Judgment sets aside Ministry decision to deny Māori vaccination data release

NEWS - eHealthNews.nz editor Rebecca McBeth

The Ministry of Health did not properly apply the Health Information Privacy Code 2020 or make its decision with adequate regard to Te Tiriti o Waitangi when it decided to deny the release of Māori vaccination data to Whānau Ora, a High Court judgment says.

A new High Court decision also reveals the concerns of DHB Chairs that sharing individual vaccination data would “undermine efforts to reach these people”.

A High Court decision on 1 November sets the Ministry’s decision to deny Whānau Ora’s request aside and directs it to “urgently retake the decision, within three working days”.

The Ministry says it acknowledges the Court's findings and will be reconsidering its decision in line with the Court's decision.

To support their vaccination work, Māori health commissioning agency Whānau Ora asked the Ministry to share information about unvaccinated Māori in Te Ika-a-Māui/North Island – their personal details, contact details, vaccination status and vaccination booking status.

In October, the Ministry confirmed that it would provide the Covid-19 vaccination and booking status data of people who had previously been provided services by one of Whānau Ora’s Commissioning Agency (WOCA) partners.

For those who had not received services, the Ministry would supply anonymised (to street level) mapping representations that show areas with unvaccinated communities.

Whānau Ora argued that this data was not specific enough for them to easily identify individuals so would take considerable time and effort to locate them, particularly in rural areas.

WOCA challenged the Ministry’s decision saying it incorrectly applied the relevant legal test for disclosing health information and had acted inconsistently as it provided similar data to Healthline (a non-Māori telehealth company) which had contacted unvaccinated Māori

Also, that Whānau Ora had a legitimate expectation the Ministry’s decision would be made in accordance with the principles of Te Tiriti o Waitangi, but the decision is inconsistent with the principles and tikanga.

The Ministry’s national director Covid-19 vaccination and immunisation programme, Joanne Gibbs’, decision in relation to the Health Information Privacy Code (HIPC) said she was “not satisfied disclosure of individual level data is appropriate at this point or that it is necessary to lessen the threat presented by Covid-19 at this time”.

In an affidavit, Gibbs also explained DHB chairs expressed “particularly strong views” about the “counterproductive threat to public confidence in the health system that sharing such data would create”.

The judgment concludes that the Ministry erred in its application of the HIPC in its consideration of whether disclosure of the information to the applicant was necessary.

“It did not conduct the necessary objective, evidence-based assessment, either of the disclosure and use of the individual identifiable data requested by WOCA, or of what it concluded was an adequate alternative by way of disclosure of the anonymised street-level mapping data,” the judgment says.

It also concludes, “that in exercising its discretion under the Code, the Ministry did not have adequate regard to Te Tiriti and its principles, as informed by tikanga.”

WOCA chief executive John Tamihere says, “it is regretful that our own Ministry of Health, DHBs and PHOs objected to Māori capability and capacity in lifting Māori vaccination opportunities over the last six months.

“To be constantly denied access to fulfil 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 Ministry and Whānau Ora agreed that the Covid-19 immunisation programme has not achieved equitable coverage between Māori and other ethnic groups and that there are significant barriers to Māori accessing primary healthcare services

The Government’s Covid-19 Protection Framework will take effect when each DHB reaches a level of 90 per cent overall vaccination. For Māori, that will likely occur when Māori vaccination levels are still at approximately 70 per cent.

Picture: Whānau Ora Commissioning Agency chief executive John Tamihere

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