New Zealand’s health and disability system does not serve the country’s Indigenous population well.[[1]] On average, Māori have the poorest health outcomes of any population group.[[2]] Inequities for Māori with lived experience of disability (tāngata whaikaha), who are impacted by the intersection of racism and ableism, are especially pronounced in comparison to non-Māori. However, this is not always reported on, due to poor data collection and a lack of analysis by Crown health and disability agencies.[[3]]

Despite unambiguous Māori health and disability obligations on the Crown under te Tiriti o Waitangi/the Treaty of Waitangi (te Tiriti/the Treaty, used here to cover both the te reo Māori/legitimate version of the agreement signed in 1840 and the English-language version, an approach that is in line with the Waitangi Tribunal’s legislated requirements to take both versions into account¬)[[4]] and international human rights instruments, there has been variable action by successive governments. At different points in history, New Zealand’s government agencies and ministers have indicated some level of support for prioritising Māori health and wellbeing by considering changes to roles and structures of the health and disability system.[[5,6]] However, attempted structural solutions, such as the Māori Health Commission or the Health Funding Authority in the 1990s,[[7]] were set up without substantial influence and were easily dismantled. Additionally, government rhetoric about the importance of improving Māori health and disability outcomes and the need to address the impact of racism has not been matched with tangible action.[[8]] Outside of the health and disability sector, Whānau Ora commissioning agencies, established in 2014, have had reported success with whānau, but it was observed in 2019 that it is too early to determine whether this arrangement is enduring.[[9]]

The current iteration of the health and disability system was established through the New Zealand Public Health and Disability Act 2000. The legislation established district health boards (DHBs) with the responsibility to promote the health and wellbeing of people within a defined geographic location by providing or purchasing health and disability services. Under section 22(1)(d) and (e) of the Act, DHBs have specific objectives to “promote the inclusion and participation in society and independence of people with disabilities” and “reduce health disparities by improving health outcomes for Maori and other population groups.” The legislation also envisaged the eventual devolution of disability support services (DSS) from the Ministry of Health (the Ministry) to DHBs. However, for reasons that are not transparent, this never eventuated and the majority of health-funded DSS (usually for people aged under 65 years) are still directly contracted by the Ministry,[[3]] except in rare instances like the Enabling Good Lives demonstration sites in Christchurch and Waikato and the MidCentral Mana Whaikaha prototype, which aim to give people with lived experience of disability and their whānau more direct control over the supports they need.[[10]] Nevertheless, the legislation has shaped most of today’s health and disability system, including having paved the way for the introduction of the New Zealand Primary Health Care Strategy and the establishment of primary health organisations (PHOs).

Three sets of primary healthcare claims, dating back to at least 2005, have recently prompted the Waitangi Tribunal (the Tribunal) to investigate the primary healthcare elements of the health and disability system as part of the first stage of the Wai 2575 Kaupapa Inquiry into Health Services and Outcomes (the Inquiry). In its 2019 report on the Inquiry, the Tribunal found numerous breaches of the principles of te Tiriti/the Treaty in primary healthcare, breaches underpinned by the evidence of pervasive and persistent inequities between Māori and non-Māori.[[1]]

Although consistent calls for change to the health and disability system have, over decades, come from Māori communities including tāngata whaikaha and their whānau—who have argued that te Tiriti/the Treaty and Indigenous rights of Māori need to be honoured and that Māori health status demanded urgent attention—it was a change in government following the 2017 election that led to questions of the health and disability system being taken seriously by government. This began with a focused look at mental health,[[11]] but over the first few months in government, the Labour party-led coalition appeared to widen its focus. In May 2018, the previous Minister of Health, Hon Dr David Clark, announced the major Health and Disability System Review (the Review).[[21]] The Review sought to “identify opportunities to improve the performance, structure, and sustainability of the system with a goal of achieving equity of outcomes, and contributing to wellness for all, particularly Māori and Pacific peoples.”[[13]] The Review’s terms of reference specifically stated that “the Review will investigate where the system is not currently achieving this core equity goal, and understand the drivers of this.”[[13]] However, it also stated that the Accident Compensation Corporation (ACC) scheme was out of scope, as was the currently underway MidCentral Prototype for DSS. The Review process included a public consultation period, which resulted in the release of an Interim Report summarising public feedback,[[14]] followed by the Final Report, released in 2020.[[15]]

The Final Report touches on most aspects of the health and disability system in some way. For this reason, it is impossible to summarise all the proposals recommended by the Review. However, the key features of the Final Report include splitting many of the functions currently carried out by the Ministry across three central agencies—the Ministry and two new entities (Health NZ and the Māori Health Authority). The proposed purpose of the Māori Health Authority would be to advise the Minister of Health on all aspects of Māori health policy, as well as to partner with other health- and disability-sector agencies to ensure that mātauranga Māori (Māori knowledge) and Māori health issues are appropriately incorporated and that racism is addressed. There are also proposed changes to DHBs (including reducing the number of DHBs from 20 to between 8 and 12).

Methods

An indigeneity grounded analysis (IGA) of the Final Report was conducted using a framework centred on te Tiriti/the Treaty. IGA is an approach to policy analysis that acknowledges “[n]either policy nor policy making are neutral or value free. Rather, as socially constructed conventions, policy and policy-making are loaded with dominant values, Eurocentric ideals, and vested interests.”[[16]] An IGA approach thus challenges the “policy(-making) myth of value neutrality” by recognising and acknowledging that “even evidence-based policy(-making) may prove systemically biasing since a commitment to race neutrality bolsters white Eurocentricity as the norm, while discrediting the legitimacy of Indigenous peoples claims to sovereignty status…”[[16]]  

Five principles of te Tiriti/the Treaty, derived from Tribunal jurisprudence, were applied as a framework to guide the IGA. The Tribunal is the Crown’s mandated authority on te Tiriti/the Treaty principles as they apply to specific issues. In 2019, the Tribunal articulated five principles applying to primary healthcare that must be considered in the formation of government policy.[[1,17]] A te Tiriti/Treaty-centred approach was selected because of the status of te Tiriti/the Treaty as a founding document for New Zealand that sets out a relationship between tāngata whenua and the British Crown (currently represented by the Government). Such an approach is consistent with the Review’s assertion that te Tiriti/the Treaty needed to be fully incorporated as “a framework for meaningful and substantive relationships between iwi, Māori and the Crown.”[[14]]

Other frameworks incorporating te Tiriti/the Treaty do exist. For instance, the guidelines agreed by Cabinet in 2019 for policymakers to consider te Tiriti/the Treaty in policy development and implementation,[[18]] and a ‘critical Tiriti analysis’ framework developed by Pākehā academics.[[19]] However, these te Tiriti/Treaty principles were applied to the IGA instead, because this was considered a useful process by which the authors could assess the content of the Final Report against whether or not it meets the Crown’s own interpretation of te Tiriti/the Treaty, as articulated by the Tribunal and incorporated into the Ministry’s Te Tiriti o Waitangi Framework.[[20]] Table 1 provides a description of the five principles.

Table 1: Five principles of te Tiriti o Waitangi/the Treaty of Waitangi articulated by the Waitangi Tribunal.

Key themes of a report commissioned and published by the Tribunal in 2019 (Māori with lived experience of disability – Part I: Wai 2575), were used as supplementary material to assess the consideration given by the Final Report to tāngata whaikaha. The themes were: equity for tāngata whaikaha; data, monitoring and evaluation in relation to disability; the participation of tāngata whaikaha in the health and disability system; and cultural safety and disability responsiveness. The Final Report was reviewed multiple times by the authors and proposals specific to Māori and/or to disability were mapped to the five principles, with the adequacy of these proposals assessed against each of the principles.

Results

Table 2 summarises the proposals of the Final Report against the five principles of te Tiriti/the Treaty. The table also notes where the Final Report explicitly refers to a relevant principle or where the connection to a principle can be inferred. The table also provides commentary on the adequacy of each proposal. There were some proposals that had the potential to impact on health equity but were not included. For instance, the proposal that DHBs no longer be required to contract PHOs for primary healthcare services has the potential to impact on kaupapa Māori primary health providers. However, as the specific impacts of such proposals are not mentioned in the Final Report, the authors could not consider them in the IGA.

Table 2: Findings of IGA of Final Report proposals pertaining to Māori and to tāngata whaikaha.

Discussion

The results of the IGA demonstrate that the Review’s Final Report fails to give full expression to any of the five principles of te Tiriti/the Treaty or provide clearly articulated mechanisms to demonstrate Crown commitment to Māori. For instance, the essential concept of self-determination, which is inherent in a discussion on rangatiratanga, is absent from under the guarantee of tino rangatiratanga, despite the Final Report stating it has three ways of demonstrating rangatiratanga and mana motuhake. Self-determination in this context should be seen as exercised by a collective and as endorsing Māori and iwi authority over decisions that impact on Māori health and wellbeing.[[22]]

Instead of expressing self-determination through the proposed Māori Health Authority, the Review proposes an independent departmental agency with a role limited to the existing functions of the Māori Health Directorate within the Ministry—including administering an annual provider development funding round and providing policy advice. Critically, independence in this context is not about being separate from the Crown. Instead, the term ‘independent’ is used to describe being free from ministerial and departmental direction while still being based in a government department.[[23]] Similarly, although the proposed governance arrangements for DHBs and Health NZ reflect increased participation of Māori in decision-making, the appointment process is the responsibility of ministers of the Crown, who will make their decisions on the basis of who has the skills and expertise to be in governance positions. There is also no discussion on addressing the sparse representation of tāngata whaikaha on current health- and disability-sector governance arrangements.[[3]] The third element of mana motuhake asserted by the Review is the creation of equitable funding formulae. The adequacy of these proposals in terms of achieving equity is discussed in the next paragraph, but at this point it is worth noting that, although equitable health sector funding has been championed by Māori, it is not an expression of mana motuhake.

The principle of equity, which requires an unequivocal commitment to achieving equitable outcomes for Māori (including tāngata whaikaha) compared with non-Māori, is expressed by the Review with proposals for legislative change (to the New Zealand Public Health and Disability Act 2000) to make it explicit that equity, not mere improvement in outcomes, is the goal of the health and disability system. This is also a recommendation in the Tribunal’s 2019 report[[1]] and appears to give at least some expression to the principle. However, there is limited detail in the Final Report on the consequences of this clearer commitment for DHBs and no detail on how this would impact the Ministry, which is not governed by this piece of legislation.

The principle of active protection requires specific systems and processes be put in place to deliver on equity goals and commitments. One of the most high-profile proposals from the Review is to reassess health funding formulae for funding DHBs and PHOs to better ensure that they account for the impact of ethnicity, deprivation, age and “complexity.”[[15]] Existing population-based funding formulae to some extent already include ethnicity and deprivation adjustors. However, allocations are flawed in part because previous service utilisation is used to determine the funding allocations for different populations, and therefore unmet need is not accounted for.[[11]] This disproportionately impacts Māori populations, including tāngata whaikaha with higher levels of unmet need.[[2]] Furthermore, the Final Report acknowledges higher service utilisation by people with lived experience of disability,[[15]] but it does not interrogate the ability of funding to achieve equity for tāngata whaikaha either in relation to health or DSS.

Proposals for amending population-based funding also assume good-quality data are available through the national census. With the most recent census failing Māori,[[24]] this is likely to mean formulae are based on data that undercount Māori. The likely result is that of an underfunding of health and disability services for Māori and an exacerbation of inequities. The silence of the Final Report on the critical issue of data quality for Māori generally, and tāngata whaikaha specifically, highlights that the principle of active protection is not fully realised. Furthermore, the Final Report fails to acknowledge that an age-adjustor of over 75 years privileges the non-Māori population over Māori, due to a lower life expectancy for Māori.

The principle of options is primarily expressed through proposals to strengthen support for kaupapa Māori health providers and recognition that Māori communities need to have access to a wider range of kaupapa Māori services. The recognition is positive overall, reflecting views prominent among Māori since at least the 1980s and particularly in the early 1990s.[[25]] It is also positive to see acknowledgement that funding levels need to increase for kaupapa Māori services, given that the most recent data from the Ministry show that all Māori health providers combined received funding equivalent to approximately 1.86% of the total Vote Health Budget for 2015/16.[[26]]

However, the Review does not identify or investigate specific issues for kaupapa Māori providers in the area of DSS, despite very low numbers of kaupapa Māori DSS available to tāngata whaikaha. In 2018 only 3.4% of DSS providers (33 out of a total of 980 providers nationwide) were Māori owned and governed.[[3]] Further, the aspirations of kaupapa Māori providers appear to be limited to the provision of ‘tier 1’ services—that is, those services and other activities that take place in homes and communities. The implication is that kaupapa Māori providers are unable to provide anything currently considered tier 2 (including “public and private hospital (excluding aged residential care) and specialist treatment and diagnostic services”).[[15]] This appears to perpetuate a paternalistic assumption that Māori ambitions should be constrained by the current configuration of the health and disability system, effectively placing boundaries on Māori aspirations and self-determination in health and disability services.

The Final Report also addresses mātauranga Māori in its proposals. Mātauranga Māori can be described as knowledge embedded in Māori worldviews.[[27]] However, by positioning it as something to be embedded within the health and disability system, the Review appears to view mātauranga Māori as something that can be mined for the benefit of an otherwise Western medical model. Although the intentions of this may be to build culturally safe services that resonate with Māori and give legitimacy to Māori ways of knowing and being, the extractive approach outlined in the Final Report instead tends to suggest that the parameters of where and how Māori knowledge can be used is still controlled by a government agency (in this case the Māori Health Authority). The inclusion of Māori governors, advisors and staff may be argued as a means of ensuring Māori guardianship over Māori knowledge. But a compelling argument that Māori expertise and knowledge have been sidelined in favour of non-Māori priorities is the fact that the Final Report’s content pertaining to the Māori Health Authority conflicts with the views of all the Māori advisors and the one Māori member of the Review Panel.[[28]]

Partnership is mentioned throughout the Final Report, but at a national level this is limited to discussions of how one government organisation (the Māori Health Authority) is able to partner with other segments of the health and disability sector. This is not the type of partnership envisaged by the principle, which acknowledges Māori “have the right as a Treaty partner to choose how they organise themselves, and how or through what organisations they express their tino rangatiratanga.”[[1]] On a community-by-community basis (referred to as ‘localities’), the Final Report proposes a type of partnership between a rūnanga and the relevant DHB. Notwithstanding the limitations of equating local Māori interests with a single rūnanga,[[29]] this proposal could potentially align with the principle of partnership if it were embedded within a health and disability system that incorporates Māori control throughout and recognises Māori diversity, including the need to prioritise tāngata whaikaha voices in health and disability decision-making.

Responses to the Final Report from Māori health experts have highlighted many of the same flaws as this analysis. For example, Māori scholars have stated the “recommendations will fail to realise the transformation that’s needed to achieve equity in our health and disability system.”[[30]] The specific proposals for a Māori Health Authority have had mixed responses from Māori, with support for the general idea but criticisms of its narrow role and lack of true independence.[[31]]

The Final Report unusually featured an alternative view on the Māori Health Authority endorsed by a majority of the Review panel members and all members of the Review’s Māori advisory group. This alternative view argued for the Māori Health Authority to be provided with greater tools to affect change for Māori health, and specifically because the Māori Health Authority, as envisaged by the Final Report’s proposals, has “only a limited commissioning role and holds what is, relatively speaking, a small and marginal budget.”[[15]] There has been significant support for the alternative view, including a petition to parliament.[[32]] However, even within this support, there is acknowledgement that the bigger question of how Māori overall are able to exercise tino rangatiratanga and control has not been answered.[[33]]

Disability advocacy groups have also expressed disappointment in the Review. For instance, they stated that “the final report was about as far away from what we’d hoped for as you could get.”[[34]] Criticisms stem from what is seen as the Review treating health and disability issues as homogenous and a failure to adequately understand the aspirations and needs of people with lived experience of disability. For tāngata whaikaha, this is amplified as a result of the population being invisible in the Final Report. For example, in the Final Report (a 264-page long document), tāngata whaikaha Māori are referred to four times. This compares to 146 references to Māori and 45 references to disabled people. The apparent and incorrect assumption is that tāngata whaikaha aspirations and issues are covered either by approaches to Māori or by universal approaches to disability.

The nature of the Final Report means that its proposals will only be implemented on the agreement of Cabinet and with the support of government agencies. The current Minister of Health, Hon Andrew Little, has indicated this will begin in the first half of 2021,[[35]] providing the Crown with an opportunity to address many of the shortcomings of the Final Report and demonstrate commitment to te Tiriti/the Treaty. This would necessarily begin with a stronger and more explicit partnership with Māori, including tāngata whaikaha, that extends to Māori having explicit decision-making roles in the ongoing decisions in the Final Report. This includes regular engagement with the Minister of Health and Associate Ministers of Health (with portfolios responsible for disability issues and Māori health) as they consider the Final Report. This may also involve establishing a technical advisory group that includes tāngata whaikaha and Māori with expertise in Māori health and equity to support the ministers as they consider the Final Report.

In responding to the Final Report recommendations, it is also important that the Crown and its agents continue to focus on how the health and disability system can eliminate health inequities and improve Māori health and wellbeing outcomes, as this will not be achieved solely through the Māori Health Authority. Specific actions the Crown could take include using a te Tiriti/the Treaty-based framework to commission an additional public review that focuses on the aspirations and needs of tāngata whaikaha. This review should be led by tāngata whaikaha to ensure partnership throughout the entire review process. Also, it should have terms of reference that includes ACC within its scope, given the recognised impacts of the inequities for people with lived experience of disability driven by the variation between the ACC scheme and Ministry-funded DSS[[3]] and the ability to draw on the Enabling Good Lives approach.

Conclusion

The Review was a response to consistent calls for health and disability system change and improvement. However, despite many of the failures of the health and disability system for Māori being widely reported, including through a recent Tribunal report, the Review’s proposals fall short of creating a health and disability system that honours te Tiriti/the Treaty. The Final Report itself now becomes advice to government ministers who have the task of deciding what aspects of the Final Report are implemented and what requires further work. Central to this undertaking must be an understanding of the requirement to demonstrate genuine partnership with Māori in policy development. At a minimum this will require an approach that adopts Māori health and disability expertise and advice that should not be side-lined and presented as an alternative view.