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Téná koutou katoa

Greetings from Aotearoa New Zealand

First, a big shout out to the organisers of this Conference. It is a great tribute to their hard work and dedication that while Covid is raging both in Australia and New Zealand that this Conference is taking place.

Kia Ora

The purpose of this presentation is an interim update as to the progress of the New Zealand Royal Commission of Inquiry into Abuse in Care and particularly in relation to the Child & Adolescent Unit of Lake Alice Hospital.

I propose to divide my presentation into three parts:

  1. First, I intend to provide you with some background about the Child & Adolescent Unit.

  2. Then I’ll explain how the Royal Commission started investigating the Unit.

  3. Finally, to update you as to what has happened at the Commission of Inquiry.

First however, a disclaimer. I am a survivor of the Lake Alice Child & Adolescent Unit and for those who wish to know more background, I have published an article in the Journal of Law & Medicine outlining the history of the Unit.

The Child & Adolescent Unit:

The Lake Alice Child & Adolescent Unit is notorious in New Zealand both within the legal and medical professions, as well as with the general public.

The Unit was set up by Dr Selwyn Leeks in 1972 within the grounds of Lake Alice, an existing adult psychiatric hospital, situated in the countryside of the lower North Island. The hospital also housed the National Secure Unit, for what was then described as the criminally insane.

The set up was unique.

On the one hand Dr Leeks was employed by the Regional Hospital Board.

On the other hand, Lake Alice Hospital was controlled by the Department of Health operating from Wellington. The Superintendent had written directions not to involve himself in clinical matters at the Unit.

The effect was that Dr Leeks was not accountable to anybody except himself.

Between 1972 and 1977, over 400 children passed through the Unit.

The majority were placed there by state agencies.

It is now clear that very few, if any, had mental disorders. They were there either for behavioural issues or because their families or state agencies rejected them.

Dr Leeks had acquired an ECT machine. It could deliver large electric shocks for ECT treatment and smaller painful electric shocks which were used for what Dr Leeks described as “aversion therapy”.

It is clear now however that Dr Leeks used both types of treatment as punishment. In addition, painful paraldehyde injections were also administered as punishment.

During the 1970s, there were various complaints. In early 1976, a watch dog group affiliated to the Church of Scientology toured the Unit and their concerns were published in the local newspaper.

Later that year, a young Niuean boy managed to smuggle out a message to his grandmother with a drawing and a speech bubble in Niuean, which when translated, said “I have been given electric shock by the people, mum. The pain is very bad”.

This came to the attention of another human rights watch dog group which led to a Magisterial Inquiry called the “Commission of Inquiry into the case of a Niuean Boy”, which took place in early 1977. None of the complaints were upheld and the Magistrate was of the view that ECT was a clinical matter and could be given to children as their bones were supple and would not break.

There followed a number of complaints to the Police, Social Welfare, Ministry of Health, Ombudsman, Medical Association and Medical Council. Various inquiries took place which did not result in any action.

The Medical Council referred the matter to their penal cases committee and met with Dr Leeks, to discuss his practices of using ECT as a punishment, which they were concerned was grossly unethical conduct, likely to bring the reputation of the medical profession into disrepute. Dr Leeks defended his practice and described the aversion therapy threshold of pain, as being a “noxious stimulus”.

That’s where the matter ended and Dr Leeks left for Australia in early 1978 with a certificate of good standing from the Medical Council and set up practice in Australia.

In the 1990s, a class action was begun on behalf of survivors against the Government. This was a protracted legal argument because Crown Law, on behalf of the Government and the Ministry of Health, seemingly adopted the tactic of raising every legal impediment and exhausting the financial and legal resources of the claimants.

Significantly however, the Government set aside in 1999 a contingency of $132 million to settle the Lake Alice claims, although this information was not readily available.

In 2001, the lawyers for the class action recommended settlement. There were “ex gratia” payments to the 95 claimants of $6.5 million. This included $2.5 million for the lawyers.

A letter of apology from the Prime Minister and Health Minister accompanied the payments.

Following the 2001 settlement, there was increasing pressure from the Australasian College of Psychiatrists who called for the Medical Practitioners Board of Victoria to investigate Dr Leek’s role at Lake Alice Hospital, and the fact that he remained practising.

A second round of payments was made to a further 130 survivors in 2002 on the same basis as the earlier settlement.

It is clear however from comments by the survivors that there is disquiet that the Government should set aside $132 million and then paid out only approximately $12 million.

Meanwhile, the Police had received over 30 complaints about abuse and treatment at Lake Alice.

In July 2006, following a 5 year investigation involving 50 former Lake Alice Patients, Dr Leeks was to face a disciplinary hearing into unprofessional conduct. Ultimately however, on the eve of a disciplinary hearing, he surrendered his medical registration on the agreement the case not proceed.

In 2010, the Police announced that despite a lengthy investigation there was insufficient evidence to mount a prosecution.

Ironically, this decision opened up a new chapter in the Lake Alice saga because it meant that all domestic remedies had been exhausted in New Zealand and it was open to the former patients to go to the United Nations.

One former patient, Paul Zentveld, with the assistance of the same scientology watchdog group that toured the Unit in 1976, took the complaint to the United Nations.

The Royal Commission into Abuse in Care established in 2018:

Meanwhile, New Zealand like many other countries including Australia, had become concerned about the abuse of children and adolescents in state care.

As a result of pressure on the Government, a Royal Commission into Abuse in Care was established in 2018 to investigate children in state care between 1950 and 2000.

Later, as a result of more pressure, this was extended to include children in faith-based institutions.

The Royal Commission began formal hearings in 2019.

In late 2019 the United Nations Committee Against Torture upheld the complaint of “torture” from Mr Zentveld and determined there had been a violation by the state party of Articles 12, 13 and 14 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

The Committee urged the New Zealand Government to conduct a “prompt, impartial and independent investigation” into all the allegations of torture and ill treatment at Lake Alice.

The decision also recommended, where appropriate, the filing of “specific torture and/or ill treatment charges against perpetrators”, and the “application of the corresponding penalties under domestic law”, and further to provide the complainant with access to appropriate redress, including compensation and access to the truth, and make public the Committee’s decision and to inform them of the steps it had taken.

The UN Committee made a finding that successive governments had violated the UN Convention Against Torture, for not properly investigating the numerous complaints and holding anyone to account.

At that point the chair of the Royal Commission, Judge Coral Shaw, announced it would use its extensive powers to investigate the allegations and the Government’s response, including examining the extent to which the Police and professional bodies were aware of the serious allegations of abuse, and failure to take appropriate steps to respond during the Unit’s operation and subsequently; in addition the extent to which they protected children and adolescents from abuse, and held perpetrators to account, and the adequacy of the state’s redress to survivors at the Unit.

Royal Commission of Inquiry Hearing:

There are four parts to how the inquiry works.

  • It begins with setting the Terms of Reference;

  • It then moves to an information and evidence-gathering phase;

  • Then formally hearing from survivors, together with other evidence and research;

  • The Commission will then make recommendations to the Governor-General in their formal report.

The recommendation by the United Nations Committee was that the New Zealand Government provide the complainant with access to appropriate redress including compensation.

The Royal Commission, however, has no power to provide compensation.

The issue of compensation will have to be addressed separately, which is likely to proceed by way of a civil action.

There was an initial redress hearing involving the Crown’s approach to settlement of civil claims in late 2020.

One complainant from Lake Alice was called on behalf of the survivors, who gave evidence.

She outlined her treatment at Lake Alice, the legal difficulties she had in finding legal redress and what she described as the callous indifference and cruelty of the Crown lawyers in addressing her concerns as a Lake Alice survivor and claimant.

She described the Crown approach to defending the claim as using all available legal technicalities and the prolonged and intentional delays, obstruction and trickery over a period of 9 gruelling years, before she felt worn down to a point of having to settle.

There was also evidence called on behalf of the Crown when the Solicitor-General gave evidence and described the Crown approach as litigation steps rather than tactics.

There was also an attempt by the Solicitor-General to suggest that the settlement figure was arrived at by a legitimate process. She said that the litigation process had evolved after listening to criticism of its brutality, but in the end it was a contest between two parties.

She did accept the Crown had not always been survivor-focused.

The response by counsel representing the Lake Alice survivors, said there needed to be a “tectonic shift” in Crown Law’s approach to vulnerable people, and alleged breaches by the Government of their human rights and Treaty of Waitangi obligations.

The criticism was that Crown Law’s attitude had been to protect, almost at all costs, its client’s purse strings, rather than take a wider view of the systemic failings (in the care and protection of young people in state care), and had adopted an aggressive and heartless strategy to block claimants from compensation.

In June 2021, the second part of the hearing began, which was dedicated to and described as “A Case Study into Allegations of Abuse at the Child and Adolescent Unit at Lake Alice Psychiatric Hospital”.

This provided an opportunity for all the parties to hear and respond to the evidence.

A number of survivors gave evidence detailing abuses at the Unit.

These included:

  • sexual abuse and assaults by staff members and other residents

  • staff members throwing loaded paraldehyde syringes as darts at their bodies

Punishments included:

  • painful paraldehyde injections

  • ECT and unmodified ECT

  • ECT administered to their genitals and other parts of their body

  • residents being instructed to administer ECT to others

  • seclusion

  • being locked in cells with disturbed adult patients

A number of former staff members gave evidence. In general, they did not dispute the evidence of the survivors, but stated that they themselves did not witness any particular abuse in the form of ECT treatment or injections. They effectively said they did not see anything happen, they were just going about their routine jobs.

Dr Leeks was also given an opportunity to participate, however advised through his counsel, that he was unfit. He later asked the inquiry not to make adverse findings against him and that the focus should be on the myriad of failed investigations into complaints about Dr Leeks and Lake Alice.

The Solicitor-General again gave evidence and had filed a 128 page brief of evidence setting out in detail, the Crown’s handling of the claims, including every file note by the numerous lawyers who had attended on the file.

In accordance with the rules of natural justice, all the witnesses called from the state agencies, including former staff of the Unit, were given an opportunity to answer the allegations.

During the course of the inquiry, the mood changed.

The Director of the Criminal Investigation Branch on behalf of the Police, acknowledged the Police did not give sufficient priority and resources to investigate the allegations between 2002 and 2010.

He said “this resulted in unacceptable delays in the investigation. It meant that not all allegations were thoroughly investigated” and apologised to the survivors for these failings.

He stated that they had reopened and were reinvestigating the allegations and that they were in the final stages of deciding whether there would be any criminal prosecutions.

When asked when a decision would be made in terms of the current investigation as to whether charges would be laid, he advised that it would be within a few weeks. To date, there has been no update.

The Medical Council deputy chief executive gave evidence, and issued what was described as a rare apology, for their omission in failing to act on allegations of serious abuse and not taking appropriate action at the time. As a result, Dr Leeks continued working in Australia for decades. They acknowledged the pain and suffering experienced by the survivors and apologised for any hurt that occurred as a result.

They stated:

“The Medical Council is sorry”.

“If it was today, there would be no way that Dr Leeks would be practicing”.

“Our job is to protect the public, we are not here to protect the doctors”.

"It was a shortcoming if you like, of the Medical Council, and he should have not been allowed to continue to practice.”

The Government effectively changed its stance from the earlier redress hearings, when the Solicitor-General again gave evidence, and now accepted the files and claims had been mishandled.

The Crown in closing, addressed the Royal Commission in these words “to the survivors, you spoke of unimaginable horrors that no child should have to go through”,

and “the Crown is not here to defend the conduct of Dr Leeks or any practices that amounted to punishment under the guise of medical treatment”.

The Chair commented at the end of the hearings and made it clear, the survivors had been carefully listened to and believed, and advised they will have an interim report on Lake Alice early next year.

Their final report has been extended to July 2023, by then Dr Leeks will be 94 years of age.

The issue for the Commission is who should take responsibility.

There are limits however to the scope of the power of an inquiry. The relevant statutory provision makes it clear that an inquiry has no power to determine civil, criminal or disciplinary liability, but can make findings of fault and recommendations.

Therefore, any decision to prosecute ultimately rests with a third party. In this case ironically the third parties are the Crown Law Office and/or Police, both of whom have been severely criticised by the survivors.

At the redress hearing, counsel for the Lake Alice survivors described the government departments and Crown Law as being “hopelessly conflicted” and called for an independent body to be set up to consider claims.

As one survivor poignantly pointed out, she has not received sufficient funds to address the intergenerational effect of counselling needs of her children, let alone her own needs.

The last words must be left to the survivor who addressed the Royal Commission in a brief ceremony at the conclusion of that part of the hearing:

“The darkness and shame we have carried has begun to lift in the light of exposing the truth”.

“Whakarongo Mai, Whakarongo Mai … finally our voice has been heard”.

Kia Kaha Kia Manawanui

Be Strong Be Steadfast

Rosemary L. Thomson

14 October 2021


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