Repealing National's constitutional outrage

Back in 2012, Peter Atkinson and Cliff Robinson won the right to be paid for caring for their disabled children, in the landmark Atkinson & Others v Ministry of Health. National's response was the New Zealand Public Health and Disability Amendment Act (No 2), rammed through under urgency, which removed the right of people to challenge such unlawful discrimination in court. The act was an affront to the rule of law and a direct attck on all our rights. Now, as part of a law change to provide proper payment to family caregivers, Labour is repealing it:

The Government will repeal a disability law described as a "shame on society" and overhaul its policy on paying families who care for their disabled loved ones.

Health Minister David Clark and associate minister James Shaw announced the decision today, after a long campaign by families and human rights groups for fairer treatment.

Clark said Cabinet had agreed to consider changes to the way it pays families - a policy known as Funded Family Care - with options and timeframes for changes to be presented to ministers later this year.

Ideally, that would mean spouses and parents could be paid for looking after their disabled family members -currently they are not - and payments would be fairer and easier to access.

It also agreed to repeal Part 4A of the NZ Public Health and Disability Act, which underpins the policy, and also bans families taking discrimination cases about it to court.

Good. As constitutional expert Andrew Geddis notes in the article, the law was constitutionally outrageous and needed to go. Denying people access to the courts because they keep winning is the sort of thing that happens in tyrannies, and has no place in New Zealand.

But while we're on the subject of repealing constitutional outrages, how about that prisoner voting ban?

A problem of privatisation

For decades, successive New Zealand governments have used privatisation to cut costs in the social services sector, contracting out services then grinding down contracts to demand more and more for less and less. It works, for the government, but there's a big risk: that the contractor might decide its had enough and simply walk away. This has just happened with IDEA Services over disability support - and the Minister is not taking it well:

Disability Issues Minister Nicky Wagner has strongly condemned a national disability support provider over a contract dispute - saying Idea Services has been "totally irresponsible" and let down vulnerable clients.

Wagner was responding to questions from Labour MP Poto Williams in question time today. Williams tabled a letter from Idea, the operational arm of IHC New Zealand, informing families they were unable to provide any Autism Spectrum Disorder services because of underfunding.

Wagner, also Associate Health Minister, said she had been told by the Ministry of Health that it was only advised last week that Idea did not intend to renew its contract, after the service had previously indicated they would renew.

Firstly, reading the story, it appears that the Ministry has misinformed their Minister. IDEA Services have been discussing their systematic underfunding and trying to negotiate a transition arrangement for months. But the Ministry has refused to budge, which is why they have this problem.

But more importantly, the Minister seems to be under the delusion that contractors are under some sort of obligation to accept the governments shitty contracts and accept perpetual losses. They're not, any more than Wagner is required to accept my money if I offer her twenty bucks to eat a plate of dogshit. That's inherent in the contracting out model. But when you're contracting out a vital service, its a serious problem.

To point out the obvious: this problem doesn't occur if you don't contract out. But then I guess the government would have to pay what these services really cost, rather than expecting other people to effectively subsidise them out of the goodness of their hearts.

Ashley Peacock to be freed?

Ashley Peacock has been tortured by Capital Coast District Health Board for the past five years. Now, finally, they're going to stop:

Ashley Peacock's family say he is set to be released back into the community after a decade controversially locked up in a mental health facility - but there's plenty of work yet to be done to make it happen.

The autistic, severely mentally ill, intellectually disabled man has been in a secure psychiatric unit in Porirua for about a decade. His care costs about $1 million a year.

His treatment has been widely criticised by the Ombudsman calling the use of seclusion in his case degrading.

Ashley's parents, Dave and Marlena Peacock, told a parliamentary health select committee the news on Wednesday in an emotional hearing, as they presented a petition to them calling for the Health Minister to intervene in his case.

Ashley has not been told of his impending freedom yet, the committee was told - as it would take about six months and they wanted to fully prepare him.

CCDHB has lied about plans for Peacock's release before, so I don't think this can be believed until he's actually released. Still, its potentially a positive sign.

Unfortunately, there's no word yet on whether those responsible for his torture will be prosecuted yet.

This is just wrong

Today's "justice" horror story: Someone who has been effectively imprisoned for more than a decade for a trivial offence:

He's been locked up for more than 10 years.

His crime? Breaking the windows of his neighbour's van after reacting to a loud noise.

The severely autistic and intellectually disabled man, who has name suppression, has been detained in various intellectual disability secure care facilities since 2006.

[...]

He was found on the balance of probabilities to have committed the offence, but deemed unfit to stand trial.

The crimes he was charged with - wilful damage and being unlawfully in an enclosed yard - have maximum penalties of three months imprisonment. Even if he had been given the maximum sentence - unlikely - and been sentenced to serve his time sequentially rather than concurrently - even more unlikely - this man has still been imprisoned for twenty times longer than the maximum possible sentence. And purely because he is intellectually disabled.

This is wrong, it is discriminatory, and it is unjust. This man should be released immediately, and compensated for the decade of life the state has stolen from him.

Online schools should not be a dumping ground

Back in August the government introduced a bill to allow schools to be replaced with "Centres of Online Learning". The bill is currently before select committee, and in a rare move the Ombudsman has made a submission, raising concerns about them being used as a dumping ground for disabled students:

Chief Ombudsman Peter Boshier has called for significant restrictions on online schools including legislation to stop them becoming dumping grounds for children with disabilities.

[...]

Online schools could become the default for disabled children that physical schools did not want to enrol, he said.

"I'm really worried about what the unintended impact of this could be on those who schools might wish to exclude because its convenient," he said.

"I'd want there to be, if you don't mind, if we're going to go this way, an actual statutory safeguard to guarantee the right of disabled people to attend physical schools if they wish to."

Judge Boshier said children in online schools risked social isolation and full-time attendance should be restricted to those who could not access a physical school because of illness or remoteness.

Online learning has a definite place in our education system, but this is also a real risk. Schools frequently try and deny entry to disabled children, or try to exclude them, despite a statutory right to free public education. And creation an online alternative means a real danger of those kids being forced into substandard education and denied social contact by discrimination.

The Ombudsman also points out other serious problems with the bill: online schools won't be covered by the Ombudsman's and Official Information Acts, and the Minister will purportedly have absolute discretion over their closure (the latter obviously being a reaction to the government's repeated losses in court over school closures in recent years). So in addition to being a discrimination risk, its a shift towards unaccountability and autocracy (which in turn invites poor governance and abuse of power). Neither move is welcome, and hopefully the committee will fix these problems.

Austerity violates human rights

Its official: austerity is a human rights violation:

Austerity policies introduced into welfare and social care by the UK government amount to “systematic violations” of the rights of people with disabilities, a UN inquiry has concluded.

It says a range of measures aimed at reducing public spending since 2010, including controversial changes such as the bedroom tax, and cuts to disability benefits and social care budgets have disproportionately and adversely affected disabled people.

The highly critical report, published in Geneva on Monday afternoon, says the rights of disabled people to live independently, to work, and achieve an adequate standard of living have been negatively affected by austerity measures.

It makes 11 recommendations, including calling on the UK government to carry out a study of the cumulative impact of all spending cuts on disabled people, and to ensure the human rights of disabled people are upheld.

The British government is in denial about the consequences of their policy, but they would be, wouldn't they? Sadly, they've decided to reject the report in its entirety. And meanwhile, the body-count continues to rack up...

Outrageous

National's New Zealand: where austistic teenagers are held in prison because the DHB is too lazy to help them:

A severely autistic young man is being held in prison because disability service providers cannot find an alternative place for him.

The 18-year-old, who has name suppression, appeared in the Palmerston North District Court this morning before Judge Gerard Lynch, who labelled the situation as "outrageous".

Community liaison nurse Grahame Stillwell said the young man was taken into custody on Sunday, after allegedly assaulting his mother.

He was assessed by the Mid-Central District Health Board crisis team, who said they were unable to perform a full assessment because of the man's challenging behaviour.

Stillwell said nothing had changed since then, and no agencies had responded to his emails asking for help.

The judge is right: this is outrageous. We should be helping disabled people, not imprisoning them - but here we have a young man effectively warehoused in prison because the government agency responsible for providing that help is too fucking lazy to do its job. But I guess helping him would cost money; easier to just dump him on someone else's budget instead.

Free Ashley Peacock!

Ashley Peacock is being tortured by Capital Coast District Health Board. A patient in one of their mental health facilities, he has been held in seclusion for five years, kept confined in a 10 m-square room with just a mattress and a urine bottle, locked up for long periods arbitrarily, and not allowed outside. His treatment has been found to constitute cruel and inhuman treatment by the Ombudsman and is illegal under New Zealand law. But despite this, it hasn't stopped.

Peacock's family have now started an online petition calling on the Minister of Health to intervene to end this torture. You can - and should - sign it here. No-one should be treated like this in New Zealand, and it needs to stop now.

Meanwhile, the Herald has OIA'd the last few years of Crimes of Torture Act reports from DHBs, and found that Ashley Peacock is not alone: he is just one of four cases of cruel and inhuman treatment uncovered by the Ombudsman. Which is four cases too many. Again, no-one should be treated like this. And if our mental health system is doing this, it is not fit for purpose. It needs to stop, and those responsible need to be disciplined, fired, and/or prosecuted. There should be no place for torturers in our health system.

You shouldn't need to go to court to end torture

Its official: the continued "seclusion" of Ashley Peacock - locking him in an isolation cell with no social contact and only a bottle to piss in for six years - constitutes cruel, inhuman and degrading treatment under the Convention Against Torture. Worse, Capital Coast DHB have known this for four months and done absolutely nothing about it. Instead, they're now making excuses and quibbling details.

The Herald yesterday pointed out that Peacock's parents would seem to have an open and shut BORA case to force CCDHB to stop torturing him (and to compensate him for his torture). If that's what's required, I hope they bring such a case. But in New Zealand, they simply shouldn't have to. Not just because government agencies should obey the Ombudsman and correct these sorts of issues when they emerge, but because they should never happen in the first place.

Finally, there's another alternative to a BORA case, and that is a prosecution for torture. And given the manifest unwillingness of CCDHB and its clinicians to respond to these repeated concerns, that seems to be a necessary step pour encourager les autres.

End the torture of "seclusion"

Yesterday we learned that Capital Coast DHB was torturing an autistic man, keeping him locked in a "seclusion unit" for five years. The scary thing is that its not an isolated case:

An unknown number of patients are held in long-term seclusion in New Zealand institutions.

Inspectors from the Ombudsman's Office, who monitor the issue, say they do not know the exact number, but there are more.

[...]

Documents show at least one other case exists at the same site - in a different mental health unit, Haumiatiketike - where an intellectually disabled man has been under a seclusion order for at least two years. The health board refused to elaborate on his case due to "privacy issues".

Over the past five years, inspectors have noted about five long-term seclusion cases in mental health facilities. But they say a "substantial number" of areas are not monitored, including community-based homes for the disabled, aged-care units and other compulsory care facilities.

The Ombudsman doesn't have the resources to monitor all the facilities which could be doign this, and oddly, they don't keep records so the number of people they're torturing in this way can't be counted. The scary thing is that they expect cases even worse than the one we know about.

Again, this is simply wrong, and it must end. People should not be tortured for any reason, and especially not because its the cheapest way of "managing" them. Those currently in seclusion need care and support, not torture.

As for those who are torturing them, I think the solution is clear: torture is illegal, and those fuckers should go to jail for their crimes.

This is just wrong

The Herald this morning has an appalling story about Capital Coast DHB's treatment of an autistic man. They're torturing him, keeping him locked in a "seclusion unit" for five years. The Ombudsman has ordered him freed, and they're still torturing him. Why? To put it bluntly, cuts are to blame:

After the Ombudsman's report, Ashley seemed very close to release. A provider, Community Connections, was found. Plans were made to find him a home, to design an individual funding package, and to train specialist staff.

But it never happened. Reports mention a "tightening" of funding. Psychiatrists also wanted Ashley to be less "disturbed" before he was allowed out of the seclusion ward, and to try living in another part of Tawhirimatea with more patients for a while.

Funding for effective therapy gets discontinued. When they come up with a new transition plan, it doesn't get funded. And so they keep torturing him, because the DHB has no money to treat him effectively, no money to treat him like a human being. And in the process, they are exacerbating his condition, making it worse.

This is simply wrong. Capital Coast DHB are torturing this man because it is not a budget priority not to, because it is not financially convenient to stop. But it needs to stop. And those responsible for this prolonged torture need to be prosecuted for their crimes.

Mass-murder

That's the only way to describe the UK government's welfare "reforms", given their effects:

More than 80 people a month are dying shortly after being declared “fit for work” according to new data, prompting campaigners to call for an overhaul of the government’s controversial welfare regime.

Statistics released by the Department for Work and Pensions on Thursday show that 2,380 people died between December 2011 and February 2014 shortly after a work capability assessment (WCA) found they were able to work.

The administration of the WCA by officials has been widely criticised as crude and inaccurate by campaigners. There have been hundreds of thousands of appeals of fit-for-work decisions over the last few years, about four in 10 of which have succeeded.

While DWP is mongering doubt about the correlation, the Black Triangle Campaign has been tracking people who have died as a result of this policy. There's a list of the dead here. Those deaths can be laid squarely at the feet of the UK Cabinet, who should be tried as mass-murderers.

Meanwhile, it really makes you wonder how many have died here in New Zealand as a result of National's welfare "reforms"...

Why are we detaining a mentally ill man arbitrarily?

New Zealand is not supposed to engage in arbitrary detention. Our Bill of Rights Act states very clearly that everyone has the right not to be arbitrarily arrested or detained. But according to the UN, that's exactly what we're doing:

The United Nations Human Rights Committee says a sex offender with an intellectual disability who has been locked up in psychiatric hospitals and prisons for 45 years should be released and paid compensation.

In a decision sent to the Government two weeks ago and given to the man's lawyer today, the committee's working group on arbitrary detention said the man should have been moved to a care facility after his minimum non-parole term ended in 2004.

The man's lawyer, Tony Ellis, said his client, known only as Mr A, is now 58 and was sent to a mental hospital at the age of 12, released for a year when he was 38, and has been in prison ever since.

The UN working group has found the man had been unlawfully detained for the past 11 years, and discriminated against because of his intellectual disability.

This isn't enforceable, but it is likely to be persuasive in the inevitable domestic BORA action. The mentally ill need help, not punishment; detaining them effectively indefinitely and denying them treatment is both discriminatory and simply fucking stupid.

One of the reasons the UN reached this finding is because the government didn't even bother to respond to their inquiry. Yes, a major UN human rights body told them it was examining a case, and the government did nothing. I'm not sure whether its arrogance or utter stupidity, but it suggests something is very wrong at MFAT and Corrections.

A failure to deliver

National is very keen on announcing new funding for special education, because it sounds positive. Who doesn't like the idea of helping kids in need? Sadly, they're not so good at actually delivering on those promises:

More than $32 million of funding for children with special needs has languished in government coffers for two years, leaving schools to foot the bill.

The Ministry of Education says the underspend is because of the delay between announcing special education programmes and implementing them - a practice that isn't "unusual".

[...]

One of the programmes responsible for the education budget underspend is Positive Behaviour for Learning (PB4L), which has been championed by Education Minister Hekia Parata.

It has received annual cash injections since 2009, including more than $63m of an $80.5m budget in 2013.

This is despite the ministry revealing it didn't fill the staff vacancies needed to implement it.

Because why would you? I mean, its only kids who desperately need help, after all. But the side effect of this slackness on the part of the Ministry is not just that those kids don't get help, but that the funding disappears forever - because they're only allowed to spend the money appropriated in the particular year it was appropriated for. So, that $32 million isn't sitting in a bank account somewhere, just waiting for the Ministry of Education to get its shit together - its gone. One way of meeting your artificial surplus target, I guess.

National kicks disabled kids

Back in the 90's, the Bolger-Shipley National government had a simple method of cutting welfare spending: don't tell people what they're entitled to. Now, they're doing it again, and the victims are some of our most vulnerable children:

More than 11,000 disabled children have lost access to a welfare benefit that is supposed to support them, as officials try to rein in previously-ballooning costs.

A Child Poverty Action Group report on disabled children, being launched in Auckland today, says children supported by the child disability allowance almost trebled from 17,600 in 1998 to 45,800 in 2009, but were then cut back to just 34,500 last June.

The cut has been achieved both by tightening criteria and by simply not publicising the allowance.

The government is saving $20 million a year from this stealth cut, which will no doubt make Bill English happy. But that "saving" comes at the cost of disabled kids not getting the support they need - which simply means higher costs elsewhere and later.

Every child in New Zealand should get a good start in life, regardless of whether their parents are rich or poor, regardless of whether they have a disability. And its the government's job to make that happen. Instead, National is kicking disabled kids when they're down. And that is simply vile. But isn't it so very, very National?

Unlawful detention in the UK

Appalling news from the UK:

Tens of thousands of vulnerable people are being unlawfully detained in care homes and hospitals across England and Wales, according to a damning House of Lords inquiry which concludes that legislation created to protect people with mental health conditions – including dementia and autism – has failed.

After a nine-month inquiry during which more than 60 witnesses were questioned and more than 200 written submissions received, the report concludes that vulnerable people are being let down by social workers, healthcare professionals and other carers, many of whom are often not aware of the law or how it should be enforced.

The starkest failure highlighted by the Lords was that tens of thousands of people are being wrongly “deprived of their liberty” in care homes and hospitals.

Basically state services responsible for care simply do not care about the law and are detaining people unlawfully. Meanwhile oversight is underfunded and so non-existent in practice. It a massive failure, and one which should cause deep shame to the British state.

Not that they're alone. Check out the Ombudsman's 2008-9 Annual Report, which has examples of people detained under the wrong act, and even without any paperwork authorising detention at all. This is a global problem - its just that it seems to be worse in the UK, despite a law which is strong on paper.

A victory for workers' rights

Over the weekend we learned that KFC hates the disabled, having a policy of systematicly sacking their disabled workers. Now, thanks to Unite, that policy has been reversed and its victims offered their jobs back:

Unite Union has reached an agreement with Restaurant Brands over the dismissal of 17 workers at KFC with disabilities that includes offering them the chance to get their jobs back.

Over the past year and a half the company has been carrying out store “restructures” that involved demanding staff with disabilities meet an impossibly high bar of being able to do every job in the store to stay employed. The agreement with Unite Union provides for the establishment of a “limited duties role” that can be done by disabled workers once minimum health and safety training has been completed. These roles will be offered to all the dismissed staff even if they have received a settlement when the dismissal was challenged by Unite or their advocacy group.

There's an obvious lesson here: unions work. There's another: so does the threat of bad publicity. But there's also a clear problem: the laws intended to protect disabled workers from discrimination and dismissal clearly did not work in this case. Parliament needs to look at why, and tighten them.

KFC hates the disabled

KFC is systematicly sacking its disabled employees. This isn't just a case of a rogue manager, but official company policy:

Details of the way a fast food giant is axing disabled workers can be revealed today.

The Herald on Sunday has obtained documents outlining how KFC demands staff be capable of all duties to an "All Star" level. The company also confirms it is disestablishing "limited duties roles".

MPs, the Unite Union and disability support groups say this deliberately targets disabled workers.

A restructure proposal given to one sacked disabled employee states there will be "no one specifically doing limited duties". The document states the company must meet food and health safety obligations.

This is utterly vile. It is also almost certainly illegal. Disability is a prohibited ground of discrimination in the Human Rights Act, and employers are forbidden to discriminate on that basis. While they have an exemption for health and safety, that does not apply if the risks can be reduced by "reasonable measures". Having disabled employees work only on particular duties is such a reasonable measure, and the refusal to provide it is unreasonable. I expect the Human Rights Commission is going to show no mercy over this.

And neither should you. This company has demonstrated by its policies that they hate the disabled. Until those policies are changed and their victims rehired with a full public apology, decent people simply shouldn't shop there.

Worse than I thought

One of the more odious features of Fiji's military dictatorship is its use of "ouster clauses", purportedly denying the jurisdiction of the courts to review its illegal policies. Such clauses have a long and dubious history in military dictatorships. But now National is using them here. Their New Zealand Public Health and Disability Amendment Bill (No 2) - a discriminatory bill specifically intended to overturn the family carer's victory in Atkinson & Others v Ministry of Health, rammed through the House under all-stages urgency on Friday - includes an ouster clause purportedly denying the courts jurisdiction to review decisions made under it on human rights grounds:

On and after the commencement of this Part, no complaint based in whole or in part on a specified allegation [one that a decision under the Act discriminates on the grounds of marital status, disability, age or family status] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation may be commenced or continued in any court or tribunal.

As for cases that got in before then, apart from Atkinson, they are denied any effective remedy. The result is effectively to excise the Act from the jurisdiction of the courts, giving the government a free hand to discriminate on those grounds in its policies over home care, regardless of the Human Rights Act.

This is a direct attack on the rule of law, a direct attack on our constitution, and a direct attack on the rights of all of us. After all, if the government feels that it can excise family carers and the disabled from the Human Rights Act, what's to stop them from doing it to the rest of us? What's to stop them from excising our right to free speech, free assembly, or our right to vote? Nothing. The problem is what to do about it.

The immediate solution is to throw this government out on their arses at the next election. This is simply the latest in a long line of constitutional abuses, and they have clearly shown that they cannot be trusted with power. In the long term, we need to make sure that this can never happen again. And that means entrenching the Bill of Rights Act as supreme law and allowing laws which purport to contravene it to be overturned. Half-measures such as declarations of inconsistency and mandatory reporting will no longer cut it anymore. Parliament has shown that it will not act to guard our fundamental human rights. They have betrayed our trust. It is therefore time to take that role off them and give it to a body which can be trusted: the courts.

[Hat-tip: Andrew Geddis]

A victory for human rights

The Court of Appeal has ruled in the case of Ministry of Health v Atkinson [PDF], and upheld the Human Rights Review Tribunal's ruling that the government's policy of refusing to pay disability support to parents of disabled children unjustifiably discriminates on the basis of family status. In doing so, the court dismissed the government's attempts to weasel around the meaning of discrimination, and to pretend that people have a lifelong duty to care for adult, disabled children unassisted (it may be praiseworthy, but its very much above and beyond what should be expected). The government has been pretty naked that it imposed this policy to save money by dumping care costs onto parents, and they've been deservedly squicked for it.

The question now is whether the government will admit defeat, or take this all the way to the Supreme Court in an effort to undermine New Zealand human rights law. Sadly, my money is on the latter. The crown's case has always relied on using superior resources and patience to bury the opposition. And dragging it out even longer fits that strategy perfectly.