Disability

 

Health law is all about people. This is perhaps no more evident than in the disability sector. Disability often involves complex long term relationships between care providers, patients and their families. We routinely work with residential and community based disability service providers to define the legal framework and develop practical holistic solutions to challenges arising in practice. We advise on consent and competence issues, challenging behaviour, information management and human rights. We also assist with funding and commercial matters, as well as professional competence and employment disputes.

Complaints and investigations into care arise from time to time and our lawyers provide expert guidance and support to respond. We regularly assist with applications for orders under the Protection of Personal and Property Rights Act.

When it comes to disability:

  • It is essential to understand the wider needs and interests of all those involved
  • Legal solutions should empower, not inhibit
  • A policy or proactive strategy will often prevent a crisis or complaint.

 

Examples of work done by Claro lawyers

Drafting policies, procedures and guidelines for a disability service provider, ensuring that these would be easy to understand for staff across the organisation, and setting out key principles in simple, non-legalistic terms. The material was aimed specifically at caregivers, and included information sheets and checklists to assist with implementation.

The intended temporary removal of a resident from a residential care facility by a family member. We advised the provider on the next steps regarding concerns that the family member was not providing appropriate care to a resident – who could not communicate at all – when the resident was taken from the facility by that family member. We met with the family member, who initially did not accept that the resident’s needs had changed. On that basis the facility refused to allow the resident to leave the facility with the family member. Subsequently, the family member accepted that things needed to change, and reached an agreement with the facility as to what would occur, both prior to and during the resident’s time away from the facility with the family member.

An urgent application by the Ministry of Health/Medical Officer of Health (DHB) to the Family Court involving a complex/combative patient, funded by the Ministry, being evicted from a care facility as staff were refusing to treat due to continual abuse. The patient was refusing treatment, wanting to return to an uninhabitable home with no support; clearly unable to care for herself, and at risk of death. Our lawyers arranged urgent assessments of capacity, prepared evidence at very short notice, facilitated counsel to represent the patient, and obtained Court time for an urgent hearing. There were questions of legality around physically removing the patient against her will, and sedating her, and questions about the right of the care facility to ‘expel’ the patient. Interim and then final orders were obtained. The patient was moved to an alternative facility.

Termination of a contract for the provision of district nursing services. Our lawyers advised on the legal basis on which the contract to provide services to a client in the community could be terminated. The provider did not wish to continue to provide services due to concerns about the appropriateness of the client’s behaviour towards staff, and the provider’s obligations to staff to provide a safe working environment. The contract was terminated, and appropriate arrangements were made for the transfer of care.

Provision of care for a terminally ill person who could no longer communicate. We advised a hospice on a patient whose health was deteriorating to such an extent that she no longer had capacity. We advised on the obligations of the hospice in relation to the patient’s previously stated wishes (i.e. advance directives) with respect to her personal care and welfare, and the role of the patient’s partner, who had been appointed as the patient’s Enduring Power of Attorney for personal care and welfare.

Disciplinary investigation in a residential care facility into allegations of abuse by a staff member. Previous allegations had resulted in disciplinary action and a subsequent personal grievance. We worked closely with the facility to address the personal grievance and ensure that subsequent investigations were carried out in a robust and procedurally fair manner.

Advice on all aspects of the provision of care under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, including the medico-legal responsibilities of medical practitioners under that Act.