Legislation

We, the one's who are challenged, need to be heard. To be seen not as a disability, but as a person who has, and will continue to bloom. To be seen not only as a handicap, but as a well intact human being.
-- Robert M. Hensel





Health and Disability Issues are covered by government legislation.

The primary consumer rights in matters of health fall under the Health & Disability Act as detailed on the previous page.

In addition to those rights, you are also covered by the following:

The ACC Code of Claimant Rights

The Injury Prevention, Rehabilitation, and Compensation Act 2001 states that the purpose of this Code is to meet the reasonable expectations of claimants (including the highest practicable standard of service and fairness) about how ACC should deal with them. 

This includes
  1. conferring rights on claimants and imposing obligations on ACC in relation to how ACC should deal with claimants; and
  2. providing for the procedure for lodging and dealing with complaints about breaches of this Code by ACC; and
  3. providing for the consequences of, and remedies for, a breach of this Code by ACC; and
  4. describing how and to what extent ACC must address situations where its conduct is not consistent with, or does not uphold, the rights of claimants under this Code; and
  5. explaining a claimant’s right to a review of a decision made under this Code about a claimant’s complaint.

Section 40(2) of the Act provides that:

The rights and obligations in the Code—
  1. are in addition to any other rights claimants have and obligations the Corporation has under this Act, any other enactment, or the general law; and
  2. do not affect the entitlements and responsibilities of claimants under this Act, any other enactment, or the general law.
This means that claimants’ obligations, responsibilities, and entitlements, as set out in the Act, do not change. In addition, claimants retain their rights and responsibilities under any other enactment or the general law, including that which governs the Health and Disability Commissioner, the Human Rights Commission, the Office of the Ombudsmen, and the Office of the Privacy Commissioner.

In summary, the purpose of this Code is to meet the reasonable expectations of claimants about how ACC should deal with claimants. This Code is not about cover, or the type and level of entitlements that ACC is obligated to provide, as these continue to be prescribed by the Act.

Spirit of the Code
 
This Code encourages positive relationships between ACC and claimants. For ACC to assist claimants, a partnership based on mutual trust, respect, understanding, and participation is critical. Claimants and ACC need to work together, especially in the rehabilitation process. This Code is about how ACC will work with claimants to make sure they receive the highest practicable standard of service and fairness.

Application of Code
 
In all its dealings with claimants, ACC must ensure that its actions are consistent with, and uphold, the rights of claimants as provided for in this Code by applying the highest practicable standard of service and fairness.

Accredited employers, and persons acting as agents of ACC or on behalf of ACC, must also comply with this Code in their dealings with claimants.

The provision of treatment services is not covered by this Code, and continues to be covered by the Code of Health and Disability Services Consumers’ Rights. In addition, any treatment and disability services purchased by ACC are covered by the Health and Disability Sector Standards and the Health and Disability Services (Safety) Act 2001.

Complaints about the quality of health and disability services continue to be covered by the Code of Health and Disability Services Consumers’ Rights.

Any disputes about cover and entitlements, including treatment and compensation, are not covered by this Code, and continue to be addressed by the mechanisms under the Act.

The 8 rights of claimants, with ACC’s corresponding obligations, are as follows:

Right 1  - You have the right to be treated with dignity and respect.
(a) We will treat you with dignity and respect.
(b) We will treat you with honesty and courtesy.
(c) We will recognise that you may be under physical, emotional, social, or financial strain.

Right 2  - You have the right to be treated fairly, and to have your views considered.
(a) We will treat you fairly.
(b) We will listen to you and consider your views.
(c) We will take into account, and be responsive to, any impairment you may have.

Right 3  - You have the right to have your culture, values, and beliefs respected.
(a) We will be respectful of, and responsive to, the culture, values, and beliefs of Māori.
(b) We will be respectful of, and responsive to, all cultures, values, and beliefs.

Right 4  - You have the right to a support person or persons.
(a) We will welcome you and your support person(s) provided that the safety of all involved can be assured.

Right 5  - You have the right to effective communication.
(a) We will communicate with you openly, honestly, and effectively.
(b) We will respond to your questions and requests in a timely manner.
(c) We will provide you with an interpreter when necessary and reasonably practicable.
(d) We will provide information in a form which you can access, and in a timely manner.

Right 6  - You have the right to be fully informed.
(a) We will provide information on how to make a claim for cover and entitlements.
(b) We will keep you fully informed.
(c) We will provide you with full and correct information about your claim, entitlements, obligations, and responsibilities.
(d) We will inform you if your entitlements change.
(e) We will give you information about how we provide services, and how to access them.
(f) We will discuss expected time frames with you.
(g) We will inform you of your review and appeal rights under the Act.

Right 7  - You have the right to have your privacy respected.
(a) We will respect your privacy.
(b) We will comply with all relevant legislation relating to privacy.
(c) We will give you access to your information, in accordance with legislation.

Right 8  - You have the right to complain.
(a) We will work with you to address problems and concerns.
(b) We will inform you about options available for resolving problems and concerns.
(c) We will inform you about the complaints process, and the normal time frames for dealing with complaints.   



Accident Compensation Act 2001 

The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), through—

  1. establishing as a primary function of the Corporation the promotion of measures to reduce the incidence and severity of personal injury:
  2. providing for a framework for the collection, co-ordination, and analysis of injury-related information:
  3. ensuring that, where injuries occur, the Corporation's primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements that restores to the maximum practicable extent a claimant's health, independence, and participation:
  4. ensuring that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation and, where appropriate, lump sums for permanent impairment:
  5. ensuring positive claimant interactions with the Corporation through the development and operation of a Code of ACC Claimants' Rights:
  6. ensuring that persons who suffered personal injuries before the commencement of this Act continue to receive entitlements where appropriate.

The full Accident Compensation Act 2001 can be viewed here.

There have since been amendments made to this Act, as follows:

Health and Disability Commissioner Act 1994 No 88 (as at 03 March 2010), Public Act

An Act to promote and protect the rights of health consumers and disability services consumers, and, in particular,—
(a) to secure the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights; and
(b) to provide for the appointment of a Health and Disability Commissioner to investigate complaints against persons or bodies who provide health care or disability services; and to define the Commissioner’s functions and powers; and
(c) to provide for the establishment of a Health and Disability Services Consumer Advocacy Service; and
(d) to provide for the promulgation of a Code of Health and Disability Services Consumers’s Rights; and
(e) to provide for matters incidental thereto

The full Health and Disability Commissioner Act can be found here.



Human Rights Act 1993 No 82 (as at 01 May 2011), Public Act


New Zealand has most of the structures and systems we need to ensure that our civil and political rights are protected. As individuals, we are generally free to say what we think, read what we like, worship where and how we choose, move freely around the country, and feel confident in the laws that protect us from discrimination and the arbitrary abuse of power.

Most New Zealanders today also experience the benefits of the economic, social and cultural rights – education, decent work, good health, and affordable, healthy housing – that underpin a fair and just society and are vital to the dignity, equality and security of each individual.

There are two main pieces of law in New Zealand that specifically promote and protect human rights. One is the Human Rights Act 1993, and the other is the New Zealand Bill of Rights Act 1990.

The Human Rights Act

This Act sets out the primary functions of the Human Rights Commission. These are to advocate and promote respect for and appreciation of human rights in New Zealand society; and to encourage the maintenance and development of harmonious relations between individuals and the diverse groups in New Zealand society.

The Commission also has the power to resolve disputes relating to unlawful discrimination. If you believe you have been discriminated against you can ask the Commission for assistance. The Act’s intention is to help ensure that all people in New Zealand are treated fairly and equally.

The Human Rights Act 1993 protects people in New Zealand from discrimination in a number of areas of life. Discrimination occurs when a person is treated unfairly or less favourably than another person in the same or similar circumstances.

The Human Rights Act lists the areas and grounds where discrimination is unlawful and also some exemptions or exclusions. 

Human rights are the basic rights and freedoms to which all humans are entitled. They are expressed in the Universal Declaration of Human Rights adopted by the United Nations in 1948 and through international treaties adopted since then.

Human rights deal with how people live together. In particular they set out the basis for the relationship between the governed and those who govern.

Examples of human rights include civil and political rights such as the right to life and liberty, freedom of expression, equality before the law and the right to be free from discrimination. Social, cultural and economic rights include the right to participate in culture, the right to work, the right to an adequate standard of living and the right to education.

Everyone is equally entitled to human rights without discrimination.

The New Zealand Bill of Rights Act 

This Act sets out a range of civil and political rights, which arise from the United Nations International Covenant on Civil and Political Rights. The Act includes, among other things, the right to freedom of expression, the right to religious belief, and the right to freedom of movement, and the right to be free from discrimination, and medical experimentation.

The New Zealand Bill of Rights Act requires the Government and anyone carrying out a public function to observe these rights, and to justify any limits placed on them. Complaints about breaches of these rights are privately funded and proceed through the courts.

New Zealand has signed up to a number of international human rights covenants, conventions and protocols. This means that New Zealand has obligations to enforce these international standards through its laws.

New Zealand also has a number of government and non-government agencies that support or provide information to support human rights.


The Convention on the Rights of Persons with Disabilities

This Convention is the first human rights convention of the twenty first century.

New Zealand signed the Convention on 30 March, 2007 and ratified it 26 September, 2008. New Zealand’s first report on the implementation of the Convention was submitted to the United Nations in March 2011.

The Convention on the Rights of Persons with Disabilities gives voice, visibility and legitimacy to disabled people and their issues in New Zealand and the rest of the world.

In New Zealand it is estimated that one in five people have a disability. Worldwide there are at least 650 million people with disabilities.

Mental illness and human rights

“A right is not what someone gives you; it’s what no one can take from you.”  - Ramsey Clark

If you suspect you or someone you know has been treated differently because of mental illness, the Human Rights Commission can give advice on whether to make a complaint, get information, express a concern and have it recorded and/or find a solution. 

The Human Rights Commission and Like Minds Like Mine Programme work together to address human rights and mental health issues.

One of the ways they have done this is through the development and implementation of the Korowai Whaimana (‘Empowering Cloak’) Programme. 

Mental Health Foundation

www.mentalhealth.org.nz

The Mental Health Foundation works towards creating a society free from discrimination, where all people enjoy positive mental health and wellbeing. The Foundation’s work seeks to influence individuals, whanau, organisations and communities to improve and sustain their mental health and reach their full potential.

Like Minds, Like Mine 

www.likeminds.org.nz

Like Minds, Like Mine is a national, publicly funded programme aimed at reducing the stigma and discrimination associated with mental illness.The website provides information and resources on the programme, looks at who is involved and shows how you can contribute to creating a nation that truly values and includes people with mental illness.


Mental Illness and the Human Rights Act

It can be unlawful to treat people differently because:
  • they have experience of mental illness now
  • they have had experience of mental illness in the past
  • someone thinks they have, or have had, experience of mental illness
Being treated differently because of mental illness is not always unlawful. 

The Human Rights Act sets out certain areas of life where it is unlawful.

These are:
  • Government or public sector activities (including public mental health services, Work and Income (WINZ), Accident Compensation Corporation (ACC), and Inland Revenue Department (IRD)
  • employment (including job advertisements, job interviews, job offers, working conditions and pay, being forced to retire or leave, or being fired)
  • access to education and training (including going to school or polytechnic, and using study support services)
  • access to public places, vehicles and facilities (including public transport, taxis, parks, pools and libraries)
  • provision of goods and services (including insurance, hire purchase or house loan)
  • provision of land, housing and accommodation (including finding a place to live or being asked to leave a house or flat)
  • industrial and professional associations, qualifying bodies and vocational training bodies (including clubs and unions).
Treating others differently can be okay… sometimes.

The law says that people can be treated differently sometimes. Under the Human Rights Act, lawful discrimination includes actions such as:
  • advertising for a woman to work as a counsellor with other women
  • helping a disadvantaged group to achieve equality
  • government or public sector activities that are reasonable, lawful and demonstrably justifiable in a free and democratic society.
Example of a “measure to help people with experience of mental illness to achieve equality”:
  • Competitive businesses that have a social mission to create employment, particularly for people with experience of mental illness.

One area of life that it is unlawful to treat people differently in is the provision of goods and services, which includes insurance. However, the Human Rights Act allows insurers to offer policies with different terms and conditions in relation to sex, disability (including mental illness) and age. The Act does not permit insurers to refuse insurance on any of the grounds of unlawful discrimination.

Do I always have my human rights?
People with experience of mental illness often feel they have lost their rights, particularly if they have to go into hospital or receive treatment. This is not the case.

People who are assessed and treated for a mental disorder under the Mental Health Act do lose the important right to choose and consent to that assessment and treatment. However, they still have other rights, such as:
  • the right to seek a consultation with a psychiatrist of their choosing to get a second opinion
  • the right to request a lawyer for advice
  • the right to receive mail
  • the right to company.
Once a person engages with a mental health service provider, the services provided should be consistent with the Code of Health and Disability Consumers’ Rights 1996


Contact the Human Rights Commission for free and confidential advice:

Freephone –  0800 496 877      
Email – infoline@hrc.co.nz


Mental Health Commission

The Mental Health Commission’s aim is to:
  • promote better understanding of mental illness by the community
  • reduce stigma associated with mental illness and prejudice shown towards people with mental illness and their families and caregivers
  • eliminate inappropriate discrimination on the ground of mental illness against people with mental illness and their families and caregivers.
To find out about the work that the Mental Health Commission currently does in this area, go to www.mhc.govt.nz/our_work. The Commission has published a number of publications and resources that focus on stigma, discrimination and social inclusion. To view these, go to www.mhc.govt.nz/about_the_mental_health_commission.

Mental illness and the Disability Convention

New Zealand has ratified the Convention on the Rights of Persons with Disabilities. This means New Zealand has a legal obligation to respect, promote and fulfil the rights in the Convention.

Like the Human Rights Act, the definition of disability under the Convention includes mental illness.

The process of ratifying the Convention resulted in some changes being made to New Zealand law, including the removal of provisions which prevented people from performing various public roles because of ‘mental disorder’. For example, before ratification of the Convention, the Education Act 1989 said that a person who was ‘mentally disordered’ could not become a member of a school board of trustees. That is no longer the case. The Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008 sets out all the changes that were made to New Zealand law in order for the Convention to be ratified.

New Zealand will now work on implementing the Convention. This must include a framework for promoting, protecting and monitoring implementation. .

The Human Rights Commission website has links to:
  • general information about the Convention
  • the Convention in accessible and other formats for different audiences
  • resources for teaching about the Convention
  • more detailed information about the processes associated with ratification, implementation and monitoring of the Convention.

Disabled Childrens Right to Education

The Disabled Children’s Right to Education report was prepared by the Commission in response to complaints and issues raised with the Commission.

The purpose of this paper is to:
  • provide the Commission with an assessment of the extent to which the right to education is realised for disabled children and young people in New Zealand
  • enable the Commission to advocate more effectively for this fundamental right.
The paper summarises complaints and enquiries to the Commission, New Zealand legal and policy frameworks, the concepts of inclusive and special education, the international human rights framework and legal and policy approaches in comparable overseas jurisdictions.

A PDF of this paper is attached at the bottom of this page.
 
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Kate Johns,
Feb 21, 2012, 5:17 PM
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