Page Section: Centre Content Column

The Code of Rights and Special Education

Presentation to the NZ Special Education Association Conference

Wednesday 23 April 1997

1. Background

The Act

The basis of the Code of Rights and the work of the Health and Disability Commissioner is the Health and Disability Commissioner Act 1994. It is a key element in the new environment of consumer-focused and consumer-accountable health and disability services, and was supported by and owes its origins to work done by both major political parties.

The Code

The Code is a regulation in terms of the Act. The development of a Draft Code was the first task of the Health and Disability Commissioner, and was completed in October 1995 after nine months of consultation and drafting. The final Code of Health and Disability Services Consumers' Rights became law in May 1996 and took effect from 1 July 1996.

Quality

The Code of Rights covers quality of services throughout the health and disability sectors, whether public or private, paid for or not. It does not cover issues of purchasing or entitlement to any particular service.

Applicability

The applicability of the Code is defined in the Act, and covers any person or organisation providing or holding themselves out as providing a health care service to the public, or a disability service. As I will discuss later, the definition of a disability services provider is wider than a health care provider as it is not limited to those providing services to the public.

Purpose

The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.

2. Relevance to Special Education

So how does the Code of Rights apply to special education services?

For the HDC Act and the Code of Rights to apply, three elements must be present - a consumer, a provider and a service.

Consumer

The Act defines a disability services consumer as follows:

any person with a disability that

(a) Reduces that person's ability to function independently; and
(b) Means that the person is likely to need support for an indefinite period:

Many (but perhaps not necessarily all) children receiving special education would meet the description of a disability services consumer. In respect of legal rights the law as it applies to minors and persons of diminished competence applies to the Code and the Act. Parents and legal guardians thus have rights which they exercise on behalf of the consumer.

Some difficulties may arise where the consumer's condition is the subject of conflicting opinion within the medical community and classification as a disability is debatable. Certain learning disorders can fall into this category.

Provider

The definition of a disability service provider under the Health and Disability Commissioner legislation is very broad and extends well beyond the traditional sources of assistance that would automatically spring to mind.

It includes anyone who provides or holds themselves out as providing disability services, including goods, services and facilities:

a) provided to people with disabilities for their care or support or to promote their independence; or
b) provided for purposes related or incidental to the care or support of people with disabilities or to the promotion of independence of such people.

A matter raised with our office concerned a consumer with diagnosed learning and behavioural difficulties who wished to attend a particular school. This school was not offering any services for students with special needs, but the complainant, the legal representative of a child with special needs, wished the school to be required to provide such a service. It is not the role of the Health and Disability Commissioner to oblige any person or organisation to take up a role as a health or disability service provider. Such matters are covered where necessary by other legislation such as the Human Rights Act and the Education Act.

Service

Clearly the provision of educational support for students with special needs falls into the Act's definition of a service intended to promote the independence of a person with a disability. Schools providing such a service should be aware that the Act and the Code of Rights applies.

Applying the Code

The Commissioner is often asked for practical advice about specific Code-related cases, either hypothetical or real. The Commissioner is not able to provide advance rulings on interpretation and application of the Code. The complaints jurisdiction under the Health and Disability Commissioner Act 1994 requires investigations to be undertaken impartially and with an open mind. This would be open to challenge if the Commissioner had already decided on the acceptability or otherwise of a practice under investigation.

As to the question "What aspects of the Code of Rights apply to special education services?" the answer must be that if the there is a consumer, a provider and a service as discussed earlier, then the whole Code applies.

Those involved in providing services should obtain a copy and familiarise themselves with it. This is not a big job - the Code fits comfortably onto three A4 pages and is written in plain English.

It is probably helpful to highlight some aspects of the Code and the Act which are of particular relevance to special needs education.

Who is the provider - the school or the teacher?

Both. As well as the provider having to comply with the Code, under Section 72 of the Health and Disability Commissioner Act, the employing authority may also be liable for acts or omissions by its employees which breach the Code.

Legislation which only allows for an individual to be held responsible can result in failures to address bigger issues within organisations. This is also in keeping with the trend in New Zealand law to make employers responsible for ensuring that their employees comply with legal obligations.

Communication

Communication is at the heart of education and children with special needs should not be disadvantaged in this respect.

Right 5, the right to effective communication, provides for "effective communication in a form, language, and manner that enables the consumer to understand the information provided." Providers must take "reasonable actions in the circumstances to give effect to the rights, and comply with the duties" in the Code. In the context of special education, "the circumstances" may include consumers capabilities, including their capability of understanding.

The responsibility will be on the provider to show that it took reasonable actions. Right 5 also ensures "an environment that enables both consumer and provider to communicate openly, honestly and effectively."

Standards

Under Right 4 of the Code, "every consumer has the right to have services provided in a manner consistent with his or her needs." The interpretation of this right in relation to special needs would be a matter of individual circumstances, but providers should be aware that the right applies.

3. Complaints

Right 10 establishes the right to complain and sets out a minimum requirement for a complaints procedure. Right 10(6) stipulates that:

Every provider, unless an employee of a provider, must have a complaints procedure

The first option in the Right 10 procedure is that the consumer may make a complaint to the individual provider. Alternatively he or she may complain to the person authorised to receive complaints about the provider. This is the "low level resolution" focus of the Act and Code in action. As we saw in the video, the obligation to have a procedure and the availability of the advocacy service ensures that complaints are resolved as speedily and effectively as possible.

One of the purposes of the Act, as stated earlier, is to facilitate the fair, simple, speedy, and efficient resolution of complaints. When providers and consumers take that approach in an attitude of partnership complaints can produce benefits to all parties.