On Saturday 6 November 2021, the New Zealand Government passed an order which largely removes and restricts the ability to apply for a medical exemption to the Vaccinations Order (see the previous exemption process here).
This amendment takes the exemption-process out of the hands of your personal medical practitioner, and into the hands of the Director-General.
If you received a medical exemption under the previous clause 7A, you are now required to re-apply for a medical exemption under this process. If you are in a "group in relation to affected items" or "group in relation to corrections prison," you have until 21 November 2021 to either receive your first vaccination, or to be granted a new medical exemption. All other groups must receive this exemption prior to 15 November 2021.
Vaccination Exemption Criteria
In true New Zealand law-making, the "Vaccination Exemption Criteria" was not published to the public at the same time as the amendment to the Vaccinations Order. It's not announced on the Parliamentary Counsel Office. It's not on the Gazette.
We're waiting for the Director-General to publish a notice. In the interim, the Ministry of Health has published information on the pending medical exemption panel, and the criteria for medical exemptions.
Vaccination Exemption Process
The process for an Vaccination Exemption is now inaccessible:
Your medical practitioner (or nurse practitioner) must apply to the Director-General for a COVID-19 vaccination exemption on your behalf.
The application can only be made on the grounds specified in the exemption criteria.
The medical practitioner or nurse practitioner must provide a certificate which states that they have reviewed your medical history and assessed the state of your health, and have reasonable grounds for believing that you meet the exemption criteria.
You must sign the application before it is made.
Note that "medical practitioner" is not as broad as a "health practitioner" (previously defined in my article). A medical practitioner means a health practitioner who:
Is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine; and
holds a current practising certificate
A nurse practitioner means a health practitioner who:
Is, or is deemed to be, registered with the Nursing Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of nursing and whose scope of practice permits the performance of nurse practitioner functions; and
Once the application is made, the Director-General may seek further evidence before granting the medical exemption.
The medical exemption will only be valid for 6-months. You may make another application before the 6-months expires.
What next?
There are little avenues available for challenge.
If your doctor refuses to make the application, and you meet the exemption criteria, you may make a complaint with the Health and Disability Commissioner.
If your doctor makes the application, and it is declined by the Director-General, may may seek to judicially review that decision. You should seek legal advice from a suitably qualified lawyer before engaging this process.
Please note that I am unable to provide legal advice on a judicial review process. However, you may wish to seek advice or representation through Community Law, Citizens Advice Bureau or Te Ara Ture.
Legal AF Limited t/a Ashleigh the Advocate
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