Director of Proceedings v IDEA Services Limited  NZHRRT 2, (31 January 2022)
The Director of Proceedings filed proceedings by consent against IDEA Services Limited (“IDEA Services”) in the Human Rights Review Tribunal (“the Tribunal”) regarding the failure to keep Mr B safe from sexually inappropriate behaviour by another service user while both attended a vocational programme and a residential service operated by IDEA Services.
Mr B (aged 23 at the time of the events) has an intellectual disability and an autism spectrum disorder. Mr B’s risk assessment and management plan set out that he was at risk of sexual exploitation because of his inability to understand personal boundaries. The plan stated that to minimise this risk there should be communication between IDEA Service’s residential and vocational staff, staff should be aware of Mr B’s whereabouts at all times, and staff should reinforce personal boundaries.
At the relevant time, Mr A was another disability services user with intellectual and mental health issues. Mr A had little sense of socially appropriate boundaries and was known to exhibit inappropriate sexual behaviours towards others. Mr A’s management plan stated that staff should have visual contact with him at all times, and should immediately notify the service manager of any inappropriate sexual behaviour. Should inappropriate touching occur, staff should support the other service user, provide one-on-one support for Mr A, redirect Mr A, and complete incident reporting. IDEA Services assured Mr B’s mother that it had plans in place to ensure Mr B’s safety while attending its services with Mr A, and that staffing levels enabled supervision and separation of the two men. Mr B’s mother asked expressly that she be kept informed about what was happening with her son because if there were issues, she would be able to help as she knew him best.
Between March 2015 and May 2017, IDEA Services staff completed ten incident reports detailing instances where Mr A exhibited inappropriate sexual or aggressive behaviour towards Mr B. Staff did not notify Mr B’s mother of the incidents. Mr B’s mother became increasingly concerned about her son as he was often scared to go to the vocational programme. During this period Mr B’s mother asked several times for copies of any incident reports concerning Mr B, but none were provided. In May 2017, Mr B’s mother requested a copy of Mr B’s personal and safety plans as she was concerned that he was being left unsupervised with Mr A. IDEA Services assured her that Mr B was safe. Despite the requirement to monitor and supervise both men, and Mr B’s mother’s concerns about their supervision, IDEA Services staff did not always provide the support required. There were a number of incidents that were unwitnessed or where Mr B and Mr A were found unsupervised and/or staff were alerted to the incident by another service user.
Despite the many documented serious events over the two years, which involved aggressive or sexualised behaviour by Mr A towards Mr B, IDEA Services and its staff took little or no action to respond appropriately and minimise the risk of future harm. There was no systematic review of the two men attending the same service, and no process to address lapses in staff supervision and non-adherence to policy regarding both men. This resulted in ongoing acts of sexually inappropriate behaviour, culminating in two further critical incidents in 2017. Staff did not respond to these further incidents appropriately or notify management and Mr B’s mother immediately. Rather, Mr B had to spend hours in the presence of Mr A and did not receive effective support in response to the incidents. There was widespread failure to escalate serious incidents, and systemic deficiencies across a number of staff and levels of management. Over time, some members of the support staff and the management team had become part of an established culture of acceptance of Mr A’s sexually inappropriate or challenging behaviour, without appropriate consideration of the impact on, or risk towards, others (including Mr B).
Mr B’s family observed that Mr B had become withdrawn and sad. He asked for help with tasks he had not needed help with previously. He asked to be showered frequently, and to have his clothing and underwear changed, even when they were not dirty. He had ongoing issues with toileting, and he had difficulty sleeping. Mr B’s behaviour also deteriorated. He became agitated at things that would not usually bother him, and became verbally abusive towards family members. It became necessary to increase his medication to restore his sleep patterns and manage the behavioural changes. A psychologist diagnosed Mr B with Other Specified Trauma-and-Stressor-Related Disorder that had developed in response to these events.
IDEA Services accepted that it had overall responsibility for the actions of its staff, and had an overriding duty to keep Mr B safe from harm, and that its failures amounted to breaches of the Code. The Tribunal was satisfied that IDEA Services failed to provide services to Mr B with reasonable care and skill, and in a manner that minimised potential harm to him and optimised his quality of life; and that it failed to provide Mr B, through his mother, with information that a reasonable consumer, in that consumer’s circumstances, would expect to receive. The matter proceeded by way of an agreed summary of facts. The Tribunal was satisfied that IDEA Services failed in the care that it provided to Mr B, and issued a declaration that it breached Rights 4(1), 4(4), and 6(1) of the Code.
The Tribunal’s full decision can be found at: https://www.justice.govt.nz/assets/2022-nzhrrt-2-director-of-proceedings-v-idea-services-ltd.pdf