A Review of the Health and Disability Commissioner Act and
Code of Rights for Consumers of Health and Disability Services
THE ACT
The following discussion summarises submissions and provides additional comment where this is called for in response to submissions or as a result of my own current experience of the legislation. While I have considered all matters raised in submissions, it is not possible in this summary to note each individual suggestion or comment. However, the submissions did indicate certain common themes and these have been addressed. Where no further discussion occurs in this report, my views remain as stated in the consultation document. Accordingly, this report must be read in conjunction with the consultation document. The numbering in this report corresponds with that in the consultation document.
1.0 PRELIMINARY PROVISIONS
1.2 Definitions - ss2-4
Submissions received indicated overwhelming support for the proposals set out in the consultation document for amendment to various definitions in the Act. In addition, a number of comments were received suggesting other changes.
Some respondents suggested amending the Act to cover matters that are in fact already covered. Examples include situations where a consumer is on a waiting list and where assessments are carried out by agencies such as WINZ and ACC. Application of the Act is very wide and the Commissioner will need to ensure ongoing education of providers and consumers about its scope.
1.2.1, 1.2.2 and 1.2.3 Generic references to 'consumers', 'providers' and 'services'
While by far the majority of submissions supported the various proposals made to amend the Act to ensure equal reference to health and disability services, consumers and providers, there was some concern that this would result in disability service consumers (who are well) being grouped with health consumers (who are unwell). The need to recognise the diversity of consumers was emphasised.
The purpose of this proposal is to ensure equal application of rights to both sets of consumers and to minimise the cumbersome nature of the Act as currently worded. The use of generic terms would be additional to the current separate definitions of health and disability service consumers, etc, and there is no proposal that these separate definitions be removed. Indeed, the consultation document acknowledges that "it is necessary to clearly identify these two consumer groups, and separate definitions can be useful when referring to the specific needs of each group as well as the ambit of the Commissioner's jurisdiction?" (p3).
The comment was also made that the various definitions should be consistent across related pieces of legislation, such as the Health and Disability Services Act and the Health and Disability Services (Safety) Bill. I support this suggestion in principle, however my focus in the current review is to ensure the proper working of the Health and Disability Commissioner Act.
1.2.1 Consumer
There was general agreement about adopting a generic reference to consumers. Some submissions expressed dislike of the term 'consumer', preferring terms such as 'patient', 'citizen', 'client' or 'user'. In my view the term 'patient' is not appropriate in legislation which covers both the health and disability sector, nor do I consider the alternative suggestions an improvement over the present reference to 'consumer'.
One submission suggested that the definition of 'disability services consumer' be amended to exclude the limitations requiring that the disability reduce the person's ability to function independently and that the person must be likely to need support for an indefinite period. In the absence of these factors, it was argued, a person may still require disability services and should be covered by the Act. The point was also made that people with disabilities may face social and environmental barriers to independent functioning, such as inaccessible workplaces and attitude of employers etc, rather than barriers to functioning to do with their particular impairment and the definition should reflect this fact.
I am unaware of any practical difficulties to which the current definition gives rise. With regard to the second point, I acknowledge that such external barriers exist, however they are already addressed under other legislation, for example the Human Rights Act. For these reasons I do not recommend any change to the existing definition.
1.2.2 Provider
I discussed in the consultation document my preference for the current definitions of 'provider', in particular the general definition in section 3(k), to remain in their current form. In particular, I do not think an attempt should be made to itemise particular providers who might be covered as this may result in omissions and reduce the Act's effectiveness. While a number of submissions expressly supported my approach, others continued to prefer an explicit listing of providers, particularly those where application of the Act was considered doubtful, such as public sector agencies and Crown entities which perform some health or disability support services, for example ACC and WINZ.
I remain of the view that the possible advantages of explicitly referring to certain providers would be outweighed by its disadvantages. The reasons for this are essentially those stated in the consultation document. In particular, I do not consider it would be helpful to list agencies which may be covered in respect of some functions but not others. What is important is the nature of the services provided, not who provides them. For example, ACC would not be covered by the Act in relation to its funding activities but would be covered in relation to the provision of disability or medical assessments.
Several submissions sought clarification of the Act's application to those providing care in the home to family members. The comments received indicate there is still considerable confusion about the status of family carers under this legislation - some thought they should be classed as 'consumers', others as 'providers'.
My view is that family carers fall within the ambit of the Act as providers where they provide disability services to a family member, but not where they provide health services to a family member. The 'catch-all' definition of health care provider in section 3(k) is limited to services provided "to the public or to any section of the public". Health services provided to a family member in the home cannot be regarded in this light. However, there is no similar limitation in the definition of a disability services provider. For this reason where services are provided for the care or support of a family member with a disability that hinders his or her ability to function independently, these services must be provided in accordance with the Code.
It is important to remember that application of the Code in this situation requires "reasonable actions in the circumstances". The fact that services are provided in the home, often with limited resources, is a relevant consideration and will be taken into account. Presumably with these limitations in mind the suggestion was made that family carers should not be subject to the Code. I do not agree with this suggestion. The Code sets out basic principles of good practice which should guide any service delivery. The extent to which these principles can be achieved will vary from case to case and the Code acknowledges this. Many consumers with a disability who are cared for in the home are in a particularly vulnerable situation and I would not want to see the protection offered by the Act and Code excluded.
Some of the confusion about the status of carers stems from their potential dual role. In addition to sometimes being a provider of service, those carers who are their family member's legal representative may also be classed as a 'consumer' under the Code for certain purposes. At the very least, they are probably "suitable persons" whose views should be taken into account by other providers when decisions are being made about their family member, when that family member is unable to make his or her own decisions (see Right 7(4) of the Code).
Some respondents went further and expressed the view that the Code should confer rights on carers beyond this situation, for example that it should confer rights in relation to information and access to carer relief. I do not consider this legislation is the appropriate place to address these issues. While I acknowledge the need for adequate support for carers, this is a matter better dealt with by the relevant funding authorities.
1.2.3 Teaching
While agreeing that the definition of 'teaching' should include reference to the training of providers, several respondents wanted further clarification in the Act of what teaching means, for example, that it includes the demonstration of procedures on consumers.
In my view the definition of teaching already covers this situation and it is unnecessary to further elaborate on the definition. In most cases it will be obvious from the facts whether a particular situation involves teaching. Where there is doubt about who or what is encompassed within 'teaching' or 'training', it is useful to return to the Act's focus on the perception of the consumer. Consistent with this focus, providers should consider whether a reasonable consumer in that consumer's circumstances would consider that the procedure involved teaching. In addition, the specialised knowledge of the provider may alert him or her to a teaching element in the consumer's care of which the consumer may be unaware.
1.4 Reference to Treaty of Waitangi - s6A
A significant majority of submissions supported inclusion of an obligation for all persons exercising functions and powers under the Act to have regard to the principles of the Treaty of Waitangi. Some wanted greater clarity as to how these principles would affect the people concerned. The Office of the Race Relations Conciliator agreed with the recommendation but considered it important that other cultures are taken into account as well.
Those who opposed reference to the Treaty tended to base their opposition on the fact that they did not want racial differences enshrined in legislation and that one single group of New Zealanders should not be singled out for special mention.
On an informal basis I have striven to implement the Treaty principles of partnership, protection and participation within the office since its establishment. For example, this has occurred through:
- the appointment of a Kaiwhakahaere
- the accountability of the Kaiwhakahaere to provide advice direct to the Commissioner as well as to other staff
- recognition of Treaty principles within the Human Resource policy
- participation of the Kaiwhakahaere in the appointment of staff
- input by the Kaiwhakahaere into policy development
- training on the Treaty for all staff
- recognition of the Treaty in the advocacy service requirements
- an education focus on Maori consumers and use of appropriate educational materials
- advice by the Kaiwhakahaere on the process for dealing with complaints involving identified Maori consumers and providers.
The purpose of the amendment is to give explicit recognition to this approach. I believe this will generate confidence in the office and encourage Maori participation in the processes established by this legislation. This in turn should assist in improving the quality of services to Maori and, ultimately, Maori health status in New Zealand.
The amendment does not enshrine racial differences nor does it undermine the Commissioner's goal of ensuring that other cultures are also taken into account and respected. The Act already acknowledges the importance of recognition by the Commissioner of the social, cultural, and religious values of different cultural and ethnic groups in New Zealand (s10). The amendment simply acknowledges the special status of the Treaty of Waitangi as New Zealand's founding document and gives explicit recognition to the obligation to have regard to it.