On 25 August 2021, Radio New Zealand published that in July, five people in Auckland had potentially received a dose of saline solution, instead of the COVID-19 Pfizer vaccine.1 This was followed by two more reports of individuals receiving saline injections, or very low doses of the Pfizer vaccine at vaccination centres in Canterbury.2
In total, 24 vaccine doses may have been administered incorrectly.3 As we know, effective immunisation of our population is one of the leading public health measures for reducing the impact of COVID-19 in New Zealand.
There is no doubt that those who had mistakenly received incorrect doses should be notified as soon as reasonably practicable. However, a separate question is raised as to the extent of disclosure of such information to the public, and whether a 'balancing of rights' is necessary.
Whilst acknowledging the significant concern raised, that more than a month passed between the potentially failed immunisations and the release of information by the media (including to those directly affected), this article addresses the extent of disclosure, rather than the question of timing.
Is privacy at issue?
New Zealand law recognises that the privacy of personal information should be protected. The collection, use, and disclosure of personal information is governed by the Privacy Act 2020 (Privacy Act). The Act defines personal information as "information about an identifiable individual".4 This is 'any information' that tells us something about a specific individual.5
Personal information, which constitutes 'health information', usually has a higher level of privacy attached and is governed by both the Privacy Act and the Health Act 1956 (Health Act). Generally, the Health Act permits disclosure of health information, provided the individual it relates to is unidentifiable.6
It is difficult to perceive any privacy concerns arising from the Government's disclosure that 24 individuals received saline or low dose injections, as a matter of fact. In our view, no personal or health information has been disclosed by which an individual could be identified.
Even so, the Privacy Act allows disclosure of personal information where it is necessary to prevent or reduce a serious threat to public health and safety.7 In this case, many would argue that disclosure is undoubtedly required for public health reasons.
Disclosure and public health
New Zealanders have become accustomed to watching the daily announcements about how COVID-19 is progressing in New Zealand. Hearing about case numbers, where they are located, and what alert level we are going to be in, has become a rhythm for lockdown life.
When releasing information to the public, the Government is required to assess how disclosure is likely to affect public health, as well as the privacy of individuals. This applies particularly to disclosure regarding contact tracing, places of interest, details about those who have COVID-19, and the vaccine roll out.
The Government must contemplate several questions, including:
- Is disclosure of the information going to make the general population more or less likely to get vaccinated?
- How significant or widespread is the issue regarding the administration of incorrect vaccine doses likely to be?
- Given the fact that individuals who have received saline or low doses is not private information, and therefore likely to be reported, is public health best served through media or Government disclosure?
Ultimately, the public expects openness and transparency, particularly regarding matters that could have a significant impact on public health. The Ministry of Health has recently advised that those who have received a saline or low dose vaccine will not suffer any harm. The saline solution itself is not harmful, and another dose can be given so that individuals are fully vaccinated.8
From a privacy perspective, even if personal information has been disclosed, or in the event that personal information may need to be disclosed in the future, it is plausible that in the global pandemic scenario, such disclosure is, and will be, necessary to prevent or reduce a serious threat to public health and safety.
2 https://www.rnz.co.nz/news/political/450022/covid-19-ministry-of-health-confirms-another-possible-vaccine-mistake; and https://www.rnz.co.nz/news/national/450245/covid-19-vaccination-error-in-canterbury-gave-people-lower-doses
4Privacy Act 2020 s 7.
6Health Act 1956, s 22H.
7Privacy Act 2020 s 22, Information Privacy Principle 11.
8Above, n1 and n 2.
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