The Human Rights Review Tribunal decision stating that family members who look after a disabled adult should be paid a caregiver's wage has prized open a can of worms for the Ministry of Health. The case lodged under the prohibited ground of family status won its case against the Ministry of Health. In discussing the Tribunal's decision the Chief Human Rights Commissioner, Rosslyn Noonan said "the law is discriminatory, is unlawful, it cannot be justified and it should be ended, now."

The Solicitor General has announced that Government is appealing the decision. While disappointed, those working in the not-for-profit health and disability sector will not be surprised. Despite the Bill of Rights Act, the New Zealand Disability Strategy, the Carer's Strategy all being in-line with the Human Rights Review Tribunal decision, Government has again proven it is more interested in defending the discriminatory legislation than actually implementing the changes called for by the HRRT.

Ms Noonan says "We have a Human Rights Act in New Zealand, a Bill Of Rights Act that says you cannot discriminate on the basis of family status, and those laws are meaningless if the Government can choose when it's going to obey them."

In the opinion of Equity-for-illness
• It defies credibility that the Ministry of Health can include 'equality of outcome' as being one of its 'objectives behind current policy' yet fail to address the very same discrimination within their own legislation.
• The carer's claim is an issue of renumeration for work done which is the premise for all income received from wages or salary, regardless of the type of work performed. Looking after a disabled family member should not exclude a person from the rights of every other worker in New Zealand.
• The issue of financial implications should have no relevancy to Government's Appeal. If the work of looking after a disabled adult was not done by a family member, then it would fall to the Ministry of Health to pay an agency to provide the personal care hour's necessary, thereby accruing the same costs. Government's action in Appealing can be viewed as an employer refusing to pay a rightfully owed employee.c
• The Ministry of Health 'objective: to 'avoid the risks that families become financially reliant on the income received for supporting their disabled family member' is in itself of concern for several reasons.
  
  1. The issue of being financially reliant on one's income is a reality experienced by most New Zealand families. It therefore should have no relevance to this HRC case.
  2. One would expect that rights endorsed by a HRC decision would not be challenged by Government: the writer of the Human Rights Act. (While the Ministry of Social Welfare may want to prevent New Zealanders from becoming dependent on Work and Income benefits, this payment to carers should not be viewed in them and in that light.)

As Parliament wrote and updates the Bill of Rights, ACC legislation, and Ministry of Health eligibility criteria, it not only has the luxury of wording each in such a manner to favour itself, it appears now to also choose when or when not to obey its own laws. The issue of a carer's right to be paid for looking after a disabled family member was one of the disparities of my legal challenge under the prohibited ground of disability' (between what is funded for ACC's clients and what is not by the Ministry of Health. ) Those of us forced to live with the outcomes of such appalling Government practice must not accept our fate without defending our rights under national and international treaties.

Launched in November 2009, the Equity-for-illness Alliance heralds the next stage of our campaign. Until now New Zealand has not had an organisation whose sole focus is to unite the disability sector and to act as a collective lobbying force advocating for a needs-based health system.

The Equity-for-illness Alliance is calling on Government to create a 'single needs-based National Health and Disability Scheme for all New Zealanders founded on fair and equitable principles, incorporating both accident and non-accident-related needs.'

The Equity-for-illness Alliance members include the: Occupational Therapists Association, Society of Physiotherapists, Nurses Organisation, Cancer Society, Cerebral Palsy Society, Cystic Fibrosis Association, Deaf Aotearoa, Diabetes NZ South Canterbury, Equity Support Group, ME Support Group, Multiple Sclerosis Society, Muscular Dystrophy Association, Parents of Vision Impaired, Post polio support Society, South Canterbury Stroke Club, Thames/Hauraki Disability Resource Centre Trust.

When introduced in 1974, the Accident Compensation Commission legislation provided a world-leading Government-subsidized social insurance. It was built on financially sustainable principles that still hold true today, recognizing the value of high-risk occupations to society as a whole. New Zealand led the world with this legislation but it is the completion of the Act which motivates me, that is to include sickness and incapacity into a needs-based social insurance scheme. Please join us by exploring the Support Us options on this website. Together, we can make the difference to create a health system we can all truly be proud of.

Melanie Trevethick

On the 26th of September the Court of Appeal declined my application to present an appeal. While their decision differed from that delivered by both the Human Rights Tribunal and High Court in deciding the there was no prima facie discrimination, the three judges of the Court of Appeal decided that even if they accepted that there was prima facie discrimination between the inferior levels of assistance provided to New Zealanders with illnesses when compared to the generous entitlements provided to an accident victim, the Government could justify such discrimination under the Bill of Rights.

As in the High Court decision that said the disparity amounted to ‘legal discrimination,’ the Court of Appeal view that ‘Government could justify such discrimination’ is again an extraordinary indictment on Government. I ask again; what 21st Century Western democracy can be proud of receiving such a declaration from its second highest court? The government supposedly wrote the Bill of Rights to protect its citizens from discrimination, but it would seem from the Court of Appeal decision that Government also wrote the legislation in such a way so as to protect themselves from future claims of the very discrimination they were supposedly seeking to protect their citizens from.

Legal Perspective vs Social Justice
For the past five years I have challenged this inequity on a legal front; my claim working its way through the Human Rights Commission,  the Human Rights Review Tribunal and the High Court.  Sadly as we have now exhausted the judicial avenues open to us, this is the end of that aspect to this campaign. However this is only the beginning.  With the legal outcome now out it comes down to whether New Zealanders are content to accept that legalized discrimination be written in government statutes. I believe this is a travesty that must be challenged.

As an organization we will now focus our attention on further developing our lobby groups and promise that we will work hard to overturn this deeply flawed legislation. As individuals I urge you again to challenge your MPs in the lead up to the election and ask where they stand on this issue. Write to your local newspapers in support of a needs-based, non-discriminatory health delivery for all New Zealanders, regardless of the cause of the person's condition. 

Just remember that anyone can be born with a congenital condition or struck down by an illness: cerebral palsy, cancer, multiple sclerosis, stroke, heart attack to name but a few. For those unlucky enough to fall ill they will find themselves trapped in a life of dependency as opposed to ACCs focus on rehabilitation. The fact those involved in criminal activities at the time of their accident also receive ACCs world-class insurance scheme also adds to this social insult. This disparity fails to deliver any sense of social fairness within our health system.
I urge everyone who agrees with the equity-for-illness goal to e-mail Government Ministers our postcard available on this website and to register your support for our goal. Every MP needs to know and understand what part they have to play to change this discrimination. Most of all never lose hope that change can be achieved if we all become part of the process.

Melanie Trevethick     

Spokesperson/Trustee

equity-for-illness Charitable Trust

Equity-for-illness

The legal challenge against the Ministry of Health continues as we await the outcome of our application for special leave to go to the Court of Appeal.  Please keep an eye and ear on the media over the next few weeks to hear the outcome.

The convoluted steps of the legal process are not for the impatient but regardless of the legal outcome I am adamant that government must rectify this discriminatory legislation. I am particularly heartened that not only do many New Zealand Societies and the Occupational Therapists Association support the equity-for-illness campaign, in a recent meeting held in Wellington to discuss ACC privatization, the representatives of all the political parties acknowledged our organization and agreed changes need to be made; all that is except the Labour Party.

 In a press release on the 12th of August, Chris Ford, the Alliance Party Disabilities spokesperson said ‘The Alliance Party is supporting the equity-for-illness campaign initiated by Hamilton woman, Melanie Trevethick which calls for the same level of entitlements and support for Ministry of Health/Ministry of Social Development funded DSS clients as are available to people disabled through injury via ACC. This is the only just way to address the issue.’

As the creator of equity-for-illness I urge readers to write to your MP's and to attend public meetings running up to the election where questions can be asked of the political candidates.  The Equity-for-illness stated goal is to have Ministry of Health funding brought into line with current ACC’s entitlements, creating a needs-focused, non-discriminatory health delivery, regardless of the cause.  This can be achieved, I am sure of it. Please be a part of the process.

Melanie Trevethick   www.equity-for-illness.org.nz

Spokeperson/Trustee

The legal challenge claiming discrimination on the part of the Ministry of Health continues. The High Court judge, Robert Dobson, dismissed our application applying for leave to go to the Court of appeal so we are now filing an application directly with the Court of Appeal.

It is not just those with illnesses who stand to benefit from a change in legislation; the professionals working with us have a lot at stake in the drive for social fairness. Providing the best possible service by maximizing time spent with clients is much more achievable alongside equity for illness goals. ACC and the Ministry of Health each provide their own disparate set of regulations, entitlements, and eligibility criteria, requiring time-consuming and onerous paper trails between the professionals working with a client to the relevant authority. A needs-based, non-discriminatory health system would reduce this dramatically, enabling a faster, more efficient service for everyone involved.

The New Zealand Government has recently been awarded the International Franklin Delano Roosevelt Award for its advocacy for people with disabilities. While New Zealand legislation continues to uphold the discriminatory practice by the Ministry of Health by comparison with ACC’s generous entitlements, Equity-for-illness supporters believe this award gives little reason to celebrate.

The fact such legislation became law in 1974 is extraordinary enough without realizing that thirty-four years later, despite recognition of the inequities from the onset, it remains unchanged. If a similar bill had been passed discriminating on any other of the protected grounds under the Human Rights Act, (eg. racial, gender, age, or religious belief,) the outcry would have been heard around the world. New Zealand would certainly not be winning the International Awards for its contribution towards promoting equality and understanding nor basking in the glow of self-satisfaction.

In his High Court decision delivered in April, Judge Dobson made the statement, ‘the current system is unjust but that it is legal discrimination.’ This is an extraordinary indictment on any 21st Century western democracy. It is deplorable that the New Zealand Government be content to justify and defend such legislative-condoned breach of a person's rights. The expression 'the law is an ass’ could not more apt.

It is said that Rome wasn't built in a day. Sadly, challenging a system that fails to provide for its citizens takes much longer. It is no reason not to try however. Let's all be a part of it. Melanie Trevethick

Melanie Trevethick

Spokeperson/Trustee

The High Court decision has been released. Judge Dobson delivered a repeat of last year's Human Rights Review Tribunal decision dismissing Crown Law's application to have my case struck out on the comparator issue, (can I as a person with an illness, compare myself to someone who's had an accident,) but agreeing with Crown Law application that the word 'cause' cannot be read into the Human Rights Act; (the cause of a person's needs.) While it is disappointing that a point of law is currently protecting the Ministry of Health from having to provide funding and services on a parity with ACC's entitlements, we lay responsibility firmly at the feet of government who created such disparate legislation. We will be appealing the latest decision to the Court of Appeal.

I believe that Government should delivers tax-paid dollars in a fair and equitable manner. Thankfully I am not alone. A large number of organisations representing medical conditions including Cancer, Cerebral Palsy, Cystic Fibrosis, and Muscular Dystrophy have now publically spoken out in support of my claim. All are frustrated that their members are undervalued and kept in a dependency model of care while ACC encourages rehabilitation which delivers far better outcomes for both their clients and the country as a whole.

I see the future of this campaign as both exciting and growing as every day passes. Although we lost on the 'cause' reading in the High Court we are still gaining considerable ground in terms of media exposure and public support.

I need to stress that my legal challenge is not the beginning nor end of this drive for fairness. It may be the vehicle by which media interest and exposure can focus but it is only part of the equation. We encourage everyone to register their support for equity-for-illness by signing our petition, sending our email postcards to Government Ministers, and writing to the Letters to the Editor in their local papers; doing so will ultimately keep us alive in the public's mind.

We must also not miss the opportunity an election year affords us. By writing to our local MPs, we can ask that each declares their position on this issue; it is the least of what we expect of our elected representatives. Please do what you can, both as organisations and individually. There are many unable to advocate for themselves; let's do it for them. Melanie Trevethick Spokeperson/Trustee

Melanie Trevethick

Spokeperson/Trustee

By Melanie Trevethick

My case against the Ministry of Health based on the difference between ACC and the MoH funding was heard at the Wellington High Court on March 17th. While we still await the judge’s decision it is encouraging to be able to report that the Human Rights Commission again presented submissions in support of my claim. The counsel for the HRC stated that as the High Court was only able to deal with the case from a legalistic perspective; its parameters being too narrow to neither provide any sense of social justice for the claimant nor fully deal with the issue of disparity. The HRC lawyer went on to state that my case should not be struck out as was Crown Law’s contention and instead recommended that it should proceed to a full and substantive HRC hearing.

This is the second time the HRC have come to my defence.  For such a well-respected body to take such a position is wonderful for all equity-for-illness supporters. Now left to deliberate a considerable stack of submissions, our hope is that the judge will place great weight on the HRC’s statements and find in my favour.

If we should not win in the High Court we are prepared to go to the Court of Appeal. My aim from the beginning has been to have the case go to a full HRC hearing so the vastly different levels of funding between the two providers can be openly debated. As we await the High Court decision, I trust that justice as applied through our court system will focus strongly on what I believe is a New Zealander’s expectation of fairness and give this disparity a full Human Rights Inquiry. Until then we regrettably continue to ask for donations so we are ready.

Thank you for believing in us.

Next Stage

The next stage of Melanie Trevethick’s case against the Ministry of Health will be heard in a few weeks in the Wellington High Court. It’s in the interest of all New Zealanders that this case succeed as the disparity between accident versus illness related funding continues to seriously disadvantage those with illnesses. Equity-for-illness pledges to challenge this double-standard. We aim to raise public awareness of the inequity as many healthy New Zealanders are unaware of this two-class system unless they find out through personal experience.  We follow Melanie’s legal battle with interest.

Support

A number of prominent organizations supporting New Zealanders with illnesses are speaking out in a press release this week.  We welcome their commitment to our cause. This campaign is about all of us with illness-related challenges, with or without ongoing disability and it is vital that we present as a united front.  In December 2007 our government won the International Franklin Delano Roosevelt award for it work towards promoting the disabled, both within NZ with its NZ Disability Strategy and at the at the United Nations after its involvement with the Convention of the Rights of People with Disabilities. However NZ has yet to ratify it. Before this can take place they have to ensure our legislation is consistent with the UN Convention’s directives; an act unlikely to happen while our Government’s own backyard remains littered with this primary distinction.

We welcome all support including donations to help fund the legal fees associated with this challenge and to help raise public awareness of the issues. 

Thank you for your continuing support, and please keep telling your friends to sign the petition.

Watch this space!

The team at equity-for-illness

Earlier this year the Human Right's Review Tribunal dismissed Crown Law's application on the first legal point to have Melanie Trevethick's case thrown out claiming discrimination against the Ministry of Health. Yesterday the Review Tribunal upheld Crown Law’s application on the second point.

While yesterday’s ruling is disappointing it is most definitely not the end of the legal challenge.Melanie Trevethick’s barrister John Miller will be lodging an appeal with the High court to challenge this latest decision. What is significant is that the Review Tribunal also came out in support of Melanie's goal, making the following statements...

‘We begin our decision in this way because we wish to make it clear that we have considerable sympathy for the plaintiff’s (Melanie Trevethick) argument that there is a substantial social inequity arising out of the fact similarly circumstanced people are treated differently depending on the cause of their disability. It is far from clear to us how that state of affairs might be justified. Certainly we think that the plaintiff has a legitimate political point to make.

However the question for us is one of statutory interpretation: does the plaintiff’s proposed claim fall under the Human Right’s Act? We have come to the conclusion it does not. But we make it clear at the outset that our conclusion is not to be taken as having somehow endorsed the present regime as being fair or equitable. It does not.

Submissions filed by the Human Right’s Commission make it clear they are no longer neutral; instead the Commission now joins with the plaintiff in arguing that we ought to read the definition of disability as being at least capable of including the cause or cause of disability, (and on that basis to conclude that the plaintiff’s claim not to be struck out.)'

Thank you for your support of the equity-for-illness campaign. We encourage you to spread the word and if possible to donate to cover our legal costs. We really value your committment to our ideals of having a needs-based health delivery for all NZ'ers. The journey continues.

Melanie Trevethick and the team at equity-for-illness

Decision from the Human Right's Commission Review Tribunal

Melanie Trevethick's claim lodged in April, 2003 with the Human Rights Commission claiming Discrimination on the part of the Ministry of Health, is based on the disparities between ACC and Ministry of Health funding. On December the 8th, 2006, Crown Law applied to have the case struck out based on two points of law:

1. that her assertion that she compare herself to a person
   with similar disabilities covered by ACC
   was not a valid comparator group and therefore untenable, and
2. that the Human Right's Act does not allow comparison within the definition of any prohibited grounds. (an issue of intraground comparison)

The Human Right's Commission Review Tribunal announced their decision on April the 4th, 2007, dismissing Crown Law's application on the first point and reserving their decision pending further argument on the second.

A meeting on the 30th of April will determine a date for when the further submissions must be presented to the HRC Review Tribunal.

We are delighted with the result to date. The HRC Review Tribunal's ruling is a significant step forward for those supporting the equity-for-illness campaign. We look forward to the time when all parties can challenge and attempt to defend this legislation in a Court of Law.

Richmond cancer survivor Grant Harrison is fighting for people disabled by illness to receive the same level of government support as accident victims.

The 49-year-old has joined with Cambridge multiple sclerosis sufferer Melanie Trevethick to form the charitable trust Equity for Illness and campaign for change.

"We'd like to see people cared for in the same way, whether their condition was the cause of an accident or an illness."

Melanie Trevethick is one woman challenging New Zealand’s health system. She is bringing a case against the Ministry of Health on the grounds of discrimination. It is the first time anyone has challenged our dual funding system. Individuals with a disability are funded under either MOH or the Accident Compensation Corporation, depending on whether their disability was the result of an accident or medical condition. The inequity of this system has long been questioned but until now it has not been challenged.

A wheelchair-bound Cambridge woman is making a legal challenge to the way the Ministry of Health helps the disabled.
Melanie Trevethick suffers from the degenerative disease multiple sclerosis and she wants the same benefits as those who get accident compensation.
"It's definitely time it was tested in court and I'm just the stroppy cripple to do it," she says.

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