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Friday June 22, 2018
Monday, 26 February 2018 12:15

Human rights justice delays

Human Rights Review Tribunal claimant Lyn Copland, whose son Samuel Fischer died in Wellington Hospital's care, says the hearing delays further prolong the trauma of Sam's death. "It is disgusting, it is insulting and it’s cruel to put somebody through this. The privacy breach was bad enough, but this is adding salt to the wound." Human Rights Review Tribunal claimant Lyn Copland, whose son Samuel Fischer died in Wellington Hospital's care, says the hearing delays further prolong the trauma of Sam's death. "It is disgusting, it is insulting and it’s cruel to put somebody through this. The privacy breach was bad enough, but this is adding salt to the wound." KEVIN STENT/ STUFF

People fighting for their human rights face "beyond unacceptable" waits of more than two years for justice, after politicians and officials ignored repeated pleas for a law change to help clear the backlog, documents reveal.

"Access to justice is being denied to almost all," Human Rights Review Tribunal chairman Rodger Haines said in his latest letter, to new Justice Minister Andrew Little. "For a tribunal charged with protecting human rights the situation is ironic, to say the least."

Claimant Lyn Copland – a grieving mother publicly shamed by the chief executive of the health board in whose care her son died – said the delays were disgusting, insulting and cruel and made a mockery of human rights protections.

Privacy Commissioner John Edwards also labelled the delays unacceptable and said planned Privacy Act changes would further stress the struggling tribunal: "Any justice delayed is justice denied."

Glenn and Fran Marshall are fighting for justice for their severely disabled son Eamon. Glenn fears the delays will deter people already exhausted by a Privacy Commission investigation from taking their case further. Photo: JOHN COWPLAND/STUFF

The tribunal hears claims of harassment, discrimination and breaches of privacy and health and disability rights. Its workload has ballooned, from 38 new cases in 2014, to 93 in 2016, meaning claimants wait two years for a hearing, and up to another three years for a a decision. 

A quirk of law means a deputy chairperson cannot be appointed to share the workload. 

Tribunal chairman Rodger Haines wrote to then justice minister Amy Adams in September 2016, and again in February 2017, asking for an urgent law change to enable deputy chairs to be appointed to help deal with the "unprecedented" increase in cases, which had "overwhelmed" the tribunal.

"For a Tribunal whose jurisdiction is about fundamental human rights, delays of this kind are beyond unacceptable," Haines wrote.

Then associate justice minister Mark Mitchell approved a co-chairperson in August, for 12 months. However, Haines said one additional decision-maker was not enough. Even with two extra full-time decision-makers it would take at least two years to clear the backlog.

While Eamon is now in good care, Glenn Marshall wants a tribunal decision to help other disabled people and to give the family closure . Photo: Supplied

Claimant Glenn Marshall said the documents – released under the Official Information Act – showed "that poor bugger has been bloody screaming out for help for several years, and nothing's been done".

Marshall lodged privacy and human rights claims against care organisation IDEA Services on behalf of his disabled son, Eamon, in March and June 2017 and has heard nothing since. The Privacy Commissioner has already found IDEA Services breached the privacy code, following its failure to release the full investigation into the mismanagement of Eamon's seizure medication.

While Eamon was now in good care, Marshall said the family wanted a tribunal decision to help other disabled people, and to give them closure.

"It means we can't actually move on. It's not like I want to bring them down, but I do want to hold them to account."

Privacy Commissioner John Edwards supports calls for a law change and worries planned changes to the Privacy Act will further stress the struggling tribunal. Photo: MONIQUE FORD/STUFF

Privacy Commissioner John Edwards wrote to Justice Ministry boss Andrew Bridgman in March 2017, supporting Haines's request for a law change, pointing out that planned Privacy Act changes would place even greater pressure on the tribunal.

Edwards said delays to privacy cases could mean someone refused information they needed to resolve important life questions - such as historical documents about their childhood experience with Child Youth and Family - could be left in limbo for 2-3 years.

Lyn Copland says the HRRT delays make a mockery of human rights protections. Photo: KEVIN STENT/ STUFF

Lyn Copland was told her case would not be heard for at least two years. The Privacy Commission has already ruled former Capital & Coast DHB chief executive Debbie Chin breached Copland's privacy in an all-staff email after Copland's son Samuel Fischer died of suspected suicide in Wellington Hospital's secure mental health unit in April 2015. However, the two parties could not agree a resolution, so she had to start again with the tribunal.

Copland said the two-tier system was bizarre and the delays prolonged the trauma of Sam's death, when she should be grieving in peace.

"They have already gone through the process and been found guilty – it's there in black and white. It's a complete mockery. You can do privacy breaches all you like and nothing is ever going to happen to you until at least five years down the track, and only if the person has the money and tenacity to pursue you."

Tribunal chairman Rodger Haines repeatedly asked then justice minister Amy Adams and associate minister Mark Mitchell to change the law to enable the appointment of deputy chairs. Adams says officials told her a deputy chairperson was not warranted. Photo: SUPPLIED

Asked why she ignored Haines's repeated pleas for a law change, former justice minister Amy Adams said officials advised her a deputy chairperson was not needed. Adams said her government introduced the Courts Matters Bill and Tribunals Powers and Procedures Legislation Bill, which would improve timeliness. 

Justice Ministry courts and tribunals manager, Jacquelyn Shannon, acknowledged the tribunal's increased workload, and that more would need to be done. She did not explain why the requested law change did not happen, simply saying other changes had been made to help clear the backlog, including appointing a temporary co-chairperson. 

New Associate Justice Minister Aupito William Sio, who is responsible for the HRRT, said the previous government knew of the problem, but failed to fix it. He would consider increasing funding and extending the co-chairperson's 12-month term. He would not commit to making the law change requested by Haines.

As the saying goes - justice delayed is justice denied. Photo: iStock

HOW DOES THE TRIBUNAL WORK?

The Human Rights Review Tribunal hears cases of alleged abuses of human rights, privacy and the health and disability code.

Claimants must first complain to the Privacy Commissioner, Human Rights Commission or Health and Disability Commissioner.

Under the current law, only the chairperson can decide cases, which is why chairman Rodger Haines has repeatedly asked for a law change to enable the appointment of deputies to ease his workload.

WHAT IS CAUSING THE DELAYS?

In a court minute for a case which took almost three years post-hearing to decide, Rodger Haines blamed the growing backlog on:

1) An unprecedented increase in new cases, growing complexity and an increase in the number of people representing themselves, making hearings more time-consuming.

2) A strange law structure that requires the tribunal chairperson to essentially do all the work - presiding over every case, conducting every initial teleconference and writing all decisions.

The black exhaust, seen at the back of the machine, is the source of the possible contamination. Photo: CHRIS MCKEEN/STUFF

WHAT'S THE SOLUTION?

Haines repeatedly asked former justice minister Amy Adams and associate minister Mark Mitchell to enact a minor law change to allow the appointment of deputy chairs to share the workload. In November 2017, he repeated that plea to new Justice Minister Andrew Little.

In a July 2017 draft response to a Stuff media query - which was subsequently replaced by "pretty words" playing down the problem - Haines made his frustration at ministerial inaction clear.

"The situation is unsatisfactory to all parties before the Tribunal and to the Tribunal itself. However, notwithstanding that the Minister of Justice and the Associate Minister of Justice are aware of the need for urgent action to be taken, the required amendment to s102(1) of the Act was not included in the Statutes Amendment Bill."

​Officials also considered adding lawyers to the tribunal panel who could write decisions, but documents show that did not happen because the Minister of State Services refused to approve the recommended pay rate.

In August 2017, a co-chairperson was appointed for 12 months, but Haines warned that would nowhere near fix the backlog.

The Justice Ministry and Amy Adams say two new pieces of legislation will help the tribunal's efficiency. However, the ministry acknowledges more will need to be done. It does not specify what.

Stuff

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