Memorials and awareness-raising

One useful and public way to acknowledge the experiences of survivors – and raise awareness of abuse – is memorials. They are also a tangible way of honouring the memory of survivors who are no longer alive. Survivors have usually suggested placing memorials or plaques at the site of the relevant institution.

Some survivors and iwi have also suggested commemorative events, group reunions, ceremonies to recognise disabled survivors as full “citizens”, ceremonies to heal or whakawātea the whenua, and group therapy. Survivors have also asked for archives of their accounts, and of whānau, hapu and iwi, to be established, as part of acknowledging those accounts and preserving them so they are recorded as part of the country’s history. We also heard from individuals who had been unable to find where members of their whānau who died in care had been buried. We note that there have been calls for a national project to investigate potential unmarked graves and urupā at psychiatric hospital and psychopaedic sites.

Many survivors have built close connections with fellow survivors based on shared experiences and wanted help to sustain these connections. Survivors also wanted the removal of any honours of, or memorials to, perpetrators.

We consider institutions should work with survivors to identify opportunities to acknowledge abuse and its impact and remember survivors. 

Public awareness and discussion of abuse in care have been inadequate, and this includes its intergenerational impact, along with related questions of institutional racism, ableism and colonisation. All New Zealanders have a contribution to make in ensuring the nation’s tamariki or children, rangatahi or young people, tāngata whaikaha or disabled people, pakeke or adults and kaumatua or elders are kept safe from harm, including while in care. Society gives little attention to these issues, while social campaigns that seek to eliminate abuse in care are limited, Aotearoa New Zealand research on the subject is scarce, and remembrance events few and far between.

We consider the Crown should fund a programme to increase awareness of abuse in care through research, social campaigns and events to acknowledge abuse.

Recommendations

71.  Acknowledgements and apologies should, where appropriate, be accompanied by tangible demonstrations of goodwill and reconciliation. As part of this, the Crown, indirect State care providers and faith-based institutions should consider:

• funding memorials, ceremonies (including “citizenship” ceremonies) and projects that remember survivors
• establishing archives of survivors’ accounts of their abuse, and also the accounts of their whānau, hapu and iwi, with the informed consent of these people
• removing any memorials to perpetrators.

72.  The Government should consider funding a national project to investigate potential unmarked graves and urupā or graves at psychiatric hospitals and psychopaedic sites, and to connect whānau to those who may be buried there. The Government should support tangata whenua who wish to heal or whakawātea the whenua where this has occurred. 

73.  The Government should take active steps to raise awareness of abuse in care, what it is, its effects, what has been done in response, and how those abused can seek help. This should include widely disseminating this inquiry’s interim report, this report and all subsequent inquiry reports.

74.  The Government should fund an ongoing programme focused on supporting the delivery of independent Aotearoa New Zealand-specific research on the effects and causes of abuse in care, and social campaigns that seek to eliminate abuse in care and highlight the need to keep people safe from harm, and events acknowledging what has happened.

Enforceable rights and duties

All New Zealanders, including those abused in care, have the right to an effective remedy if their rights have been violated. This includes the right to compensation. At present, however, most survivors have no effective remedy for abuse in care as a result of the legal obstacles outlined in Part two of this report. Some survivors would prefer to go to court because they want the institutions or individuals responsible for their abuse to answer for their actions publicly, and because court action has the potential to change the behaviour of institutions and encourage the prevention of abuse. If available, some survivors would also want to seek compensation.

One of the most significant obstacles is what is commonly called the ACC bar. This refers to section 317(1) of the Accident Compensation Act 2001, which prevents individuals from obtaining compensation through the courts if – with some limited exceptions – they are covered by the country’s accident compensation scheme.

The basis for section 317(1) is that the no-fault scheme will compensate anyone who suffers harm. But as we have seen, many survivors receive little or no compensation from the scheme for the harm they have suffered. The puretumu torowhānui scheme we recommend will not provide compensation either. Without change in some form, many survivors will not be able to exercise their right to seek an effective remedy.

We consider survivors should be able to go to the courts to assess their claim for compensation, make a public decision and order compensation where appropriate. This is the case in the vast majority of other countries, including Australia. We also consider that allowing survivors to go to court creates an incentive on those designing and running the scheme to make it as attractive as possible compared to taking civil litigation. Also, this option gives institutions an incentive to join the puretumu torowhānui scheme because the costs are likely to be lower than if they remain outside it and deal with claims through the courts. Survivors who do not want to make a claim through the courts will still have access to the puretumu torowhānui scheme. We therefore recommend the Crown enacts:

• a right to be free from abuse in care
• a non-delegable duty on the Crown, faith-based institutions and any other care providers to ensure so far as is reasonably practicable the protection of this right, together with direct liability for any failure to meet this duty
• an exception to the ACC bar for civil claims for abuse in care.

We will explain each of these recommendations in turn, but first the following background: Aside from issues created by the ACC bar, survivors cannot take the Crown to court directly in one of the areas of law most relevant to abuse in care claims – tort. This means they cannot sue the Crown directly in tort for any systemic failure that allowed abuse to occur. Instead, they must try to sue the Crown vicariously by persuading a court the Crown is responsible for the abuse committed by another person, that is, the perpetrator. To do this, the survivor must identify the perpetrator and show a sufficiently close relationship between the perpetrator and the Crown to hold the Crown responsible for the perpetrator’s actions. Survivors often cannot do this for a variety of reasons, including their young age at the time of the abuse and the effect of trauma and the passage of time on a survivor’s memory. We consider survivors should be able to sue the Crown directly, as they can with faith-based institutions. One more point: survivors can seek exemplary damages (money to punish a wrongdoer rather than to compensate the victim) even if they are covered by accident compensation legislation, but the scope for damages of this type in vicarious liability claims is at best limited.

Statutory right to be free from abuse in care

Enacting this right would provide a straightforward legal basis for a case alleging a breach of this right. A survivor would be able to take a case against a perpetrator directly for such a breach. This approach has been taken with other legislation such as the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 relating to sexual and racial harassment (sections 62 and 63). Although this right and the non-delegable duty would be restricted to abuse in care, this is no different to some other rights that apply only in particular settings.

Non-delegable duty to protect the right to be free from abuse in care

In addition to a claim against the abuser, we also consider it necessary to have a separate, non-delegable duty on the Crown and other care providers to protect the right to be free from abuse in care. A survivor should be able to take a case directly against the Crown or other care provider for breach of that duty, either together with a case against an abuser for breach of the right to be free from abuse in care or as a separate case. The effect would be that a care provider would have a primary non-delegable duty to take all reasonably practicable steps to protect the right to be free from abuse in care. The definition of “reasonably practicable” as set out in section 22 of the Health and Safety at Work Act 2015 could be tailored to the abuse in care context. This duty will ensure a survivor can obtain an effective remedy when the care provider has failed to do everything reasonably practicable to prevent abuse in care from occurring – even if the survivor cannot identify the abuser. Neither this duty nor the right to be free from abuse in care would be retrospective, but together they would allow any future victims of abuse to hold the Crown and other care providers to account.

Exception to the ACC bar

An exception to the ACC bar is needed for the right and duty just described to be effective. Otherwise, a survivor could not get compensation from the courts for personal injury resulting from a breach of that right and duty. Similar exceptions already arguably exist, for example, for sexual harassment claims brought under the Human Rights Act 1993 and for some compensation available for a victim’s actual loss (in the form of reparation orders) under the Sentencing Act 2002.

Legislation options to achieve an enforceable right and duty

We consider the Crown has two viable ways to enact this right and duty:

• Amend the Human Rights Act 1993 to include the right and duty, and empower the Human Rights Review Tribunal to hear cases alleging breaches and to award remedies as appropriate.
• Include the right and duty in the same legislation the Crown enacts to establish the puretumu torowhānui scheme. 

We note that, in the second option, the Crown could create a path for cases to go to the Human Rights Review Tribunal, an existing court or a new tribunal. Any tribunal or court hearing these cases should have the same or similar powers to grant remedies as the Human Rights Review Tribunal has.

We considered – but discarded – two alternative options. One was to empower the puretumu torowhānui scheme to award remedies available to the Human Rights Review Tribunal (which would include the power to award compensation). But this presented a range of difficulties, including confusion over having two paths to redress, complex and time-consuming compensation assessments in some cases, different standards of proof and the adoption of an adjudication role that was not in keeping with the non-adversarial nature of the scheme.

The other option was to reform accident compensation legislation, so it offered an effective remedy for survivors. The reforms needed would be considerable. It would be necessary to extend cover to all forms of abuse the puretumu torowhānui scheme will cover; new forms of financial compensation would need to be introduced or current forms amended and made more generous; and vocational rehabilitation would need to be extended beyond those entitled to weekly compensation because many survivors may not currently be able to establish an entitlement to weekly compensation. Also, this option would not allow for allegations of abuse to be heard in public, or for public accountability when allegations were upheld.

Recommendations

75.  The Crown should create in legislation:

• a right to be free from abuse in care
• a non-delegable duty to ensure all reasonably practicable steps are taken to protect this right, and direct liability for a failure to fulfil the duty
• an exception to the ACC bar for abuse in care cases so survivors can seek compensation through the courts.

76.  The Crown should, if it decides not to enact the changes in recommendation 75, consider:

• empowering the puretumu torowhānui scheme to award compensation
• reforming ACC so that it covers the same abuse the new puretumu torowhānui scheme covers and provides fair compensation and other appropriate remedies for that abuse. 

WorkSafe

We consider WorkSafe New Zealand should take a more active role in helping prevent abuse in care by helping ensure care providers meet their health and safety obligations. WorkSafe also has a role in ensuring accountability for abuse in care, including puretumu for survivors, when organisations do not take all reasonably practicable steps to prevent abuse. To our knowledge, however, WorkSafe has never brought a prosecution or other enforcement action against an organisation or individual for abuse in care.

WorkSafe and ACC have a joint action plan that focuses on select industry sectors, including healthcare and social assistance. This plan specifies action areas, outcomes and lead agencies for each sector. WorkSafe has said another focus area is building on its harm prevention approach, including expanding its focus beyond traditional industries to other sectors with higher harm rates.

The harm caused by abuse in care can lead to people taking their own lives. It can also have serious, life-long effects on a survivor’s ability to function and participate in and contribute to their family, community, and New Zealand society. It can prevent a survivor from having the lives that others of us take for granted, including the opportunity to fulfil their potential. Abuse can also cause intergenerational harm. There are thousands of abuse in care survivors in Aotearoa New Zealand.

We appreciate that WorkSafe has limited resources. However, we consider there is good justification for WorkSafe including abuse in care within its focus areas. WorkSafe should designate prevention priorities, action areas and outcomes for abuse in care, and monitor and report on its work to achieve these. This should include educating care providers about their health and safety obligations and what they must do to meet them. WorkSafe should also take enforcement action where appropriate for breaches related to abuse in care. Taking a prosecution may mean that a survivor does not have to take a civil case. WorkSafe can also focus on institutional responsibility and systemic issues in a way that other agencies, such as Police, cannot.

Recommendations

77.  WorkSafe New Zealand should include abuse in care within its focus areas. This should include investigating and, where appropriate, prosecuting breaches by a care provider and its officers under the Health and Safety at Work Act 2015.

Civil litigation

Limitation periods

We consider the Limitation Act 1950 and Limitation Act 2010 need amending to remove a significant barrier to survivors seeking redress through the courts. We have already discussed in detail the obstacles that arise because of the time limit on bringing a case against the Crown and other care providers, and we consider the Crown should minimise these barriers for survivors seeking redress through the courts.

Limitation periods are primarily intended to encourage cases to be brought as soon as reasonably practicable, avoid difficulties in proving claims because of the passage of time, such as missing documents or poor recollections by witnesses, and minimise any unfairness to those defending a claim about conduct from long ago. As we have also already explained, there are valid reasons why survivors do not bring claims promptly and seldom have documents or witnesses to rely on.

Most of the country’s limitation law is set out in the 1950 and 2010 Acts. The 2010 Act introduced a discretion relating to specific claims involving abuse suffered by an individual while under the age of 18. The discretion permits a court to allow a claim to go ahead even though it is outside of the time periods in the 2010 Act. However, this discretion is not retrospective and so does not apply to cases filed before the Act’s enactment on 1 January 2011, or abuse that happened before that date. What is essentially the same discretion was also added to the 1950 Act for abuse claims brought by those suffering from a disability because they were deemed to be an “infant”, that is, under the age of 20. However, that discretion applies only to a claim filed after 1 January 2011. It does not apply to claims relating to abuse before 1 January 2011 and filed before that date. We are unaware of a single case in which a survivor has managed to persuade a court to use either discretion in the survivor’s favour.

Both discretions have limited scope and do not include neglect. Both put the focus on family relationships or settings in defining a perpetrator, further distancing the discretions from possible application in abuse in care cases. In short, both Acts are confusing and their discretions apply haphazardly, do not cover relevant forms of abuse, and have not yet been successfully used in any case. Finally, other countries have, to varying degrees, removed time limitations for abuse in care.

We consider that both Acts should be amended so:

• survivors abused in care by any perpetrator when they were under the age of 20 are not subject to either Act’s limitation periods
• survivors who have previously settled their claim when limitation defences for that claim were available can still take the claim to court if the courts consider it is just and reasonable to do so
• survivors can relitigate their claim despite having had a judgment on it if a limitation defence had been successful against it, and that defence prevented the survivor from getting redress
• the court retains a discretion to decide that a case cannot go ahead if it considers a fair trial is not possible.

To ensure consistency and fairness, we also consider the types of abuse these amendments relate to should be the same as those covered by the redress scheme – which would mean a wider range than the abuse currently referred to in sections 23C(3) and 17(3) of the respective Acts – and that these amendments should apply retrospectively. We are aware retrospective legislation should be used only rarely, but we consider the need for redress by survivors and accountability by society warrant it. We should point out, however, that this limitation reform would not affect the ACC bar. Those unable to make a claim because of the ACC bar can still make a claim to the scheme.

Further conditions on civil action

We consider the Crown should also look at whether any further conditions should apply to a survivor’s right to litigate or relitigate abuse in care cases that have been settled or on which a judgment has been issued. One question, for example, is whether the “just and reasonable” test should apply only to relitigating cases covered by settlements or also to cases previously decided by the courts. The Crown should also look at whether survivors should have any extra rights in these circumstances. 

Other barriers

Survivors face other further barriers to bringing a successful claim in court. We have not had sufficient time to consider them fully and consider the Law Commission the right body to undertake this work.

Vulnerable adults

Our terms of reference cover children, young people under 18 years and vulnerable adults. The limitation reforms we recommend above apply only to those abused while under the age of 20, although it seems to us they should also apply to vulnerable adults. If the justification for abolishing limitation periods for people who were abused when they were under 20 applies equally to vulnerable adults, we think the reform should be extended to cover them.

Limitation period under mental health legislation

As discussed in part 2.6, the Mental Health Act 1911 and Mental Health Act 1969 both contain immunity provisions that protect staff from civil and criminal liability unless they acted in bad faith or without reasonable care. The Acts, while no longer in force, still apply to some historical abuse cases. The immunity applies if a staff member or other person was acting in pursuance, or intended pursuance, of the legislation. A staff member who, for example, sexually abused a patient would not have been acting in pursuance of this – or any – legislation and would not get the benefit of the immunity. The immunity also does not cover acts done in bad faith or without reasonable care. However, survivors bringing a bad faith or negligence claim must seek the leave of the courts to bring such a case. The courts will grant leave only if satisfied the allegations have substance and the claimant seeks leave within six months of the alleged abuse. This timeframe has prevented many cases reaching the courts. Arguably, the six-month limitation in both Acts should also be retrospectively abolished.

Identifying the right defendant

For the reasons stated in part 2.6, identifying the right defendant to sue can be difficult for survivors. Also, some institutions have no assets to meet any potential liability or hold their assets in trusts or other ways inaccessible in any civil claim. One solution could be to require institutions operating through entities to nominate one entity that a) has the necessary assets to meet any liability and b) can be named as the defendant to any abuse in care claim. If an institution does not nominate an entity, a court could nominate as a defendant any trust or other entity established by the institution to hold property for it. Another solution is to require institutions to nominate the correct defendant if they consider they are not that defendant.

Proving abuse caused problems in later life

Survivors can struggle to prove their later difficulties in life, such as medical or mental health problems, were caused by the abuse they suffered in care. The task is still more difficult if other harmful events happened before or after the abuse. In some circumstances it may be that more flexible causation tests could be applied to abuse in care cases. Also, in some cases courts have considered that once a claimant has proven a breach of their rights, the defendant has to show that the harm suffered by the claimant was not due to that breach.  Further consideration is required on the ways in which these issues affect the ability of survivors taking abuse in care cases to succeed in court, and what if any reform should be made.

Recommendations

78.  The Crown should amend the Limitation Act 1950 and Limitation Act 2010, with retrospective effect, so:

• any survivor who claims to have been abused or neglected in care while under 20 is not subject to the Acts’ limitation provisions
• any survivor who has settled such a claim that was barred under either Act may relitigate if a court considers it just and reasonable to do so
• any survivor who has had a judgment on such a claim can relitigate if they were found to have been barred under either Act’s limitation provisions, and the time bar prevented the survivor from getting redress
• the court retains a discretion to decide that a case cannot go ahead if it considers a fair trial is not possible.

79.  The Crown should:

• consider whether there should be any other conditions on a survivor’s right to litigate or relitigate a case that has been settled or a judgment has been issued on, or whether a survivor should have any extra rights in these circumstances
• direct the Law Commission to review other obstacles to civil litigation by survivors and recommend any corrective steps, a task the Law Commission should complete within 12 months of the Governor-General receiving this report.

Legal aid

The complexity of abuse in care claims makes a lawyer essential for survivors, but few can afford them. Most need legal aid, but the number of lawyers willing to work for legal aid rates on abuse in care cases has dwindled over the years to the point where there is more or less just one law firm, Cooper Legal, representing all survivors around the country. The Ministry of Justice told us it attributed the decline to the amount of work entailed in such cases, the difficulty of the work and the low legal aid rates. It is obviously in the interests of survivors, and the proper functioning of a legal aid system, that more lawyers practise in this area of the law. We therefore recommend that the Crown review and consider raising the rates offered for abuse in care work to attract lawyers into this area of the law.

Many lawyers may not have sufficient knowledge of the relevant law or the skills to work effectively with survivors. We consider the Ministry of Justice and New Zealand Law Society should offer training to lawyers wishing to work on abuse in care cases, including training on how to ensure effective access to justice for disabled people. 

Survivors may need assistance to choose a suitably competent lawyer, and they should be able to be confident that the lawyer they have chosen is competent to work on their case. To help with this, we consider the Ministry of Justice should establish, maintain and publicise a list of lawyers who are competent and available to work on abuse in care cases.

Recommendations

80.  The Crown should review and consider raising the rates available for abuse in care work.

81.  The Ministry of Justice should:

• work with New Zealand Law Society to offer training to lawyers wanting to take on abuse in care cases, including training on how to ensure effective access to justice for disabled people
• establish, maintain and publicise a list of lawyers who are competent and available to work on abuse in care cases. 

Model litigant policy

The standards the Crown has set for itself in conducting civil litigation and participating in out-of-court schemes are contained in a document called the Attorney-General’s Values for Crown Civil Litigation. This document was drawn up after an independent review in 2012 found the Crown was taking an unnecessarily competitive approach to cases. The review recommended the Crown adopt a model litigant policy in line with equivalent policies in force in Australia. The Crown’s response was to create the values document. We consider the Crown should follow the original recommendation, replacing the values document with a more exhaustive model litigant policy along the lines of those used in Australia. We consider the Crown should also draw up and follow a list of principles to guide how it responds to abuse in care claims, whether through the courts or through the scheme.

We consider the Attorney-General’s civil litigation values to be deficient in important respects. Certainly, it contains various principles with which we agree, such as that the Crown will deal with litigation promptly and efficiently, consider whether a claim can be settled and initiate negotiations where appropriate, and not contest matters it accepts are correct. However, the document is misplaced in saying the “Crown may take any steps open to a private individual”. The Crown, with its vastly greater resources and unique legal position, should abide by values that set it apart from the conduct permitted by private individuals conducting civil litigation. We consider the Crown should expressly say it will behave as a model litigant and explain fully what this means. The Attorney-General’s civil litigation values do not anywhere use the words “model litigant”.

The Australian Commonwealth and New South Wales government have model litigant policies that would serve as useful guides in drafting the policy. They cover a lot of the values in the Attorney-General’s civil litigation values, but place a different emphasis on many and also contain many that, in our view, should be made explicit, such as:

• The Crown (including Crown Law, and State agencies) will “behave as model litigants in the conduct of litigation”.
• The Crown will “pay legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid”.
• The Crown will endeavour “to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate”. 
• The Crown will, when unable to avoid litigation, “[keep] the costs of litigation to a minimum, including by: (i) not requiring the other party to prove the matter which [the Crown] or the agency knows to be true; (ii) not contesting liability if the [Crown] or the agency knows that the dispute is really about [the size of a payment]; (iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve litigation, including settlement offers, payments in court or alternative dispute resolution”.
• The Crown will not take “advantage of a claimant who lacks the resources to litigate a legitimate claim”.
• The Crown will not rely “on technical defences unless the [Crown’s] or the agency’s interests would be prejudiced by the failure to comply with a particular requirement”.
• The Crown will apologise if it “is aware that it or its lawyers have acted wrongfully or improperly”.
• The Crown will, in alternative dispute resolution, ensure their representatives “participate fully and effectively”.
• The Crown will provide “reasonable assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified”. 
• The Crown’s model litigant obligations do not prevent it from “acting firmly and properly to protect its interests”, including by taking “all legitimate steps in pursuing litigation, or from testing or defending claims made”. 
• The head of each Crown agency will be, in consultation with the agency’s principal legal officer, primarily responsible for compliance with the model litigant policy. In addition, lawyers, whether for the government or private parties, must be made aware of the policy and its obligations.
• Opposing parties should try to resolve any questions about compliance with the model litigant policy themselves, and if unsuccessful, refer the matter in writing to the head of the agency concerned for a response and resolution. 
• In Australia, there are also monitoring bodies to receive annual reports outlining the progress of relevant cases, explaining any significant delays and providing statements of compliance. This is a commendable step, and one the Crown could consider, along with other accountability measures such as regular, independent reviews of the responses of the Crown or other agencies to claims. Individual staff could also be given greater responsibility for upholding these standards, and Crown lawyers could be required to assess and verify that they are adhering to guidelines at key stages in a claim’s development. The Crown could formally review adherence to the model litigant policy as part of performance reviews of lawyers acting on its behalf.

The Crown should also consult faith-based institutions and indirect State care providers when developing the model litigant policy. Once it is in place, those institutions and their lawyers should comply with it when responding to abuse in care claims.

In addition to a model litigant policy, New South Wales has adopted a set of principles guiding how government agencies should respond to civil claims for child abuse. We consider the Crown should issue a similar document to guide its conduct in responding to abuse in care claims. It should be based on the principles, values and concepts set out in recommendation 4. These principles should include:

• being aware that litigation can be traumatic for survivors
• facilitating free counselling to survivors and information about services and supports available to them, including through the scheme
• making training, including on trauma-informed approaches, available for lawyers who work on abuse in care claims 
• providing early acknowledgment of claims and information about steps necessary to resolve the claim
• communicating regularly with survivors or their lawyers about the progress of their claim and likely time to hear a case
• facilitating access to records
• choosing not to rely on an optional statutory limitation period as a defence
• setting target times for resolving claims or setting a hearing date
• resolving claims as quickly as possible.

The Crown should draft these principles so they apply to its involvement in the puretumu torowhānui scheme as well as in litigation. Faith-based institutions and indirect State care providers should also develop their own guiding principles for responding to claims, and these should be consistent with the Crown’s but adapted to their own context as appropriate. Faith-based institutions and indirect State care providers should publish these guiding principles and make them available to any survivors who express interest in making a claim. 

Recommendations

82.  The Crown should draw up a model litigant policy to replace the Attorney-General’s civil litigation values, and the policy should be:

• consistent with the contents of this report
• completed within 12 months of the Governor-General receiving this report. 

83.  State agencies, indirect State care providers and faith-based institutions, along with their lawyers, should act consistently with the model litigant policy in responding to all abuse in care claims, whether lodged through the courts or the scheme.

84.  The Crown should draw up a set of principles to guide its conduct in responding to abuse in care claims, and indirect State care providers and faith-based institutions should draw up their own, too.

Record requests and record-keeping

We have already described the many difficulties survivors or their representatives face in obtaining copies of their records, not to mention understanding them – or rather, understanding what is left of them after extensive redactions. Survivors are entitled to copies of their records, subject to any relevant considerations of the Privacy Act 2020. Agencies should be helpful when they receive record requests and give survivors their records in as full a form as possible while still respecting the privacy of others. This means favouring disclosure wherever possible and without delay. If they withhold information, they should give the survivor a specific – not vague or generic – explanation. Survivors should also receive help to understand their records.

There is no question redactions are sometimes necessary to protect another person’s privacy. However, if protecting a person’s privacy means redacting a significant amount of information in a survivor’s records, the agency holding the records should seek that person’s consent to disclose the information. In determining whether to seek consent, the agency should consider:

• how much the redactions would affect the survivor’s ability to understand the records
• how many individuals the agency would have to contact to seek consent
• how readily the agency could contact the individual or individuals concerned
• how much time and effort would be involved in seeking consent, and the impact this could have on responding in a timely way to the survivor
• whether, to the best of its knowledge, seeking consent could cause hurt or distress to the individual or individuals concerned.

The Crown should develop guidelines on when to seek affected individuals’ consent to release information in a survivor’s records. The guidelines should apply to all State agencies, faith-based institutions and indirect State care providers responding to survivors’ record requests, and so they should all be consulted during their development. This work should also be done in partnership with Māori and with survivors’ active involvement.

Responding to record requests, especially in a timely way, requires staff and other resources, and agencies need to ensure there are enough of both to perform this task properly. Sound, integrated record-keeping practices are also essential. At the moment, a survivor’s records may be scattered among different organisations, creating a variety of difficulties for survivors that we have already discussed. The Crown has told us it has been working on “an integrated and seamless approach” to obtaining survivor records. This work has been going on for a long time and needs to be prioritised. We consider the Crown should complete this work within six months. This policy should also deal with the question of how to preserve records and for how long, as well as the advantages and disadvantages of centralising records.

Recommendations

85.  Institutions, when responding to record requests, should:

• help survivors obtain their records in as full a form as possible while still respecting the privacy of others
• help survivors to understand their records
• favour disclosure wherever possible
• be consistent as much as possible in what they disclose, irrespective of whether in response to court discovery rules or survivor requests
• give specific explanations of the privacy reasons they use to justify withholding information
• have the necessary resources to respond in an appropriate and timely way. 

86.  Institutions should, before making redactions that would withhold a significant amount of information to protect the privacy of one or more individuals, consider seeking the consent of those individuals to release the information. 

87.  The Crown should develop guidelines, applicable to all institutions, on the matters set out in recommendations 85 and 86, and it should do this in partnership with Māori and with the involvement of survivors and institutions.

88.  The Crown should complete its work on a policy to streamline the way agencies handle survivor records within six months, and this policy should also deal with the preservation of records and the advantages and disadvantages of centralising records.

Content and destruction of records

The content of survivors’ records varies considerably from organisation to organisation and from one time period to another. This is perhaps not surprising given the lack of any common purpose, definitions or principles to guide those entering information into records. Some survivors pointed out that records concentrated – sometimes exclusively so – on the negative aspects of life in care, leaving no record of, or comment about, happier moments, social events or accomplishments along the way – all of which would create a fuller, more rounded picture for survivors who came to read their files in later years. Training for staff on these elements of record-keeping would be one way, in our view, to help leave a more balanced picture of life in care. Some survivors suggested children and others in care should have regular opportunities to add content to their records – that records be created with the person in care, rather than just about them – and that records be proactively disclosed to the person they concern. As we have previously noted, some survivors report that institutions firmly regard records as belonging first and foremost to them, and that decisions about who should have access to them and what should happen to them were their exclusive preserve.

There is also the question of when or whether to dispose of records. The Chief Archivist determines how long an organisation must keep certain types of records and when it can dispose of them via what are called disposal authorities. No one disposal authority apparently applies to the records of survivors in care or to the agencies providing care. We were told disposal authorities were supposed to be reviewed every 10 years, but that this did not necessarily happen. Some survivors expressed concern at their lack of involvement, or only limited involvement, in the development or revision of disposal authorities. We received some submissions opposing any destruction of survivors’ records or arguing that, at the very least, disposal authorities should take into account that survivors might not divulge abuse for decades and might not therefore seek their records for decades. Some survivors argued for an immediate end to all destruction of survivor records, although other voices argued that survivors might want records of their time in care destroyed. One way through these competing views might be to keep survivor records unless an individual requested otherwise. Given these issues, the Crown should urgently review the disposal authorities relevant to care records and consider whether to prohibit any disposal of care records until at least the completion of its records work.

In Australia, there is an online government service called Find and Connect that helps individuals find historical information, including images, about institutional care and to  connect with local support groups and services. Such a service may be an option here, particularly since the University of Melbourne, which hosts Find and Connect, has offered its help, including by providing relevant software for free. Decisions about whether to develop such an initiative here, and what specific issues would need to be taken into account in its design, would need to be taken in partnership with Māori and with the active involvement of survivors. Making it accessible to disabled survivors would be another consideration. We suggest the Crown consider this option in its work on records, and that it involves Māori and survivors. 

Recommendations

89.  The Crown should:

• urgently review disposal authorities relevant to care records and consider whether to prohibit the disposal of care records until at least the completion of its work on records
• review care providers’ record-keeping practices, consider whether to set a standard governing what records providers should create and keep, and consider whether those keeping records for care providers should receive training
• decide whether Aotearoa New Zealand should have a service similar to Find and Connect.

Monitoring

Many survivors approached us out of concern to prevent other children and adults at risk from being abused. We consider the puretumu torowhānui system includes monitoring functions to help prevent abuse in State care, indirect State care and faith-based care. The State’s system for monitoring the safety and wellbeing of children, young people and adults at risk in its care is spread among several government agencies and across several ministerial portfolios. It has been under continual review and reorganisation, with little time allowed for recommendations to be fully implemented or evaluated. There have also reportedly been problems with resourcing, a lack of well-trained staff and too little co-ordination. The Office of the Children’s Commissioner, as principal monitor of Oranga Tamariki, told us it was strongly in favour of an effective and independent monitor and an independent, child-centred complaints mechanism. At the same time, we have heard calls for monitoring to be decentralised, and to be led by iwi and the community.

Based on what we have learned to date and taking into account submissions from the Children’s Commissioner and online wānanga on oversight and monitoring, we have developed a preliminary set of principles that apply to monitoring of children and adults at risk in care. In later reports we will, amongst other things, look at whether the principles would need to be adapted for faith‑based institutions.

Recommendations

The Crown should ensure that any monitoring body or monitoring activities relating to children, young people and adults at risk in care:

• nurtures the trust of children, young people and adults at risk
• is consistent with the Crown’s te Tiriti o Waitangi obligations
• is organised to reflect the Māori-Crown relationship
• is independent of other oversight mechanisms and the organisation(s) being monitored
• complies with all relevant human rights obligations
• operates regularly, or is conducted regularly, using staff with appropriate skills and expertise.

Next: Interim Measures