Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996

Reprint
as at 10 June 2004

Crest

Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996

(SR 1996/78)

Michael Hardie Boys, Governor-General

Order in Council

At Wellington this 29th day of April 1996

Present:
His Excellency the Governor-General in Council


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

These regulations are administered by the Ministry of Health.


Pursuant to section 74(1) of the Health and Disability Commissioner Act 1994, His Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, hereby makes the following regulations.

Regulations

1 Title and commencement
  • (1) These regulations may be cited as the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.

    (2) These regulations shall come into force on 1 July 1996.

2 Code of Health and Disability Services Consumers’ Rights
  • There shall be a Code of Health and Disability Services Consumers’ Rights, which shall be the code set out in the Schedule.


Schedule
Code of Health and Disability Services Consumers’ Rights

r 2

1 Consumers have rights and providers have duties
  • (1) Every consumer has the rights in this Code.

    (2) Every provider is subject to the duties in this Code.

    (3) Every provider must take action to—

    • (a) inform consumers of their rights; and

    • (b) enable consumers to exercise their rights.

2 Rights of consumers and duties of providers
  • The rights of consumers and the duties of providers under this Code are as follows:

    Right 1
    Right to be treated with respect

    (1) Every consumer has the right to be treated with respect.

    (2) Every consumer has the right to have his or her privacy respected.

    (3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori.

    Right 2
    Right to freedom from discrimination, coercion, harassment, and exploitation

    Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial, or other exploitation.

    Right 3
    Right to dignity and independence

    Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

    Right 4
    Right to services of an appropriate standard

    (1) Every consumer has the right to have services provided with reasonable care and skill.

    (2) Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

    (3) Every consumer has the right to have services provided in a manner consistent with his or her needs.

    (4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.

    (5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

    Right 5
    Right to effective communication

    (1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided. Where necessary and reasonably practicable, this includes the right to a competent interpreter.

    (2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

    Right 6
    Right to be fully informed

    (1) Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including—

    • (a) an explanation of his or her condition; and

    • (b) an explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option; and

    • (c) advice of the estimated time within which the services will be provided; and

    • (d) notification of any proposed participation in teaching or research, including whether the research requires and has received ethical approval; and

    • (e) any other information required by legal, professional, ethical, and other relevant standards; and

    • (f) the results of tests; and

    • (g) the results of procedures.

    (2) Before making a choice or giving consent, every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, needs to make an informed choice or give informed consent.

    (3) Every consumer has the right to honest and accurate answers to questions relating to services, including questions about—

    • (a) the identity and qualifications of the provider; and

    • (b) the recommendation of the provider; and

    • (c) how to obtain an opinion from another provider; and

    • (d) the results of research.

    (4) Every consumer has the right to receive, on request, a written summary of information provided.

    Right 7
    Right to make an informed choice and give informed consent

    (1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment, or the common law, or any other provision of this Code provides otherwise.

    (2) Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent.

    (3) Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.

    (4) Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where—

    • (a) it is in the best interests of the consumer; and

    • (b) reasonable steps have been taken to ascertain the views of the consumer; and

    • (c) either,—

      • (i) if the consumer’s views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or

      • (ii) if the consumer’s views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.

    (5) Every consumer may use an advance directive in accordance with the common law.

    (6) Where informed consent to a health care procedure is required, it must be in writing if—

    • (a) the consumer is to participate in any research; or

    • (b) the procedure is experimental; or

    • (c) the consumer will be under general anaesthetic; or

    • (d) there is a significant risk of adverse effects on the consumer.

    (7) Every consumer has the right to refuse services and to withdraw consent to services.

    (8) Every consumer has the right to express a preference as to who will provide services and have that preference met where practicable.

    (9) Every consumer has the right to make a decision about the return or disposal of any body parts or bodily substances removed or obtained in the course of a health care procedure.

    (10) No body part or bodily substance removed or obtained in the course of a health care procedure may be stored, preserved, or used otherwise than—

    • (a) with the informed consent of the consumer; or

    • (b) for the purposes of research that has received the approval of an ethics committee; or

    • (c) for the purposes of 1 or more of the following activities, being activities that are each undertaken to assure or improve the quality of services:

      • (i) a professionally recognised quality assurance programme:

      • (ii) an external audit of services:

      • (iii) an external evaluation of services.

    Right 8
    Right to support

    Every consumer has the right to have one or more support persons of his or her choice present, except where safety may be compromised or another consumer’s rights may be unreasonably infringed.

    Right 9
    Rights in respect of teaching or research

    The rights in this Code extend to those occasions when a consumer is participating in, or it is proposed that a consumer participate in, teaching or research.

    Right 10
    Right to complain

    (1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.

    (2) Every consumer may make a complaint to—

    • (a) the individual or individuals who provided the services complained of; and

    • (b) any person authorised to receive complaints about that provider; and

    (3) Every provider must facilitate the fair, simple, speedy, and efficient resolution of complaints.

    (4) Every provider must inform a consumer about progress on the consumer’s complaint at intervals of not more than 1 month.

    (5) Every provider must comply with all the other relevant rights in this Code when dealing with complaints.

    (6) Every provider, unless an employee of a provider, must have a complaints procedure that ensures that—

    • (a) the complaint is acknowledged in writing within 5 working days of receipt, unless it has been resolved to the satisfaction of the consumer within that period; and

    • (b) the consumer is informed of any relevant internal and external complaints procedures, including the availability of—

      • (ii) the Health and Disability Commissioner; and

    • (c) the consumer’s complaint and the actions of the provider regarding that complaint are documented; and

    • (d) the consumer receives all information held by the provider that is or may be relevant to the complaint.

    (7) Within 10 working days of giving written acknowledgement of a complaint, the provider must,—

    • (a) decide whether the provider—

      • (i) accepts that the complaint is justified; or

      • (ii) does not accept that the complaint is justified; or

    • (b) if it decides that more time is needed to investigate the complaint,—

      • (i) determine how much additional time is needed; and

      • (ii) if that additional time is more than 20 working days, inform the consumer of that determination and of the reasons for it.

    (8) As soon as practicable after a provider decides whether or not it accepts that a complaint is justified, the provider must inform the consumer of—

    • (a) the reasons for the decision; and

    • (b) any actions the provider proposes to take; and

    • (c) any appeal procedure the provider has in place.

    Schedule clause 2 right 7(10): substituted, on 10 June 2004, by regulation 3(1) of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Amendment Regulations 2004 (SR 2004/116).

3 Provider compliance
  • (1) A provider is not in breach of this Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code.

    (2) The onus is on the provider to prove that it took reasonable actions.

    (3) For the purposes of this clause, the circumstances means all the relevant circumstances, including the consumer’s clinical circumstances and the provider’s resource constraints.

4 Definitions
  • In this Code, unless the context otherwise requires,—

    advance directive means a written or oral directive—

    • (a) by which a consumer makes a choice about a possible future health care procedure; and

    • (b) that is intended to be effective only when he or she is not competent

    choice means a decision—

    • (a) to receive services:

    • (b) to refuse services:

    • (c) to withdraw consent to services

    consumer means a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, includes a person entitled to give consent on behalf of that consumer

    discrimination means discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993

    duties includes duties and obligations corresponding to the rights in this Code

    ethics committee means an ethics committee—

    • (a) established by, or appointed under, an enactment; or

    • (b) approved by the Director-General of Health

    exploitation includes any abuse of a position of trust, breach of a fiduciary duty, or exercise of undue influence

    optimise the quality of life means to take a holistic view of the needs of the consumer in order to achieve the best possible outcome in the circumstances

    privacy means all matters of privacy in respect of a consumer, other than matters of privacy that may be the subject of a complaint under Part 7 or Part 8 of the Privacy Act 1993 or matters to which Part 10 of that Act relates

    provider means a health care provider or a disability services provider

    research means health research or disability research

    rights includes rights corresponding to the duties in this Code

    services means health services, or disability services, or both; and includes health care procedures

    teaching includes training of providers.

    Schedule clause 4 ethics committee: inserted, on 10 June 2004, by regulation 3(2) of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Amendment Regulations 2004 (SR 2004/116).

5 Other enactments
  • Nothing in this Code requires a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.

6 Other rights not affected
  • An existing right is not overridden or restricted simply because the right is not included in this Code or is included only in part.

Marie Shroff,
Clerk of the Executive Council.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 2 May 1996.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996. The reprint incorporates all the amendments to the regulations as at 10 June 2004, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)