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

concerned and restricted to determining whether the public body, namely
PHARMAC, acted lawfully.
To illustrate this point, Justice Gendall drew from two cases 48 of judicial review
proceedings. He reminded participants that the Court cannot substitute its own
factual conclusions for that of the consent authority in this case, PHARMAC. It
merely determines, as a matter of will, whether the proper procedures were
followed by PHARMAC, with all relevant and no irrelevant considerations taken
into account. The court must determine that the decision was one which, upon
the basis of the material available to it, a reasonable decision maker could have
made. The weight to be given to particular relevant matters is one for the
decision-maker, not the court to determine, but there must be some material
capable of supporting the decision (Paragraph 27 Walsh v. PHARMAC
BC200860616).
The Relevant Functions of PHARMAC
The judge described the functions of PHARMAC as managing the
Pharmaceutical Schedules which contain the list of all pharmaceuticals
subsidised by the DHBs. PHARMAC also made decisions about which
pharmaceuticals should be listed, the subsidies that should be paid for them
and the eligibility criteria for the provision of subsidies. In order to maintain and
manage the schedules, PHARMAC managed a notional budget which is set by
the Minister of Health (e.g., following consultation between PHARMAC and the
DHBs). This budget is notional because, apart from $3 million, it was not in fact
PHARMAC who paid the subsidies, it was the DHBs.
PHARMAC and the DHBs’ had come to an arrangement whereby the funding of
cancer treatments was decided by PHARMAC on behalf of the DHBs. The
judge reported that from the 1 st July 2007, PHARMAC established a notional
budget for pharmaceutical cancer treatments of $48-$53 million. This budget
level was accepted by the DHBs.
Therefore, the rules regarding DHBs obligations in relation to pharmaceutical
cancer treatments were contained in the PHARMAC Schedule. These rules
state that DHBs provided access to pharmaceutical cancer treatments for use in
48 Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 and Pring v Wanganui District Council
[1999} NZRMA 519 (CA)
132