Disability advocate warns Health Ministry of bathing ban, threatens to file UN complaint

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Glenn and Fran Marshall with their son Eamon in 2019. Photo/Warren Buckland

A disability advocate has warned the Department of Health to use its power to get the IHC to lift its bathing ban or else it will take the matter to the United Nations.

Developmental care provider IHC imposed a new policy prohibiting the use of baths in its residences and facilities, without prior consultation with stakeholders, in September last year following two drownings.

Both deaths prompted lawsuits for Idea Services, IHC’s service delivery arm, the most recent – in July 2021 over the death of a Taranaki woman who drowned in a bath while in establishment in 2016 – resulted in a fine of over $500,000.

But Glenn Marshall, the father of Eamon, a boy with intellectual and physical disabilities, said banning baths was not the way to mitigate the risks involved and was a violation of rights of man.

A soak in the tub was one of the few joys some disabled people had in their lives and was also therapeutic, he said, helping to relieve the aches and pains that come with physical disabilities.

IHC has been criticized for its new policy prohibiting baths in its residences and facilities.  Photo/NZME
IHC has been criticized for its new policy prohibiting baths in its residences and facilities. Photo/NZME

“People who don’t walk in their shoes don’t realize the impact a bath can have on them,” he said.

“When you see them going into a soaking experience, it’s kind of like someone getting a good massage. You can just see the joy on their face.”

Today, nine months after the ban was implemented, the Ministry of Health (MoH) continues to condemn the ban, saying it is deeply concerning and inappropriate, but Marshall said the ministry does not did not go so far as to keep its partner contract, IHC, to its obligations.

Last week, it gave the Department of Health formal notice, giving it until July 29 to restore bathing rights for people with disabilities in its residential facilities, in violation of the IHC for its new policy.

Otherwise, Marshall will file a complaint with the United Nations against the government for violating the rights of persons with disabilities under the United Nations Convention on Persons with Disabilities, to which New Zealand is a party.

Although it has not yet received a response from the Department of Health regarding its threat, the department told Open Justice that it expects Idea Services to comply with its contractual requirements and that its policies should ensure the people they support have choice and control over their lives online. with the Enabling Good Lives principles and approach.

However, he would not say whether he would take action and enforce a violation.

The spokesperson said ministry officials would meet with the Idea Services Council this week to discuss its approach to bathing.

But Marshall thought there was no need for the two bodies to engage further on the issue.

“The time for talks is over, now is the time for strong action by the Department of Health to ensure the restoration of mana and legal rights to our disabled community,” he said.

Idea Services chief executive Ralph Jones told Open Justice the reason for the ban was a lack of funding and poor advice from the department on how to mitigate bathing risks.

He said the IHC had been criticized when it got it wrong, but no one was going to “step in” and tell the industry how to do it right.

“It’s frustrating that the department says the cut is inappropriate, but hasn’t provided the rationale for the criticisms or the guidance we’ve repeatedly requested since 2016, when we first began to advocate on this issue,” he said. Jones.

Commissioner for the Rights of Persons with Disabilities Paula Tesoriero.  Photo / Ben Fraser
Commissioner for the Rights of Persons with Disabilities Paula Tesoriero. Photo / Ben Fraser

Concerns about the bathing ban are not limited to those in the disability community and the ministry.

Following the ban, WorkSafe denounced the new policy in a statement and implored disability care providers not to “cut corners”.

“Providers are required to manage the risks of working with people with disabilities, and organizations can achieve this by having the right systems, processes and capabilities in their work environments, rather than withdrawing services from their clients,” said he declared.

Disability Rights Commissioner Paula Tesoriero also chimed in, telling the Department of Health that a number of families had raised concerns with her about the cut in services.

In correspondence between Tesoriero and the ministry, provided to Open Justice, Tesoriero acknowledged that the Ministry of Health approached Idea Services to outline provider obligations to support the rights and choices of people with disabilities and to caution Idea Services against approaches that are too risk averse.

But Tesoriero also said this is not the first time the ministry has raised such concerns with Idea Services and therefore asked what other “legislative, regulatory or other levers” are available to the ministry to ensure that human rights of people with disabilities are respected in the services it funds. .

“As you know, the Department of Health cannot outsource the state’s national and international human rights obligations to people with disabilities by delegating disability services to external service providers.”

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