New Zealand Public Health and Disability Amendment Bill (No 2)

  • enacted

Explanatory note

General policy statement

Many family members provide health and disability support to their disabled family members. While the Government acknowledges the important role that families play, and while it has provided funding for services (such as respite care) that support families in their role as carers, it has operated on the principle that family members will not be paid for the care they provide.

In the Family Carers case (Atkinson & Others v Ministry of Health), the Human Rights Review Tribunal declared that the Ministry of Health’s policy of not paying family carers involves unjustified discrimination on the ground of family status under the New Zealand Bill of Rights Act 1990 (NZBORA). That declaration was subsequently upheld by the High Court and the Court of Appeal.

Responding to the Family Carers case by paying all groups of family carers would undermine the fundamental tenet that the Government’s primary role is to support families in their role and would result in unmanageable fiscal costs to the Government. In the absence of legislation, the Government's policy would be unlawful and the Government could face a very large number of claims. The only feasible way of managing these risks is through legislation.

In amending the New Zealand Public Health and Disability Act 2000, the Bill allows the Government to reduce the ongoing litigation risks while also allowing the Government to implement policies of paying family carers where it wishes to do so.

Overview of Bill

The Bill—

  • reaffirms that people will not generally be paid to provide health services or disability support services to their family members:

  • confirms that the Crown and DHBs may operate, and always have been authorised to operate, policies in respect of family carers that allow payment in certain limited circumstances, or allow for payment at a lower rate than that for carers who are not family members:

  • stops claims of unlawful discrimination being made concerning any care policy, except for any claim that arises out of a complaint that was lodged with the Human Rights Commission before 16 May 2013. A claim that arises out of such a complaint may proceed, but the remedy that may be granted is restricted to a declaration that the policy is inconsistent with NZBORA:

  • includes savings provisions that allow the plaintiffs in the Atkinson litigation, and also the plaintiff in Spencer v Attorney-General, a claim for judicial review that is currently before the High Court, to continue their claims as if the Bill had not been enacted:

  • provides a process to enable DHBs and the Crown to certify the content of any existing or future family care policy.

Regulatory impact statement

The Ministry of Health produced a regulatory impact statement on 15 March 2013 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill will come into force on the day after the date on which it receives the Royal assent.

Clause 3 states that the Bill amends the New Zealand Public Health and Disability Act 2000 (the principal Act).

Clause 4 inserts a new Part 4A in the principal Act.

New section 70A states the purpose of new Part 4A.

New section 70B defines family care policy and family member. A family care policy is defined as a statement in writing of the Crown or a DHB that permits, or has the effect of permitting, persons to be paid in certain cases for providing support services to their family members. Support services are defined as health services or disability support services that are generally funded through Vote Health. The definition of family care policy also includes practices that have the same effect as such a statement and that were followed by the Crown or a DHB before the commencement of the Bill. The section defines family member as a person who receives services from his or her spouse (including his or her civil union partner or de facto partner), parent, child, grandparent, grandchild, sibling, aunt or uncle, niece or nephew, or first cousin. Step-parents, stepchildren, step-siblings, and half-siblings are also included in the definition.

New section 70C prohibits the Crown or a DHB from paying a person for providing support services to a family member unless the payment is permitted by an applicable family care policy or expressly authorised by or under an enactment. The prohibition also applies to payments for support services provided to a family member before the commencement of the Bill. However, existing contracts or arrangements are saved for a limited period by new section 70G(4).

New section 70D provides that—

  • the Crown and any DHB are, and have always been, authorised to adopt or have a family care policy and to change, cancel, or replace such a policy:

  • any family care policy that the Crown or any DHB had immediately before the commencement of the Bill continues in effect, and may be changed, cancelled, or replaced:

  • a family care policy may state, or have the effect of stating, the cases in which persons may be paid for providing support services to family members and sets out the ways in which those cases may be stated. The authorisation applies to family care policies adopted after the commencement of the Bill as well as to those that have been adopted before the commencement of the Bill:

  • a family care policy may set rates for the payment of support services to family members, which may be lower than the rates paid for comparable support services provided to persons who are not family members:

  • a family care policy may place limits on the funding available for providing support services to a family member:

  • a copy of any document that states, changes, or cancels a family care policy after the commencement of the Bill must be made available for public inspection. That duty is imposed on the chief executive of the Ministry of Health, where the family care policy is that of the Crown, and on the chief executive of the relevant DHB in any other case:

  • a family care policy may not be disallowed under the Regulations (Disallowance) Act 1989 or the Legislation Act 2012.

New section 70E provides that no complaint may be made to the Human Rights Commission, and no proceedings may be commenced or continued in any court, if the complaint is, in whole or in part, based on an assertion that a person's right to freedom from discrimination on any of the grounds of marital status, disability, age, or family status (affirmed by section 19 of the New Zealand Bill of Rights Act 1990) has been breached by a provision of the Bill, or by a family care policy, or by anything done or omitted in compliance, or intended compliance, with the Bill or a family care policy. Such an assertion is called a specified allegation in new section 70E.

New section 70E stops the Human Rights Commission from dealing with complaints based on a specified allegation if the complaints were made after 15 May 2013. It also stops the Human Rights Review Tribunal and any court from hearing, or continuing to hear, or determining any civil proceedings that arise out of such a complaint made after 15 May 2013.

Complaints made to the Human Rights Commission before 16 May 2013 are not affected and the Human Rights Review Tribunal and the courts continue to have jurisdiction to hear and determine proceedings that arise out of complaints made before 16 May 2013. However, if such a permitted proceeding is successful, the Human Rights Review Tribunal or the court may only grant a declaration that the policy concerned is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990.

New section 70F authorises certificates to be signed on behalf of the Crown or a DHB as to the contents of a family care policy. Such a certificate is, in the absence of proof to the contrary, sufficient evidence in all proceedings.

New section 70G saves the proceedings in the Court of Appeal between the Ministry of Health and Peter Atkinson (on behalf of the estate of Susan Atkinson) and 8 other respondents. These proceedings may be continued or settled as if the Bill had not been enacted. It also saves a pending judicial review application by Margaret Spencer, to the extent of the pleadings filed in those proceedings before 16 May 2013.

The section also saves any contracts or arrangements, in effect before the commencement of the Bill, under which persons are paid for providing support services to family members. Such contracts or arrangements are permitted to continue for 1 year after the commencement of the Bill.