The Whānau Ora Commissioning Agency should have access to Māori data in order to lift Māori vaccination opportunities, the High Court has found.
Last month, its chief executive, John Tamihere, took the Ministry of Health to court for refusing to hand over the personal details of unvaccinated Māori.
The outcome of the Judicial Review was delivered in an urgent judgment on Monday night, with the High Court ruling against the ministry for withholding the data.
The ministry has been ordered to “urgently” retake the decision, within three working days.
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Whānau Ora, a Māori health commissioning agency which oversees 81 general practice clinics and more than 200 vaccination sites across the North Island, said last month that 90 per cent of Māori would be vaccinated if Government had used its plan.
However, with six weeks to Christmas, Whānau Ora said it would not be able to meet the 90 per cent uptake that other communities had been “blessed to achieve because they had no obstacles placed in their way”.
Māori vaccination rates are currently sitting at 72 per cent for the first Pfizer vaccine dose and 53 per cent have for a second. Ministry data shows that of the total cases in the recent outbreak, broken down by ethnicity, most (1226) were Māori, which was about 35 per cent
About 103,264 of first doses were needed to reach 90 per cent of the Māori population and 213,238 of second doses were required to reach the target.
In her ruling Justice Gwyn said that in exercising its discretion, the ministry did not have adequate regard to Te Tiriti and its principles, as informed by tikanga.
“Given that failure, in my view characterising the assessment of the applicants’ request as a ‘qualitative’ assessment might be seen rather as an excuse for a lack of rigour in the process. While the ministry did have to weigh a range of factors, as I have found, it did not do so on the basis of an evidence-based assessment.”
She ruled that the ministry had erred in its interpretation and application of the Health Information Privacy Code 2020.
She declared that the ministry’s power to disclose information under the code, in the context of the Covid-19 vaccination programme, must be exercised in accordance with Te Tiriti o Waitangi / Treaty of Waitangi and its principles.
“I direct the ministry to urgently retake the decision, within three working days, in accordance with the law and having regard to the findings in this judgment.”
Following the judgment, Whānau Ora issued a statement to say it had won a comprehensive Victory over the ministry.
“It is regretful that our own Ministry of Health, DHB’s and PHO’s objected to Māori capability and capacity in lifting Māori vaccination opportunities over the last 6 months. Seven weeks out from Christmas, we have finally won on this basis,” the statement said.
Whānau Ora said the ministry’s decision to deny it access to Māori data was struck down and it erred in its application of the law and the disclosure of information must be exercised in accordance with the Treaty of Waitangi and its principles.
“The Ministry has to take back it’s denial decisions and come back within three working days to release the information.”
The Whānau Ora Commissioning Agency had now vaccinated over 510,000 individuals and more than 90 per cent are non-Māori.
“All kiwis know that we should have been given access to vaccinate Māori from the get go. To be constantly denied access to fulfill our obligations to our communities and to have to resort to litigation in the middle of a pandemic vaccination rollout is a disgrace and a blemish on any nation’s history book,” the statement said.
“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.”
The High Court judgment was a formidable decision that was forced upon what used to be called the Public Service, the statement concluded.