By Phil Pennington of RNZ

"Useless", "biased", and "misleading"; that is how the parents of a Rotorua toddler left brain damaged after choking on a slice of apple at a childcare centre, describe WorkSafe's investigation and its handling of their complaints.

WorkSafe rebuffs this, saying it did a thorough job.

In recent days, off the back of a review of WorkSafe's investigation processes which was kept under wraps for a year, the state regulator has admitted its overall approach was "outdated", unsupported by technology and under huge pressure.

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At the very same time, it and the Minister of Workplace Safety Iain Lees-Galloway, have cited this self-same review to defend its investigations as "best practice".

That does not ring true for forestry worker Wi Renata.

"It certainly has not been our experience," he said. "In no way was it even beginning [to be] good - in our case, it was very poor."

He and Marama Renata, a GP, have three children: baby Teia, 5-year-old Aotea and her twin, Neihana.

Neihana cannot walk, talk or roll over. He was in cardiac arrest for 30 minutes after choking on an apple slice at Little Lights Kindy, in May 2016.

WorkSafe issued its findings in November that year, that there was no breach of health and safety laws by the operator, Evolve Education.

Apple was at the time on a Health Ministry list of high-risk choking food for toddlers, and WorkSafe noted the kindy had not identified this risk in its hazards register.

The investigation report offered only a brief description of the first aid response to the then 22-month-old child.

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"Neihana is noticed choking, staff provide immediate first aid - back thrusts, mouth sweep, CPR, etc," it said.

Marama Renata has questioned this ever since.

"That's the entirety of how they describe what happened with his resuscitation," she told RNZ. "So then you lose an opportunity to make improvements."

She has thanked the teachers for their response in a hugely stressful situation - "they brought him back from the dead".

But the family still don't know who did what and when, such as who did the "mouth sweeps", when hooking a finger in a choking child's mouth is not recommended practice unless the food can be grasped, as it can force the food down further.

The centre's own incident report said teachers gave Neihana "chest thrusts", though these are not the recommended first response to choking (five short sharp back thrusts with the child head down over your knee should be done first; chest thrusts follow that).

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"I wanted to know exactly what happened," Marama Renata said.

"And then I want to know how can we make childcare workers be able to deal with common childhood emergencies, they need to feel competent."

The first question the whānau say the investigator put to them was - "were they considering suing?" - though they had very little information to go on; and this appeared then to drive the whole investigation toward minimising blame, the parents said.

The investigation report stated: "The only failure of the kindy was that it served sliced, peeled raw apple."

It went on to argue that choking was a "well-known and obvious hazard, and it is a very difficult hazard to eliminate and/or minimise, whether this is at home ... or at a childcare facility".

Health Ministry guidelines have for years instructed on how to prepare foods to minimise the risk.

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The regulations - for children to be seated and supervised while eating, with a first aider on hand - were adhered to, WorkSafe ruled.

The centre "even took the extra precaution of skinning the apple".

This and other comments struck the family as "emotive".

The Renatas now wish they had not trusted WorkSafe's investigator, and considered taking a private prosecution, as some victims have before them, some with success.

"But we didn't know anything," Marama Renata said. "We didn't think it would be necessary at the start.

"We didn't think there would be a case anyway, because we didn't think that any regulations had been broken."

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The WorkSafe report said none had been.

"Also, we weren't thinking that [the investigation and report] would be so useless that we would have to do that.

"But then after a few years, we thought maybe it would have been better to do that [a private prosecution], because we would have ... forced changes, instead of relying on these agencies."

In 2018-19, the Child Forum lobby group did its own assessment of the incident, and was scathing.

WorkSafe's response to inquiries

"WorkSafe declines to be interviewed for your story, which has been the subject of a thorough investigation and the involvement of multiple parties, including Ministry of Education and the Ombudsman," the agency said in a statement to RNZ.

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"We acknowledge the tragic events that occurred and impact on the family involved.

"We stand by the investigation we undertook and the findings from that investigation."

Outside investigation

The Child Forum report said the case showed WorkSafe "could not adequately assess safety for young children, nor understand how an early childhood centre operates, in order to know what questions to ask and what recommendations could be made to prevent such from happening again".

"WorkSafe appeared not to look into quality of staff response regarding first aid," said forum head, Dr Sarah Alexander, who assessed the investigation in a 21-page report.

"Nothing came out of the investigation to make improvements for us in the early childhood sector."

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The forum told the Renatas that WorkSafe had failed to consider whether Early Childhood laws had been breached.

The family consider this and the "poor quality" of the investigation report show how inexperienced the investigator was.

Family pushes for more action

After the Child Forum report came out the Renatas focused for months on lodging a complaint and a call for a review, with the Ombudsman.

"We had to spend hours and hours and hours trying to put together a rebuttal to the report and send it off," Wi Renata said.

They wrote an 11-page, 12-point critique.

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"And after spending all those hours doing that, it fell on deaf ears," he said.

"No one wanted to hear us, no one wanted to make any improvements. It was a waste of time, a massive stress on our family right when our son is in critical condition."

The Ombudsman referred them straight back to WorkSafe.

WorkSafe replied to the Renatas in August 2017 with a four-page letter, upholding its findings.

RNZ has seen these documents, but is unable to provide links to them as they have unredacted contact information in them.

But the chief inspector Keith Stewart promised to send the family's critique on to the Education Ministry.

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He also told them he would raise with the ministry "the nature and depth of first aid training at childcare centres", and to correct with the ministry "factual errors" in WorkSafe's investigative report.

But he did not do this, not for one year, and then only after prompting.

Stewart "unreservedly" apologised in writing to the Renatas for what he called an "unacceptable ... administrative oversight".

The Education Ministry later credited WorkSafe with raising issues with it.

Another omission occurred: In 2016 the agency had said it was working on an industry-wide communication about issues raised by the case.

Two years later, the family was told it did not issue this, as it was up to the ministries to do.

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"I just think it's useless," Marama Renata said.

"They haven't done the things that they said they were going to do.

"It is extremely disappointing because when your child or your family member nearly dies - or does die, in other people's cases - you just want a proper report done.

"You just want people to find out what happened and look at what improvements can be made so it doesn't happen again.

"But when they just don't take it seriously - it's really unbelievable."

The ministry continued to deflect the Renatas' call for safer childcare centre menus, and in April 2019 the family went public, going to the media.

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A month later officials at the ministries of health and education sent out the old guidelines to centres.

Four months later, the Education Ministry began a review of its guidelines over what high-risk foods toddlers can be fed at centres.

In the meantime, the Renatas tried a second time with the Ombudsman to reopen the WorkSafe investigation.

However, that Office told them it could not investigate whether a whole investigation was up to standard, only "specific administrative acts and decisions".

"We've given up hope, I think, to press the issue any further with WorkSafe because you get nowhere," Wi Renata said.

They question why there is not a clear way to hold WorkSafe accountable via independent reviews.

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However, the Ombudsman has now invited the whānau to try again. In 2019 it had suggested the Renatas "could write to us again, to set out the specific act or decision you have concerns with", it told RNZ on Friday.

"The Renatas did not contact us further, but we will now contact them directly to explain the Ombudsman's role in an investigation, and to further assist them to make a complaint if they wish."

Marama Renata does not believe the family was asking for too much.

"You want to be listened to, you want your case to be looked at and discussed, and good decisions be made as a result of it.

"I don't expect everything to be changed if it's not appropriate. But they should at least do proper, objective investigation into it, and then make the changes that need to be made."

It seemed regulators shied away from the difficult cases, that it was an organisational weakness, she said.

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Experts have asserted WorkSafe is leery of taking on company directors and executives who were expected to be prosecuted more under the 2015-16 health and safety law changes made in response to the Pike River mine disaster.

"It seems like they'll make changes for much more minor things, you know, where someone might have lost a finger or something, and they'll make widespread changes," Marama Renata said.

"But something like this - he died, my son, and they got him back from the dead - it's like it's too hard."

Timeline
2016
May 31: Neihana Renata chokes on apple at Little Lights Kindy, a Ministry of Education licensed and funded centre

Oct- Nov: WorkSafe finds no breach; says it "is preparing an industry-wide communication outlining issues"; sends its report to Education and Health ministries

Nov: The Renata family request for findings is handled as an Official Information Act request

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2017
April: The Renata family appeals to the Ombudsman, who refers them back to WorkSafe

Aug: The WorkSafe chief inspector rejects a review; says he will send the family's critique and agency input (eg first aid training in ECE) to the Education Ministry

2018
Aug: The Renata family finds out their critique was not sent

Sept: WorkSafe apologises for the "administrative oversight"

2019
Jan: Publication of the Child Forum assessment that the WorkSafe and ministries' handling of the case was ineffective

April: The Renata family goes to the media and complains for a second time to the Ombudsman

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May: The director general of health and secretary for education send all centres existing guidance on preventing choking

Oct: Education Ministry begins a review of food safety at early childhood centres

2020
July: Ombudsman offers to help the Renata family if it wants to complain

July: Education Ministry says any childcare food safety changes will come into effect in late 2020