BACKGROUND

2. People with disabilities entering residential care currently have a right, under the Disabled Persons Community Welfare Act (DPCWA) 1975, to request a review of the adequacy of needs assessment or whether assessed needs are appropriately met under Part 2A of that Act. The legislation specifies that the Health Funding Authority (HFA) should undertake these reviews.

3. This right to review does not apply if the person also has a right of review by the HFA to determine if the assessment or funding of residential care is in compliance with:
   1. the Crown's Statement of Objectives to the HFA

   2. the terms and conditions of the HFA's funding agreement

   3. Ministerial directions

      and this review right has not been exhausted. The provision, in place since the end of 1997, is rarely used: the HFA has only reviewed one such case.

4. Part 2A had been partially overtaken by the Code of Health and Disability Services Consumers' Rights (the Code), which came into force in 1996 and covers health and disability support services. As a result of past legislative timetabling issues the policy work for Part 2A was completed before the Code, but the Social Welfare Reform Bill, under which the DPCWA was amended, did not pass through the House until 1997.

5. The Code provides for ten rights in relation to health and disability support services, including the right to services of an appropriate standard and the right to complain. It includes the requirement that 'every consumer has the right to have services provided consistent with his or her needs' and that 'every provider must facilitate the fair, simple, speedy and efficient resolution of complaints'. Complainants have access to independent advocates and the Health and Disability Commissioner. The Commissioner's jurisdiction does not extend to funding or issues concerning the purchase of, or access to, services.

6. As the HFA will be disestablished, the reference to the HFA in Part 2A of the DPCWA 1975 needs to be amended or repealed. The main issue is that Part 2A provisions give people with disabilities entering residential care additional review rights over and above those available to other people with disabilities or health-related conditions. Arguably, this right also duplicates other avenues for complaint (such as those set out in paragraphs 3 and 4 above), resulting in unnecessary compliance costs (such as the requirement to have specific Disability Service Review Officers appointed).

OPTIONS

7. Three feasible options have been considered:
   1. amend Part 2A of the DPCWA 1975 by replacing 'Health Funding Authority' with 'District Health Board'

   2. repeal Part 2A, given that there is a right to have services provided consistent with the person's need and the right to complain about a provider under the Code

   3. repeal Part 2A, given the rights under the Code, and strengthen consumers' rights by requiring each District Health Board to have an appropriate review procedure in place.

8. The preferred option should:
   1. protect service users' rights to review

   2. be accessible, fair, simple and speedy

   3. be cost-effective.

Amending Part 2A

9. A simple amendment of Part 2A keeps arrangements close to the status quo. The advantage is that it may give people with disabilities who enter residential care (or their supporters) comfort that their rights are not lessened. The provision, however, is very prescriptive and inflexible. It duplicates the avenues to have complaints heard about the HFA (or, in future, the DHBs), and the provisions under the Code. The Minister of Health's Funding Agreement with the HFA, and the service coverage document, require the HFA to provide or fund services to allow people to make complaints about services, providers or the HFA and have such complaints heard.

10. This option gives people with disabilities entering residential care additional rights over and above those available to other people with disabilities or health-related conditions. It may also increase compliance costs as the current requirement on the HFA to have a specific review infrastructure for residential care services would have to be covered for the 22 DHBs.

Repealing Part 2A

11. The repeal of Part 2A would tidy up an anachronism and ensure all people have the same rights. A disadvantage is that repeal may be misconstrued as reducing the rights of people accessing residential care. However, those rights are protected by the combination of the Code and the statutory requirement on the HFA (and in future DHBs) to fund services in accordance with its funding agreement, and access and service guidelines. In addition, the Code:
    1. provides for broader health and disability service consumer rights

    2. is more flexible than the review provision in Part 2A of the DPCWA 1975

    3. is better known to the public and people working in the sector

    4. gives complainants access to independent advocates and the Health and Disability Commissioner.

Repealing Part 2A and placing additional requirements on DHBs

12. To address the risk that repeal of Part 2A is misconstrued as an attempt to reduce the rights to review of a specific group, the continuation of such a right could be made more explicit by requiring District Health Boards to have transparent review procedures in place, either in the new Bill or in the DHBs' operating environment (as is required of the HFA now). This would benefit all people using disability support or health services provided or funded by DHBs.

13. Some, but not all, Hospital and Health Services already have transparent review procedures in place permanently. Regardless of that, however, if a person makes a complaint to the relevant provider or another appropriate person (including the Health and Disability Commissioner), the Code has clear processes in place which the provider must follow.

14. It is deemed best practice to have appropriate, transparent review procedures in place. The DHB operating environment (the quasi-regulatory rules that DHBs have to comply with) could require each DHB to have transparent review procedures in place. That would make a legislative requirement in addition to the Code and funding agreement requirements on DHBs unnecessary, and avoids confusion about which review procedures should be invoked.