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Petition of Rachel Noble on behalf of the Disabled Persons Assembly - Submission to the Health Select Committee [2014] NZHRCSub 13 (2 December 2014)

Last Updated: 28 June 2015

2 December 2014

Charlotte Yeabsley

Clerk of the Health Committee

Select Committee Services

Office of the Clerk of the House of Representatives

Attention: Simon O’Connor MP - Chairperson

_{Dear Committee Members}

Petition of Rachel Noble on behalf of the Disabled Persons Assembly and 1491 others that the House repeal the New Zealand Public Health and Disability Act 2013

I write to you, on behalf of the New Zealand Human Rights Commission (‘the Commission’), to express support for the Petition of Rachel Noble on behalf of the Disabled Persons Assembly and 1491 others that the House repeal the New Zealand Public Health and Disability Amendment Act 2013 (‘the Petition’).

The subject of the Petition, the Public Health and Disability Amendment Act (No.2) (the PH&D Amendment Act), was passed under urgency by Parliament on 17 May 2013 without public consultation. Subject to certain savings, it retrospectively validates the Ministry of Health’s family care policy which had been declared discriminatory by the Human Rights Review Tribunal (confirmed on appeal by the High Court and the Court of Appeal)¹.

The Commission opposed the passage of the PH&D Amendment Act at that time, as did many others, including the Independent Monitoring Mechanism on the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the New Zealand Law Society.

The Commission’s current position

The Commission supports much of the Governments disability-related work over the past few years, with the New Zealand Disability Strategy and the ratification of the UNCRPD indicative of a strong commitment. In particular, the development of the New Zealand Disability Action Plan 2014-2018 holds a significant amount of potential to improve the lives of people with disabilities and further their enjoyment of their rights.

However, despite the foundations set by the Disability Strategy and the UNCRPD, the implementation of disability policy has generally proceeded slowly. This is certainly the case for issues regarding care and living arrangements, despite being considered as part

_{of the 2008 Inquiry into the Quality of Care and Service Provision for People with}

¹ _{Ministry of Health v Atkinson [2012] NZCA 184; [2012] 3 NZLR 456}

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Disabilities by the Social Services Committee. The Inquiry recommended, among other things, that funding is provided in ways that enables people with disabilities more choice about their living arrangements ² , better support for unpaid caregivers and urgent implementation of the New Zealand Carers Strategy³.

Furthermore, the National Health Committee’s 2003 report for the respective Ministers of Health and Disability Issues, To Have an Ordinary Life, recommended that the Ministry of Health develop a range of flexible support options to enable families to stay together and manage the day-to-day responsibilities of providing care and support; and that funding arrangements support and strengthen relationships between adult intellectually disabled people and their families⁴.

Implications for domestic policy and international obligations

Since then, the New Zealand Carers Strategy Action Plans of 2008-2013 and 2014-2018 have been developed to steer Government policy under the auspices of the Carers Strategy, the principles of which include enabling carers to have choices and autonomy to “develop, grow and sustain” their personal, family and community support systems; and ensuring that formal supports are “reliable” and “able to provide real support” to carers.⁵

However, the Atkinson litigation and the subsequent enactment of the PH&D Amendment Act, has highlighted the Government’s problematic position on the issue of supporting families with care arrangements despite its development of the above Action Plans. In particular, the Act rests uncomfortably against the policy position set out in the New Zealand Disability Strategy, which provides a solid foundation for improving the lives of people with disabilities and ensuring that their rights are upheld and respected. The issue at the centre of the Atkinson litigation is fundamental in this respect. To have the choice to be cared for by family can have a crucial bearing on a person’s overall life satisfaction.

Findings from the 2013 Disability Survey undertaken by Statistics New Zealand indicated that disabled adults, and in particular disabled young adults, have significantly less life satisfaction than non-disabled adults. ⁶ The survey also indicated that disabled adults (particularly young adults) experience substantially higher levels of loneliness that non disabled adults.⁷

These finding are concerning and I would accordingly urge the Committee to consider carefully the implications of this legislation on the Government’s policy commitments

_{under the Disability Strategy. I note that the Government has accepted the}

² Social Services Committee, Inquiry into the Quality of Care and Service Provision for People with Disabilities, September 2008 http://www.parliam ent.nz/resource/en- nz/48DBSCH_SCR4194_1/cb220d2e3ba25dc33dec0b28b29b30578d110dd5, p5

³ _{Ibid p6}

⁴ National Health Committee, To Have an Ordinary Life: Community Membership for adults with an intellectual disability, Recommendation 22, p 51,

http://nhc.health.govt.nz/system/files/documents/publications/NHCOrdinaryReport.pdf

⁵ http://www.msd.govt.nz/about-msd-and-our-work/work-programmes/policy-development/carers- strategy/index.html#TheCarersrsquoStrategyActionPlanfor2014to20187

⁶ Statistics New Zealand, Social and economic outcomes for disabled people: Findings from the 2013

_{Disability Survey p5, 16}

⁷ _{ibid p 14}

recommendation arising from the UN Human Rights Council’s 2013 Universal Periodic Review of New Zealand “to effectively implement the New Zealand Disability Strategy with a view to ensuring the full realisation of human rights for persons with disabilities.⁸

The PH&D Amendment Act is also at odds with New Zealand’s obligations under the UNCRPD, an issue that was addressed by the UN Committee on the Rights of Persons with Disabilities in its inaugural report on New Zealand’s compliance with the UNCRPD issued on 3 October 2014.⁹ In its report, the UN Committee noted its concern that that the PH&D Amendment reversed the Court of Appeal decision in Atkinson and recommended that:

“...the State Party reconsider this matter to ensure that all family members who are carers are paid on the same basis as other carers, and that other family members who are carers be entitled to make complaints of unlawful discrimination with respect to the State Party’s family care policy”

Together with the Independent Monitoring Mechanism on the UNCRPD, the Commission monitors and advocates for the implementation of the UN Committee’s recommendations. We hope to have the opportunity to work with the Government to develop a way forward regarding this recommendation.

Conclusion

In conclusion, the Commission would welcome any measures taken by the Committee to review the PH&D Amendment Act, its impact on the rights of persons with disabilities and their families and its future implications for New Zealand’s family care policies as measured against the objectives and principles of the New Zealand Disability Strategy and the UNCRPD. One option could be for the Committee to undertake an Inquiry that includes a hearing of public submissions, a process that the public was denied during the legislative process.

Thank you for your consideration of this matter. I would welcome the opportunity to further discuss the issues raised in this letter with the Committee, should members have any further questions or wish to seek further information.

Yours faithfully

Paul Gibson

Disability Rights Commissioner

_{Human Rights Commission}

⁸ Recommendation 105

⁹ _{CRPD/C/NZL/CO/1}