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Draft Home and Community Support Sector Standard
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Rachel Mahony
Project Administrator
Standards New Zealand
Dear Ms Mahony
Draft Home and Community Support Sector
Standard
Thank you for the opportunity to comment on the draft Home and
Community Support Sector Standard (the Draft Standard). I commend
Standards New Zealand for recognising the shift towards
consumer-centred care in New Zealand's health and disability
system, and developing this comprehensive document to incorporate
consumer-centred care principles into the provision of home and
community support services.
The Health and Disability Commissioner's
role
Under the Health and Disability Commissioner Act 1994 (the HDC
Act), the Commissioner is charged with the role of promoting and
protecting the rights of health and disability services consumers,
as set out in the Code of Health and Disability Services Consumers'
Rights (the Code of Rights). Under section 14(1)(d) of the HDC Act,
one of his functions is to make public statements in relation to
any matter affecting the rights of health or disability services
consumers.
Right 4(2) of the Code of Rights provides that every consumer
has the right to have services provided that comply with legal,
professional, ethical and other relevant standards. In accordance
with Right 4(2), the Draft Standard, when finalised, will be a
relevant standard the Commissioner may refer to as a guide when
assessing complaints about home and community support
providers.
Please note that the existence of such a standard will not in
any way diminish the duties owed under the Code of Rights. I
suggest this is made explicit in the Draft Standard.
Comments on the Draft Standard
You have asked for comments on the content, wording and general
arrangement of the Draft Standard, as well as specific feedback on
the definitions of "organisation" and "service provider". I have
drafted my comments accordingly.
Please note that I have not commented on all sections of the
Draft Standard, just those that I consider to be of particular
relevance to the Code of Rights.
Application and scope
I consider that the definitions of "organisation" and "service
provider" may contribute to the lack of clarity around the scope
and application of the Draft Standard. As currently drafted, the
terms appear to overlap to some degree and it is not clear why two
separate terms are necessary as "provider" more intuitively applies
to both. In the HDC Act and Code of Rights, health or disability
service provider encompasses both organisations and individuals. In
my view, one definition throughout the document would solve the
problem of using "organisation" to apply to individuals and
organisations. I suggest that "organisation" be replaced with
"provider" throughout the document.
General arrangement
I note that section 1 is intended to cover consumer rights.
However, in my view, the section does not comprehensively reflect
the full range of consumer rights as set out in the Code of Rights.
As currently drafted, it relates to Rights 1, 3, 5, 6, 7 and 8
only. Matters relating to Rights 2, 4 and 10 are found in the
"Organisational Management" section of the Draft Standard. In my
view, if section 1 is intended to encompass "consumer rights", it
should do so comprehensively. I consider that this arrangement of
the document would make it more accessible to providers.
Section 0.4 - Definitions
"Competent"
The Draft Standard defines "competent" as "demonstrating the
required ability, knowledge, and authority". It is not clear what
"authority" means and why "authority" is relevant to a person's
competency. In law, the fundamental element of competency is a
person's capacity to understand the nature of their decision. The
Protection of Personal and Property Rights Act 1988 (the PPPR Act)
defines competency as the capacity to:
- understand the nature, and to foresee the consequences, of
decisions in respect of matters relating to his or her personal
care and welfare; and
- communicate decisions in respect of those matters.
Competency under the PPPR Act is broad and does not require a
person to have the relevant "knowledge", or the "ability", to be
competent to make decisions about their care and welfare. I suggest
that the definition of competent be amended to reflect the
definition in the PPPR Act.
I would also like to take this opportunity to highlight to you
that under the PPPR Act and Right 7(2) of the Code of Rights, every
person must be presumed competent to make an informed choice unless
proven otherwise. Furthermore, Right 7(3) of the Code of Rights
provides that 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.
"Consumer"
The Draft Standard defines "consumer" as "a person who
uses/receives a health or disability service". The Draft Standard
does not however define what "health or disability services" means.
Furthermore, the Draft Standard refers to other types of services
such as, "care and support services" and "home and community
support services". This raises the question as to whether those
services are included within the meaning of "health or disability
services" in the Draft Standard. If not, a person who is receiving
"support services", for instance, will not be a consumer for the
purpose of the Draft Standard, but is still a "consumer" for the
purposes of the Code of Rights.
In my view, "health or disability services" needs to be defined;
alternatively, an umbrella definition of "services" could be
included to determine the types of services a person must use or
receive to bring them within the definition of "consumer" under the
Draft Standard.
"Representative"
I note that the current definition of "representative" only
includes representatives nominated by the consumer to act on their
behalf and not legal representatives, such as a welfare guardian or
an enduring power of attorney. I suggest that the definition
include both legal and non-legal representatives.
"Accountable" (as used in the definitions of service providers
and organisations)
In my view, this term is ambiguous. Under the HDC Act, an
organisation can be held directly or vicariously liable for
breaches of the Code of Rights. Direct liability is where a
provider organisation has failed to discharge its organisational
duty of care to the consumer, while vicarious liability, under the
HDC Act, is where the organisation has failed to take reasonable
steps to prevent anticipatable breaches by its employee or agent. I
suggest that the definitions be amended with a view to clarifying
what "accountability" means within the context of the definitions
and the overall scheme of the Draft Standard.
Section 1 - Consumer Rights
Clause G1.1.1
I suggest that the purpose of each piece of legislation be
provided in the Draft Standard as they will not all be directly
relevant to the provision of services. Consumer rights with respect
to the health and disability services generally are specified in
the Code of Rights. The Privacy Act 1993 and the Health Information
Privacy Code are in relation to the collection, storage and
disclosure of personal information. The Human Rights Act 1993 is
about unlawful discrimination, and the United Nations Convention on
the Rights of Persons with Disabilities is about state recognition
of the human rights of persons with disabilities.
Clause 1.1.4
Clause 1.1.4 provides that consumers have rights to an advocate.
Right 10(6)(b)(i) of the Code of Rights states that providers must
inform consumers of the availability of advocates in the event a
complaint is made. The Code of Rights does not specifically provide
for a right to an advocate. I suggest that the clause be amended to
be consistent with Right 10(6).
Clause 1.1.6 and 1.1.7
I note that clause 1.1.6 and 1.1.7 are the only substantive
clauses that deal with informed consent. The clauses characterise
informed consent as the provision of information and the obtaining
of written or verbal consent. In my view, this simplifies the
concept and does not sufficiently recognise that informed consent
is a process which comprises a number of components including
effective communication, competence, disclosure, understanding,
voluntariness and consent. The process of informed consent is
embodied in three essential elements under the Code of Rights:
- Effective communication between the parties (Right 5);
- Provision of all necessary information to the consumer,
including information about options, risks and benefits (Right 6);
and
- The consumer's freely given and competent consent (Right
7).
I suggest that clauses 1.1.6 and 1.1.7 be amended to reflect the
informed consent process as found in the Code of Rights.
I also note that clause G1.1.7(d) provide "consumers who are
unable to consent". As explained above, a consumer cannot give
valid consent if they are not competent, rather than being "unable"
to consent. I suggest that the clause be amended.
Clause 1.3
Clause 1.3 provides that consumers receive "culturally safe
services". As stated above, "culturally safe" is not defined in the
Draft Standard. I am also concerned that the term may conflict with
Right 1(3) of the Code of Rights, which requires service providers
to "take into account" the beliefs of different cultural,
religious, social and ethic groups, including Maori. I suggest that
"culturally safe" be either defined or replaced with a term or
phrase that is consistent with Right 1(3).
Clause 1.6
It appears that clause 1.6 is drafted to reflect the wording of
Right 5 of the Code of Rights. However, as currently drafted,
clause 1.6 could be interpreted to mean that the consumer has the
duty to facilitate effective communication, which is inconsistent
with Right 5(1). Right 5(1) provides that the consumer has the
right to effective communication, the corollary being that the
provider must facilitate effective communication. I recommend that
clause 1.6 is amended to be consistent with Right 5.
Conclusion
I trust that these comments are of assistance. Please do not
hesitate to contact Legal Advisor, Tina Liu, on (04) 494 7920 or tinal@hdc.org.nz if you have any
questions regarding these comments.
Yours sincerely
Katie Elkin
Chief Legal Advisor