Then-Covid Response Minister Chris Hipkins made the amendment to include family carers in the order. File photo / George Heard
Then-Covid Response Minister Chris Hipkins made the amendment to include family carers in the order. File photo / George Heard
An unvaccinated family carer who lost her funding to care for her own son said the mandates “felt like a gun to my head”.
She is one of five affected people who took their case to the High Court, challenging the mandates which meant they could not receive caregiver funding without being vaccinated against Covid-19.
Justice Gerard van Bohemen has released a declaration that then-Covid Response Minister Chris Hipkins’ decision to include family carers in the mandate was “invalid” because “it was not a decision that was available to the Minister on the basis of the information that was before him at the time”.
One anonymous caregiver said “it felt so wrong that I could not live in my house, caring for my son, and have the life we had, unless I was vaccinated. To have someone in an office, who had never met us and didn’t know our situation, make this law, felt like a gun to my head.”
Another caregiver, Jude Bignell, said their funding was cut and they were “threatened with a hefty fine” for providing the intensive care their son required.
“After years of planning and expense, this put an end to plans to build a new home to accommodate our son’s needs. Today is a win for common sense.”
The parties went to the Wellington High Court last week, having already agreed to a set of declarations to be made about the matter.
According to a joint memorandum before the court, the applicants had lost their jobs caring for their family members and spent nearly a year without funding until the mandates were removed.
They had not originally been included by the mandates until Hipkins was advised to amend the order to include family carers.
The advice was given on the basis it supported the move towards a vaccinated workforce, and that it was consistent with the Government’s overall response to the Family Carers’ litigation that family carers should be treated the same as other carers.
According to the memorandum before the court, no public health advice was given in the briefing to Hipkins as to why the amendment to the order should be made.
It is common ground now between the applicants and the lawyers for the Minister and Attorney-General, that there was not enough information before Hipkins for him to make the amendment to the order.
The case was heard in the Wellington High Court last week. Photo / File
“We call for the Prime Minister to apologise to the hundreds of care and support workers who had vital financial support unlawfully withheld from them,” said lawyer Matthew Hague, director Frontline Law, the law firm representing the applicants.
“Vaccines are medical treatment, the New Zealand Bill of Rights Act guarantees all New Zealanders the right to decide what medical treatment they receive.”
The Government is now taking steps to reimburse family carers who lost their jobs as a result of the mandate.
Lawyer Aly Miller, of Frontline Law, said their work in seeking reimbursement “will go a small way in repairing the harm done”.
“The Government must exercise caution in future decision-making; especially when placing limits on individual rights.”
The parties also asked for a declaration that the definition of “care and support worker” in the order effective between November 6, 2021 and September 26, 2022, “did not include a person providing care and support services to a family member in that family member’s home or place of residence”.
But Justice van Bohemen declined to make that declaration, saying in his decision he had “much more difficulty” with that one.
Information had come to light that “it had indeed been the Minister’s intention to include Family Carers in the definition of ‘care and support worker’”, so it would not be appropriate for the court to make a declaration on the Minister’s “presumed lack of intention”, he said.
