Govt makes law change to protect vaccine plan

The Health Minister is making an urgent law change after a High Court has ruled it was “reasonably arguable” the Government’s provisional approval of the Pfizer Covid-19 vaccine is “problematic”.

The case — Nga Kaitiaki Tuku Ihu Medical Action Society Incorporated v The Minister of Health — was in the High Court at Wellington last week.

In her decision released yesterday, Judge Rebecca Ellis said: “it is reasonably arguable that the decision to provisionally approve the vaccine for much wider use is problematic” and went beyond the powers of section 23 of the Medicines Act.

Doing so could undermine public confidence in the vaccine and waste vaccine stock already in New Zealand.

What Ellis said could be problematic was the vaccine being granted for a limited number of New Zealanders — namely those aged over 16.

“While I acknowledge that this is a more “limited” class of persons than “all New Zealanders”, a class of that size seems well beyond what is contemplated by a straightforward, purposive, reading of the section,” she said. However, Ellis declined to grant interim orders stopping the vaccine rollout — sought by the plaintiff — on the basis the repercussions “are too great, by some very considerable margin”.

In response, Health Minister Andrew Little said the Government was making an urgent “technical amendment to modernise the law”.

Little said section 23 had been used over 40 years by successive governments to grant early access to approved medicines when there was public good. “The law has for some time now, lacked clarity over how it can be applied,” Little said.

“We already knew the Medicines Act was out of date, which is why we were planning to replace it with a new Therapeutic Products Act.”

Much of the case by applicant Nga Kaitiaki Tuku Ihu Inc focused on whether the vaccine being rolled out fitted within the provisional consent legislation in the Medicines Act that it had been granted under.