The Government has come to rely on the Director-General of Health, Dr Ashley Bloomfield, in a way unprecedented in the NZ public service, writes Peter Dunne

One of the more interesting aspects of the course of the Covid-19 pandemic in New Zealand since March 2020 has been the development of the role of the Director-General of Health.

Historically, the role of the Director-General, as chief executive of the Ministry of Health, has been to ensure the ministry carries out its statutory functions, including the medium and long-term sustainability of the public health system and is able to offer free and frank advice to successive governments.

The Director-General is also responsible for the assets and liabilities on behalf of the Crown that are used by or relate to the Ministry of Health; and legislation administered by the Ministry of Health. Like all departmental chief executives, the Director-General’s primary responsibility is to the minister, in this case the Minister of Health.

Interestingly, the statutory responsibility for personal health matters relating to public health; and regulatory matters relating to public health, such as pandemic response, lies with the Director of Public Health, not the Director-General. But the Health Act 1956 also provides that so long as the Director-General is a qualified medical practitioner, he or she can exercise the same powers in an emergency as a local Medical Officer of Health, but on a national basis. This provision was designed with a short-term national health crisis in mind and was the initial authority that the Government turned to when Covid-19 broke out. However, it was never intended to deal with more long-term situations like the pandemic, and questions quickly arose as to the legality of relying on the Health Act provisions to give the authority to the Director-General that the Government wanted.

Consequently, in specific Covid-19 emergency response legislation passed last year the Government made it clear that the Health Act provisions would no longer apply and that the powers previously exercised by the Director-General would now be exercised directly by the Minister of Health. This was seen as more in line in with conventional practice, and consistent with the traditional relationship between ministers and chief executives. At the same time, however, the minister was required to “have regard to” the advice of the Director-General. In legal and statutory terms, the phrase “have regard to” generally means that the minister, must “specifically and separately” listen to the advice being proffered.

In other words, it would generally be expected that the Director-General’s advice would be accepted by the minister. Given the government’s constant and frequently stated position that its Covid-19 response has always followed the public health advice, the legal niceties of the Covid-19 emergency legislation notwithstanding, the reality has been that the Director-General’s advice has normally prevailed. Indeed, ministers have frequently been unwilling to comment on any developing situation until they have “received the Director-General’s advice.”

But here is where the problems arise. The focus ministers, the Prime Minister in particular, have placed on the Director-General, from the advice given to the Cabinet through to the constant participation in the increasingly political government media conferences, overlooks the reality that the legal responsibility from a public health perspective still rests with the Director of Public Health, who has been seen only when the Director-General is not available. If, as the Covid-19 emergency legislation suggests, the Government was keen to emphasise the traditional relationship between Cabinet and public servants, it would have been more logical, not to mention more in line with the Health Act, to give more prominence to the Director of Public Health, as the statutorily responsible public official.

Director of Public Health Dr Caroline McElnay. Photo: Pool/Mark Mitchell, NZME

This would have allowed the Director-General to focus more specifically on the primary responsibilities of the role as chief executive of the Ministry of Health, including the medium and long-term sustainability of the public health system. With the Government having decided in the middle of the pandemic to completely upend the organisation of the public health system over the next two to three years, and the current mounting crisis regarding the availability of intensive care beds, it would not be unreasonable to expect the Director-General to be at the centre of all those issues, but there currently seems to be a vacuum of official leadership or even interest in these matters.

The double-act of the Prime Minister and the Director-General at media conferences has led to an inevitable politicisation of the Director-General’s role. No longer does he appear as the impartial adviser offering considered, detached professional advice to the Government, but rather more as the explainer, amplifier, and defender of the Government decisions, in a manner that not even many ministers demonstrate. The Prime Minister’s recent admission that the Director-General attends Cabinet meetings when Covid-19 is being discussed reinforces the worrying reality that the Director-General is now no longer an impartial public servant, but an unelected quasi-minister participating in the Cabinet’s decision-making in a way that no public servant previously has ever been allowed to do, no matter the crisis at hand, or which party has been in government.

Last weekend, the Director-General announced that the country should not expect to ever return to Alert Level 1 the way it used to be. This was a major policy announcement that, if it is in fact government policy, should have come from either the Prime Minister or the Minister of Health, not a public servant. The fact that there has been no official rejection of his comment suggests it is in fact government policy, so he was either making public something that had already been decided but not yet announced, or, worse, that he was telling the nation and the government at the same time what he expected to be the case. Either way, it goes beyond the normal brief of the Director-General, and is further confirmation of the unhealthy politicisation of the role.

The Covid-19 emergency legislation was due to expire next May after two years, but the Government has recently introduced legislation to extend it for a further year. That is no real surprise but will exacerbate the situation that has been allowed to develop with the Director-General. The question will still arise then about his future role. How will the position be transitioned back to the more standard role of a department chief executive, like every other chief executive? How does the Director-General step down from the quasi-ministerial current situation he will have been allowed to enjoy for nearly three years to the more routine one, sitting outside with every other chief executive waiting for the Cabinet’s decisions on matters affecting their portfolios, rather than sitting inside the room actively participating anymore?

In many ways, the unhealthy relationship between ministers and the Director-General undermines the usual separation between ministers and officials and, by extension, the impartiality of the public service. The longer it goes on, the more difficult it will be to return to a more normal situation. In that regard, and in fairness to the Director-General, ministers need to be thinking about severing the umbilical cord that binds them sooner rather than later, and certainly well before May 2023.

One of the strengths of the senior public service in New Zealand has been the collegiality between departmental chief executives and their senior managers across the spectrum, where they have mutually supported and encouraged each other when challenging situations arise to ensure that they always act within the public service ethos. The way in which this Government has abruptly elevated the role of the Director-General of Health to be virtually the most important public servant of all over the past 18 months will surely have disrupted the standing relationship between departmental chief executives that will not easily be restored once he is “returned to the ranks” so to speak. These tensions created now will not be easily papered over.

There may be those who would say that the exigencies of the Covid-19 response have been such that it is pedantic and unrealistic to expect normal conventions to apply during such a time, when the focus should be on getting things done, rather than how they are done. That is all very well but the far stronger counter argument is that it is in precisely such circumstances that the normal “rules” should be adhered to ensure that the best decisions are reached. That does not rule out swift, novel, or agile solutions being devised, but rather ensures that they are firmly, not capriciously, based.

In the Covid-19 emergency legislation the Government reinforced a commitment to conventional decision-making, but, unfortunately, as its use of the Director-General of Health has shown, it has not followed this in practice. Consequently, the Director-General has been left to face a personally invidious position once the current emergency fades. Reintegrating him back into the normal role of a normal chief executive will be a delicate task.

All this was avoidable. It is an inevitable consequence of the Government’s too narrow focus from the outset of treating Covid-19 solely as a public health issue. Rather, as the current problems with border control, managed isolation, economic re-integration, and policing demonstrate all too bleakly, it required a whole of government approach that the Director-General of Health and the ministry were never going to be capable of providing. Nor should they have been expected to – instead a multi-disciplinary, cross-agency approach should have been taken from the outset, as called for in the previous National-led government’s updated 2017 pandemic action plan, to manage all aspects of the Government’s response. That would have meant many of the problems now so obvious could have been identified at the outset, and either mitigated or avoided completely, by people who knew something about them, rather than relying on health officials, with no relevant experience, no matter how personally dedicated they might be, to try to sort out.

But, sadly, yet again, rather than rely on previous practice or international advice, this Government thought it knew best.

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