3. The New Zealand context – Ki ngā kaupapa o Aotearoa

Legislation

Fundamental rights

Disabled people are entitled to the full benefit of all general laws in New Zealand, including human rights law, and specific law in the areas of employment, health and disability, education, and access to services and information.

The New Zealand Bill of Rights Act 1990 (BoRA) affirms a number of the human rights and fundamental freedoms contained in the ICCPR with special relevance to disabled people. In addition to freedom from discrimination on the grounds set out in the Human Rights Act 1993 (HRA), which includes disability, the BoRA provides the same protections for disabled people, whether or not they are in institutional settings, as for any other citizen from unreasonable search and seizure, from arbitrary arrest and detention, and affirms the right not to be subjected to torture or cruel treatment, nor to medical or scientific experimentation. Specific legislative limitations on these rights (e.g., the Mental Health (Compulsory Assessment and Treatment) Act 1992), permitted by section 5 of BoRA, are discussed below.

The HRA includes a broad definition of disability as a ground of prohibited discrimination, including:

The HRA’s prohibition against discrimination recognises that ensuring equality for disabled people requires different treatment in certain circumstances so that they can participate in employment, education, access to goods and services and other areas where discrimination is prohibited. The provision of special services or actions to enable equal participation of disabled people, known as ‘reasonable accommodation’, is exempted from the definition of discrimination. ‘Special measures to ensure equality’ may also be exempted from the definition of discrimination.[4]

Different treatment is permitted where:

The statutory tests for ‘reasonable’ accommodation depend on the accommodation required. Where there is a risk of harm, a three-stage assessment of the nature of the disability and its likely effect (on the workplace, for example) is required:

  1. 1. Would there be a risk of harm to the individual or others?
  2. 2. Would it be reasonable to take the risk?
  3. 3. Could the organisation take reasonable measures, without unreasonable disruption, to reduce the risk to a normal level?

Where special services are required, an assessment is made of the required services and whether it is reasonable to provide them. Examples include providing a larger computer screen, modifying a desk area, providing specific equipment, modifying software, or changing job duties.

While there have been major changes in the ways in which disabled people are cared for – from institutionalisation to independent living – many continue to be particularly dependent on health and welfare services, either permanently or temporarily.[5] Two important laws provide enforceable codes to protect the rights of disabled people in these situations:

The Health and Disability Commission (HDC) also provides a free, independent advocacy service to support consumers in bringing a complaint under the Code. The role of the advocates is not to determine whether a breach has occurred, nor to mediate complaints, but to support consumers to resolve matters, in the first instance directly with the service provider. If this process fails to resolve the complaint, the HDC’s Proceedings Commissioner may take the complaint to the Human Rights Review Tribunal or the relevant professional disciplinary body on behalf of the complainant, or the complainant may pursue the matter on their own initiative.

Options for resolving complaints concerning mental health services are more complicated. People detained under the Mental Health Act may complain to District Inspectors who have specialist knowledge of the services and a right of entry into secure mental health service facilities. Other complaints about care or treatment may be made to the Health and Disability Services Commissioner, to the Ombudsman, or to a relevant professional health care body. The Human Rights Commission also receives complaints about discrimination, more commonly in community settings, as its function is to resolve disputes not to investigate the validity of complaints.

Limitations on fundamental rights

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In order to prevent harm to self or others, some legislation provides both protections of and limits on the rights and freedoms of people with mental and intellectual impairment. Although these enactments provide safeguards to prevent abuse of these limitations, they remain unwelcome infringements of fundamental rights, and are a frequent source of complaint.

Two significant new legislative initiatives have been adopted by Parliament, but have not yet been implemented. There is further discussion of these two Acts in Chapter 10: The rights of people who are detained.

Other significant legislation

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Recent initiatives

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Other important initiatives have been introduced to Parliament, but have not yet been passed.

Strategies

There have been significant developments in Government policies and action in relation to disability issues in recent years. These include:

The Disability Strategy

The Disability Strategy – Making a World of Difference: Whakanui Orangawas developed after wide consultation with disabled people and delivers a human rights-based plan to promote a more inclusive and non-disabling society. It establishes a high-level framework to ensure that all government agencies consider disabled people in their decision-making processes.

The Disability Strategy has fifteen objectives and over one hundred related actions for implementation. The objectives are to:

  1. encourage and educate for a non-disabling society
  2. ensure rights for disabled people
  3. provide the best education for disabled people
  4. provide opportunities in employment and economic development for disabled people
  5. foster leadership by disabled people
  6. foster an aware and responsive public service
  7. create long-term support systems centred on the individual
  8. support high-quality living in the community for disabled people
  9. support lifestyle choices, recreation and culture for disabled people
  10. collect and use relevant information about disabled people and disability issues
  11. promote participation of disabled Maori
  12. promote participation of disabled Pacific peoples
  13. enable disabled children and youth to lead full and active lives
  14. promote participation of disabled women in order to improve their quality of life
  15. value families, whanau and people who provide ongoing support.

The New Zealand Public Health and Disability Act 2000 requires the Minister for Disability Issues to report annually to Parliament on progress made in implementing the strategy. In the Disability Strategy’s first year, only 10 government departments developed action plans, but by the end of the 2003 year, all 37 had complied to some extent, and it was possible to report some activity under each of the 15 objectives (Minister for Disability Issues, 2004). These indicated a primary focus on developing each department’s own capacity to improve consultation with disabled people, collect and use better data, as well as improve accessibility to their information for disabled people, such as compliance with e-government guidelines on website accessibility.

In spite of this, progress is slow from the perspective of disabled people. The President of the Disabled Persons Assembly (DPA) said in his introduction to the report (Gourley, 2004):

We are disappointed by continuing gaps in the reporting on implementation of the Strategy. In our view this reflects a quaint notion that disability is a charitable add-on, or aspect of social responsibility that does not sit within the strategic imperatives of government agencies. Nothing could be further from the truth. The Strategy points to a society that ‘fully values our lives and continually enhances our participation’. To achieve this requires, at the very least, a public service responsive to our rights and needs as a population group.

The Office for Disability Issues

The Office for Disability Issues (ODI) is located in the Ministry of Social Development, with responsibility for:

Key areas of work being addressed by the ODI include:

Disability Services Directorate Strategic Plan

The Disability Services Directorate Strategic Plan sets out a new direction for the provision of a wide range of services to support the objectives of the Disability Strategy. The strategic plan makes a commitment to the social model of disability and full participation of disabled people. Services funded by the Directorate are discussed below under Access to services:

National strategies to address mental health

Strategies to address psychological and psychiatric disability are the responsibility of the Ministry of Health. In response to a number of critical public inquiries into mental health services in the 1990s (e.g., Mason, Johnston, & Crowe, 1996), a new national mental health strategy was developed (Looking Forward: Strategic Directions for the Mental Health Service, Ministry of Health, 1994); a second plan to 2015 is currently in development, and considerably greater investment in mental health services has been made (128 percent increase since 1994). The strategy set seven strategic directions, including more and better services, balancing personal rights with protection of the public, strengthening promotion and prevention, more and better services for Maori, and developing the mental health services infrastructure. National Mental Health Sector Standards (NZS 8143:2001) have also been introduced, and all mental health services are required to comply by June 2004 (Ministry of Health, 2003a). This includes a non-discrimination standard.

The Mental Health Commission

The Mental Health Commission was established in response to the recommendations of the 1996 Inquiry into Mental Health Services (Mason, Johnston, & Crowe, 1996) to monitor the implementation of Government mental health strategy, reduce discrimination against people with mental illness and strengthen the mental health workforce. In 1998, it provided the Blueprint for Mental Health Services: How Things Need to Be as the basis for Government action to address the changes required to fully meet the service needs of the estimated three percent of the population who experience serious mental illness. This included the shift to a recovery philosophy and the setting of national guidelines for service provision.