Te Whanau o Waipareira CEO John Tamihere at a vaccine drive at Kaikohe. Photo / Peter de Graaf
Māori health agency Whanau Ora says the Ministry of Health is not being equitable in refusing to release the personal details of unvaccinated Māori to it, as it chose to give Healthline the information.
In an urgent hearing on Thursday, Jonothan Orpin-Dowell spoke for Whanau Ora Commissioning Agency (Woca) in an effort to get access to the information to allow Woca to target unvaccinated Māori ahead of the opening of Auckland's border.
He told Justice Gwyn the organisation "does not have the luxury of time" to wait for the Ministry to decide.
"Auckland's border will open 15 December so to be fully vaxxed by the time the border opens the last time someone could receive a second dose and be immunised would be 1 December. But to be fully dosed, we need to go back three weeks, which takes us back to 10 November. And deployment of resources takes us back two weeks to 27 October ... that is why the applicants have been asking for the information since late August and why they continue to do so."
Instead, the Ministry agreed to share the streets unvaccinated Māori were living on – but the issue with this, Woca argues, is that streets have a minimum of 100 –200 residents, and a max of 500.
This means Woca could not accurately target unvaccinated Māori – the most at risk. They would instead have to go door-to-door, which would be a waste of precious time.
Orpin-Dowell submitted the Ministry has not acted equitably, as it did share the data sought by Woca with Healthline - between September 10 and 13, Healthline made 5,785 calls to unvaccinated Māori and Pasifika people using numbers provided by the Ministry. This call campaign resulted in 647 vaccination bookings being made.
"The applicants are asking to be treated equitably and provided with the same information."
The Ministry said although Healthline is a private company, it is a direct agent of the Ministry – unlike Woca.
But Orpin-Dowell, and his colleague Monique van Alphen-Fyfe both argue Woca is a conduit to the Crown.
Alphen-Fyfe told Justice Gwyn "the question is not whether Whanau Ora are treaty partners - that's a distraction - its whether they are a conduit to the Crown – and they are. We have a threat to the health of our whanau, whanau are our taonga and they must be protected
It is to the whanau the Crowns' obligations are owed."
Orpin-Dowell reiterated the importance of Woca to Māori, saying it was set up to help vulnerable communities – and the Crown has an obligation to assist this work.
"For many unvaccinated Māori the highest priority is not Covid or getting vaxxed – its where they're going to sleep tonight, and what they're going to eat ... Historic ways of addressing these issues were not working which is why Whanau Ora was set up in the first place."
Woca says the principles of partnership and tino rangatiratanga require the Crown to share the information with Woca, and the Crown's duty to actively protect Māori health demands the urgent release of the data.
The Ministry submits that although Te Tiriti principles are "a valid interpretative aid and relevant considerations" to decision making regarding Māori health they do not by themselves create enforceable legal rights.
"What Te Tiriti requires is the Crown makes decisions that are reasonable – that is, within the bounds of its own broad responsibilities and authorities, in light of all the circumstances and based on sound procedure."
Justice Gwyn said she had "no difficulty" in concluding the Ministry made a commitment to exercise its powers in accordance with Te Tiriti – the overarching goal for the Covid vaccine rollout states it strives to achieve equity for priority groups (Māori, Pasifika and people with disabilities) - but it fell short.
Woca is arguing it is not sufficient for the Ministry to decline the request based on the possibility other approaches may work to increase vaccination rates for Māori – and indeed, the judge found this to be true.
Justice Gwyn said in a November 1 judgment in the face of serious risk from Covid-19 to the public, an "objective, evidence-based assessment" was required of how effective releasing the data to Woca would be, versus how severe any possible adverse impacts could be.
"The Ministry concluded it was merely 'possible' that approaches other than individual data might work ... given the seriousness and urgency of the threat the Ministry was required to have a reasonable level of confidence that other measures will be effective."
She said there was no reasonable basis for the conclusion that anonymised, street-level data would be enough for Woca to make "considerable headway".
By not addressing Woca's request with an evidence-based assessment of the harms and benefits of releasing the information, the Ministry fell short of what is expected.
"If the Ministry had carried out such an assessment it would have brought into sharp focus its obligations under Te Tiriti and how they applied to the particular request ... The Ministry did not have adequate regard to Te Tiriti and its principles, as informed by tikanga."
The Ministry was subsequently ordered to reconsider its decision within three working days – which it did.
Five days later, director-general of health Dr Ashley Bloomfield said the Ministry had reconsidered its decision, but would not change it, which is why Tamihere will head to the High Court in Wellington today under urgency to try and have the decision reversed.
He says with Aucklanders preparing to leave the city, time is ticking regarding the safety of vulnerable communities, and hopes the Ministry will stop "drip-feeding" information to Woca.
Speaking for the Ministry on Thursday, Sean Kinsley told Justice Gwyn it's possible the importance of the information is being weighted too heavily.
He stressed it was "not the only tool in the tool kit".
"We do think it's possible the utility of this information is being overstated in the submissions. It can be helpful, we're just not sure how helpful it is...The decision-makers are not saying we don't think it's going to help, they acknowledged it will have an effect, what needs to be seen is whether it will have an effect everywhere."
However, he said the evidence is being constantly reviewed and reconsidered.
"The provisional conclusion is its likely to be necessary to provide dose one information for Māori population who have had the first dose but it's been eight weeks since. There are a lot of people still following earlier advice that six to seven weeks is the optimal period."
He said that information had been given to him that day, and the Ministry desired to sit down with Woca and ask how that worked for them, and whether it met their concerns.
"Every day the needle is moving closer to providing the data requested."
He said it would be easier to provide information in smaller regions – rather than a full release.
Orphin-Dowell says the timing is too close for this to work.
"Unless there's an obvious area where there's not a geographic need then the time has come to provide the information on the scale that being sought because of the urgency of the threat
There is no region in the North Island where we have achieved equity."
Justice Gwyn reserved her judgment, saying she aimed to get her decision to both parties "as soon as possible".
They allege the Crown ignored Treaty obligations by not engaging with them.