Human Rights Commission   LOGO etc

 

29 January 2003

 

  

 

Dear Anne-Marie Jefferies

 

complaint concerning pharmac

Thank you for your email of yesterday, and attachments.  As you suggested, I have consulted the Pharmac web site, including the pharmaceutical schedule.

As you are aware, Section F of the pharmaceutical schedule sets out the criteria for exempting pharmaceuticals from monthly dispensing and it is these criteria which form the basis of your complaint. 

Section F makes clear that there are two categories of exemptions from monthly dispensing:

·        Certified exemptions which apply to patients whose medical condition could seriously deteriorate in 48 hours if they could not access their medication.  Section F stipulates that to qualify for the exemption, the prescriber must write “certified exemption” beside the prescription items in question.  The medication required by your son comes within this category.

·        Access exemptions which apply to patients who have difficulty getting to and from a pharmacy.  Patients who qualify for this exemption must sign the back of the form to certify that they meet one of the following criteria:

o       Have limited physical mobility

o       Live and work more than 30 minutes from the nearest pharmacy by their normal form of transport

o       Are relocating to another area

o       Are travelling extensively and will be out of town when repeat prescriptions are due.  

The essence of your complaint is that people with an ongoing medical conditions such as your son’s, who at times of illness are required to increase their medication, should be able to qualify for the second category of exemption: the “access exemption.”  

The Human Rights Commission has the power to resolve disputes that involve breaches of Part IA or Part II of the Human Rights Act 1993 (“the Act”) as amended by the Human Rights Amendment Act 2001.  Parts IA and II prohibit, amongst other things, discrimination on a number of grounds including sex, race, disability in key areas of public life such as employment,  the provision of goods and services and government activities.  Since Pharmac is a Crown entity established pursuant to the New Zealand Public Health and Disability Act 2000, its activities fall within the terms of section 20J of Part 1A of the Act (a body performing a public function imposed on it by law.)

Hence, Pharmac is not permitted to breach Part 1A by any actions that limit the rights to freedom from discrimination.  However, if Pharmac can establish that its discriminatory act is “demonstrably justified in a free and democratic society” it would be permitted under the Act.  You allege that Pharmac is discriminating against you and your son by not extending its access criteria to your son’s disability.

Although “discrimination” in Part 1A of the Act is not defined, the Commission considers that it has to involve different treatment leading to a reasonably  significant element of detriment or disadvantage.  We note that your son’s medication already comes under the first exemption category and the major disadvantage you cite is your doctor’s having to remember or be reminded by you to endorse the script.  I am sorry to advise that we consider this is not a significant enough detriment or disadvantage to warrant the complaint being actioned under Part 1A of the Act.   It is also likely that Pharmac would be able to demonstrate that its exemption criteria are justified.

 

I appreciate you will be very disappointed with the Commission’s decision.  However, if you disagree with our decision, you are able (under section 92B of the Human Rights Act 1993) to bring proceedings before the Human Rights Review Tribunal. The contact details for the Tribunal are as follows:

 

Human Rights Review Tribunal

c/o Tribunals Division

Department for Courts

 

You may also apply to the Director of Human Rights Proceedings for free legal representation in such proceedings. You should note that this may not be granted as this will depend on the Director’s view of your complaint. The address is:

 

            *Addresses and phone numbers removed.  If anyone requires this address please contact me on the email below and I will forward it to you (Anne-Marie).

 

Yours sincerely

 

MANAGER DISPUTE RESOLUTION SERVICES

Kaihohourongo Tumuaki