A nine-year battle and a woefully inadequate apology
Leoni McInroe was one of the many individuals abused by doctors and staff while at the Child and Adolescent Unit at Lake Alice, the government-run psychiatric hospital near Whanganui.[i] Leoni brought a claim against the Crown and the hospital’s lead psychiatrist, Selwyn Leeks, over the abuse she suffered while there as a teenager. The Solicitor-General has accepted the allegations of abuse by Leoni, and others, have all the features of torture. The battle for compensation took nine years and both compounded and prolonged her trauma. But Leoni’s struggle to put the life-changing abuse behind her is not yet over because Dr Leeks, and those who aided him, have yet to be held accountable through the criminal justice or professional discipline systems.
Early years and abuse
Leoni was adopted shortly after birth. Her adoptive parents both died before she was four. She was placed in the Methodist Mission Orphanage in Auckland and then in foster care in Whanganui when she was five. Leoni’s foster mother physically and emotionally abused her for the next decade. She took Leoni to many medical professionals, saying there was something wrong with her. When Leoni was 12, her foster mother took her to Palmerston North Hospital where Dr Leeks was a psychiatrist. In 1975, Dr Leeks had Leoni, then 14, admitted to Lake Alice’s Child and Adolescent Unit twice for a total of 18 months. This was longer than most survivors spent at Lake Alice. Dr Leeks diagnosed her with borderline schizophrenia – his standard diagnosis for many of those sent to the unit. Several psychiatrists assessed Leoni during her legal action and as part of her ACC claim. Not one agreed with the diagnosis Dr Leeks used to justify her admission to the unit, or the treatment given to her. Leoni’s ACC claim was successful. It rested on an opinion by Professor John Werry, a child psychiatrist, whom Crown Law recognised as the leading expert on child psychiatry in the 1970s. Professor Werry said Dr Leeks’ treatment of Leoni was unacceptable and a form of medical misadventure. By any measure, Leoni had been admitted and treated without medical justification.
At Lake Alice, Leoni was heavily medicated and subjected to shocks from an electro-convulsive treatment machine, without anaesthetic, as a form of punishment. She was put in seclusion for long periods of time. In addition to her daily medication, she was given sedatives as punishment for minor infractions. So great was the sedation that she felt continually “drugged up” and struggled to function, particularly with schooling and sitting exams. Leoni also suffered uncontrollable dribbling and eye problems. Her self-esteem plummeted. Despite being a young teenager, she was housed in a ward with adult psychiatric patients suffering from serious mental illnesses. Some patients assaulted her. One attacked her with an ashtray while she slept, causing permanent nerve damage to her head. Leoni still feels the impact of this abuse today. She said, “no matter how hard I work on proving that I’m normal, the impact of years of trauma is never far away... as far as I have come in healing from my history, there are still things that cause me distress.”
In August 1994, at the age of 33, Leoni filed her claim in the High Court. She was the first Lake Alice survivor to make a claim against the Crown. What followed was to reignite the trauma suffered all those years ago.
She expected her story might be treated “respectfully, with integrity, sensitivity and care” and might evoke compassion and result in justice.
“Instead of compassion, justice, validation and an apology, I received nine grueling years of emotional battering, abuse and bullying from the Crown.”
The Crown’s response to Leoni’s claim was led by Crown Law and the Ministry of Health’s legal section. Crown Law made no attempt to conduct a meaningful assessment of her claim to determine whether it had merit. The merits were plain to see, as Solicitor-General Una Jagose later acknowledged:
“The Government of the day could see readily that the record showed … Dr Leeks was using treatment methods to punish and attempt to modify behaviour in a way that the Crown then, and still, thought was unacceptable … The proof was right there in the file, in the very systems that the hospital and Dr Leeks ran.”[ii]
Instead of a meaningful assessment of her claim, Crown Law caused avoidable and unjustified delays, and missed deadlines for reasons never adequately explained. It also failed to communicate promptly with Leoni.
Leoni told us the Crown was entirely focused on defending itself and Dr Leeks against the financial implications of her litigation. “There was not one point in the entire process the Crown acted with any genuine care or respect to the actual harm I had suffered in Lake Alice, not one, not ever.”
Discussing her expectations of how the Crown would act, Leoni said: “I had hoped that after they saw what unlawful things had happened to me while I was in the care of the State they might immediately approach me with an apology and a settlement.”
She added: “I expected fairness and justice from the Crown. I expected an objective, considered view of the truth as presented by myself and my evidence. I expected fairness and justice. The irony was that over the nine years my advocate for justice, the Crown, became the perpetrator.”
Solicitor-General Una Jagose told us the Crown’s focus when it received Leoni’s claim was on defending the claims on the basis of available legal defences and “there was no attention to the facts”.[iii] She said the Crown “didn't treat [Leoni] in a way that she mattered”.[iv]
Long and frequent delays began from the outset. Six months after Leoni filed her claim, Dr Leeks had still not followed Court rules that said he had to provide a list of documents. The Crown had still not filed its statement of defence. The Crown finally filed its statement of defence in April 1995 – nearly eight months after Leoni began legal action and seven months after the deadline in the rules of the High Court.
Solicitor-General Una Jagose said Crown Law was responsible for “unjustified delays” in conducting the proceeding, adding that there were “some specific delays filing the defences, providing the documents, the common courtesy of replying to counsel's correspondence”.[v]
In June 1995, the Crown and Dr Leeks applied to strike out Leoni’s claim – not on account of any apparent lack of merit, but rather on defences available under the Limitation Act 1950, which barred any claim brought more than six years after the time period defined in the Act; section 124 of the Mental Health Act 1969, which provided a legal immunity for acts done in pursuance of the Act, in good faith and with reasonable care; and accident compensation legislation. The High Court disagreed with the Crown in August 1996 and allowed Leoni’s claim to continue. By that time, nearly two years had passed.
Two more years of delays and missed deadlines followed the Crown’s loss in the High Court. At various points, the High Court had to order the Crown to comply with deadlines and court rules. In June 1995, for example, Leoni’s lawyer served a notice requiring the Crown to provide a list of documents relevant to the claim. The 28-day deadline came and went without the Crown explaining its failure to meet the deadline or seeking an extension of time. When the Crown had still not met its obligation six months later, Leoni’s lawyer had to apply to the High Court for an order that the Crown comply. The court made the order in December 1996, almost a year and a half after Leoni’s lawyer had sought the list of documents.
Despite this court order, the Crown still failed to comply. In February 1997, the High Court made a ruling in favour of Leoni on the basis that Crown Law had not complied with the order despite repeated reminders. Despite that ruling, and with no explanation, the Crown still did not provide the list of documents. Months passed. Leoni’s lawyer asked about the list of documents but got no response. In May 1997, Crown Law finally provided the list of documents after being ordered yet again to do so by the High Court or risk having its statement of defence struck out.
In the end, it took almost two years, two court orders and an application to strike out the Crown’s defence to get the list of documents from Crown Law. It was only after the Court said it would strike out the Crown’s defence that Crown Law provided the list. Una Jagose told us she found it “remarkable and not good enough that it wasn't until the court threatened to throw out the Crown's defence … that the list of documents was filed”.[vi] She said she found it “terrible” and “disgraceful” that the Crown was conducting itself in that way, adding that “delays without excuse are not good enough”.[vii] No adequate explanation was ever provided.
She also acknowledged to the inquiry that Leoni had not been treated with the dignity she deserved – especially in relation to her personal journals, which Crown Law had requested she provide in August 1997. Leoni’s understanding was that the Crown wanted the diaries to see whether her current state of mind showed any signs of mental illness.[viii] The journals contained her most private thoughts and feelings, and Leoni said she felt extremely vulnerable, exposed and anxious while waiting for their return. She requested the return of the diaries every year, but they were not returned until six years later in 2003, when they came back covered in yellow post-it notes. Leoni said it made her nauseous to think of strangers reading her most intimate thoughts, searching for evidence to hold against her. She has not kept a diary or journal since.[ix]
Leoni had always hoped to settle with the Crown to avoid going to trial. In October 1997, and with more Lake Alice survivors coming forward with claims, Leoni’s lawyer wrote to Crown Law and proposed using mediation or arbitration to resolve Leoni’s claim, along with those of all the other survivors. This proposal was met with silence.
In December 1997, however, Crown Law proposed mediation with Leoni and one other Lake Alice survivor (who was unknown to her). Mediation was conditional on Leoni agreeing not to tell anyone Dr Leeks was returning to New Zealand from Australia, where he lived, and that he would be meeting her in person. Leoni agreed to this condition.
Mediation finally took place in June 1998. Three representatives of the Crown attended, along with officials from the Ministry of Health. Dr Leeks was present with his lawyer, and Leoni with her two lawyers. The other nominated survivor was also present.
Leoni, who had been experiencing diarrhoea and vomiting for three days beforehand, said she was “alarmed at the overwhelming number of Crown representatives present. I felt just as intimidated and vulnerable as I had experienced being in Lake Alice. I was absolutely petrified of being in the same room as Dr Leeks again.” The mediator sat Dr Leeks and his lawyer directly opposite Leoni. Her lawyers demanded a change to this seating arrangement.
Leoni was hoping she could settle with the Crown at the mediation. This was not to be. The Crown’s offer was extremely low – the Crown’s records say it offered $7,500 plus costs of $20,000. When Leoni rejected this, the Crown made no further offers at the mediation.
Reflecting on the outcome, Leoni said: “I felt our stories were unbeatable and insurmountable ... There was no denying the intentional, debilitating, ongoing abuse of children and young people at Lake Alice. I believed that the evidence and facts were so strongly in favour of all survivors that finally Dr Leeks, and the people who put him in power, would be exposed and criminal justice and fair compensation would be realised for all us plaintiffs. How could there not be justice with so much evidence?”
The case dragged on for another four years. According to Leoni: “Nothing happened. Just silence. It felt like torture again. The Crown is a formidable opponent. As the years went on, I constantly felt as though the plan was to wear me down using multiple tactics and strategies. Long periods of time doing nothing and creating long delays was one such tactic. Eliminating my resources (I had a massive legal aid debt that had to be reapplied for frequently) against the Crown’s unlimited funds.”
Ms Jagose told us: “the delays were symptomatic of … a lack of empathy for consideration that there was a person in this file, that there was a person's life.”[x]
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Meanwhile, the years passed by. The Crown requested more documents. Leoni requested a trial by jury, which was opposed by Dr Leeks and the Crown. The High Court and Court of Appeal agreed with the Crown.
In December 2000, Leoni’s lawyer applied to have the case set down for a hearing. More delays followed. Crown Law opposed pre-trial directions on the basis that it now intended to provide thousands of documents about Lake Alice. This was six years after Leoni’s lawyer first requested a list of documents.
In the same month, Leoni’s lawyer read a news article saying Crown Law intended to settle with a group of Lake Alice survivors who had filed their claims after Leoni and whose claims were being handled by Christchurch law firm Grant Cameron Associates. Her lawyer wrote to Crown Law, and asked whether the Crown wished to propose a settlement with Leoni, in light of its position with those claimants. In January 2001, having received no response, her lawyer wrote to Crown Law again to ask the same question. More than a month later, Crown Law replied, merely stating that Leoni had already attempted to mediate, and this had not led to settlement.
In February 2001, more than six and a half years after Leoni lodged her claim, the Crown said it intended applying under the Judicature Act 1908 to have Leoni examined by a psychiatrist to verify what she had said about her past and present mental health, and whether she could have made her claim earlier. The Crown had first signalled the possibility of a psychiatric examination in July 1998 and had undertaken to let Leoni know within a month whether it would be taking such a step. Instead, it let almost three years go by before responding.
The examination took place in April 2001 at the Mason Clinic, a forensic psychiatric hospital – a location Leoni believed was an intentional act of punishment for challenging the Crown.
“When I turned up on the day, I was taken through three sets of doors, each of which were locked after me. Memories of being back in Lake Alice, the trauma, the anxiety, the fear, the smell, the sounds, the keys and locks and the powerlessness was overbearing and overwhelming.”
The examining psychiatrist concluded Leoni’s account was credible, and it was clear from the files that she received ECT and painful injections of drugs in circumstances that fell outside accepted medical practice at the time. Leoni’s lawyer received a copy of the psychiatrist’s report four months later.
Meanwhile, the Crown settled with the group of more than 80 Lake Alice claimants using a process similar to the one that Leoni had suggested many years earlier. The claimants settled through an independent arbitrator, Sir Rodney Gallen, without needing to file their claims in court. Leoni was not included in this process – and continued to incur legal costs in preparation for her hearing. It was now more than seven years since Leoni made her claim.
Leoni’s lawyer wrote to Crown Law pointing out the disparity in treatment between Leoni and the other Lake Alice claimants. The sum offered to the other Lake Alice claimants was on average more than four times higher than that offered to Leoni after her mediation. Unlike the other claimants, Leoni had to disclose her medical records and personal journals and be examined by a psychiatrist. In short, she had not been believed.
Leoni said she believed the Crown wished to settle with the Grant Cameron clients first – and delay her own settlement – in order to set the bar low for future settlements including hers: “It is my absolute belief, that making me be assessed at the Mason Clinic was a stalling tactic used by the Crown while finalising a low threshold of compensation with Grant Cameron … In any event, the end result was that that settlement effectively reduced the amount of compensation to be paid to all Lake Alice survivors.”
Settlement and apology
In November 2001, Leoni’s lawyer again asked for a settlement offer. In February 2002, an offer arrived. The amount offered was significantly lower than Leoni had sought. “I remember the shock and outrage of what I was offered. By then I had been put through a living hell by the Crown.”
Leoni did not have the funds to fight her claim any further. She had relied on legal aid to fund the case and doubted any more money would be forthcoming if she declined the settlement offer and continued with court proceedings. She felt completely defeated.
She reluctantly settled with the Crown in July 2002. However, her ordeal was still not over. Three months later Leoni had still not received the apologies from the Prime Minister, the Minister of Health and Crown Law, that she had been promised. Leoni sought an apology from Crown Law because of the way it had frequently delayed the case and missed deadlines. At the end of October that year, Leoni’s lawyer contacted the Crown to ask when Leoni could expect her apologies from the Ministers and Crown Law. A reply did not arrive for two months. The apologies came in March the following year.
The apology from Crown Law read: “It was agreed, outside the terms of Ms McInroe’s settlement agreement with the Crown, that I would write to you to convey to Ms McInroe our sincere apologies and regrets for avoidable delays in progressing her case. Please accept this letter as an expression of regret. The time taken for some steps was longer than might in other circumstances have been needed. In particular, there was delay in providing discovery. This should not have occurred. Please accept our apologies. We take this opportunity to wish Ms McInroe well now, and for the future.” It expressed no empathy for what Leoni had gone through. Its tone was begrudging and insincere, and Leoni felt insulted. The Solicitor-General later described the apology as “woefully inadequate”.[xi]
Leoni’s only remaining hope was that Dr Leeks and other staff at Lake Alice would be charged with criminal offences and made publicly accountable for their actions. Leoni said she regretted accepting the settlement offer and wished she had taken the case to court so this could happen. She said she had no confidence in the Crown: “I do not believe the Crown operates in integrity and fairness. I do not believe that in our justice system we are protected when the Crown is the accused. This has now become an intergenerational belief.”
Leoni also said the way the Crown had defended itself against her claim had harmed not just her, but also her children: “The years of trying to seek justice stole much from my innocent children. They witnessed and lived through their mother being unbelieved, violated, humiliated, belittled, ignored, manipulated and bullied by the Crown ... They witnessed their mother in tears, they witnessed their mother overcome with fear and anxiety during the ongoing investigations, evaluations, unfathomable demands and violations of the Crown. They lived with a mother full of guilt and shame for bringing this toxic story into their lives.”
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Failure to investigate
The Crown has an international law obligation to ensure a prompt, independent and impartial investigation into allegations of torture. Leoni’s allegations amounted to a claim of torture, although the case was brought under domestic law rather than being described in terms of the State’s international law obligations. The Solicitor-General acknowledged that the information available in relation to Lake Alice during the time of Leoni’s claim provided a reasonable basis to suspect torture had been committed.[xii] In 2019, another Lake Alice survivor, Paul Zentveld, took a complaint to the United Nations Committee Against Torture. The Committee found New Zealand State authorities had made no consistent efforts to establish the facts of alleged torture at Lake Alice despite police investigations that had occurred, such as they were. The Committee found New Zealand in breach of the Torture Convention for failing to conduct a prompt, impartial and independent investigation into the allegations. We will address these issues in more detail in our report on Lake Alice.
Failings of Crown Law
Even allowing for the adversarial nature of litigation, in our view Crown Law should have:
- made an early assessment of Leoni’s claim – and of the relevant files – and reached the conclusion that the claim was meritorious because:
- serious and systemic defects at Lake Alice had been identified since the 1970s
- Dr Leeks’ conduct had been documented at the time, including the improper use of an electro convulsive treatment machine to administer shocks as punishment
- it would have been clear to any impartial expert reviewing the files that Dr Leeks’ conduct was wrong, even by the standards of the day (as was clear to the Crown’s own expert in 2001)
- Leoni’s claim was credible and corroborated
- treated Leoni with dignity and sensitivity
- considered an offer of immediate counselling
- waived the defence available through the Limitation Act 1950 once it identified her claim as meritorious and immediately considered alternative dispute resolution options
- made an early decision about whether an expert psychiatric report was warranted, and advised Leoni immediately of its decision
- arranged for a psychiatric assessment – if indeed one was necessary – to take place in a neutral setting, not in a psychiatric hospital, and provided a copy of any resulting report to Leoni immediately
- given regular, timely updates of progress on steps Crown Law was taking, such as locating documents for discovery
- dealt sensitively and transparently with personal intimate items, such as diaries provided during discovery
- recognised the human rights dimension of Leoni’s case and prioritised the claim, especially given that the allegations potentially involved torture
- ensured Leoni was aware of her rights to go to Police and Medical Council, and the support that would be available to her if she wished to do so
- provided information from Leoni’s claim to Police if she consented to the disclosure of her personal information
- considered how it could track down and provide support to other victims of Dr Leeks.
Once concerns were raised about Crown Law’s handling of the case, it should have conducted a review to identify any deficiencies. Such a review would inevitably have found failings. This should have led to a proper apology, steps to make amends, and measures to ensure that no similar mistakes would occur again.
Summary and findings
Crown Law’s handling of Leoni’s claim fell far short of the high standards expected of the Crown.
Specifically, Crown Law:
- took an unacceptably long time to assess and respond to Leoni’s claim
- failed to meet deadlines, explain delays and provide regular updates
- failed to recognise the claim as meritorious and seek early settlement, despite the clear evidence of abuse at the Lake Alice Child and Adolescent Unit
- focused unduly on legal defences and minimising the Crown’s liability
- dealt with claims by other Lake Alice survivors first with a group settlement process led by Sir Rodney Gallen as an independent person, to Leoni’s detriment
- failed to adopt a trauma-informed approach to the psychiatric assessment of Leoni, which took place in a secure psychiatric unit causing additional trauma
- failed to treat her with empathy, dignity and respect, thereby compounding her trauma
- failed to treat the claim with appropriate recognition of the human rights aspects it raised, including New Zealand’s obligations under the Convention against Torture
- failed to conduct an internal review of the way it handled her claim to understand what went wrong
- offered a delayed and inadequate apology to Leoni for its own failings.
For its part the Ministry of Health, which was responsible for Lake Alice claims, should have taken steps to avoid these failings. Our Lake Alice report will examine the conduct of both Crown Law and the Ministry of Health in more detail.
Next: Paul and Earl White: A test case to be won at all costs
[i] Witness Statement of Leoni McInroe, WITN0096001 (Royal Commission of Inquiry into Abuse in Care, 31 July 2020); Witness Statement of Leoni McInroe, WITN0096002 (Royal Commission of Inquiry into Abuse in Care, 21 March 2021); Transcript of evidence of Leoni McInroe from State Redress Hearing Phase I, TRN0000001 (Royal Commission of Inquiry into Abuse in Care, 24 September 2020).
[ii] The Solicitor-General made this statement to distinguish the approach the Crown took in offering a group settlement to Lake Alice claimants from the approach taken to later historic claims of abuse. However, in evidence to our public hearing into the Lake Alice Hospital’s Child and Adolescent Unit, she clarified that the proof referred to in the file was that paraldehyde was administered, and ECT equipment used. Whether they were used for punishment was a question of fact that has not been tested, but the Solicitor-General acknowledged that there was, from the information contained in Leoni’s claim, a reasonable basis to suspect that was the case. See: Transcript of evidence of Solicitor-General Una Jagose QC for Crown Law Office from State Redress Hearing Phase II, TRN0000022 (Royal Commission of Inquiry into Abuse in Care, 2 November 2020), p. 962; Transcript of evidence of Solicitor-General Una Jagose QC for Crown Law Office from Lake Alice Child and Adolescent Unit Hearing, TRN0000397 (Royal Commission of Inquiry into Abuse in Care, 28 June 2021), pp. 856, 878.
[iii] Transcript of evidence of Solicitor-General Una Jagose QC from Lake Alice Child and Adolescent Unit Hearing, p. 957.
[iv] Ibid., p. 856.
[v] Ibid., p. 860.
[vi] Ibid., p. 855.
[viii] Transcript of evidence of Leoni McInroe from State Redress Hearing Phase I, pp. 170-172.
[ix] Ibid., pp. 171-173.
[x] Transcript of evidence of Solicitor-General Una Jagose QC from Lake Alice Child and Adolescent Unit Hearing, p. 856.
[xi] Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 3 November 2020, p. 1069.
[xii] Ibid., p. 878.