TONY WALL - Sunday Star Times
28/11/2010
You take your sick child to Starship hospital and suddenly you are accused of abuse. Tony Wall investigates claims the hospital's child protection unit has become a police station treating good parents like criminals, and why there's concern at some of the expert evidence Starship doctors are giving in court.
WHEN JANE* found herself under investigation at Starship Hospital for suspected child abuse she turned to her stepmother Robyn Stent, the country's first health and disability commissioner, who literally wrote the book on patient rights.
But Stent's involvement hardly helped.
Starship doctors were adamant the haematoma on the baby's head was no accident and that it had no medical explanation. Despite it eventually being accepted the haematoma was caused during a difficult caesarean birth – something that's relatively common – they have still not apologised for getting it so wrong.
"It was really tough to deal with these people. It's got to be tough if I, as ex-commissioner, can come out of there without even an apology for the errors made," Stent says.
She is full of praise for the work Starship does but is concerned its Te Puaruruhau specialist care and protection unit, a multi-agency centre including police and Child, Youth and Family, is "out of control".
The unit was set up in 2002 to bring a co-ordinated approach to child abuse investigations. Whenever abuse is suspected, a child ends up under its umbrella.
But Stent, who wrote the code of rights for health and disability consumers in the mid 90s, says the team appears "fanatical" about abuse, and in her experience treated an unexplained head injury as abuse, and the child's parents as guilty.
That type of reaction could cause families trauma, she says, and could lead to unnecessary and costly medical procedures as doctors looked for evidence of abuse.
She is scathing of the unit for not profiling parents to determine whether they are likely abusers, for having no proper written protocols for dealing with families in suspected abuse cases, and for effectively detaining parents in breach of their human rights.
"There is no doubt we have excessive numbers of child deaths as a result of abuse," Stent says. "But that doesn't mean you treat every person as a criminal." She felt that "they are treating this unit like a police station. It's just appalling."
Auckland District Health Board women's and children's health clincial services general manager Kay Hyman says better information is now provided to families going through an investigation and she rejects the suggestion everyone is being treated as a criminal, saying only a small number of the thousands of families who go through Starship each year are investigated.
"We make no apology for investigating the possibility of non-accidental injuries. Our primary obligation is to the child and, in some cases, that requires investigations that are uncomfortable for parents," she says.
But there is concern in medical and legal circles about the unit's practices and the medical opinions the child protection team, led by paediatrician Patrick Kelly, have given in court.
The Sunday Star-Times reported this month on a decision by Auckland District Court judge David McNaughton, who acquitted Onehunga machine operator Famaile Lino on charges of causing grievous bodily harm to his six-month-old daughter, Mere.
The judgment said it was "regrettable" Starship doctors had not considered all of the evidence before reaching their conclusions.
Judge McNaughton said the two doctors, who had concluded it was a shaken baby case, would not have altered their views no matter what explanation Lino gave – he said Mere fell from a chair – and to that extent the decision to prosecute was a foregone conclusion.
He has also expressed concern in court that assault charges against another father could be "another Lino". In that case, a family is fighting to prove bleeding on the brain of a five-month-old girl was caused by a medical condition or accidental injuries, not shaking as advised by Kelly and his team.
The family is consulting Adelaide forensic paediatrician Terry Donald, who appeared for the defence in the Lino case, and who is increasingly being called to give evidence in New Zealand (see story on facing page).
The Sunday Star-Times has spoken to several families who complain about the way they were treated at Starship and by CYF. One family alleges their child's health was compromised in the pursuit of evidence of abuse – in that case a girl's broken arm was incorrectly set, something not picked up because the medical records were misplaced (see story, below).
Others had their children – including uninjured siblings – taken from them by CYF, and had to fight to get them back even after being found to have no case to answer.
Those facing accusations say it was difficult to find doctors willing to take the stand against Kelly and his team, and in some cases families were unable to get further treatment for a child because paediatricians did not want to be seen to be "going against" Starship.
The Paediatric Society issued a "position statement" to the Star-Times backing Te Puaruruhau's procedures and saying paediatricians held the unit in high regard.
But one senior paediatrician, who asked not to be identified, says too many good parents are getting caught in the protection unit's net.
"I see their dilemma – they don't want to be caught out saying it was an accident, then something much worse happens.
"I can understand the caution, but they can lack a degree of scepticism and common sense. They need to ask `is abuse likely in this case?'
"Their attitude is you can never tell, whereas I think you can. They don't profile, which means they throw the book at everybody, which is not a very efficient use of resources. It also means all the power is in their hands. They see monsters all the time, but part of the problem is that they seem to think everyone's a monster."
IN JANE'S case she went to Starship in a panic when a blister-like protrusion developed on her three-month-old son's head.
Scans were done, and Jane was told it was nothing serious, that an expert would look at the scans and get back to her. Then she got a call that it was urgent she come in.
"When she got there, they were waiting for her," Stent says. "The baby was put under 24-hour surveillance, she (Jane) was effectively detained and an assessment was done saying they were really concerned... that maybe she had abused the baby."
The clinicians told Jane they wanted to do an MRI scan to look for other injuries, which in babies has to be done under general anaesthetic. Jane refused consent, and at that point, police were called.
"She said: `I want to go and I want to take my baby', and they [hospital staff] said: `No, if you go the baby stays'. She really couldn't leave."
Eventually, after more than two days of investigations, Jane was allowed to take her son home. Stent says it remains a mystery why Starship treated it as abuse because a key report is missing.
"It was just one big false alarm from beginning to end," Stent says.
She began her own investigation into the protection unit's practices and asked to be sent the written protocols staff follow. She was sent some material, but it did not make sense, and the hospital eventually conceded staff did not follow set procedures.
"They are actually deciding they will put people within the child protection unit without anything in writing about how to make that decision."
Stent took part in several meetings with Kelly and other staff. "They had a lawyer taking notes of everything because I turned up, the ex-commissioner. They were very worried about me being there."
Stent says her stepdaughter has been traumatised, and is particularly concerned a letter saying she was refusing treatment for her son and may have abused him made its way on to a CYF file.
"They promised they'd get it withdrawn but they never did. They just made mistake after mistake, and yet they would not apologise.
"I was concerned at the effect they were having on families. They believe they know better than families about the baby, and they have more concern about the baby than the parents."
The senior paediatrician, who has given medical evidence in support of wrongly accused parents, agrees.
"I tell parents to get a lawyer. But if you don't have the money you can't follow that advice." Instead he now tells people to avoid Starship if their child has only minor injuries, something Stent says is sad. "Starship's a hallowed place," she says. "It should be, it's a very special place, and I think you've now got people who won't be going there as a result of all this."
SUGGEST TO Hyman that Starship should undertake profiling to determine which are abuse cases, and she dismisses it as unrealistic.
"We don't profile because non-accidental injury occurs in all parts of society. There is no profile. It would be wonderful if all families came with a tag that could tell us one thing or another, but they don't."
Does she accept that good parents are being caught up in Starship's determination to ferret out abusers?
"We are conscious that this is a difficult issue to raise with anyone. We do try and ensure we are investigating those families where there is the strongest suspicion.
"I acknowledge that these situations are stressful for families and that they need to be kept well-informed."
Hyman says Starship has a close working relationship with international paediatricians and its processes "represent world's best practice".
She says doctors maintain open minds and consult carefully before making inquiries about possible abuse.
The child protection team works closely with other clinical paediatric services within Starship, she says, and not in isolation.
Improvements have been made including enhancing the on-call testing service to ensure timely results, and improving information provided to parents about timeframes.
Starship has also invested "significant energy" in investigating other potential conditions that could explain a child's injuries, and in obtaining children's health histories to determine if there are possible accidental causes.
She says Starship has robust complaints procedures and "welcomes" scrutiny, including that of the Health and Disability Commissioner, who investigates cases as he sees fit.
Hyman points out that most of the families who spoke to the Star-Times went through Starship a year or more ago, and since then changes have been made.
"It's a difficult area. There will be times when we don't get it right. We try and err on the right side of the balance in a way that minimises the impact for families, and we have learned how to do that better over time.
"If some of the families you spoke to were to go through the process now, hopefully they wouldn't be raising some of these issues.
"We hear from a number of people who go through it and at the end thank us, saying they understand it was something that had to happen."
http://www.stuff.co.nz/sunday-star-times/features/4395244/Guilty-until-proven-innocent
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