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

Herceptin. The plaintiffs forwarded multiple claims that PHARMAC failed to
recommend, or approve the applications for Exceptional Circumstances, was
unlawful and reviewable, and this was the subject of this procedural review.
They contended that PHARMAC failed to exercise its statutory function, through
acting under the dictation of DHBs, acted ultra vires its powers and did fail to
manage the Exceptional Circumstances policy for funding Herceptin. Finally,
Helen Cull QC claimed that PHARMAC imposed criteria it was not entitled to fix,
which required DHBs to act outside their permitted functions.
In this category of claim, Helen Cull QC submitted that PHARMAC fettered its
statutory discretion or function in formulating the Exceptional Circumstances
policy. The claim included the allegation that PHARMAC had breached the
legitimate expectation of the plaintiffs in that their individual circumstances
would be considered and acted unfairly in not considering individual
circumstances. Cull claimed that PHARMAC adopted a closed mind by
applying rigid criteria and thus adopted a process tainted by breaches of natural
justice. The claim included the charge that there had been errors of law,
procedural and substantive unfairness when PHARMAC reached a final
decision on Herceptin. She submitted that this demonstrated tainted bias
because the Review Panel and Medical Director were not, and could not be
seen to be, independent of PHARMAC.
Finally, the plaintiffs made a claim that PHARMAC reached an unreasonable
and irrational decision and made a decision in breach of the plaintiffs’ rights
under the New Zealand Bill of Rights Act 1990
In summary the plaintiffs alleged a total of 28 grounds of review, namely 10 in
respect of each of the first and second decisions, and eight in respect of the
Cancer Exceptional Circumstances (CaEC) applications. The judge noted that
almost every course of action or ground for review known under administrative
principles had been ‘thrown in the ring’ by the plaintiffs’ counsel.
The Nature of Judicial Review in New Zealand
The judge reminded the participants in the trial that judicial review proceedings
are process oriented. They are not concerned with substantive merits of
PHARMAC’s decisions except on questions of irrationality. The court must be
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