Ngā Kaitiaki Tuku Iho Medical Action Society Incorp v Minister of Health & Ors

Geographical Area
New Zealand
Case Name
Ngā Kaitiaki Tuku Iho Medical Action Society Incorp v Minister of Health & Ors
Case Reference
[2021] NZHC 1107
Name of Court
High Court of New Zealand
Key Facts
In response to Covid-19, on 3 February 2021 provisional consent was granted for the Comirnaty vaccine under s.23(1) of the Medicines Act 1981. This consent permitted the sale, supply and use of the vaccine for a period of 9 months.

The vaccine was to be used in the Crown administered vaccination programme which was to be completed in groups:
1. Border, managed isolation and quarantine workers (from February 2021)
2. High-risk frontline workers and people living in high-risk areas (from March 2021)
3. Those at risk of getting very sick from Covid-19 (from May 2021)
4. Everyone else in New Zealand aged 16 and over (from July 2021)

In April 2021, the Ngā Kaitiaki Tuku Iho Medical Action Society (KTI) filed judicial review proceedings in an attempt to pause or prevent the vaccination programme. As the vaccination programme began prior to filling, KTI also sought two interim orders. The first sought a declaration stating that the provisional consent’s failure to identify the limited number of patients it applied to amounted to an error of law. The second sought a declaration stating that the vaccination programme was unlawful. KTI also sought, as part of both of these declarations, a statement saying that until a further Court order, “the Crown ought to not take any further action that is or would be consequential to the exercise of the statutory power”.
Decision and Reasoning
TI’s applications required the Court to consider the wording of s.23(1). It was found that it was the clear intention of the Act that the Minister believed that it is desirable for the medicine to be used on a restricted basis and for the treatment of a limited amount of patients. The Court was of the view that as the vaccination programme was to be available to all people in New Zealand over the age of 16 (approx. 3.5 million), it was “well beyond what is contemplated” by s.23(1). Nor does the 9 month time limit on the consent amount to a relevant restriction, as the vaccine is to be available to everyone within the 9 months. Therefore, it was found that it was reasonably arguable that the provisional consent was ultra vires s.23(1).

However, the Court also considered the private and public repercussions of granting the orders sought by KTI:
- The provisional consent was granted after a thorough assessment process that went above and beyond what was required by s.23(1);
- The consent was consistent with the decision taken by other health authorities overseas;
- The threat of Covid-19 to vulnerable communities in New Zealand;
- The potential for vaccine expiry and wastage were the vaccination programme to be paused;
- The wider social and economic costs brought on by alert level changes and border closures due to Covid-19; and
- The impact of a pause of vaccine confidence.
The application for the interim orders was ultimately declined due to the private and public repercussions of pausing the vaccination programme.

After finding that it was reasonably arguable that the provisional consent granted was ultra vires s.23(1), the judge urged the Crown to consider this issue carefully. In response, the Medicines Amendment Bill 2021 (41-1) was introduced to Parliament the following day (19 May 2021). It amended s.23(1) so that the grant of provisional consents no longer requires a restricted basis or a limited amount of patients, it is enough that the Minister is of the opinion that it is desirable that the medicine be supplied. The amendment entered into law after receiving royal assent on 24 May 2021.
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.