One of the applicants, Jennifer Wright, made an Official Information Act request last year asking for “all the public health advice given and all the information that was considered when deciding to include care and support workers, working in a family member’s home”, in the vaccination order.
In further correspondence with the office of Minister of Health Ayesha Verrall, Wright said it was “a simple request to help me understand what public health reasons were behind me losing my job caring for my own son in my own home”.
When the vaccination order was initially made, family carers were excluded. But in a briefing in November 2021, then-Covid Minister Chris Hipkins was advised to amend the definition to “revoke the exemption” for care and support workers who live in the same house as the person they provide services to, a joint memorandum to the High Court said.
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.
Wright said in her OIA correspondence the changes made to the order “must have reasons and be evidence-based ones”.
“It’s important to know why I am more of a public health risk to my son while being his carer than while I’m being his mother.”
A response from Verrall’s office said it was the Ministry of Health’s understanding the inclusion of family carers in the order “reflected concerns from some members of the disability community that they were dependent on an unvaccinated family carer for their care, had limited ability to exclude unvaccinated family carers from their ‘bubble’ despite their vulnerability to Covid-19 and that there was no good reason for them to not receive the same degree of protection from Covid-19 as those receiving care from a non-family member”.
According to the memorandum before the court, no public health advice in the briefing to Hipkins as to why the amendment to the order should be made.
The definition, along with the order, was revoked in September last year, meaning the applicants were without funding for nearly a year.
In response to the request for declarations, the lawyer for the office of the Covid Minister said in the memorandum said the declarations ran the risk of excluding all care and support workers from the vaccination order and left “care and support worker” undefined.
“The delay in bringing the proceedings means that it is no longer an option for the first respondent to remake the decision, and the order has since been revoked. However, the respondents accept that there has been an error in the decision-making process,” the memorandum said.
On the applicants’ side, their lawyer said the declarations were needed so the applicants could “gain closure on the unjustified harm that has been caused to them”.
The parties all agree the declarations should recognise the error in decision-making and provide clarity as to whether family carers were covered by the order, without disrupting the order’s application to other categories of care and support workers.
They have agreed on the wording for the two declarations.
Judge van Bohemen will release his decision at a later date.
