Disability advocate puts MoH on notice over bathing ban, threatens complaint to UN

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

An advocate for the disabled has warned the Ministry of Health to exercise its power to have IHC lift its bathing ban or he will take the matter up with the United Nations.

The intellectual disability care provider IHC imposed a new policy banning the use of baths in its residential homes and facilities, with no prior consultation with stakeholders, in September last year following two drownings.

Both deaths resulted in prosecutions for Idea Services, IHC's service delivery arm, with the most recent - in July 2021 over the death of a Taranaki woman who drowned in a bath while in residential care in 2016 - resulting in a fine of more than $500,000.

But Glenn Marshall, the father of intellectually and physically disabled boy Eamon, said banning baths was not the way to mitigate the risks involved and that it was a breach of human rights.

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

IHC has come under fire for its new policy banning baths in its residential homes and facilities. Photo / NZME

"People that don't walk in their shoes don't realise what an impact a bath can have on them," he said.

"When you see them go into a soaking experience, it's a bit like someone having a nice massage. You can just see the joy in their face."

Now, nine months from when the ban was first implemented, the Ministry of Health (MoH) continues to condemn the prohibition, stating it is of significant concern and inappropriate, but Marshall said the Ministry is failing to go as far as to hold its contractual partner, IHC, to its obligations.

Last week, he put the MoH on notice, giving it until July 29 to reinstate bathing rights of disabled people in its residential facilities, by way of breaching IHC for its new policy.

Marshall will otherwise file a complaint with the United Nations against the Government for breaching the rights of disabled people under the United Nations Disability Convention, to which New Zealand is a party.

While he is yet to hear back from the MoH with respect to his threat, the Ministry told Open Justice it expected Idea Services to comply with its contractual requirements and that its policies should ensure that people they support have choice and control over their lives in line with the Enabling Good Lives principles and approach.

Though, it would not say whether it would take action and enforce a breach.

The spokesperson said representatives of the Ministry would meet with the Idea Services Board this week to discuss its approach to bathing.

But Marshall believed there was no need for the two bodies to further engage on the matter.

"The time for talk is over, now is the time for some robust action on the part of the Ministry of Health to ensure our disabled community's mana and legal rights are restored," he said.

Idea Services chief executive Ralph Jones told Open Justice the reason for the ban was a lack of funding and poor guidance from the Ministry on how to mitigate the risk around bathing.

He said IHC was criticised when they got it wrong but no one will "step up" and tell the sector how to get it right.

"It is frustrating that the Ministry says the reduction is inappropriate but has provided neither the rationale for criticism nor the guidance we have requested repeatedly since 2016 when we began advocating on this issue," Jones said.

Disability Rights Commissioner Paula Tesoriero. Photo / Ben Fraser

Concerns over the bathing ban are not limited to those from the disabled community and the Ministry.

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

"Providers are obligated to manage risks arising from work with disabled people and organisations can achieve this by having good systems, processes and capability in their work environments, rather than taking services away from their clients," it said.

Disability Rights Commissioner Paula Tesoriero has also waded in, informing the MoH a number of families had raised concerns with her about the reduction in services.

In correspondence between Tesoriero and the Ministry, provided to Open Justice, Tesoriero acknowledged the MoH had contacted Idea Services to set out the duties of providers to support disabled people's rights and choices and to caution Idea Services against overly risk adverse approaches.

But Tesoriero also said it was not the first time the Ministry had raised such concerns with Idea Services and therefore asked what other "legislative, regulatory or other levers" are available to the Ministry to ensure that disabled people's human rights are upheld in services it funds.

"You will be aware that the Ministry of Health cannot contract out of the State's domestic and international human rights obligations to disabled people through the delegation of disability services to external providers."