Whānau Ora court victory over Health Ministry to release information on unvaccinated Māori

As you know, Te Pou Matakana is a Whaanau Ora health commissioning agency. It is a government funded, Maaori-delivered, whaanau-centred approach to supporting whaanau wellbeing and development. Te Pou Matakana wanted the individual data from the Ministry to enable targeted delivery of COVID-19 vaccination services to those people. The Ministry decided not to provide the data to Te Pou Matakana because of the rules it said it had to apply under the Health Information Privacy Code 2020 when considering such a request. The Code is issued under the Privacy Act, and it deals specifically with health and health services. Te Pou Matakana disagreed with the way the Ministry of Health made its decision, and it wanted to take that further after discussions with the Ministry didn’t resolve the issue.

Therefore, Te Pou Matakana asked the High Court to review the Ministry’s decision in a judicial review proceeding. This is where a judge can be asked to review the actions or decisions of a public administrative body, like the Ministry, to see whether it acted within the powers given to it by the law. Only a person affected by a decision can apply for a judicial review (here, Te Pou Matakana). The judge usually won’t look at whether the decision-maker made the “right” decision, but will look instead at the way the decision was made – for example, whether the decision-maker correctly applied the law, or considered all the relevant factors. The court’s role isn’t to substitute its own decision for that of the relevant agency or official, rather it’s to make sure the decision-maker acted within their legal powers – in particular, that they followed the process that the law requires.

Te Pou Matakana said that the Ministry had incorrectly applied the relevant legal test for disclosing health information under the Health Information Privacy Code 2020. Te Pou Matakana also said it had a legitimate expectation that the Ministry’s decision would be made in accordance with the principles of Te Tiriti o Waitangi, because these principles were specifically incorporated into the Ministry of Health’s COVID-19 vaccination plan, but the decision the Ministry made was inconsistent with those principles, and with tikanga.

The Court found that the Ministry had incorrectly applied rule 11(2)(d) of the Code in the context of the COVID-19 pandemic. Importantly, the Court also said that Te Pou Matakana had a legitimate expectation that the Ministry's decision would be made in accordance with the principles of Te Tiriti o Waitangi, and informed by tikanga, but it was not.

On those grounds, the Court set aside the Ministry's decision and directed to it retake its decision in accordance with the law and having regard to the findings in the judgment. The new decision is due out today (we are still waiting at the time of writing this email).  

This decision is obviously important for its recognition of the principles of Te Tiriti and how they must be applied. However, from an iwi and tikanga perspective we are also thinking about who ought to have access to health data about Waikato tribal members. That is something we are very interested in as an iwi. We are currently thinking about how best to engage with marae and tribal members to hear their view about this. These views are likely to help inform our Koiora approach, our data strategy and governance, and our relationship with other health agencies and providers in the hauora space.  This is timely as we are currently considering how we might help our iwi achieve its aspirations in the health sector, and how we might become more active in the sector, as part of our five-year plan.  Our team will consider further as part of our engagement with our marae.

Court case document attached

RNZ News:

https://www.rnz.co.nz/news/ldr/454884/whanau-ora-court-victory-over-health-ministry-we-need-to-know-where-to-target-our-efforts