Whanau Ora Commissioning Agency CEO John Tamihere

The Government has lost a second major court case relating to its management of Covid. It is the second time in five days that a High Court judge has found against the Crown on a Covid matter.

The judgement last night requires that the Ministry of Health retake its decision to deny vital health data to the Whānau Ora Commissioning Agency for the North Island.

The Agency is headed by Maori Party vice president John Tamihere.

The judgement was greeted as a bittersweet victory by the Agency.

In a statement late last night, it said: “ We are in effect six weeks out from Christmas, and we will not be able to meet the 90% uptake that other communities have been blessed to achieve because they had no obstacles placed in their way.

“The difficulty we find ourselves in is based solely on the fact that we are Māori, we are brown, and we are treated as second class citizens.

“That has to stop.

“This is a formidable decision that was forced upon what used to be called the Public Service, and it is yet another rung on our ladder of Māori liberation.

“ And so our nationhood story marches on.”

In August, the Agency asked the Ministry of Health to share information with them about unvaccinated Māori in the North Island (their personal details, contact details, vaccination status and booking status).

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The Agency wanted to use the information to support their by-Māori, for-Māori vaccine outreach work.

The Ministry declined the specific request and instead said it might provide anonymised information about vaccination rates in geographical statistic areas (mesh blocks) of 100 to 200 people.

The Agency sought a judicial review of the Ministry’s decision and challenged it on three grounds: error of law, on the basis that the Ministry incorrectly applied the relevant legal test for disclosing health information; that the Ministry has acted inconsistently, having provided similar data to another health service provider; and that the applicants had a legitimate expectation the Ministry’s decision would be made in accordance with the principles of Te Tiriti o Waitangi.

In her judgement, Judge Cheryl Gwyn said the Ministry and the Agency agreed that the Covid immunisation programme had not so far achieved equitable coverage between Māori and other ethnic groups.

“The percentage of the eligible Māori population who have received Covid vaccinations is materially lower than the percentage of other eligible populations,” she said.

She said both the Ministry and the Agency agreed that the underlying reasons “for that inequitable situation” were also agreed; “that is, there are significant barriers to Māori accessing primary healthcare services, including cost, access to services, poor service delivery, cultural barriers, poor communication by health providers, and different approaches and models to wellbeing.”

“It is also accepted that one of the reasons why the Māori vaccination rate is lower than other groups of New Zealanders is a lack of trust by Māori in government institutions.”

The Ministry’s response to the Agency began by citing privacy considerations as a reason not to share the data.

But the relevant privacy code allows the Ministry to disclose information if it believes that it is not desirable or practicable to obtain authorisation for the disclosure from the individual concerned or that there is a serious threat to public health or public safety or the life or health of the individual concerned or another individual.

In evidence presented by the Ministry’s National Director Covid Vaccination and Immunisation Programme,  Joanne Gibbs, it was reported that the chairs of District Health Boards held particularly strong views about the “counterproductive threat to public confidence in the health system that sharing such data would create”.

The Agency said that Gibbs ‘decision was materially influenced by the views of District Health, who said there would  “appear to be real risks of the vilification and bullying of unvaccinated individuals.”

The Agency said this was an illogical justification for refusing to disclose information to the applicants.

“Unvaccinated Māori may well face a risk of vilification or bullying from the community, who may blame them for ongoing alert level restrictions, but that risk is not a result of disclosure of information to the applicants,” the Agency said.

“Rather, sharing the information sought by the applicants is one way to materially contribute to increasing vaccination rates and therefore materially contribute to reducing the risk that Māori will face vilification and bullying. “

The Judge said that it was inconsistent for the Ministry to conclude that it could not contact all of the unvaccinated, with their contact details, while at the same time asking the applicants to locate them without their contact details, for the purposes of providing urgently needed vaccine services.

Gwyn did not reach a decision on the inconsistency claim by the Agency and said it was unnecessary given her other decisions.

The Agency claimed that the Ministry had failed to uphold Te Tiriti.

In fact, the Ministry’s evidence did not mention the Treaty.

But Gwyn’s judgement  said the applicants had pointed to the Waitangi Tribunal Hauora Report, which concluded that the principle of tino rangatiratanga required the Crown to afford to Māori the “capacity, and space, to exert their tino rangatiratanga in the primary health care system.”

“The principle of partnership is a relationship of equals; in this context, it requires disclosure of the information sought, and working together, including the design of the kaupapa Māori response to Covid,” her judgement said.

In his submission on behalf of the Ministry, Sean  Kinsler emphasised that, although Te Tiriti principles were a valid interpretive aid and relevant considerations in statutory decision-making in relation to Māori health and personal information, they did not by themselves create enforceable legal rights.

“Nor do the principles mandate a particular outcome on particular facts,” he said.

“What Te Tiriti requires is that the Crown makes decisions that are reasonable – that is, within the bounds of its own broad responsibilities and authority, in light of all the circumstances, and based on sound procedure and consideration of relevant material.”

Gwyn’s judgement concluded that: “The Crown has made a specific commitment to uphold and honour Te Tiriti in the Covid vaccination programme and has acknowledged the obligations that flow from Te Tiriti partnership in implementing the programme.

“It was stated as one of the overarching principles of the rollout, and it was a specific, public commitment made by the Ministry. Te Tiriti and its principles had to inform the Ministry’s discretion in deciding whether or not to release the information sought by the applicants.

In the context of repeated affirmations of the Crown’s commitment to applying Te Tiriti and its principles in its COVID-19 response, I conclude that the applicants’ reliance on that commitment was reasonable and legitimate.”

Her judgement requires the Ministry to “urgently retake the Decision (to deny the provision of the data), within three working days.”

There is sufficient within her judgement to indicate that it will be very difficult for the Ministry to deny the Agency’s request.

But what will worry the Government is that it comes on top of another Judicial Review last week seeking to overturn a decision to deny a businessman, Murray Bolton, the right to self-isolate after an important business trip to the United States.

Judge Geoffrey Venning ordered that the Ministry of Business Innovation and Employment needed to reconsider Bolton’s application taking into account “the need for Mr Bolton to attend the board meeting in Boston; and  the need of the applicants to enjoy rights conferred by the New Zealand Bill of Rights Act 1990, including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation; and  the need of the applicants to avoid the risk of contracting COVID-19 at a MIQ facility, including in view of any characteristics that may make them especially vulnerable to COVID-19, including age.”

Venning said MBIE should balance those considerations against  the degree of risk to the community of further spread of COVID-19 involved in the applicants’ isolating or quarantining at a place other than a MIQ facility taking into account the precautions the applicants may propose to take or other conditions that may be imposed on them, and their vaccination status; and the prevailing circumstances within the community at the present time.”

On the face of it, the judgement would appear to imply that the Ministry has much wider discretion than it has been prepared to exercise in allowing people to self-isolate.

There was no confirmation from Government spokespeople last night as to whether Crown would appeal either of the judgements, but the Bolton judgement, in particular, would seem to have profound implications for the MIQ system.

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