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 Your Legal Rights

PLEASE NOTE: The information presented here is provided as an introduction for parents and teachers dealing with ADHD children. The material should not be taken as an exhaustive statement of the law.

 

Before dealing with health organisations and the education system, it is wise to know your rights. On this page we present a basic outline of your rights (for those not keen on reading every line of every law).
The page is divided into two section:

 

Your Legal Rights when dealing with the Health System.

 

Your Legal Rights when dealing with the Education System.

 

At the bottom of each section, we provide extensions to additional pages where more specific aspects of your rights concerning that part of the law (including the relevant parts of the law itself) are outlined for those who would like more details.

We recommend that everyone familiarises themselves with the content of this page.

 

Your rights - the basics

 

1. Your Legal Rights - the Health System

 

The Fundamentals:

 

A child or/and young people refers to any individual from birth to 18 years of age (United Nations "Convention on the Rights of the Child),

 

A health care practitioner is a practitioner of all disciplines (any health and disability support service). It does not necessarily refer to medical practitioners alone. Regardless of age, an individual must be able to understand:

 

That they have a choice (freedom from coercion).

Why they are being offered the treatment.

What is involved in what they are being offered.

What the probable benefits, risks, side effects, failure rates and alternatives are.

 

The United Nations Convention on the Rights of the Child sees it as the states responsibility (in partnership with parents where they are available and responsible) to ensure that children are:

 

• Adequately provided for in matters of health, education, play, welfare, culture and leisure.

• Protected from discrimination, abuse, exploitation, injustice and armed conflict.

•Given a name and identity, are consulted and have their views taken into account, have access to

information and freedom of speech and have a right to physical integrity.

 

Child health practitioners have a responsibility to give the children/young people and their parents clear and understandable information.

 

Any information and advice must be given in language suitable for the child and their level of comprehension.

 

Practitioners should also give clear advice as to which course of action will lead to the highest attainable standard of health.

Consumers have the right to complain about any service they receive, in any form appropriate to them. This right is extended to children (although in practice complaints about service provided to a child will often be made by the child's parent or caregiver). Children and parents who exercise their right to complain, must have their complaint taken seriously and dealt with appropriately.

 

Please note the following applies to New Zealand: For a more extensive source of information we recommend that you have a look at the Laws governing the Health Care System and Ministry of Health's Consent in Child and Youth Health: Information for Practitioners page (especially the Part 2 - Frequently asked questions - section).

 

Your rights - the basics

 

2. Your Legal Rights - the Education System

 

The Fundamentals:

 

All New Zealanders between the ages of 5 and 19 years are entitled to free primary and secondary education (Education Act 1989) Children and young people with special educational needs have equal rights with all others to enrol and receive education in state schools (Education Act 1989). Everyone has a right to be free from discrimination on any of the grounds, including disability (Human Rights Act 1993).

 

Medication in schools(NZ) Your rights - the school's responsibilities - CLICK HERE!

 

Frequently asked questions about your rights concerning education (from the Human Rights Act):

 

1.What does ‘education’ mean under the Human Rights Act?

2.How does the Act define ‘disability’?

3. What types of discrimination affecting students with disabilities are unlawful?

4.Are there any lawful exceptions to these situations?

5.Does the Act also cover indirect discrimination?

6.Who would be liable for any breaches of the Act?

7.What happens if there has been a breach of the Act?

8.What is the legal situation if the school does not have sufficient resources to provide for special needs students? 9.Are there exemptions for discrimination on the grounds of disability in the provision of goods and services?

10.Under the Act can students with disabilities be given more funding and other resources than students without disabilities?

 

1 .What does ‘education’ mean under the Human Rights Act?

 

Education under the Human Rights Act includes access to educational establishments which covers all schools - pre-school, primary and secondary - as well as tertiary institutions such as universities and polytechnics. Both private and public educational establishments are covered by the Act. It is also unlawful for qualifying bodies and vocational training organisations to discriminate on any of the grounds specified in the Act.

 

2. How does the Act define ‘disability’?

 

The definition of disability under the Human Rights Act is very wide and covers most forms of disability.

‘Disability’ in the Act means:

 

physical disability or impairment physical illness psychiatric illness intellectual or psychological disability or impairment any other loss or abnormality of psychological, physiological, or anatomical structure or function reliance on a guide dog, wheelchair, or other remedial means the presence in the body of organisms capable of causing illness.

 

3. What types of discrimination affecting students with disabilities are unlawful?

 

Unlawful direct discrimination in education includes:

 

refusing to accept a student because of disability giving less favourable admission terms to a student with a disability denying a student with disabilities the same benefits or services provided to other students excluding a student by expelling, suspending or treating them detrimentally because of disability.

It is unlawful to use disability, or any of the other grounds of unlawful discrimination, as a criterion to exclude students from a school in an enrolment scheme (apart from special schools). The Commission can look behind enrolment schemes to ensure that they are not intended to exclude students with disabilities.

 

4. Are there any lawful exceptions to these situations?

 

Discrimination would be lawful:

 

If it is unreasonable for the school to provide the special services or facilities needed for a student with disabilities to participate in the school’s educational programme, or to gain substantial benefits from it. if a person’s disability poses a risk of harm to that person or others. This exception only applies if the school cannot take reasonable measures to reduce the risk, without unreasonable disruption.

It is for the educational establishment to prove that reasonable efforts have been made to accommodate the person’s special requirements. A school may be run wholly or mainly for students with a particular disability.

 

5. Does the Act also cover indirect discrimination?

 

The Act also covers indirect discrimination, which is when actions or conditions seem to be neutral but actually have the effect of treating people or groups of people with disabilities differently. For instance, if the teaching materials provided in schools were the same for all students, without taking into account the special educational needs of students with disabilities, those students could not be said to be getting equal access to education. An example of this might be if students who are blind were only provided with printed texts. They would be being treated less favourably than students with no visual impairments. There is a defence under the Act to a complaint of indirect discrimination, which is that there is a good reason for the actions complained about.

 

6. Who would be liable for any breaches of the Act?

 

If a breach of the Act were established, educational authorities and any body or person responsible for the control of an educational establishment may be held liable, for example, tertiary institution councils, boards of trustees, individual teachers, principals or school managers.

 

7. What happens if there has been a breach of the Act?

 

People can make complaints to the Commission under the Act on their own behalf or on behalf of another. If it appears there has been a breach of the Act the Commission may decide to investigate and conciliate the complaint to try to reach a settlement. It can call a conciliation conference at any stage of the complaints process:

 

a.without investigating the complaint b.after investigation c.after an investigation and a finding by the Commission that there has been unlawful discrimination.

 

Commission staff work with the parties to reach a settlement. Settlements may include:

 

• an apology

• an agreement to enrol a child

• an assurance that students with disabilities will not be treated in a certain way in the future

 compensation.

 

If a settlement is not possible the matter may be referred to and heard by the Complaints Review Tribunal. There are a number of remedies and orders available, including an order restraining the defendant from repeating or continuing the breach and damages for humiliation, loss of dignity and injury to feelings.

 

8. What is the legal situation if the school does not have sufficient resources to provide for special needs students?

 

If less favourable treatment of students with special educational needs is due to an actual resource deficiency which is beyond the school’s control, the question is raised of discrimination in the provision of goods and services. The Ministry of Education and the Specialist Education Services could be said to be the providers of such resources. However, these agencies are not liable under the Human Rights Act because it contains an exemption until 31 December 1999 for anything done by or on behalf of the Government of New Zealand which may be discriminatory on the ground of disability.. The Ministry of Education and the Specialist Education Services would fall within this exemption.

 

9. Are there exemptions for discrimination on the grounds of disability in the provision of goods and services?

Yes.

There is an exemption if a person’s disability requires facilities or services to be provided in a special manner which would be unreasonable to expect of the provider.
There is also an exemption for providing facilities or services on terms which are more onerous than for other people if a person’s disability requires a special manner of provision which the provider cannot be reasonably expected to supply without requiring more onerous terms.

 

10. Under the Act can students with disabilities be given more funding and other resources than students without disabilities?

Yes.

 

It is not unlawful to give favourable treatment to students with disabilities.

 

For a more thorough read about your legal rights concerning the education system have a look at the laws governing the education system and the Convention on the Rights of the Child

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