"Prioritization": Rationing health care in New Zealand

Journal of Law, Medicine and Ethics

Volumn 33, Issue 4, 2005, Pages 681-697

  Manning, Joanna ^a   Paterson, Ron ^b  

^a UNIVERSITY OF AUCKLAND   (New Zealand)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; HEALTH CARE AND PUBLIC HEALTH; HEALTH CARE DELIVERY; HEALTH CARE ORGANIZATION; HEALTH CARE PLANNING; HEALTH CARE POLICY; HUMAN; LEGAL APPROACH; LEGAL ASPECT; NEW ZEALAND; PATIENT RIGHT; PUBLIC HEALTH;

HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

HEALTH CARE RATIONING; HEALTH CARE REFORM; HEALTH PRIORITIES; HEALTH SERVICES ACCESSIBILITY; HUMANS; NATIONAL HEALTH PROGRAMS; NEW ZEALAND; PATIENT RIGHTS;

EID: 32144446204     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00536.x     Document Type: Conference Paper

References (175)

1. See "Cullen: Time to Rein in Costs," New Zealand Herald, June 16, 2005, at A1;
2. "King Bats Off Double Attack on Health Budget," New Zealand Herald, June 9, 2005, at A2. The Ministers of Health and Finance have commissioned a review of health spending.
3. See "Labour's Spending Fails to Convince Voters," New Zealand Herald, May 30, 2005, at A1.
4. Health ranked as voters' top concern in the run-up to the national election of 2005: see "Informed Choice: Analysing the Real Issues to Help Voters in the Run-up to the Election," New Zealand Herald, July 25, 2005, at A5.
5. See the Code of Health and Disability Services Consumers' Rights (NZ), available at 〈www.hdc.org.nz/The Act & Code/The Code of Rights〉 (last visited September 28, 2005).
6. See also R. Paterson, "The Patients' Complaints System in New Zealand," Health Affairs 21, no. 3 (2002): 70-79.
7. The balance of 22% of health expenditure in 2002 was funded from private health insurance (5.7%), out-of-pocket payments (16.1%), and not-for-profit organizations (0.3%). The percentage of health expenditure funded from private health insurance has risen markedly from 1.1% in 1979/80, see P. Davis and T. Ashton, Health and Public Policy in New Zealand (Auckland: Oxford University Press, 2001) :
8. at 10, to 5.7% in 2001/02, and has led to a two-tier system where insured, generally wealthier patients can usually access elective surgical procedures more quickly in private hospitals rather than wait for (publicly funded) public hospital treatment. The percentage of the population covered by private health insurance has been slowly declining, from an estimated 41% in 1994/95, id., to 33% in 2003/04, Ministry of Health, Health Report: Southern Cross Publication on Rebate for Private Health Insurance (Wellington: Ministry of Health, 2004): at 2.
9. "Treatment injury" includes personal injury suffered by a person seeking or receiving treatment from a registered health professional, which is caused by treatment but which is not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including (i) the person's underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. See Injury Prevention, Rehabilitation, and Compensation Act 2001 (NZ) at § 32(1).
10. See D. Studdert and T. Brennan, "No Fault Compensation for Medical Injuries: The Prospect for Error Prevention," JAMA 286 (2001): 217-23.
11. The terms, and others such as "limit-setting," are used interchangeably in this paper.
12. See the New Zealand Public Health and Disability Act 2000 at § 3(2). The Minister of Health has power by written notice to require a District Health Board (DHB) to fund specified services, but any such notice may not require the supply of services to any named individual;
13. see id. at § 33(1)(a).
14. See the Injury Prevention, Rehabilitation, and Compensation Act 2001 (NZ) at § 33(1)(d) and § 32(1)(c).
15. See the Code of Health and Disability Services Consumers' Rights (NZ), clause 3, which provides: "(1) A provider is not in breach of this Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code. (2) The onus is on the provider to prove that it took reasonable actions. (3) For the purposes of this clause, 'the circumstances' means all the relevant circumstances, including the consumer's clinical circumstances and the provider's resource constraints."
16. See the Health and Disability Commissioner Act 1994 (NZ) at § 20(1)(f).
17. See E. Kinney and B. Clark, "Provision for Health and Health Care in Constitutions of the Countries of the World," Cornell International Law Journal 37 (2004): 284-355.
18. See Tavita v. Minister of Immigration [1994] 2 NZLR 257; Puli'uvea v. Removal Review Authority [1996] 2 HRNZ 510 (CA).
19. See A. Bloomfield, "New Zealand," in C. Ham and G. Robert, eds., Reasonable Rationing (Maidenhead, England: McGraw Hill/ Open University Press, 2003): 16-41, at 24, from which much of the information in this section of the paper has been drawn.
20. See also W. Edgar, "Rationing Health Care in New Zealand - How the Public has a Say," in A. Coulter and C. Ham, eds., The Global Challenge of Health Care Rationing (Buckingham: Open University Press, 2000): 175-91. For an excellent description and assessment of the relative success of each of the different priority-setting strategies described here during the period,
21. see also T. Tenbensel, "Does More Evidence Lead to Better Policy? The Implications of Explicit Priority-Setting in New Zealand's Health Policy for Evidence-Based Policy" Policy Studies 25 (2004): 189-207.
22. "Implicit" rationing occurs where care or provision of services is limited, but no explicit admission of limitation is made or justification for the limit is clearly expressed. The need for limit-setting is addressed on an informal basis - there are no explicit or formal criteria for making allocation decisions. The most notorious mechanism for implicit rationing is the waiting list. "Explicit" rationing, by contrast, is where an explicit or formal framework or allocation mechanism is employed, based on explicit criteria, with the aim of making consistent, fair and transparent decisions about access to treatment.
23. For this description of implicit rationing, see C. Ham and A. Coulter, "Where Are We Now?" in A. Coulter and C. Ham, eds., supra note 15, 233-50, at 249.
24. As is well known, an attempt at managed competition had recently been introduced in Britain, the core of which was the internal market or quasi-market and the separation of purchaser and provider roles. See W. Ranade, "Reforming the British National Health Service: All Change, No Change?" in W. Ranade, ed., Markets and Health Care: A Comparative Analysis (New York: Addison, Wesley, Longman, 1998): 101-21. Market mechanisms and incentives were introduced or strengthened in the health care systems of a group of advanced western states during the period, including Sweden, the Netherlands, and Germany;
25. see id.
26. Public hospitals were renamed "Crown Health Enterprises" and charged with "operating as a successful and efficient business" and being "as successful and efficient as comparable businesses that are not owned by the Crown." See the Health and Disability Services Act 1993 (NZ) at §§ 11(1) and (2)(d).
27. For a description and assessment of New Zealand's reforms, see T. Ashton, "Running on the Spot: Lessons from a Decade of Health Reform in New Zealand," Applied Health Economics and Health Policy 1 (2002): 47-56;
28. T. Ashton, "The Health Reforms: To Market and Back?" in J. Boston, P. Dalziel, and S. St John, eds., Redesigning the Welfare State: Problems, Policies and Prospects (Auckland: Oxford University Press, 1999): 134-53.
29. See the Health and Disability Services Act 1993 (NZ) at § 4(a).
30. Id.
31. The Committee's remit was to advise the Minister of Health on "the kinds, and relative priorities, of personal health services and disability services that should, in the committee's opinion, be publicly funded." See Health and Disability Services Act 1993 (NZ) at § 6(1)(a). In 1996 advice on priorities for public health services was included within its brief. The current national advisory committee on health and disability, established under the New Zealand Public Health and Disability Act 2000, § 13, retains this advisory function in relation to "the kinds, and relative priorities" of services that should be publicly funded.
32. See Third Report of the National Advisory Committee on Core Health and Disability Support Services, Core Services 1995/96 (National Advisory Committee on Health and Disability, August 24, 1994). Reflecting the different task, the Committee underwent a name change about this time, thereafter becoming the National Health Committee.
33. These principles were set out in a consultation document widely circulated in 1993, The Best of Health 2 (National Advisory Committee on Health and Disability, 1993) and were adopted by the Committee and advised to the Minister of Health. See Third Report of the National Advisory Committee on Core Health and Disability Support Services, supra note 24, at 8.
34. For a description of the process, see Edgar, supra note 15, at 21.
35. See Shortland v. Northland Health Ltd [1998] 1 NZLR 433 (CA).
36. The Committee commissioned a report on waiting lists from three clinicians, which proposed the introduction of booking to give some certainty to patients and promoted prioritization according to need and ability to benefit. See G. Fraser, P. Alley, and R. Morris, Waiting Lists and Waiting Times: Their Nature and Management (Report to the National Advisory Committee on Core Health and Disability Support Services, 1993).
37. For a recent review of the reliability of CPAC scoring tools used for prioritization of surgery, see C. Doughty et al., "Prioritisation of Elective Surgery in New Zealand: The Reliability Study," New Zealand Medical Journal 118 (2005).
38. The booking system was reviewed independently from an ethical perspective, and that review was itself reviewed. Both reports concluded that despite unresolved questions and ethical dilemmas (particularly the tension between need and ability to benefit), the project was a clear improvement on the old system of implicit rationing by waiting list, which lacked transparency and accountability, and was open to abuse. The new system was more transparent and equitable and, by publicly providing information on levels of unmet need, provided more opportunities for advocates and the public to participate in open discourse on ways to improve the delivery of health care. See D. Evans and N. Price, The Ethical Dimensions of the National Waiting Time Project (A Report for the Health Funding Authority, 1999);
39. I. Kawachi, Review and Commentary on the Ethical Dimensions of the National Waiting Time Project (A Report for the Health Funding Authority, 1999).
40. Comparative information on access to elective procedures at District Health Boards is published quarterly on the Ministry of Health's website at 〈www.electiveservices.govt.nz/espi/ESPI-DHB-Comparison.html 〉 (last visited September 28, 2005).
41. Pharmac is governed by the New Zealand Public Health and Disability Act 2000, §§ 46-53.
42. In the year ended June 31, 2004 its expenditure on pharmaceuticals was $NZ 534 million; see Annual Report of Pharmaceutical Management Agency for Year ended 31 June 2004. For a more detailed description of Pharmac, its activities, and success,
43. see Bloomfield, supra note 15, at 32-35.
44. For a description and analysis of the process, see T. Ashton, J. Cumming, and N. Devlin, "Priority-setting in New Zealand: Translating Principles into Practice," Journal of Health Services Research & Policy 5 (2000): 170-75;
45. and Tenbensel, supra note 15, at 194-96.
46. Bloomfield comments that the main weakness of the process was that the underlying community principles had not been submitted to public consultation. See Bloomfield, supra note 15, at 23.
47. Maori are New Zealand's indigenous people, to whom the Crown owes special duties under a national founding document, the Treaty of Waitangi. The fifth principle, the need to improve the health status of Maori, reflected their persistently lower health status compared to non-Maori New Zealanders, apparent in disparities in life expectancy and the prevalence of cardiovascular disease, cancer, diabetes, and chronic lung diseases; see Ministry of Health, Decades of Disparity: Ethnic Mortality Trends in New Zealand 1980-1999 (Wellington: Ministry of Health, 2003). One objective of the New Zealand Public Health and Disability Act 2000 is to reduce health disparities by improving the health outcomes of Maori and other population groups, see § 3(1)(b), although § 3(3) qualifies this by stating that: "For the avoidance of any doubt, nothing in this Act-(a) entitles a person to preferential access to services on the basis of race."
48. See Health Funding Authority, Prioritisation, Methodology and Process (Wellington: Health Funding Authority, 1998).
49. See also Tenbensel, supra note 15, at 195.
50. The reforms were put in place by the New Zealand Public Health and Disability Act 2000.
51. See New Zealand Public Health and Disability Act 2000 at § 3(1)(c)(i). District Health Boards are at the same time required to be fiscally prudent (§ 41), attempt to stay within their budgets (§§ 41, 42), and observe and implement government priorities for the sector (§§ 38(6), 39(8)). These dual accountabilities of Board members to the government and to local communities have caused some tension, and raise an issue felt particularly by elected members of Boards, as noted in research undertaken to chart the progress of and evaluate the reforms as they are implemented.
52. See Health Reforms 2001 Research Team, Interim Report on Health Reforms 2001 Research Project (Health Reforms 2001 Research Team, November 2003): at 36-37.
53. It is a function of DHBs to regularly assess and monitor the health status of their resident populations and their needs for services;
54. see New Zealand Public Health and Disability Act 2000, s 23(1)(g). Health needs assessments are to be used to inform DHBs' District Strategic Plans (DSP). See § 38(3)(a). The DSP states the objectives of the DHB for the five- to ten- year period, and is to be made publicly available, as are any amendments. These plans are to be reviewed at least once every three years. See § 38.
55. See Tenbensel, supra note 15, at 204.
56. See Health Reforms 2001 Research Team, supra note 39, at 50;
57. T. Ashton, T. Tenbensel, M. Powell, T. Walker, and S. Palmer, Waitemata District Health Board Case Study: An Interim Report (Health Reforms 2001 Research Project, 2004): at 29.
58. The majority of DHBs are in deficit, which they are required to progressively reduce. In this environment, prioritization is related to disinvestment decisions rather than to investing in new services.
59. See Health Reforms 2001 Research Team, supra note 39, at 48-51. The Report provides evidence for the 2001-03 period only.
60. See Health Reforms 2001 Research Team, supra note 39, at 49.
61. See also Ashton, et al., supra note 42, at 28.
62. For example, the introduction of a national hepatitis screening program, the breast screening program, and the acellular pertussis vaccine, which were the result of decisions made by government. For a summary of how decisions about new health technologies have been made in New Zealand, see Bloomfield, supra note 15, at 25-32, and at 37-41.
63. See National Health Committee, Decision-Making about New Health Interventions: A Report to the New Zealand Minister of Health (National Health Committee, May 2005), available through 〈www.nhc.govt.nz/Publications.html 〉, at 15-19, and at 21.
64. Factors include consumer expectations and lobbying, adoption by other DHBs, "technology creep," whereby existing interventions are replaced by newer modified and usually more expensive versions, expectations of new clinical staff, adoption by the private sector. See id. at 15-16.
65. The Committee found that decisions are often based on one or two articles from reputable journals or clinical trials, rather than a synthesis of all available evidence. See id. at 3.
66. Id. at 24.
67. Id. at 30-31.
68. The Committee identified the key attributes for robust decision-making processes, based on Daniels and Sabin's "accountability for reasonableness." See N. Daniels and J. Sabin, "The Ethics of Accountability in Managed Care Reform," Health Affairs 17, no. 5 (1998): 50-64. It recommended development of a resource for hospital decision-makers on how to establish robust processes consistent with these attributes.
69. See the Committee's report, Decision-Making about New Health Interventions, supra note 47, at 26-27.
70. The suggested options included: a web-based searchable library to act as a repository of relevant international and national generated evidence and health technology assessment information; and a brokerage agency to provide a rapid source of such information for instances in which the web-based library was inadequate. See id. at 33-35.
71. A. Bloomfield and R. Logan, "Quality Improvement Perspective and Healthcare Funding Decisions," British Medical Journal 237 (2003): 439-43.
72. An interesting example was the recommendation by the Chief Ombudsman that a regional health authority not resile from a commitment to fund a sex-change operation for a transsexual. The authority had revoked its decision to fund the surgery after reclassifying the procedure. The Ombudsman considered the decision to reclassify the procedure "unreasonable." See File No W 40304 (November 2000).
73. Supra note 27. For an earlier review of both cases, see R. Paterson, "Rationing Health Care and Human Rights," New Zealand Law Review (1998): 571-84.
74. Removal of waste products through a fluid exchange system attached to the abdomen. Cf. haemodialysis, which is removal of waste products by circulating the blood through a filter system, traditionally undertaken as an in-hospital procedure.
75. The health team consisted of a renal physician, a social worker, a renal nurse, a Maori liaison officer, an occupational therapist, and a psychologist. A second renal physician provided a second opinion.
76. See Northern Regional Health Authority's Guidelines for Entry into Northern Region's End Stage Renal Failure Programme (Northern Regional Health Authority, 1996). The guidelines were a twelve-page document developed in 1996 by a committee established by the regional funder. Members consisted of doctors, health authority representatives, medical ethicists, lawyers, patient group representatives, nurses, and iwi (Maori tribal members). Co-author of this paper, Ron Paterson, was a member of the committee. The committee met monthly over an eighteen-month period and reviewed issues such as medical resources, patient best interests, medical practice, medical ethics, medical law, and human rights. Drafts were widely disseminated and the Human Rights Commission was kept fully informed. Justice Salmon concluded that the guidelines were the subject of thorough and appropriate study before they were adopted;
77. see Shortland v. Northland Health Ltd (No. 2) (unrep, HC Whangarei, M No. 75/97, 6 November 1997, Salmon J), at 10.
78. The guidelines, indicating legal input in this respect, stated that they were "guiding principles" only, and provided for "exceptional circumstances" in which a "positive decision" could be made "to offer treatment even though it is unlikely to have benefit greater than two years." See Shortland v. Northland Health Ltd, supra note 27, at 438.
79. See Shortland v. Northland Health Ltd (No. 1) (unrep, HC Auckland, M No. 75/97, 20 September 1997, Salmon J), at 7.
80. The evidence was that attempts were made to teach Williams to perform CAPD over several weeks, but he was unable to learn or retain the basic concepts. He disconnected his CAPD on two occasions, on one occasion causing life-threatening peritonitis; see Shortland v. Northland Health Ltd, supra note 27, at 438; and Shortland v. Northland Health Ltd (No. 1), supra note 61, at 5.
81. The evidence indicated, however, that it had proved impossible to ensure a family member took responsibility for his care during the assessment period when efforts had been made to train Williams in the procedure; see Shortland v. Northland Health Ltd (No. 7), supra note 61, at 5.
82. See Shortland v. Northland Health Ltd (No. 2), supra note 59, at 13.
83. See Shortland v. Northland Health Ltd (No. 1), supra note 61;
84. and Shortland v. Northland Health Ltd (No. 2), supra note 59.
85. Like the Court of Appeal, Justice Salmon announced his decision with a short statement of reasons (on October 10, 1997), and provided a full statement of reasons later. 66. See Shortland v. Northland Health Ltd, supra note 27.
86. Resumption of dialysis, had the Court of Appeal ordered it, would in all probability have been too late to save his life in any event, although the legality of its withdrawal in the first place was always in issue. The Health and Disability Commissioner subsequently found fault with the process, but not the outcome. In her opinion, Northland Health had failed to provide services that took into account Williams' cultural and spiritual needs, and to comply with relevant standards for consultation with family, in breach of Rights 1(3) and 4(2) of the Code of Patients' Rights (Case 97HD C8872, June 28, 1999), available through 〈www.hdc.org.nz/ opinions〉.
87. Shortland v. Northland Health Ltd (No. 1), supra note 61, at 9-10, citing the Health and Disability Services Act 1993 (NZ), §§ 4(a) and 8(3).
88. Shortland v. Northland Health Ltd (No. 1), supra note 61, at 13.
89. See Re J(A Minor) (Child in Care: Medical Treatment) [1992] 3 WLR 507 (CA).
90. See id., at 517 (L. J. Donaldson) and 519 (L. J. Balcombe); R v. Cambridge District Health Authority ex parte B [1995] 1 WLR 898 (CA), at 906.
91. See Shortland v. Northland Health Ltd (No. 1), supra note 61, at 13.
92. See Shortland v. Northland Health Ltd (No. 2), supra note 59, at 14. The decision in this respect was upheld on appeal;
93. see Shortland v. Northland Health Ltd, supra note 27, at 439.
94. Shortland v. Northland Health Ltd (No. 2), supra note 59, at 15-16.
95. Id. at 14 (emphasis added).
96. Shortland v. Northland Health Ltd (No. 2), supra note 59, at 19.
97. The New Zealand Bill of Rights Act 1990, § 8, provides: "Right not to be deprived of life - No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice."
98. See Shortland v. Northland Health Ltd (No. 2), supra note 59, at 17. Causation theories such as this are of course controversial.
99. See Auckland Area Health Board v. Attorney-General [1993] 1 NZLR 235 (HC), at 248;
100. Airedale NHS Trust v. Bland [1993] 1 All ER 821 (HL), at 893 (Lord Mustill). Alternatively, the High Court held the decision was in accordance with fundamental justice, because it was made clear to Williams when he was placed on dialysis initially that the purpose was for assessment only; hence no legitimate expectation arose. And there was no breach of the principles of natural justice as the family had ample opportunity, which they exercised, to attempt to persuade the hospital to keep him on dialysis;
101. see id. at 20-21.
102. The Crimes Act 1961 (NZ), § 151(1), states that "[e]very one who has charge of any other person unable, by reason of...sickness...to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is...under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused, or if his life is endangered or his health permanently injured, by such omission."
103. [1993] 1 NZLR 235 (HC).
104. It quoted the aim of the guidelines "to ensure that, so far as possible within the available resources, all patients are offered access to the treatment modality which is most suitable clinically and socially and which offers the greatest opportunity to benefit"; see Shortland v. Northland Health Ltd (No. 2), supra note 59, at 437 (emphasis added).
105. Id. at 442-43.
106. Id. at 439.
107. See S. Harrison, "The Politics of Evidence-based Medicine in the United Kingdom," Policy and Politics 26 (1998): 15, at 18.
108. Supra note 27, at 442.
109. Right 7(2) of the Code provides: "Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent."
110. Right 7(4) of the Code provides: "Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where - (a) It is in the best interests of the consumer; and (b) Reasonable steps have been taken to ascertain the views of the consumer; and (c) Either, - (i) If the consumer's views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or (ii) If the consumer's views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider."
111. A codification of the principle in F. v. West Berkshire Health Authority [1990] 2 AC 1 (HL), at 75-76 (Lord Goff).
112. Had the fact of making a choice between patients because of scarce resources been acknowledged, the issue would then have been whether breaches of Rights 7(3) and (4) were excused by the Code's clause 3; see supra note 11.
113. See the line of authority for heightened judicial scrutiny ("the super-Wednesbury approach") when fundamental rights are engaged, especially the right to life: R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL), at 748-49;
114. R. v. Ministry of Defence, ex parte Smith [1996] 1 All ER 257, at 263;
115. R. (Wilkinson) v. Responsible Medical Officer, Broadmoor Hospital (2001) 65 BMLR 15 (CA).
116. See Airedale NHS Trust v. Bland [1993] 1 All ER 821 (HL), at 871 and at 883, referring to Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118.
117. See Frenchay Healthcare NHS Trust v. S [1994] 2 All ER 403 (CA), at 404.
118. See Re A (Medical Treatment: Male Sterilization) [2000] 1 FLR 549 (CA), at 555
119. and In re S (Adult Patient: Sterilization) [2000] 3 WLR 1288 (CA), at 1296.
120. Supra note 27, at 443.
121. See A. Coulter and C. Ham, "Where Are We Now?" in A. Coulter and C. Ham, eds., The Global Challenge of Health Care Rationing, supra note 15, at 243-45.
122. Except where there is a legal guardian or power of attorney available to give consent to treatment of the patient.
123. Supra note 27, at 443.
124. The "definitional approach" is to define the relevant right narrowly, to avoid its being engaged on the facts of a case or to avoid conflict with other rights, rather than to resolve such conflicts by reference to the excepting grounds within the right itself ("the principles of fundamental justice") or by reference to the "justified limitations" on rights provision in s 5 of the New Zealand Bill of Rights Act 1990. The latter is referred to as ad hoc balancing. See Re J(An Infant) [1996] 2 NZLR 134 (CA), at 145-46.
125. Supra note 27, at 445.
126. Id. at 445.
127. The qualification being that deprivation of life is consistent with "the principles of fundamental justice"; see the New Zealand Bill of Rights Act 1990, § 8, supra note 77.
128. See the New Zealand Bill of Rights Act 1990 at § 5, which provides: "Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 5 was adopted from the Canadian Charter of Rights and Freedoms at § 1.
129. See R. v. Secretary of State for Social Services ex parte Hincks (1980) 1 BMLR 93;
130. R v. Secretary of State for Social Services ex parte Walker (1987) 3 BMLR 32;
131. R v. Central Birmingham HA ex parte Collier (unrep, CA, January 6, 1988);
132. R v. Cambridge District Health Authority ex parte B [1995] 1 WLR 898 (CA).
133. The legitimacy problem concerns the moral authority of those making rationing decisions affecting patients' health and well-being, and the reasons why patients or clinicians should (or should not) accept the authority of organizations making such decisions; see K. Syrett, "NICE Work? Rationing, Review and the 'Legitimacy Problem' in the New NHS," Medical Law Review 10 (2002): 1-27;
134. K. Syrett, "Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing," Modern Law Review 67 (2004): 289-321.
135. To borrow Syrett's description of implicit rationing, see id. at 293.
136. Daniels and Sabin's four conditions for "accountability for reasonableness" are: (1) Publicity, which requires decisions regarding coverage for new technologies (and other limit-setting decisions) and their rationales to be publicly accessible; (2) Reasonableness, requiring that the rationales for coverage decisions should rest on evidence, reasons, and principles that all fair-minded parties can agree are relevant to meeting people's needs fairly under resource constraints; (3) Appeals, which requires a mechanism for challenge and dispute resolution and an opportunity for revising decisions; and (4) Enforcement, which requires voluntary or public regulation of the process to ensure that conditions 1-3 are met. See Daniels and Sabin, supra note 52;
137. N. Daniels, "Accountability for Reasonableness in Public and Private Health Insurance," in A. Coulter and C. Ham, eds., The Global Challenge of Health Care Rationing, supra note 15, at 92-93 .
138. For a further example of a decision, in which the Court of Appeal found a governmental action lawful while not explicitly acknowledging the issues to relate, at least in part, to a decision allocating limited resources, see Daniels v. Attorney-General [2003] 3 NZLR 742 (CA). In the education rather than the health field, the decision differed from Shortland in that it involved a statutory entitlement to "free enrolment and education," which the Education Act 1989 (NZ) extended to children with special educational needs. Rejecting the interpretation of the court below, the Court of Appeal held that the statutory right did not create a free-standing, general right to "regular, not clearly unsuitable and systematic education." The statutory right was not justiciable in terms of the suitability of the education provided for particular children. This interpretation rendered the statutory right virtually meaningless, for the content of the right that the Court was prepared to acknowledge added nothing to other specific duties in the Act. Underlying the decision is an apparent unwillingness to become involved in reviewing the relative allocation of funding as between students with differing levels of disability and special needs in the context of a policy that had significantly increased funding for special education overall.
139. See R. Paterson, "Rationing Health Care and Human Rights," New Zealand Law Review (1998): 571-84, at 578-79. The reference in the text to "Wednesbury unreasonableness" refers to the key passage in Lord Greene MR's judgment in the famous decision of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, at 229. It indicates the special legal standard of unreasonableness which has become the criterion for judicial review of administrative discretion. That standard is often expressed by saying that the decision is one that no reasonable authority could have reached.
140. See H. W. R. Wade and C. Forsyth, Administrative Law (Oxford: Oxford University Press, 2004): at 353-54 and 363-65.
141. The International Covenant on Civil and Political Rights, ratified in New Zealand in 1978, was a major influence on the New Zealand Bill of Rights Act 1990.
142. The New Zealand Bill of Rights Act 1990 applies to the three branches of government - executive, legislative, and judicial - and also to bodies exercising a public function (see § 3). Like the Human Rights Act 1998 (UK), the Act is not supreme law. A court cannot invalidate a statute on the ground of inconsistency with the New Zealand Bill of Rights (see § 4), although those subject to the Act, including courts, are instructed to read a statute consistently with the guaranteed rights (see § 6).
143. See the Human Rights Act 1993 (NZ) at § 44(1).
144. Id. at § 21(1).
145. Id. at § 2l(1)(h)(iv).
146. The family had laid a complaint of disability discrimination prior to bringing the judicial review proceedings, which had been withdrawn after the Human Rights Commission undertook a process of conciliation between the parties.
147. See the relevant section of the guideline, which is quoted in the main body of this paper, supra note 61.
148. See the Human Rights Act 1998 (NZ), § 52, which provides: "It shall not be a breach of section 44 of this Act for a person who supplies facilities or services - (a) To refuse to provide those facilities or services to any person if- (i) That person's disability requires those facilities or services to be provided in a special manner; and (ii) The person who supplies the facilities or services cannot reasonably be expected to provide them in that special manner."
149. Such as Mr Soobramoney, who had heart and vascular disease, which meant that his ability to benefit was compromised, and he fell outside the guidelines. See Soobramoney v. Minister of Health, Kwazulu-Natal (1998) 1 SA 765 (CC).
150. The discriminatory effect of using age in priority criteria is well documented; see R. Baker, "Visibility and the Just Allocation of Health Care: A Study of Age-Rationing in the British National Health Service," Health Care Analysis 1 (1993): 139;
151. T. Wetle, "Age as a Risk Factor for Inadequate Treatment," JAMA 258 (1987): 516;
152. J. Avorn, "Benefit and Cost Analysis in Geriatric Care: Turning Age Discrimination into Health Policy," N. Engl. J. Med. 310 (1984): 1294-301. For a recent critique of age discrimination and the proposed use of QALYs (Quality Adjusted Life Years) to determine the cost-effectiveness of drugs for the treatment of dementia,
153. see J. Harris, "It's Not NICE to Discriminate," Journal of Medical Ethics 31, no. 7 (2005): 373.
154. There was a pattern of increasing life-expectancy gaps for both Maori and Pacific people compared to non-Maori, non-Pacific people between 1981 and 1999. For Maori, the male life-expectancy gap in 1999 was 9.9 years; for females, 9.8 years. Chronic diseases contribute the major share of the disparity in life expectancy between Maori and non-Maori, non-Pacific people. See Ministry of Health, Decades of Disparity: Ethnic Mortality Trends in New Zealand 1980-1999 (Wellington: Ministry of Health, 2003): at 14, 22, and 42.
155. Id. at 42-43.
156. See the Human Rights Act 1993 (NZ) at §§ 21(1)(k) and (1)(l). Employment status is defined as meaning: "(i) Being unemployed; or (ii) Being a recipient of a benefit or compensation under the Social Security Act 1964 or the [Injury Prevention, Rehabilitation, and Compensation Act 2001]" and family status is defined as meaning: "(i) Having the responsibility for part-time care or full-time care of children or other dependants; or (ii) Having no responsibility for the care of children or other dependants; or (iii) Being married to, or being in a relationship in the nature of marriage with, a particular person; or (iv) Being a relative of a particular person."
157. New Zealand's National Health Committee concluded after consultation that social factors have a place, but a limited one, in deciding priorities. A 10% weighting in priority scoring was allocated in its Priority Criteria Projects in the 1990s to ability to work, care of dependants, and living independently; see W. Edgar, "Rationing Health Care in New Zealand - How the Public has a Say," in A. Coulter and C. Ham, The Global Challenge of Health Care Rationing, supra note 15, at 183-84 and 191, n.8.
158. For example, arguably the most influential modern theory of justice considered that distribution of "social values" should be equal unless an unequal distribution would favour the least well off; see J. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
159. See D. Evans, "Limits to Care," in D. Evans and Z. Szawarski, eds., Solidarity, Justice and Health Care Priorities (Linkoping: Linkoping University Press, 1993): 2841..
160. See the Human Rights Act 1993 (NZ) at § 65.
161. "Genuine justification" is a defense to § 44 (direct discrimination), but is available on a case-by-case basis only, not as a blanket ruling. See the Human Rights Act 1993 (NZ) at § 97. "Good reason" is available as a defense to indirect discrimination.
162. See id. at § 65.
163. See the Human Rights Amendment Act 2001 (NZ). The Amendment was necessary because the government's exemption from certain grounds of prohibited discrimination in the Human Rights Act was due to expire, and the whole range of governmental activity was to become subject to the Act. This would result in serious problems, for example in respect of social assistance payments, which take into account prohibited grounds. Note that public hospitals and their employees were not included within that exemption, although funding authorities and the Ministry of Health were.
164. See the law reform report leading to passage of the Human Rights Amendment Act 2003 (NZ): P. Cooper, P. Hunt, J. McLean, and B. Mansfield, Re-evaluation of the Human Rights Protections in New Zealand: Report for the Associate Minister of Justice and Attorney-General (Wellington: Ministry of Justice, 2000): at paragraphs 32-33.
165. Id. at paragraphs 27 and 73.
166. In two cases in 2003, Auckland City Hospital denied dialysis treatment to two foreign patients who were lawfully in New Zealand on temporary entry permits. It applied a government policy to restrict such treatment to New Zealand citizens and permanent residents. Pursuant to the policy, foreign patients who presented would be stabilized but not offered ongoing dialysis. Both patients were treated differently from New Zealand citizens by reason of a prohibited ground (ethnic or national origin), which appears prima facie discriminatory. The issue is whether it is a reasonable limitation on their anti-discrimination right for the government to decide as a matter of policy to spend its finite health dollars on New Zealand patients. Amid intense media interest, both cases were resolved without recourse to litigation. In the first case, the Minister of Immigration apparently succumbed to pressure and issued the patient with the necessary permit, so that he qualified for public health services; see "Man's Life in Balance as Health Policy Debated," New Zealand Herald, May 10,2003;
167. "Tuvaluan Man Given Temporary Permit to Continue Life Saving Treatment," New Zealand Herald, May 12, 2003. The second case involved an eighteen-year-old Fijian-born Indian girl, who came to New Zealand to receive a kidney transplant from her aunt. The latter unfortunately suffered a stroke soon after arrival and was no longer a suitable donor. As the girl's insurance cover ran out, Auckland City Hospital advised of its intention to cease dialysis treatment. After media publicity, a private benefactor agreed to pay the costs of treatment for twelve months until a suitable donor could be found;
168. see "Kidney Girl in Fight for Insurance," New Zealand Herald, July 15, 2003;
169. "Kidney Girl's Time Up," New Zealand Herald, July 30, 2003;
170. and "A Dream Comes True For Kidney Patient," New Zealand Herald, July 11, 2003.
171. See Daniels v. Attorney-General (No. 1) (unrep, HC Auckland, M No. 1615-SW99, 3 April 2002, J. Baragwanath), at paragraph 97, in which the High Court took this view.
172. It is beyond the scope of this paper to discuss in detail the question of whether the New Zealand Bill of Rights Act 1990 applies to the actions of health professionals in public hospitals administering publicly funded health services. It is generally considered, however, that they perform a public function in terms of § 3(b) of the Act, and hence that the Act applies to them; see P. Rishworth, G. Huscroft, S. Optican, and R. Mahoney, The New Zealand Bill of Rights (Melbourne: Oxford University Press, 2003): at 91.
173. See R. Paterson and P. Rishworth, Priority Criteria and the Human Rights Act: An Interpretation (Consultation Document for the National Health Committee, 1996): at 14, 16-17.
174. The New Zealand courts approach this issue in very much the same way as do Canadian courts under § 1 of the Canadian Charter of Rights and Freedoms, and have adopted the Oakes test. See R v. Oakes [1986] 1 SCR 103 (SCC);
175. Moonen v. Film and Literature Board of Review [2000] 2 NZLR 9 (CA).