To anyone paying attention, the inequity embedded in the health system is undeniable. A new report from the Waitangi Tribunal lays that bare. Gabrielle Baker explains the findings, and what the government needs to do to prove it takes them seriously

Two-and-a-half years after it pinpointed health as a priority for investigation, the Waitangi Tribunal yesterday released Hauora. It lays out the many and serious distortions of the New Zealand health system, and makes very clear just how important and urgent it is for the government to take action.

The first set of findings from its kaupapa inquiry into health services and outcomes (Wai 2575), the report makes a call on the principles of the Treaty as they’re applied to health. In doing so it challenges the way the health sector has applied the “three Ps” of partnership, participation and protection. It sends a signal that structural change, in the form of an independent Māori-led health authority, needs serious consideration. And it recommends immediate legislative change.

Hauora is the fruit of the first stage of the inquiry. That was based on claims from two Māori groups that have been involved in primary health care for decades – the National Hauora Coalition (a Māori-led primary health organisation working in five different district health board areas) and the Wai 1315 claimants (which is made up of a diverse group of claimants, all of which have some connection to Māori-led organisations working in primary health care). I’ve written about stage one of the inquiry before and have been following it closely since the primary care claims were lodged 13 years ago.

‘The Crown has acted inconsistently with the principles of the Treaty’

In the last 24 hours I’ve been asked several times to summarise the report. Every time it is hard. Because so much of the report’s value is in the detail. However, stepping back there are some key features of the report that are worth noting, particularly as there are a number of breaches of the principles of the Treaty identified by the Tribunal.

The Tribunal highlights that the health system’s overarching framework needs a reset. The legislation, which among other things set up District Health Boards, has a Treaty clause which amounts to “a reductionist effort”, finds the Tribunal. This is matched by a clear recommendation that the legislation must be amended if the Crown is to be Treaty-compliant.

Arrangements to ensure Māori representation on DHBs, finds the Tribunal, “do not afford Māori Treaty-consistent control of decision-making in relation to health care design and delivery”. That’s despite a legislative requirement to have Māori representation proportionate to the local DHB population and a minimum of two Māori board members. The Tribunal highlights the evidence it was presented, which shows that on only one occasion (in 2001) did all DHBs have two Māori members (as required by legislation) and at no time since their establishment have all district health boards had proportional Māori representation.

The lack of Māori staff in senior levels of the health sector and the 2016 disestablishment of Te Kete Hauora, the former Māori health directorate at the Ministry of Health, and the failure to replace it at the time (it was replaced by a Māori health unit around the time of stage one hearings in the Tribunal) is also found to be a breach of the Treaty principles of equity and active protection.

‘Another manifestation of institutional racism’

Primary health care funding has not addressed Māori health need and has disadvantaged Māori-led services. As Professor Peter Crampton said when he gave evidence to the Tribunal in October last year, the current funding arrangements for primary care run the risk of being anti-equity. The Tribunal backs this up emphatically. The evidence, it states, “indicates that they are, in fact, anti-equity in practice”.

Accountability in the health system is called into question, and the Tribunal finds that health entities aren’t appropriately held to account for achieving equity and that the Crown does not collect sufficient qualitative or quantitative data to truly ensure the primary health care sector is peforming for Māori. The lack of this data is identified as a breach of the Treaty principles of active protection and equity.

The Tribunal’s findings on equity are of particular interest to me – as it’s something I’ve been banging on about for years. As I’ve written previously on The Spinoff, the Tribunal finds that the dominant language in the health sector is ‘“reducing disparities” or “reducing inequality” rather than a commitment to achieving equity in health outcomes for Māori. This is not just an issue of semantics. Equity necessarily is about ensuring justice – and eliminating unjust differences in outcomes. By settling for reduced inequity as a goal, it’s the same as saying a little bit of injustice is okay. Tribunal considers an express goal of health equity for the health sector “should not be controversial” and recommends legislation and strategy be updated to that effect.

The Tribunal also issues findings on racism, “inaction in the face of need” and “unconscious” bias in the health sector. Among its finding on racism and discrimination, the Tribunal states that “the Crown’s failure to adequately identify or address problems with primary care funding is another manifestation of institutional racism” and that actions that contribute to racism are breaches of the Treaty principles.

The days of the ‘three Ps’ are numbered

One of the features of the health system, since the Royal Commission on Social Policy in 1988, has been the use of three Treaty principles: partnership, participation and protection. Anyone who has ever thought they needed to prepare for a “Treaty” question in a government job interview has committed this to memory. Me included.

However, this new report states that these three principles don’t “adequately reflect the Treaty or its principles”, referring to them as “outdated” and in need of reform. In the hearing process the Ministry of Health seemed to agree and said it would develop principles as part of its work to develop a Māori health action plan. The Tribunal tells the Crown that this proposal is unnecessary and instead recommends a set of principles to be applied in the primary health care system. There are more than three and they don’t all start with P. But combined they provide a nuanced and substantial guidance on applying the Treaty in the health sector.

A Māori primary health authority?

The Tribunal was asked, during hearings, to make recommendations on the establishment of an independent Māori health authority. The Tribunal has instead made a recommendation that the Crown and claimants work together to explore the concept of a standalone Māori primary health authority.

The expectation of the Tribunal is that the Crown and claimants will report back to it in January 2020 on progress, it is also the Tribunal’s expectation that the Crown will fund this process. The timing is critical here as it also allows whatever comes out of this exploratory phase by the claimants and the Crown to feed into the Health and Disability System Review, led by Heather Simpson, which is due to report to government next year.

The impact of the Tribunal’s report

The impact of the Hauora report will become clearer over the coming weeks. The Crown has been specifically thanked by the Tribunal for its constructive contribution to the inquiry, and now officials have said “it will be important to review its findings and recommendations to inform how best to progress matters further”. The claimants have identified it as a “watershed report” and have seen it as vindication.

The findings of the Tribunal also have to extend beyond the Crown’s health sector. Just today I heard numerous references to Oranga Tamariki legislation which sets the reduction of disparities as an objective for the department’s policies and practices. However, the Tribunal’s reasoning on this language being a lesser standard than “equity” (and not Treaty-compliant) has to be on the minds of Crown officials now, and this should impact practice too.

The challenge now, however, is for the government to act on these recommendations to improve Māori primary health care and wellbeing generally. As we have learned with Ko Aotearoa Tēnei, it is very possible for a government to ignore Tribunal findings and go about their business much as they already were.

While the rhetoric of our current government would suggest it is open to pro-equity recommendations, the Tribunal report reminds us that many of us had hope before. Specifically the period at the start of the 2000s with the establishment of primary health organisation, is described as a period of hope in the report. But the health system failed to deliver on that hope, instead being swayed significantly by political moves like the “Orewa speech” on purported Māori privilege. So I would say any hope now would have to be cautious. But cautious hope is something – and it makes very clear what must happen next.