Defence of early claims
From the mid-1990s, a growing number of individuals began to make claims about neglect and abuse they experienced while in State care. The vast majority related to abuse at Lake Alice Hospital’s Child and Adolescent Unit during the 1970s. The remaining handful related to foster care or adoption placements or other settings.
Leoni McInroe was the first person to take court action over Lake Alice abuse. She filed a claim in court in 1994 seeking compensation for the abuse she suffered while she was a young patient at Lake Alice (a case study of her experience is included in Volume Two of this report). From 1996, law firm Grant Cameron Associates began representing growing ranks of other former patients of the child and adolescent unit. The firm did media interviews and more former patients came forward.
Claimants all told a similar story. They had been at the unit sometime between 1972 and 1978, they had been no older than 16 while there, and they had suffered or witnessed horrific abuse, including being subjected to shocks from electroconvulsive therapy (ECT) equipment without sedation and painful injections of a sedative drug called paraldehyde as punishment, either by or under the supervision of Dr Selwyn Leeks. Records from the unit showed clear evidence that staff had administered electric shocks, ECT and paraldehyde, without consent, to children as a form of behavioural control rather than treatment. Records from two independent inquiries in the 1970s also contained strong evidence of these practices. As Una Jagose, the Solicitor-General said in her evidence to us, the proof that Dr Leeks was in fact using these treatment methods to punish and modify behaviour “was right there in the file”. (We will discuss this and the experience of survivors in more detail in our report on Lake Alice).
Lawyers of former Lake Alice residents wanted out-of-court settlement of their clients’ claims. In 1997, Grant Cameron Associates proposed, on behalf of its clients, that the Government establish an inquiry into the events at Lake Alice, to be followed by an out-of-court settlement agreement that would include payment of compensation and the issuing of an apology.
The Crown seemed to show willingness to resolve the claims in this way, but in reality, it was focused on defending itself against liability for what had happened to claimants. For example, the Crown applied to strike out Leoni’s claim without a hearing, not on the basis that it disputed the abuse had happened, but on the basis that enough time had passed since the abuse that it was entitled to rely on a defence under the Limitation Act 1950. The Crown also argued that accident compensation legislation barred such a claim. Crown Law made similar arguments to fend off claims of abuse in foster care. No consideration was given to te Tiriti obligations.
The Crown engaged in discussions with Grant Cameron Associates, but in March 1999, after more than two and a half years of discussions, it wrote to Grant Cameron Associates saying it would not enter into the settlement process the firm had proposed, but rather would defend its clients’ claims in court. It said the courts needed to test the legal issues at stake in these claims before there could be any question of out-of-court compensation.
In short, the Crown refused to acknowledge the harm it had done to survivors, despite the supporting evidence on record. It resisted their claims using all available legal defences, resulting in years of delay before these survivors could make any progress on their claims.
A change of heart – settlement and apology for Lake Alice claimants
By the early 2000s, Grant Cameron Associates represented more than 100 former residents of Lake Alice. They continued to lobby politicians for some kind of resolution, and after a change of Government in 1999, their lobbying paid off. In May 2000, the new Prime Minister and Minister of Health recommended to Cabinet to direct officials to negotiate with Grant Cameron to work towards establishing an alternative dispute resolution process for the Lake Alice claimant group.
The advice before Cabinet noted that the Crown had at its disposal a range of potential “technical defences”, including many of those described in part 2.6 below, such as the Limitation Act, immunities under the Mental Health Acts for acts done in pursuance of that legislation, the bar on claims for personal injury that occurred after 1974 under accident compensation legislation, and defences against vicarious liability. However, the advice also recognised that the State had a moral obligation to help those harmed while in its care. It considered the vulnerability of the individuals involved, the distress that litigation might cause, and the potential for an alternative process to litigation to meet claimants’ needs. For these reasons, the Crown chose to offer a settlement to this group of claimants.
The path to settlement was still not straightforward. It took more than a year of negotiations to agree on a specific out-of-court settlement process. In July 2001, five years after the first proposal from Grant Cameron Associates, the Government set aside $6.5 million to settle the claims of this group of former Lake Alice residents. Anyone at the Lake Alice unit at the relevant time who had declared their abuse was eligible for redress. A retired judge, Justice Rodney Gallen, heard from each claimant and determined a settlement amount, after which each claimant received an apology from the then Prime Minister and Minister of Health.
The Government later extended this process to others who had been at the unit at the relevant time and who had made claims after the initial group. It put aside a further $5.7 million for settling this second round of claims and also appointed a lawyer to help claimants.
A bigger picture of abuse in care
The Lake Alice group settlement drew publicity, as did two court decisions soon afterwards that found the Government liable for abuse suffered in foster care. Following this, more and more people came forward seeking compensation from the State for abuse in psychiatric hospitals, as well as in child welfare and educational settings.
The first claims were mostly from people who had suffered abuse in psychiatric hospitals, including a large number at Porirua Psychiatric Hospital, as well as others who had been at Lake Alice but not in the child and adolescent unit and so were ineligible for the settlement process. Some claimants approached the Government directly, others through lawyers. By July 2003, two law firms, Cooper Legal and Johnston Lawrence Ltd, were representing about 90 such claimants. By the end of 2007, this number had doubled.
As with the Lake Alice group, lawyers for these claimants asked the government agencies involved to agree to an out-of-court resolution of the claims. They pointed to the similarities in the abuse suffered by their clients and those in the Lake Alice group and proposed that the Government hold an inquiry and establish a group settlement process like they had for the Lake Alice group. When these approaches came to nothing for the survivors, they began filing claims in court, but continued to advocate for a settlement process throughout the next decade.
Individuals reporting abuse in other forms of State care also came forward. Before long, the majority of claimants were people abused in social welfare settings, such as boys’ and girls’ homes, other residential institutions and schools, and foster care. Many came to be represented by Sonja Cooper from Cooper Legal. By January 2007, the firm represented about 500 people claiming abuse in social welfare settings, a large majority of them Māori. More continued to come forward. These claimants, too, sought an out-of-court settlement.
Claims broad, difficult to prove and legally complex
The range of claims made against the State was broad. Many former psychiatric hospital patients reported experiences of similar abuse to that suffered by former Lake Alice residents – use of shocks from ECT equipment and paraldehyde injections as punishment, and physical and sexual assaults. But they also reported other types of abuse and neglect, including claims that they had not received adequate care, were exposed to criminal conduct, witnessed violence, were verbally abused and were improperly placed in secure confinement.
The claims made by former State wards and children in social welfare care were similarly broad. They related to many different types of abuse and neglect in many different institutions and different time periods. Often individual claimants made claims about their treatment in numerous settings. In January 2006, Cooper Legal compiled a document for the Ministry of Social Development summarising some of the allegations made by several hundred of its clients. It listed 16 residential institutions or programmes that were the subject of recurring allegations of abuse and set out the types of abuse claimed to have happened at each one, naming more than 200 alleged perpetrators of that abuse.
The Crown conducted some preliminary investigations, uncovered some evidence of abuse but came to the view that there was nothing on the scale reported by claimants. For example, Crown Law reviewed records and interviewed former staff at Porirua Psychiatric Hospital and said there was evidence the hospital commonly used ECT and sedatives during the relevant time. However, it said the hospital had policies and processes for its use, and “there [was] no independent evidence that these treatments were regularly or systematically used to punish patients rather than to treat them”. It acknowledged that some staff recalled instances of physical abuse, physical restraint and “strong-arm” tactics, as well as nurses who “did not treat patients with the dignity they deserved”. However, it found no evidence of sexual abuse.
The Ministry of Social Development also investigated some of the institutions named by Cooper Legal. A report in August 2006 said some former staff described work practices that “reflected a tough regime” and acknowledged that certain staff members behaved in an “unreasonably and unacceptabl[y] violent way”, but concluded that the evidence at this stage “[fell] short of a widespread culture of abuse”. The report found that a dozen or so instances of sexual and physical abuse were recorded on file, but this didn’t come close to the hundreds of incidents reported by claimants.
In short, the Crown’s view was that the evidence to support this group of claimants was insubstantial compared with that available to the Lake Alice survivors.
The claims were also legally complex, and survivors faced many legal hurdles common to these types of claims (as described in part 2.6). The relationships and duties between the State, the survivors and the alleged abusers were often complex, and the causal link between the abuse suffered and the impact on the survivor’s later life was difficult to prove. The claims were all historic, leaving them vulnerable to a limitation defence unless survivors could show they had a disability preventing them from claiming earlier, or they could not have known about the impact any earlier. The claims also involved personal injury, yet accident compensation legislation barred most claims involving injuries suffered after 1974. The Crown also had immunity from lawsuits over actions that staff in psychiatric hospitals had taken pursuant to the Mental Health Act 1911 and the Mental Health Act 1969, and so arguably for some of the actions now claimed as abuse.
It was extremely taxing for survivors, financially and emotionally, to attempt to overcome these hurdles.
Next: The mindset of the Crown