Interpreting and applying the principles

Liberty

Article 3 of the 1948 Universal Declaration of Human Rights (UDHR) establishes that everyone has the right to liberty, 81 and the New Zealand Bill of Rights Act 1990 sets out the rights and fundamental freedoms of anyone subject to Aotearoa New Zealand law. As part of Aotearoa New Zealand’s uncodified constitution, this Act establishes the liberty of thought, conscience, religion and beliefs and liberties, such as the freedom to peacefully assemble.

Aotearoa New Zealand’s Government, Te Kāwanatanga o Aotearoa, is a representative democracy, with a long-standing and deeply held national commitment to liberal democracy.

82 Liberal democratic states are likely to perceive their governing role as being responsible for reducing health risks to citizens, including promoting the health of groups that are unable to take full responsibility for themselves (such as children).83

A core tension for liberal democracies in reducing health risks is striking the balance between an individual’s rights and protecting the collective good. In this context the term ‘collective good’ means the collective health rights of everyone to the enjoyment of the highest attainable standard of mental and physical health without discrimination, i.e. the collective health rights of the overall population. 84, 85, 86, 87, 88 Where the decisions of a liberal democratic government infringe on individual rights, any form of coercive measure must be ethically justified.89 For New Zealanders, our liberal democracy means we don’t consider just our individual right to liberty, but rather we take a collective understanding of our rights. For example, our individual right to liberty does not mean that others do not have a right to health and wellbeing. Our right to liberty should not mean we put others at risk.90

However, this principle means that respecting a person’s freedom translates to intervening for the shortest duration at the minimum level required to save lives. An important mechanism by which decision-makers can show respect is by seeking information and gaining an awareness of social licence settings from individuals and communities.

Interpreting and applying the principles

Ethical principles require reflection in order to determine what they mean in a given situation. Ethical principles can diverge in what they imply, and, in some cases, a public health decision might remain controversial, no matter how hard we try to reach an ethical decision. For those reasons, we need a framework that guides our interpretation and application of ethics in decision-making.

For example, in the context of a pandemic response, it may not be possible to achieve the principles of equity and health and wellbeing at the same time. A structured approach to how we should interpret and weigh principles is likely to be helpful. In allocating intensive care unit (ICU) beds, a clinician might decide to treat those with fewer comorbidities first, considering this to be the best way to save as many lives as possible. Yet this decision may undermine the principle of equity as we know that comorbidities are not distributed equally, proportionally being more common in indigenous populations, ethnic minorities, the disabled and older people.91, 92, 93, 94 There is no way of resolving that ethical tension where the decision-maker does not have to make decisions about the relative value of the principles as they apply. In such cases, it is important to follow a fair process that is accountable and open.