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Allegations of Abuse
in Institutions |
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Grant Cameron questions Lynley Hood’s analysis of the Lake Alice
settlement. Lynley Hood has done herself a
disservice with her recent article entitled “Reliable evidence and due
process” (NZLawyer issue 28, 28 October 2005). Her article demonstrated a
serious misunderstanding of what the determination process in the Lake Alice
case was all about and why, more generally, “state and church” institutions
might choose to embark on alternative dispute resolution processes. However,
much worse is her implication that Sir Rodney Gallen, one of the country’s
most respected jurists, erred in the conclusions he expressed in his 2001
report to the Solicitor-General. Ms Hood attacks Sir Rodney’s
conclusion that, “in the main the allegations which have been made are true
and reveal an appalling situation ... the children concerned lived in a state
of extreme fear and hopelessness” on the basis that his review “was not, and
was never intended to be, an investigation.” That is quite true, and Ms Hood
correctly records that he was “merely asked to determine how the $6.5m
compensation allocated should be distributed”. However, that does not mean
that there was no possibility of his conclusions being accurate. We must speculate that given the
considerable materials before him and the views he formed in meeting many
claimants, he decided that writing such a report was the appropriate thing to
do. No doubt, Sir Rodney understood that following the Crown Law Office’s own
investigation of the issues and its advice to the government of the day, the
Crown’s subsequent decision to settle the claims (in the face of advancing
High Court proceedings) reflected the fact that the factual basis had already
been exhaustively examined by the parties. (Why else would the government
choose to pay out $6.5m to this group of complainants?) Be that as it may, he
formed his views on what he saw and learned, adn Ms Hood does him a
disservice by not fully reporting his comments. Also, Sir Rodney was aware of the
checks and balances maintained by Grant Cameron Associates to ensure that no
false or unfounded claims would be put forward. As it was critical that all
claims would bear any scrutiny, two primary mechanisms were used to protect
against erroneous claims: 1. following contact, prospective
claimants were dealt with in isolation from all others. With no means to
communicate, one to the other, the possibility of fabrication was
significantly reduced; and 2. a filter mechanism was devised
whereby a list of questions were directed at matters quite incidental, and
even irrelevant to, the substance of the claims. We consider the filtering process
to have been a particular success as, of 147 people interviewed, only 95
claims were progressed. However, the vast majority of those discarded simply
didn’t qualify. Only one or two prospective clients ‘tried it on’ and their
inability to describe the most basic elements of the Lake Alice personnel,
layout and routine, quickly identified them. Sir Rodney recorded in his report
that the vast majority had no method by which they could communicate with
others, but, more importantly, he found considerable direct corroboration
from the files obtained from the Crown. Further, the court system places
great reliance on the ability of the presiding judge to be able to test and
assess the veracity and credibility of parties before him. As a former High
Court judge, Sir Rodney was well positioned to make his own judgements on
such matters. Indeed, he developed his own checks and balances to
double-check authenticity in the course of his many meetings with claimants. Of course, regardless of whatever
view Ms Hood might take of Sir Rodney’s opinions, the opinions expressed in
his report are fundamentally irrelevant to the key element in Ms Hood’s
thesis. Ms Hood suggests that Sir Rodney’s conclusion created “the
presumption that a careful investigation had confirmed the existence of widespread
abuse at Lake Alice.” The reader might wonder in whose mind “the presumption”
might have arisen, but Ms Hood attributes this to the government of the day
when she says that “on this basis the Government eventually paid out $10.7M
to 183 former residents”. This is fiction. There is no
causal link whatsoever between Sir Rodney’s report and the Crown paying out
funds. Agreement was reached on a determation process in May 2001, Sir Rodney
commenced his work in July, the sum of $6.5m was paid to our trust account on
24 September 2001, and Sir Rodney’s report was written shortly thereafter. He
only came into the picture after the settlement sum had been agreed and after
we requested the appointment of a suitable judge to determine how to allocate
the quantum already agreed between the parties. Plainly, payment to Part 1
claimants could vener have arisen from Sir Rodney’s report. Further, there can be no
connection between Sir Rodney’s report and the Part 2 process. The
Solicitor-General, Terrence Arnold QC, wrote to me on 10 October 2001 and
confirmed that the Crown has “always recognised the possibility of other
claimants coming forward” and that “it was never [the Crown’s] intention to
settle only with the group of claimants represented by your firm”. This being
the case, it is plain the Crown always intended a second
resolution/settlement process and, accordingly, Sir Rodney’s conclusions in
his report had no causal relationship with the fact of the Part 2 process,
nor upon the Crown’s later payment of another tranche of funds to those
claimants. it was going to happen anyway. Ms Hood implies that because there
had been “two inquiries” in 1977 and “only two Lake Alice complainants” came
forward, presumably there were no other complaints to be had. She is correct
that a Commission of Inquiry was conducted in 1977, however, despite MP
Jonathan Hunt’s vigorous attempts at the time, the inquiry was limited to
“the authority upon which treatment was administered to the boy ... “ and
“any associated matters thought by [the Commissioner] to be relevant”. In the
view of the Niuean boy for whom we act, the inquiry was not “comprehensive”
as Ms Hood maintains. At the time he was 13 years of age, and both he and his
family had a poor grasp of English. Although spoken to by the Commissioner,
they did not take part and were not represented. The Inquiry made no attempt
to look at the wider events at Lake Alice and instead remained focused on the
allegations surrounding the one child. The ultimate finding is dubious.
The central conclusion was that the Niuean boy had been given ECT, and that
this was acceptable on the basis that the boy was suffering from “acute
psychotic depression”. The Niuean boy, now an adult, alleges that the
Department of Social Welfare had sent him to Lake Alice because of his bad
behaviour and nothing more. The allegation of “depression” came from the
establishment that gave him the ECT and, in the absence of appropriate
representation and contrary ‘medical’ evidence, was uncontested. The second inquiry was that of the
Ombudsman, and it is of interest that his serious concerns were ignored by
the government of the day and no wider inquiry resulted. Ms Hood did confirm that ECT was
given “sometimes in unmodified form [ie without muscle relaxants or anaesthetic]
without their consent and without the knowledge or consent of parents or
guardians”. However, the obvious gravity of those statements seems to elude
Ms Hood for she then argues that neither boy “claimed he was given ECT as
punishment”. The issue isn’t whether ECT was given as a punishment, but
whether it was given at all. It is here where Ms Hood either
ignores, or is oblivious to, the fundamental tragedy that underpins the Lake
Alice affair. Whether or not we accept a valid ‘medical reason’ for the application
of ECT in the case of the Niuean boy, the undisputed facts are that the vast
majority of the claimants in both the Part 1 and Part 2 processes were not
resident of Lake Alice by reason of mental illness. They were not committed
under the Mental Health Act and were not there because of any ‘medical’
reason. They were perfectly healthy children. The only reason these children
were resident in a facility that was being operated as a mental asylum
(mainly for the criminally insane) was that the vast majority were wards of
the state. Therefore, the critical question was why ECT would be used on
children who had nothing medically wrong with them? Plainly, even on the
state of knowledge at the time, there was no medical or other justification
for giving a perfectly healthy child ECT. Sir Rodney noted in his report
that while in some cases modified ECT was administered on children at Lake
Alice, the administration of unmodified ECT was not only common, but routine.
Consequently, as the vast majority of children, the subject of this affair,
were simply in government care by reason of unfortunate circumstances and not
by reason of psychiatric condition (there may have been the rarest
exception), the question remains “why were these children given ECT at all?”,
let alone “why did this happen systematically, weekly and even daily in some
cases?” It is true that allegations Sir
Rodney commented upon were generated at another time and place, and Ms Hood
poses the notion that the “class-action lawyers raised the stakes in the
1990s by making lurid allegations to the media”. But the case arose after
another law firm referred a client to us in relations to alleged events at
Lake Alice in the early 1970s. An interview revealed that this individual was
regularly attending the pain clinic at Burwood Hospital in Christchurch
because of extreme and consistent pain. It seemed unlikely that we could do
anything to assist; however, about a week later I was contacted by a
Wellington law firm which had a client who also had a horrendous tale to tell
about their experiences at Lake Alice. With enough corroboration to hand
to establish a reasonable cause to suspect significant wrongdoing, we elected
to determine the true ambit of the apparent class of people who may have been
resident at Lake Alice. With client permission we approached the 20/20
current affairs programme, and in due course they aired a 40-minute
television programme. Immediately, we received phone calls from all around
the country from parties claiming to be former residents at Lake Alice.
Through isolation and careful interview, for the first time, the true
magnitude of what had occurred at Lake Alice became clear. It became obvious that even
excluding the pre-ACC claims, if all former residents cam forward and received
awards at the upper end of the then known spectrum of exemplary awards, the
calim was potentially very substantial. Therefore, it was proposed that a
‘fiscal envelope’ be applied to the suggested resolution process so that an
agreed figure (much lower than the Crown’s potential exposure) be put on the
table and then a Judge could hear the evidence, determine who might have a
valid claim and then, how that fund could be apportioned. The beauty of that
scheme was that all persons who could prove they had valid claims would
receive something, and that we wouldn’t have a minority with a windfall and
the vast majority receive nothing. After much discussion, the
government elected to defend the claims in the courts. Proceedings were filed
and with the consequent publicity, more people came forward. When Labour came to power in 1999,
it determined that the claims should be settled. By that time medical,
educational, police, and other files and documents had been located and
reviewed by both sides in consequence of a long discovery process. Many of
the former staff members had been interviewed (often by both sides), and
substantial quantities of corroborative material had been brought to light.
Taking all things together, the Crown determined to settle to matter. Overall, Ms Hood appears to have
fallen into the superficial trap of assuming that because the claimants’
allegations were bizarre and outrageous, they simply didn’t happen. |
