For three weeks in October, the Waitangi Tribunal started its long task of hearing claims that are part of Wai 2575 – the Kaupapa Inquiry into health services and outcomes for Māori. Gabrielle Baker reports. 

This is not intended to be newsy analysis, nor is it an insightful history essay. I’m simply not qualified to do either of those things. But it is my take on how the first three weeks of the Waitangi Tribunal’s new inquiry into health services and outcomes went and how the claimants, Crown and Tribunal grappled with the massive task of inquiring into the Crown’s acts and omissions in Māori primary healthcare. I was at the hearings for two reasons: I was providing advice to one of the claimants being heard in the first week but I am also a highly interested member of the public so even when not providing advice, you could not have kept me away from the place.

And a word of caution, because the evidence is still being heard (the final two dates for evidence are in December) and closing submissions aren’t until March, this summary barely scratches the surface of the complex arguments still under development by claimants and the Crown. I take the view though that this is too important to be the exclusive domain of the 70 or so people who got to attend each day or the 1000 people who have watched the live stream. Already this inquiry raises questions about the value placed on the Treaty, indigenous rights and expressions of self determination, the way that power and privilege (especially of the medical profession) plays out in health, the role of institutional racism as a determinant of health, and debate on what a Treaty-based health system might look like. These are things that can’t just be left to health professionals and lawyers, but are matters of national significance in need of wide public discussion.

First a bit of background

Around 200 claims have been lodged with the Waitangi Tribunal alleging breaches of the Treaty related to health services and outcomes. What the Crown means by health and what Māori mean by hauora aren’t the same and so the claims naturally enough don’t fit neatly into a neat box or into the responsibility of a single Crown agency. To put some structure around these wide ranging claims, the Tribunal decided to hear them in stages. And the October hearings are the first part of the first stage of the Tribunal’s health inquiry – looking in detail at two claims focused on primary healthcare.

Primary care is really easily defined, right? (Sort of, but also not really)

Forty years ago, the Alma Ata Declaration of the World Health Organization outlined key elements of primary healthcare, including community participation and supporting and promoting good health and wellbeing — not just treating illness. This way of looking at primary healthcare means it is more than doctor or nurse-led health services in the community.

The ideas in the Alma Ata Declaration gained momentum so by 2000, when a new Labour government was designing a fresh set of health agencies, such as district health boards (DHBs). There was an appetite for broader primary healthcare reforms. The then-government worked on a primary healthcare strategy, setting key directions like the removal of health inequalities and expressing support for the development of Māori and Pacific health services. Another important aim of the primary healthcare strategy to remove financial barriers for people accessing health services, and so significant new funding was made available to support the reforms.

The strategy was implemented through primary health organisations (PHOs) that, based on an enrolled population, received capitated funding from the government through a contract with a DHB. Your GP could still charge you fees of course, but the way this all worked was a departure from the old system where GPs could charge you whatever and could also claim from government a general medical subsidy for your visit.

Primary healthcare today still works under these settings (with some minor amendments) and so in looking at primary health the Inquiry necessarily is also looking at the operation of the whole health sector since the year 2000.

Enough about background, tell me about the claims…

Wai 1315 (a group led by Taitimu Maipi, Tureiti Moxon, Janice Kuka and Hakopa Paul) lodged their claim more than a decade ago. And although there is a lot more to it, broadly it is about how the primary healthcare strategy had good intentions but failed for Māori because of poor implementation. As the claimants’ lawyer states in her opening submission: “Over time, Māori have sought to create their own organisations to take control of their healthcare: Māori caring for Māori. In the 2000s new structures called Primary Health Organisations or PHOs seemed to present a real opportunity for self-determination. This was illusory. When Māori tried to establish PHOs they faced attack from the Crown.”

Wai 2687 is connected with the largest Māori-led PHO in the country, the National Hauora Coalition (with two named claimants, CEO Simon Royal and Coalition trustee Henare Mason) and its claims are similar to the Wai 1315 group. This claim sees Treaty breaches in terms of omissions in health system design, alleging a failure of of the Crown to apply appropriately the Treaty of Waitangi principles of active protection and partnership and inaction in the face of clear Māori health need (a dimension of institutional racism) and system design flaws (such as the marginalisation of Māori in health sector governance) as well as implementation issues (such as a lack of health equity analysis comparing Māori and non-Māori populations).

A number of other groups were able to get “interested party” status in stage one. This meant that they were able to present submissions and call witnesses.

What came out in the hearings

Before the hearings began, the Crown suggested the focus of the inquiry be on the future – accepting that the inequities between Māori and non-Māori are well documented and not in dispute. However, there were still useful discussions on the way ethnic inequities are framed and understood, including reminders that in talking about inequities we are talking about real people and communities that have had, and continue to have, harms caused through the way the health system runs.

There was also evidence given on flaws in the way the primary healthcare system was designed and run by the Crown, including:

• funding favoured mainstream general practice, making it harder for Māori health providers to offer GP services or establish themselves as PHOs
• funding allocations started off as pro-equity but changed over time in a way that was anti-equity — ie, funding increases were proportionately greater for non-Māori. This indicates that in making funding decisions, the government was not focused on equity
• Māori-led PHOs were singled out in some instances and held to higher standards than their mainstream counterparts
• variability between DHBs in how they support Māori health providers or Māori-led programmes
• inadequate availability of up-to-date information on Māori health outcomes and the performance of the health sector in regard to Māori
• maintenance of GP dominance and privilege through a range of decisions that supported the status quo (including the GP business model) rather than focusing on what it would take to achieve, and be held to account for, health equity.

Along the way there were numerous statements and comments about the health sector including personal stories from witnesses for the Māori nurses claim on the difficulties ranging from trouble getting appropriate roles after graduation to working for under-resourced Māori health providers.

But what of that future focus?

“I’m asking all of us to come together and work together to make sure that our people are in a healthy state from now on… committing to mana motuhake” – Taitimu Maipi (day one, available by live stream).

Clear across the claimant evidence and submissions was that mana motuhake has to be central to any solution. Almost all of the first week’s evidence, and much of the second, showcased different elements of what this would mean — from international examples (including the Southcentral Foundation’s Nuka model of care from Alaska, an indigenous led approach that was enabled by the Indian Self Determination and Education Assistance Act 1975) — to the discussion of some key design principles by claimants and witnesses.

The principles almost always started with the need for a constitutional statement on the relationship between Māori and the Crown and taking a true partnership approach to the way the health system runs. At the risk of hugely over-simplifying this massive idea, the claimants are saying the system doesn’t allow for partnership in the way envisaged by the Treaty. Instead, and at best, Māori get to participate in processes they had no hand in designing and with parameters they have no say over.

The focus on mana motuhake also means a push for a separate health system, designed for and run by Māori. Examples were given by Tureiti Moxon, Simon Royal and others of different models that the government has tried (including Whānau Ora Commissioning today, Māori co-purchasing organisations of the 1990s and early 2000s and the Health Funding Authority established briefly in the 1990s). While these models may not be perfect, they do show that we needn’t be limited to the current way of doing things. Sir Edward Taihākurei Durie, who gave evidence for the New Zealand Māori Council also argued that it was important to start with the kaupapa before jumping in to what implementation (like funding formulas or organisational structures) would look like,

There is an urgency to the claims. There are practical reasons for this – the “Heather Simpson Review” of the health sector is due to provide its first report in less than a year and everyone, the Tribunal and Crown included, wants to provide that review with a useful set of recommendations. But the urgency is also related to what Simon Royal has been calling the “humanitarian crisis” in Māori health – his argument is that when you look at natural disasters you see the government mobilise resources and act quickly, but when it is Māori health that suffers then the government wants more time to sort it out. The witnesses that asked for more time for the Crown (and there were some) were not met with enthusiasm from the room.

The Crown is still giving evidence (and the claimants have also sought leave to file supplementary evidence too) so it is too early to report much more on what principles will emerge or the Crown’s appetite for them. I already noted on Twitter that I cannot recall a time when a Director General of Health gave a presentation on Māori health on a marae, let alone one that acknowledged institutional racism as a determinant of health or stood for nearly nine hours being cross examined (including an hour or so being cross examined by Annette Sykes, who was asking some very strong questions). Yet that’s what Dr Ashley Bloomfield did at Tūrangawaewae. So there were some hopeful signs for the future.

Nevertheless, the claims are wide ranging and paint a picture of persistent concerns raised by Māori over many decades. The focus too on having genuine partnership between Māori and the Crown mean that redress is not the role of one individual.

The next hearing dates are the 17 and 18 December in Wellington. This means we will miss the incredible hospitality at Tūrangawae (and the daily scones, which were phenomenal) but maybe there will be a return to Ngāruawāhia for closing submissions in early March (fingers crossed!).

Information on stage two of the Inquiry is also available on the Tribunal’s website and you can go there to search for filed papers (like briefs of evidence) if you want to read more.