How does the operation of PHARMAC's 'Community Exceptional ...

should be set aside. The third ground for claim was that PHARMAC declined to
treat the plaintiffs fairly in denying them an Exceptional Circumstances subsidy
for Herceptin. In so doing, PHARMAC denied them entitlement to receive
twelve months treatment of Herceptin. This was ‘unfair’ and ‘unjust’ and
offended the complainants’ right to natural justice as contained in the New
Zealand Bill of Rights Act 1990.
The lawfulness of the first two claims was challenged for multiple reasons. The
plaintiffs argued that PHARMAC had failed to perform its statutory duty. The
claim accused PHARMAC of acting ultra vires 47 of its statutory powers in
creating operating policies and procedures. They claimed that in turn, PTAC
acted ultra vires in giving the advice it did. Helen Cull advised the Court that
PHARMAC required PTAC to act “under its direction” so that PTAC’s advice
was unlawful and that PHARMAC itself acted under a direction or a dictation.
DHBs were also cited because PHARMAC had sought their agreement to the
recommendation not to fund treatment of Herceptin for a twelve month course.
The plaintiffs also claimed that PHARMAC had failed to take into account
relevant considerations and took into account irrelevant considerations. They
claimed that PHARMAC pursued a rigid pre-determined policy or plan, so as to
fetter its statutory discretion and function and in so doing, it acted in breach of
the plaintiffs’ legitimate expectation.
The claim further cited grounds for the decision to fund Herceptin for nine
weeks and not twelve months, that PHARMAC acted unfairly and denied
“natural justice” to the plaintiffs. This was because they expected to be
consulted through groups to which they were aligned, before the decisions were
made. They claimed that PHARMAC acted with procedural and substantive
unfairness, made decisions that were unreasonable and/or irrational. Another
claim was that PHARMAC had breached the plaintiffs’ rights to natural justice
as contained in s27(1) of the New Zealand Bill of Rights Act 1990
The plaintiffs’ third claim related to PHARMAC declining to treat them under the
Exceptional Circumstances policy. This would have entitled the plaintiffs to
avail themselves of the individual subsidy (funding) for twelve months for
47 Ultra vires means “without powers”. A narrow interpretation of ultra vires means an administrator or entity acted
without the statutory authority to do so. A broader interpretation refers to a general abuse of power by a government
agency.
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