Oversight: An investigation into the Ministry of Health’s stewardship of hospital-level secure services for people with an intellectual disability
In late 2018, I became increasingly concerned about a continuing shortage of specialised hospital accommodation for people with an intellectual disability requiring secure care and rehabilitation, and about the conditions in which some of these people were being detained. I made further enquiries and was alerted to a range of problems with the operation of the High and Complex Framework (the Framework). This is a network of services to support people who are either subject to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) or who have specialised needs that cannot be managed in mainstream services.
The Ministry of Health – Manatū Hauora (the Ministry) is the steward and kaitiaki of the health and disability system. It is also directly responsible for planning and funding services under the Framework, which are delivered by District Health Boards (DHBs) and non-governmental organisations (NGOs).
The people supported under the Framework are few in number—between 200 and 250 at any given time. They are, however, people with complex support needs and, in most cases, have limited ability to advocate for themselves.
As a National Preventive Mechanism (NPM) under the United Nations Optional Protocol to the Convention Against Torture (OPCAT), I had previously identified concerns about the conditions of detained persons in a number of places of detention, including secure care facilities for people with an intellectual disability. I was also aware of apparent breaches of the United Nations Convention on the Rights of Persons with Disabilities (Disability Convention) in relation to the conditions experienced by some people with particularly high and complex support needs.
On 22 January 2019, I therefore advised the Director-General of Health of my decision to commence a self-initiated investigation under section 13 of the Ombudsmen Act 1975 (Ombudsmen Act) into the administrative practices of the Ministry in relation to the facilities and services provided for people with an intellectual disability, particularly those who are subject to the Framework. I advised that my investigation would incorporate case studies to illustrate how capacity and capability issues were affecting individuals with an intellectual disability living under the Framework. Further information was set out in the Terms of Reference. My investigation was publicly announced on 14 February 2019.
My investigation involved obtaining and reviewing a range of written information from the Ministry and interviews with key Ministry staff. Information was also provided by DHBs, a small number of providers of community-level services and other key stakeholders. I also arranged for visits to each of the DHBs providing hospital-level secure care services for people with an intellectual disability, in order to meet with staff, service users, and their whānau or other support persons, and to observe the conditions in which service users live. I considered this was important in order to gain a real understanding of how any systemic issues impacted on the people that the Framework is designed to support.
In late 2020, I wrote to the Ministry seeking some further information and confirming that my investigation would focus on the stewardship role the Ministry performs, and the discharge of its obligations arising from that role during the period January 2015 to December 2020. I advised that I understood those obligations to include:
- ensuring the system is run effectively within the allocated funding, and in line with ministerial expectations (this would include taking all reasonable steps to find beds for service users subject to care orders within the available funding);
- identifying the need to increase capacity and capability where necessary, and with a view to the long-term sustainability of the system (this would include advising on ways to meet any shortfall in available beds for service users subject to the Framework); and
- providing free and frank advice to inform ministerial decisions.
The overarching role of the Ministry of Health is to improve, promote, and protect the health and wellbeing of New Zealanders through its leadership of the health and disability system. The Ministry is the steward or kaitiaki of that system for the public interest. In the Ministry’s own words, its stewardship role is to ‘sustain, nurture, grow, and develop the system’. The Ministry is accountable for ensuring a whole-of-system view is adopted when deciding how best to provide facilities and services for people with an intellectual disability in New Zealand, and applying a long-term, proactive, collaborative approach to the care of the system. This involves treating the health and disability system as an asset that needs to be well managed and monitored to deliver effectively for the New Zealand public over time.
The Ministry has contracted various parties to perform functions and deliver services within the system, but has retained specific responsibilities relating to funding, planning and monitoring disability support services. This includes services for the small group of people who are subject to the Framework. As the steward of the health and disability system, and the funder and planner of disability support services, the Ministry of Health must take reasonable steps to ensure that the Framework is operating to uphold service users’ rights and promote their quality of life.
During the course of my investigation, I found significant problems with the Framework and capacity pressures. These have worsened since I commenced my investigation in January 2019. The impacts of these problems have been significant. Court proceedings were deferred and people remanded back to prison due to the lack of an available bed in a hospital secure care facility. Service users whose needs related primarily to an intellectual disability were inappropriately accommodated in mental health units. Other service users were placed in facilities outside their home regions, away from family and whānau. Seclusion rooms and de-escalation areas in secure care facilities were used as bedrooms.
The Ministry took some actions in an effort to address the problems. It sought additional funding for Framework services in 2015–2016, supported the development of a small number of individualised service units at Capital & Coast DHB (due to open later this year), and in 2020 agreed to fund additional beds that have very recently become available at Waitematā DHB. However, I found that while the Ministry was clearly cognisant of the problems and the pressures, in my view its actions were not sufficiently urgent, targeted, or strategic to address these. I consider the Ministry’s response was not calibrated to reflect the extent to which it was required to fulfil its general stewardship accountabilities or meet the requirements of the IDCCR Act. The Ministry needed to develop a clear roadmap in collaboration with service providers to address the capacity crisis and its associated problems, but omitted to do this.
I found that the Ministry did not have an overarching plan to guide decisions within the Ministry or development and delivery of Framework services. There was a lack of planning to address the capacity pressure in hospital-level services as this intensified, and then spread to community-level services. I do not consider that the actions the Ministry took to address the capacity issue and associated problems were timely or sufficient.
I also found that the Ministry’s monitoring function has been focused on crisis management, rather than examining causes and identifying potential systems solutions to areas of Framework underperformance. In particular, the evidence I considered indicated that the Ministry did not adequately monitor and review:
- the progress of service users whose needs were not fully anticipated when the Framework was established;
- the effectiveness of operational processes around placement and transition; and
- service delivery issues, including the environment and workforce.
I found that the operational issues that I identified lacked a national perspective. The planning and monitoring strands of the Ministry’s management processes needed to be more interconnected.
In addition, I consider the Ministry omitted to develop good quality and timely advice about Framework performance, and did not adequately highlight the urgency of the issues to the Director-General or to the responsible Minister.
It is clear that in late 2020 the Ministry recalibrated its response to the Framework capacity crisis, and it seems that the Ministry may now be taking more substantial steps towards responding to the ongoing crisis.
In my opinion, the Ministry’s administrative actions and decisions when discharging its responsibilities to provide facilities and services to people with an intellectual disability, as part of its stewardship of the New Zealand health and disability system, during the period of my investigation, were not adequate. I am not satisfied that the Ministry took all reasonable steps to ensure the Framework operated so as to maximise the opportunity for service users to live balanced, satisfying lives with the greatest possible level of independence. The Ministry’s performance in this regard appears to be inconsistent with Disability Convention obligations to protect and promote the rights of persons with disabilities, and to prevent breaches of their rights.
My specific concerns, in the context of the Ministry’s responsibilities as kaitiaki of the disability system, are summarised below. Taken together, they are the basis for my opinion that the Ministry has acted unreasonably.
- The Ministry did not have or develop a cohesive, overarching plan to guide the effective delivery of Framework services and ensure that the rights of all Framework service users were upheld.
- The Ministry should have commenced collaborative planning with DHBs about the Framework at an earlier juncture.
- The Ministry did not develop a timely, targeted plan to mitigate the acute capacity crisis and ensure the statutory requirements of the IDCCR Act were able to be met.
- The Ministry did not adequately incorporate community-level services into planning for the Framework.
- The Ministry did not adequately include workforce issues in its ongoing Framework planning.
- The Ministry did not develop or implement adequate measures to address the acute capacity issue.
- The Ministry did not adequately support the ongoing needs of the Framework. For example, it did not:
- adequately progress demand modelling;
- proactively address the need for additional capacity in the Auckland region; or
- take timely steps to ensure that regional hospital-level services were funded equitably.
Monitoring and reviewing
- The Ministry’s systems for monitoring and reviewing the overall operation of the Framework were not adequate.
- The information collected by the Ministry about Framework performance did not enable a collective and comprehensive understanding of service delivery or operational issues. In particular:
- there was no consistent reporting across the Framework concerning service delivery, processes or outcomes;
- the data collected on seclusion and restraint did not enable the Ministry to track seclusion and restraint trends on an ongoing basis, or readily allow for the disaggregation of data about Framework service users; and
- there was no process in place to measure unmet capacity demand.
- The Ministry did not have a system or process for reviewing information it collected about:
- service delivery issues and outcomes for service users;
- the care and rehabilitation of service users whose needs were not fully anticipated when the Framework was established;
- Framework operational processes, including service user placement, transition, and absconding incidents; and
- the use of seclusion and restraint in Framework services.
- The Director-General was not provided with good quality and timely advice about the Framework, including the immediate capacity issue and the longer-term challenges.
- The briefings provided to the Minister did not fully adhere to the ‘no surprises’ principle in terms of the frequency and significance of the issues.
- The Ministry’s briefings and advice to the Minister did not fully convey the extent to which the Ministry was unable to deliver on its responsibilities and gave the impression that the longer-term solutions provided adequate mitigation.
Pursuant to section 22(3) of the Ombudsmen Act 1975, I recommend that the Ministry take the following steps to fulfil its stewardship obligations of the system:
- The Ministry as a priority:
- ensures that service users referred by the courts are accommodated in appropriate facilities;
- develops a comprehensive strategic plan for the High and Complex Framework, in collaboration with DHBs and NGO providers, that:
- identifies short-, medium- and long-term goals and objectives;
- clearly outlines roles and responsibilities;
- ensures there are clear and transparent processes for Framework operations, including the interfaces between prison, hospital- and community-level services; and
- defines intended outcomes in accordance with the Disability Convention.
- monitors and reviews the new strategic plan;
- ensures that contractual arrangements are up-to-date and consistent with the new strategic plan; and
- reviews the processes for data collection, analysis and review about the use of seclusion and restraint in Framework services, bearing in mind Article 31 of the Disability Convention.
- The Ministry ensures that:
- providers of community-level services are complying with the security requirements as set out in the Secure Services Matrix; and
- reporting on the Framework is consistent and structured, and enables the Ministry to:
- receive timely feedback on any service delivery and operational issues; and
- monitor the progress of service users with intensive support needs, and of women and youth.
- Additionally, the Ministry ensures that the Minister is kept regularly updated on any significant issues as they arise, and on progress to improve Framework performance.
- The Ministry reports to me on the progress of these recommendations on a quarterly basis for 12 months following the first report, due on 24 September 2021, and subsequently at mutually agreed intervals.
 My OPCAT role is to examine, and make any recommendations that I consider appropriate to improve, the treatment and conditions of detained persons in a number of places of detention, including secure care facilities for people with an intellectual disability.
 As required by s 18(1) of the Ombudsmen Act 1975. This investigation has been conducted pursuant to ss 13(1) and 13(3) of that Act.
 Investigation Terms of Reference.
 I note that some information relating to events prior to this period has been included where it provides relevant context.
 Ministry of Health Annual Report for the Year Ended 30 June 2020 (21 December 2020) at 4.
 See page 26 and Appendix 7 for further information about the IDCCR Act.