Children's Action Plan Discussion Paper - Better Information Sharing for the Children's Action Plan [2014] NZHRCSub 12 (28 November 2014)

Last Updated: 28 June 2015

Children’s Action Plan Discussion Paper
Better Information Sharing for the Children’s Action Plan

For: Children’s Action Plan Directorate/Vulnerable Children’s Board

Date: 28 November 2014

Introduction

1. The New Zealand Human Rights Commission (‘the Commission’) welcomes the opportunity to make a submission on the information sharing proposals referred to in the Children’s Action Plan Discussion Paper Better Information Sharing for the Children’s Action Plan.

2. The Commission has had the opportunity to meet with the Advisory Expert Group on Information Security (AEGIS) to provide advice on human rights implications arising from the Directorate’s development of an Approved Information Sharing Agreement for Vulnerable Children and their Whanau/Families (‘the AISA’).

3. This submission is informed by the Commission’s consideration of draft versions of the AISA and subsequent discussions with AEGIS regarding its content.

Summary of position and recommendations

4. The AISA will be a vital operational component of the CAP. Accordingly, its principles and safeguards ought to protect the rights and best interests of vulnerable children while minimising unreasonable interference with individual privacy and, in doing so, conform with the relevant international human rights standards.

5. In addition, it will be essential for the AISA to provide clarity for agencies concerning the operational aspects (including training requirements) of the information sharing practices it will govern.

6. In light of these factors, the Commission makes the following recommendations regarding the current AISA:

• That clause 6(a) of the draft AISA is amended to require that the best interests of the child are included as a paramount consideration alongside safety, welfare and wellbeing. This would enable greater compliance with the requirements of the UN Convention on the Rights of the Child.

• That consideration ought to be given to extending the AISA’s information sharing provisions governing Children’s Teams to cover a broader range of child protection casework carried out by multi-disciplinary teams.

• That consideration is given to including a prescriptive set of operational requirements in the AISA.

• That the AISA includes training requirements for workers along the lines of those recommended by AEGIS.

The AISA – Principles and Safeguards

7. The AISA is critical to the implementation of the CAP as it provides legal authorisation for a range of information sharing processes that will be required to enable the operation of the key components of the CAP, namely the Vulnerable Children’s Hub, which incorporates the Vulnerable Kids Information System (ViKi), and the multi-disciplinary Children’s Teams.

8. Given the overarching policy objective of the CAP, the AISA necessarily provides that the safety, welfare and well-being of children is the central principle to be applied to the operation of any information sharing process^[1].

9. To date, the draft versions of the AISA have balanced this objective with principles and safeguards designed to protect or minimise inference with an individual’s privacy rights^[2]. These include:

• Information sharing should be relevant, necessary and proportionate to the circumstances and needs of a vulnerable child.
• Vulnerable children and their families/whanau must be informed “openly and honestly” of the reasons why their information is being shared.
• Vulnerable children have a right to express their views regarding information sharing decisions that affect them and have these views taken into account.

10. The Commission notes that the most recent draft version of the AISA^[3] omits any reference to the duty upon agencies to give consideration to the best interests of the child when making a decision to share information.

11. The Commission recommends that clause 6(a) of the draft AISA is amended to require that the best interests of the child is included as a paramount consideration alongside safety, welfare and wellbeing.

12. Such an amendment would enable the AISA to be consistent with the Government’s obligation under Article 3.1 of the UN Convention on the Rights of the Child (UNCROC) which requires that the best interests of the child are given primary consideration in any actions affecting them, including those carried out by public and private social welfare institutions. It would also accord with AEGIS’ recommendation to the Vulnerable Children’s Board (VCB) that codified statutory human rights principles are “spelled out in clear working rules” for professionals working with children^[4].

13. The Commission welcomes the removal from the AISA of clauses concerning Predictive Risk Modelling (PRM). The incorporation of PRM within New Zealand’s child protection system would have had significant human rights implications for vulnerable children and their families and whanau^[5]. As the Centre for Applied Research in Economics found in their report for the CAP, PRM should only be considered for implementation after a full ethical evaluation has taken place^[6].

AISA Operational Issues

Coverage

14. The current AISA design covers the main operational components of the CAP – the Vulnerable Children’s Hub (which incorporates ViKi) and Children’s Teams. This reflects AEGIS’ recommendation to the VCB for the development a “national framework agreement” among national organisations involved in child protection and children’s services^[7].

15. The Vulnerable Children’s Hub and the Children’s Teams are very different in form and function:

• The Vulnerable Children’s Hub has national coverage and will draw in referrals from across New Zealand. Information provided to the Hub via referrals will be used to populate the ViKi database, which will in turn be accessed by service providers. The AISA is therefore required to underpin the functions and purpose of the ViKi database.

• The multi-disciplinary Children’s Teams will be located in ten locations in New Zealand. It is estimated that they will cover approximately 40% of the national cohort of vulnerable children. The functions of the Children Teams concern co-ordinated service provision for individual cases. Thus the AISA is required to underpin the casework practices of the Children’s Teams.

16. Accordingly, the AISA applies unevenly across the child protection sector. It will apply across New Zealand for the purposes of collecting data on vulnerable children. However, information sharing practices at the casework level will be limited to the functions of the Children’s Teams and therefore will not apply to casework practices in areas not covered by Children’s Teams.

17. Furthermore, the AISA will not remove barriers to information sharing that currently exist in child protection casework carried out by multi-disciplinary child protection teams. Given the general intent of the CAP to improve the ways in which services for vulnerable children co-ordinate their activities, the logic in restricting the AISA’s information sharing provisions to Children’s Teams is not clear.

18. There is considerable support for a more flexible, presumptive information sharing regime governing multi-disciplinary child protection casework. The Commission refers, in particular, to former Ombudsman Mel Smith’s Ministerial report regarding the failure of agencies to prevent the serious abuse of a nine-year old girl, which found that “the sharing of information and dialogue between holders of information is a critical, if not the most critical component of multi-agency and inter-professional liason.”^[8] The Children’s Commissioner^[9] and the Law Commission^[10] hold similar positions.

19. The Commission recommends that consideration ought to be given to extending the AISA’s information sharing provisions governing Children’s Teams to cover a broader range of child protection casework carried out by multi-disciplinary teams.

Operational details

20. Perhaps as a result of the high-level nature of the AISA, it lacks a prescriptive level of operational detail regarding the operation of information collection, exchange and storage practices.

21. There is risk that a lack of operational detail in the AISA could create confusion amongst service providers when undertaking information sharing practices, particularly where those service providers have very different roles and approaches to the use of information. This has particular implications for the sharing and use of sensitive information that is subject to a high confidentiality setting, such as a parent or caregiver’s mental health history.^[11] Conversely, other operational aspects of the AISA raise feasibility questions. For example, not all of the services subject to the AISA will have the means to meet the compliance provisions of the AISA, such as the requirement to maintain an audit trail of requests and disclosures^[12].

22. Furthermore, while the AISA requires parties to develop their own written policies for sharing information, multi-party operational guidelines are discretionary – under the AISA parties may enter into memorandum of understanding to govern the operational details of these information sharing practices.^[13]

23. The Commission recommends that consideration is given to including a prescriptive set of operational requirements in the AISA. The varying implications and scope of each of the CAP components magnify the importance of ensuring that parties are working to a shared set of clear operational guidelines when commencing with information sharing processes.

24. An alternative approach would be to develop separate AISAs for each CAP component, in reflection of their different purposes and scope. This could result in a more robust, prescriptive information sharing framework and result in greater clarity for parties.

25. The Commission also notes AEGIS’ recommendation that Children’s Teams workers should be trained in the relevant operating protocols and codes of conduct, so no ambiguity exists concerning privacy and information sharing. However, there does not appear to be any provision requiring such training in the AISA’s current section regarding operational arrangements^[14]. The Commission accordingly recommends that the AISA includes training requirements for workers along the lines of those recommended by AEGIS.

Conclusion

26. The Commission appreciates the opportunity to make this submission and would welcome the opportunity to engage further with the CAP Directorate and the VCB regarding the development of the AISA and related CAP information sharing policies.

27. If you would like to discuss any aspect of this submission further, please contact John Hancock by email at [e-mail] or by telephone on 09 375 8627.

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^[1] Clause 6(a)
^[2] Clauses 6 and 7
^[3] Draft 11
^[4] AEGIS (2013) Report to the Vulnerable Children’s Board – November 2013, p3
^[5] Human Rights Commission, Briefing Paper: Implications arising from the draft Approved Information Sharing Agreement for Improving Public Services for Vulnerable Children, 30 September 2014, paragraphs 13-33
^[6] Centre for Applied Research in Economics (2012) Vulnerable Children: Can administrative data be used to identify children at risk of adverse outcomes? Department of Economics, University of Auckland, Summary of Findings, p3
^[7] AEGIS (2013) Report to the Vulnerable Children’s Board – November 2013, p3
^[8] Mel Smith, Report to Hon Paula Bennett Minister of Social Development, Following an Inquiry of Serious Abuse of a Nine Year Old Girl and other Matters Relating to the Safety, Welfare and Protection of Children in New Zealand, 31 March 2011, para 8.4 - http://www.beehive.govt.nz/sites/all/files/Smith_report.pdf
^[9] Children’s Commissioner, Submission on Vulnerable Children Bill, 30 October 2013, p 13 http://www.occ.org.nz/assets/Publications/VCB-sub-OCC-FINAL.pdf
^[10] See Smith Report at para 8.36-8.37
^[11] Clauses 9(1)(j)
^[12] Clause 13(5)
^[13] Clause 13(1)
^[14] AEGIS (2013) p3