Glenn and Fran Marshall with intellectually disabled son Eamon. Glenn has complained to the Ombudsman about a bathing ban affecting IHC residents, which his son no longer is. Photo / Warren Buckland
Glenn and Fran Marshall with intellectually disabled son Eamon. Glenn has complained to the Ombudsman about a bathing ban affecting IHC residents, which his son no longer is. Photo / Warren Buckland
The IHC’s controversial bath ban is the subject of a complaint to the Ombudsman 14 months after it was implemented without consultation following two drownings in care homes for the disabled.
It comes three months after Whaikaha, the new ministry for the disabled, put the country’s largest disability services provider on notice over the ban which the complainant claims breaches the human rights of those affected.
But IHC said it did not accept it was breaching human rights or the United Nations Convention on the Rights of Persons with Disabilities and that it was working with Whaikaha, the Ministry of Health and WorkSafe to address the “complex” issue.
In his complaint to the Ombudsman that also went to the United Nations, voluntary disability advocate Glenn Marshall implored the Ombudsman to investigate the IHC and its provider arm IDEA Services over the policy that was implemented after IHC was prosecuted by WorkSafe in July last year.
In that case, following the drowning of a 61-year-old Taranaki woman in an IHC residential care home bath in 2016, IHC was fined more than $550,000 including $75,000 reparation to the family.
In the drowning of 15-year-old Nathan Booker in a Palmerston North support home bath in 2014, IHC was ordered to pay $153,500.
Disability advocate Glenn Marshall said a soak in the tub was one of life's joys for many intellectually disabled people. Photo / Warren Buckland
In September last year IHC’s chief executive Ralph Jones announced on the charity’s website it was prohibiting the use of baths and all bath tap handles had been removed.
Jones said bathing was a “high-risk activity” and IHC was not funded at a high enough level to provide the appropriate resources to deliver safe bathing.
But in his complaint Marshall pointed out that while IHC supported 3724 people, not all in full residential care, it received $315 million in government funding for the financial year to June 2022, had net equity of $263m, and made a profit of $8.23m for the same period.
He said a soak in the tub was one of the few joys some disabled people had in their life and was also therapeutic, helping with aches and pains that come with physical disabilities.
In February WorkSafe denounced the IHC policy and urged disability service providers not to “cut corners”.
It said providers were obligated to manage risks arising from working with disabled people and organisations could achieve this by having good systems in place rather than taking services away from clients.
“WorkSafe rejects any suggestion that health and safety is a reason for withholding basic comforts from those living with disability.
“We don’t endorse this approach and urge those providers to consider how they can manage their obligations without impacting those people being cared for.”
Minister of Health Andrew Little wrote to IDEA Services after it implemented a bath ban and said it was a "disproportionate" action. Photo / Mark Mitchell
Minister of Health Andrew Little told Marshall in February that he had written to IDEA Services stating such a ban was “disproportionate to the actual health and safety risk” that disabled residents faced.
He said the Ministry of Health had asked IDEA Services to reconsider its position.
In August, Whaikaha wrote to Jones stating that the bath policy did not meet IDEA Services’ obligations under its contract and that it considered IDEA Services had sufficient funding to meet those contractual obligations.
The letter, from operational design and delivery deputy chief executive Amanda Bleckmann, said that to comply with those obligations IDEA Services needed to revoke the bath ban, implement a rights-based, person-centric, and individualised approach to bathing, and consult affected residents and their families.
Bleckmann said health and safety could not be used as a justification to avoid providing services.
If IDEA did not comply by September 15, Whaikaha would require a “remedy plan” to address “non-performance issues” and face termination of its contract, Bleckmann wrote.
Bleckmann told Open Justice the Royal Commission of Inquiry into Abuse in State Care “made it very clear that the State must take an active role in looking at how services are provided – and Whaikaha is taking an active role in looking at how this provider’s services are provided.
“Our highest priority is the safety and wellbeing of disabled people who are supported in residential care services. They should receive the services they need in a way that respects their rights, dignity and autonomy.”
IHC chief executive Ralph Jones said IDEA Services has received advice that it is not breaching its contract by imposing a bath ban on disabled residents. Photo / Supplied
However, Jones told Open Justice many homes in New Zealand did not have a bath and IHC did not believe it was breaching disability rights or its contract.
“Based on independent advice received we are not in breach of our contract. It is not a contractual requirement for the people we support to have access to a bath.”
He said very few IDEA Services clients bathed, however 16 had been granted an exemption to have baths.
Jones said IHC advocated for appropriate funding and also had chronic workforce shortages.
“Together these mean we are unable to take all practicable steps to eliminate the health and safety risks of using a bath that we have identified for people with intellectual disabilities.”
He said IHC had been asking the Ministry of Health for guidance on safe bathing for years as it tried to manage balancing an individual’s rights, choice and privacy with its obligations to minimise risk.
“We have met with the Ministry of Health, and now the new Ministry of Disabled People, Whaikaha, and Worksafe, and have had good discussions. We will continue to work with Whaikaha on this complex issue.”
IDEA Services’ net surplus for the 2021-22 financial year represented only 2.6 per cent of total income and was less than one fortnight’s payroll expense, he said.
