Eamon Marshall with his parents, Glenn and Fran. Photo / Warren Buckland
Eamon Marshall's family just want to see the emails.
The Hawke's Bay family of a profoundly disabled teenager on Monday took his former carers to court in a bid to get them.
They want the emails that relate to their son's care to be released, and say their son and the wider disabled community, need to be heard.
The case relates to the now 17-year-old Marshall, who was diagnosed with tuberous sclerosis, cerebral palsy, severe epilepsy, visual impairment and intellectual disability at 6 months old, and placed in foster care in 2004 due to his complex needs.
The hearing, which has been slated to continue until December 11, covers three alleged breaches, two under the Privacy Act 1993, and one under the Health Information Privacy Code 1994.
In 2015, Marshall's parents laid a complaint with IDEA Services, which oversaw their son's placement, over the level of his care.
An investigation was launched by the Health and Disability Commission.
Along with finding failings relating to Marshall's care, the investigation found IDEA Services withheld emails containing personal information which should have been released to his parents.
During his evidence, Glenn Marshall said IDEA Services failed to speak with him and his wife during an investigation into Eamon's care.
He also said he and his wife had requested all information relating to him, his wife and his son held by IDEA Services, some of which was withheld.
The day after receiving the folder, the Marshalls laid a complaint with the Privacy Commission.
IDEA Services lawyer Iris Reuvecamp said this complaint meant IDEA Services did not have a chance to respond to the concerns the Marshalls had regarding the information which had been provided.
She said IDEA Services had acknowledged the original investigation into Eamon's care had not met the company's usual standards, and that more than one apology had been offered.
Several attempts to discuss the Marshalls' issues in person, including with a third party mediator, had been offered.
Glenn Marshall said she was missing the point, saying it was not about him, but his son, and the wider disabled community having the right to be heard in court, and having case law established.
The day after receiving the folder, the Marshalls complained to the Privacy Commission due to missing information.
Reuvecamp said IDEA Services did not have time to respond and find that information.
She said Glenn Marshall's actions were unreasonable, and he appeared adamant that there had been a cover-up.
Glenn Marshall said by the time he went to the Privacy Commission he no longer trusted IDEA Services, and had decided to exercise Eamon's rights by laying a complaint.
The hearing is being heard by a panel chaired by Rodger Haines.
In a separate case, the Marshalls are suing the Heath and Disability Commissioner for $300,000, the first time the watchdog, in charge of protecting patient rights, has had a human rights case taken against it in its 25 year history.
A timeline of complaints
May, 2015
Fairhaven School in Napier verbally notifies Oranga Tamariki of concerns they have about Eamon Marshalls foster care, which is overseen by IDEA Services, in relation to his health and welfare.
November, 2015
His parents, Glenn and Fran Marshall, complain to IDEA Services about concerns they have with Eamon's foster care.
December, 2015
A contractor service to the Ministry of Health asks IDEA Services to investigate the Marshalls concerns. The Ministry also conducts an investigation that finds Eamon's medication was mismanaged. IDEA Services' investigation discovers Eamon's seizure medication is not being administered correctly, his medication folder is not correctly maintained and medication is signed for in error. Eamon is fed unsuitable food, and IDEA Services is not providing appropriate oversight of his care. That includes missing nine monthly visits to his home in a two-year period and failing to engage with Eamon's school. The HDC later finds IDEA Services did not manage the Marshall's complaint properly and this was reflective of "a culture of non-compliance within IDEA Services' senior leadership team". Eamon is uplifted from foster care and moved to another facility.
April, 2016
The Marshalls complain to the Health and Disability Commissioner about IDEA Services. An investigation is launched and in a decision that will be published next month, the HDC is critical of some of the care provided to Eamon by his foster mother, but noted she was not a professional. The HDC also finds IDEA Services did not follow its own complaints policy, and that staff deliberately removed information from its investigation report to minimise the significance of its findings.
March, 2017
The Marshalls lodge a complaint against IDEA Services to the Human Rights Review Tribunal. It's the first of three complaints they will take to the Tribunal against IDEA Services.
September, 2017
The Marshalls make a second complaint to the HDC, this time about a psychologist's report into residential care options for Eamon. They claim the psychologist is unprofessional, biased and that a facility she recommends for Eamon is not appropriate for his needs. The HDC eventually closes the complaint and takes "no further action".
March, 2018
The Marshalls make Official Information Act requests to the HDC for all information gathered by the HDC relating to the complaint about the psychologist's report. The HDC releases some information but refuses to release emails from an IDEA Services staff member that include personal information about Eamon, other non-personal correspondence, and internal legal advice.Eventually, the HDC releases the emails in a redacted form. The Marshalls complain to the Ombudsman who says the blacked-out information in the redacted emails is personal and Eamon is entitled to this. He transfers that part of the request to the Privacy Commissioner and recommends to the HDC the non-personal correspondence also be released.
October, 2018
HDC sends information gathered during the investigation into Eamon's care to the Marshalls, which shows IDEA Services breached some of Eamon's rights. The Marshalls object to a comment by Eamon's foster mother that he would "fling his arms around" making it hard for her to administer his medication. The Marshalls and Eamon's paediatrician say it's not possible for Eamon to fling his arms because he can only move one arm slightly.
November, 2018
The Marshalls ask the HDC to correct the statements. The HDC refuses to add a statement of correction saying that would be tantamount to reopening the investigation and the Marshalls complain to the Privacy Commissioner. The dispute puts publication of the decision on hold.
February, 2019
Investigators for the Privacy Commissioner meet with lawyers for the HDC, who agree the redacted emails contain personal information to Eamon. But they still won't release them.
April, 2019
The Marshalls lodge a complaint at the Human Rights Review Tribunal against the police for withholding video interviews held between police and IDEA Services staff over the case.
- Additional reporting Natalie Akoorie
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