Shaw was moved back to his cell on Monday and was taking fluids again.
Shaw’s sister, Jane Shaw, told NZME the High Court decision solidified that neither Corrections nor Te Whatu Ora has a role in deciding whether her brother lives or dies.
“The whānau do not want Francis to die. The whānau was clear that Corrections do not have to force feed or revive Francis, we insisted that Francis should also control his fluid intake and have resisted Corrections manipulation of his fluid intake.”
Jane said they support their brother’s right to make his own decisions and respect his wishes that Corrections staff leave him alone.
“All of us in this country are in a political prison that cannot respond coherently to climate change, environment degradation and social conflict and the rights we have inherited from the signatories of Te Tiriti provide a foundation for New Zealand to work our way through these issues.”
“The limits that apply to Corrections and health authorities also apply to Parliament and its agencies when it comes to deciding how we as a people will be governed.”
Jane said her brother’s long-standing issues with the state had driven him to his latest strike seeking a Treaty-based constitution that restores the mana of the signatories.
“A hunger strike is a long and painful process, only engaged in as a last resort. His ultimate hope is that racist politics will be a thing of the past, everyone will derive mana from respecting their whakapapa and we can all live as tangata whenua.”
Cameron echoed the same thoughts on behalf of their brother.
“He knows that all these protests going on haven’t really got the results we want. He’s of the opinion the protests in the 70s worked but we have to change our tactics. Let’s be realistic, with this current Government and the way they’re going, with all the work we’ve done over the last 50 years and with a stroke of a pen, it’s all gone. This is the way it’s going to be for the rest of our lives if we don’t do something about it.
“He is absolutely going to keep going with this, this is something he is prepared to do,” Cameron said.
Rimutaka Prison general manager Dennis Goodin told NZME staff were working together to provide support to Shaw and confirmed he was drinking liquids again but continuing to refuse to eat.
“Our priority is ensuring the wellbeing and safety of the man, and we are encouraging him to resume eating. His health is being monitored by staff, including registered nurses and the prison doctor. We also continue to liaise with Health NZ – Te Whatu Ora.
“(He) is being offered a range of wellbeing and support services.”
Goodin said the prison was ensuring whānau could maintain close, ongoing contact and acknowledged the distressing situation it was for everyone involved.
“I know that this situation has also been difficult for health and custodial staff at Rimutaka Prison. My staff take their duty of care and the safety and wellbeing of those they manage extremely seriously, and I would like to acknowledge the compassion and professionalism they have shown.”
Shaw is due for release in December.
Shannon Pitman is a Whangārei-based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/ Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.
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