800.    By the 1990s, there had been no meaningful accountability for the abuse at Lake Alice and the survivors of Lake Alice had not received any redress for the abuse they suffered. The Crown had not considered, much less offered, financial compensation or any other assistance for survivors. Many survivors turned to the legal system looking for justice.

801.    The legal claims ultimately led to financial redress for many survivors, despite the flaws in the legal process that we wrote about in our redress report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui. Indeed, the Lake Alice legal claims resulted in the most effective vindication for any survivors of abuse in Aotearoa New Zealand up to that point.

Ngā kerēme puretumu a ngā purapura ora - Survivors’ claims for redress

802.    In the 1990s, two Lake Alice survivors, Ms Leoni McInroe (1994) and Mr DW (1997), filed claims in the High Court for the abuse they suffered at Lake Alice.^[1529] From early 1997, lawyer Grant Cameron also began discussions with the Crown on behalf of a large group of Lake Alice survivors.^[1530] The group sought an out-of-court settlement with the Crown that would include the payment of compensation and an apology. In July 1998, Mr Cameron provided a draft statement of claim with 42 signed statements (volume 1).^[1531] A further 55 statements were served on 14 September 1998 (volume 2).^[1532]

Ngā meka tōmua o ngā kerēme - The merits of the claims were clear from early on

803.    Dr Janice Wilson, the Ministry of Health’s Director of Mental Health at the time Ms McInroe filed her claim, agreed she had sympathy “from the very early day[s]”^[1533] for Ms McInroe’s claim and subsequent claims by other survivors, finding them reasonable, compelling and believable.^[1534] She said there was reasonable evidence supporting Ms McInroe’s claims, including about unmodified ECT, the misuse of behavioural aversion therapy and probably the misuse of drugs, all of which she considered inappropriate.^[1535] Dr Wilson said she conveyed her view that the claim was reasonable to the ministry’s lawyers. Dr Wilson said she believed her views would have been heard by Crown Law and Ministers and she noted a time-consuming legal, policy and Cabinet process had to be worked through in respect of the claims.^[1536]

804.    By September 1995, the Crown had two opinions on Ms McInroe’s claim from experienced psychiatrists, both saying Dr Leeks’ conduct was professionally inappropriate.^[1537] Despite this, the Crown continued to defend Ms McInroe’s claim for many more years.^[1538]

805.    By early 1999, a large amount of evidence was in the Crown’s possession showing the merits of the claims. In addition to the two psychiatrists briefed by the Crown who supported Ms McInroe’s claim, a psychiatrist briefed by Mr DW said Dr Leeks’ actions were “not appropriate”.^[1539] The Ministry of Health had advised that “psychiatric hospitals in the 1970s were not well managed and there were few controls to ensure that patients were not abused by staff”.^[1540]

806.    In February 1999, Crown Law told the Minister and Ministry of Health that some of the Grant Cameron claimants’ patient files appeared to corroborate the allegations of the use of unmodified ECT and its use as a punishment.^[1541] It said the files revealed “numerous consistencies” between claimants’ statements.^[1542] It explained the advantages and disadvantages of defending the claims in court, saying the key question was whether to respond to the claims on their merits or fight them at all costs.

“If Ministers want the Crown to respond to the claims, an appropriate [alternative dispute resolution] mode is preferable because it will avoid any precedential effect, and the Crown may be able to manage publicity impacts, if that is wanted. If Ministers want to resist the claims at all costs, and seek to defeat them by whatever means, they should litigate.”^[1543]

Tā te Karauna whakatau kia whawhai i ngā kēhi ki roto i ngā kōti - Crown’s decision to fight the cases in court

807.    Despite the evidence showing the merits of the claims, the Crown decided to go to Court to test whether the Crown had any legal liability in light of available defences rather than settle. On 23 February 1999, the Minister of Finance, Bill English, and Health Minister, Wyatt Creech, met Ministry of Health officials, Dr Wilson and Crown Law’s Grant Liddell. Dr Wilson reiterated her belief in the credibility of survivors’ claims, and the notes record her telling the group that psychiatric opinion in the 1970s held that Dr Leeks’ treatments were unusual, had a “sadistic” element and might not stand up to “the benchmarks of the day”.^[1544] Mr Creech told us that he carefully considered the advice from Crown Law about the options for resolving the Lake Alice claims.^[1545] He said he concluded that litigation would be the “optimum way forward to finally resolve the matter and establish the parameters of Crown liability” given the parties’ inability to agree.^[1546]

808.    In March 1999, after more than two and half years of discussion, the Crown rejected the settlement process the survivors proposed and chose to defend the claims in court, saying the courts needed to test the legal issues at stake in the claims before there could be any compensation.

Tā te Pirimia tohu kia whakatau - Prime Minister’s direction to settle

809.    After a change of Government in late 1999, the Crown reversed its stance on the Lake Alice claims. A briefing paper for the new Prime Minister and Minister of Health in March 2000 detailed the nature and extent of survivors’ allegations, by which time the number of claimants represented by Mr Grant Cameron had climbed to 88 (it would ultimately reach 95).^[1547] The paper said preliminary analysis of claimants’ files so far collated by Crown Law showed it would not be difficult to prove the legal basis for admissions and detentions at the unit was ‘often unclear’ and that admission procedures were ‘generally lax’. It said some evidence existed that some patients were given ECT and paraldehyde to control behaviour rather than as medical treatment. It also said paraldehyde injections were given ‘routinely’ and would have been ‘extremely painful’. All in all, it said, a factual basis for at least some of the claims undoubtedly existed.^[1548]

810.    In May 2000, the new Government agreed to offer an out-of-court settlement. The advice ministers presented to the new Cabinet acknowledged that the Crown had a variety of available legal defences to the claims but stated it had a moral obligation to help those harmed in its care. It noted the vulnerability of the individuals involved, the distress litigation might cause and the potential for an out-of-court process to meet claimants’ needs.^[1549]

811.    Crown Law and Treasury had reservations about settling claims through alternative dispute resolution. Rather than settle, they would have preferred to take at least some cases to court to test the technical defences available to the Crown. Even after the direction to settle, Crown Law continued to disagree with Mr Cameron about the way to resolve the claims.  In September 2000, Mr Cameron complained that Crown Law would not commit to any particular resolution process, reserved its right to plead technical defences, said it would attempt to engage Dr Leeks as a defence witness, and would not commit to a ‘fiscal envelope’ for financial settlements.^[1550]   In November 2000 the Prime Minister, after reviewing Mr Cameron’s letter, repeated to officials the direction to proceed with settlement in accordance with the Government’s earlier direction.

812.    Further evidence the Crown collected served only to strengthen the Crown’s moral obligation to settle with the claimants. In early 2001, the Crown arranged for four psychiatrists to review 21 claimant files. All four said the lack of information in patients’ files hampered their ability to make clear assessments of some of the allegations. Nonetheless, they were able to find further examples of professional misconduct by Dr Leeks and his staff, including that some claimants were clearly:

• given electric shocks inappropriately
• given anti-psychotic medication and sedated with paraldehyde for being difficult to manage or as punishment, rather than for any therapeutic purpose
• admitted to the unit with an incorrect diagnosis or without any proper diagnosis
• placed in solitary confinement on numerous occasions for what in some cases was punishment for “bad behaviour.^[1551]

Te ara ki te whakataunga - Approach to settlement

813.    In May 2001, the Government agreed to set aside a sum for a full and final settlement of Lake Alice claims.^[1552]

814.    The Crown initially proposed a settlement offer of $4 million and subsequently increased that sum to $6.5 million, stating that was the maximum amount it would be prepared to pay. The $6.5 million figure included the claimants’ legal costs, as well as claimants’ time, stress and inconvenience.^[1553] Mr Cameron said he had the authority of survivors to negotiate the settlement, and it would not have been possible to seek the views of the 95 clients; nor would it have changed the final result.^[1554] Grant Cameron Associates consulted Mr John Billington QC, who was strongly of the view the claimants should accept the offer. The alternative, court action, offered little to no hope of success with barriers such as the Limitation Act 1950 and other technical defences open to the Crown.^[1555]

815.    Mr Cameron told us claimants were entitled to opt out of the process at this stage, preserving their opportunity to pursue the Crown for remedy by other means and go elsewhere for legal representation if they wished. Mr Cameron told us mandates were sent to all claimants in the group, on which they would provide their instructions whether they wished to remain in the process. Some of the group exercised their option to leave the process at that stage. He said he had advised claimants to seek independent legal advice both before originally signing up with his firm and before accepting the Crown’s offer.^[1556]

816.    Mr Hamish Hancock from Crown Law wrote in a memorandum to the Solicitor-General, Mr Terence Arnold QC, that an “obvious disadvantage” of the proposed settlement was that Crown Law could not give a precise estimate of the Crown’s potential liability because the settlement was “at the direction of the Executive” rather than on the basis of a legal assessment of potential liability by Crown Law.^[1557]

817.    The Government agreed with Mr Cameron’s recommendation that former High Court judge Sir Rodney Gallen would determine how the $6.5 million would be distributed among the 95 claimants.^[1558] After consulting the claimants, Sir Rodney decided all would receive an equal sum, supplemented by another sum based on his assessment of the degree of harm each individual had experienced.^[1559]

Te pūrongo Gallen - The Gallen report

818.    Sir Rodney’s role was to determine how the $6.5 million should be split among claimants, but he was so disturbed by what he heard and learned he wrote a comprehensive account of what had taken place at Lake Alice. He wrote that he was “satisfied that in the main the allegations which have been made are true and reveal an appalling situation”.^[1560]

819.    In response, Dr Anthony Duncan, a psychiatrist and the Ministry of Health’s Deputy Director of Mental Health, wrote to Crown Law and senior ministry officials about two weeks later, on 27 September 2001, saying some claimants’ allegations might not have been entirely factual, but “there is no doubt some dreadful things happened in Lake Alice”.^[1561] He said an apology by the ministry was a “good idea” and it should “just fess up and say it is totally indefensible to use electric currents to deliberately cause pain using any equipment, including ECT equipment”.^[1562] A Ministry of Health briefing paper for the Prime Minister and Minister of Health the following day adopted an only slightly less blunt tone, saying it was “totally unacceptable” that apparently “ECT machines were sometimes used to administer electric shocks as punishment.”^[1563]

820.    On 7 October 2001, Prime Minister Helen Clark issued a media release announcing Sir Rodney had completed his allocation work and the $6.5 million had been paid into the account of the claimants’ lawyer for distribution. She and Minister of Health Annette King also issued a qualified apology to claimants, saying that “whatever the legal rights and wrongs of the matter”, what had happened to those sent to the unit was “unacceptable”.^[1564]

821.    On 11 October 2001, Crown Law learned The Evening Post newspaper was about to publish parts of the report. An earlier letter from Crown Law to the attorney-general noted that Sir Rodney’s report was in “very damning terms” and further noted the report should be treated as confidential until the Crown had resolved any other Lake Alice claims.^[1565] In other correspondence relating to the publication of the report, Crown Law stated it wanted to avoid prejudice to the settlement of other claims concerning Lake Alice that were yet to be determined. It was concerned knowledge of the details of Sir Rodney’s report might encourage embellishment or fabrication of claims.^[1566] The following day, Crown Law applied to the High Court to prevent publication of the report on the basis it was confidential. In the end, the court allowed publication of those parts of the report that summarised claimants’ evidence. It noted that much, if not all, of this information was already in the public domain.^[1567] The court withheld the part of the report that set out Sir Rodney’s allocation of the settlement funds.^[1568] The Evening Post subsequently published two stories about the report on 13 October 2001.^[1569]

822.    Sir Rodney noted in his report that his inquiry was unusual in that he had been unable to interview staff to hear “their side of the story”.^[1570] We learned that Mr Denis Hesseltine, a nurse aide at Lake Alice, contacted Mr Liddell at Crown Law in July 2001 asking for a meeting with Sir Rodney to discuss the pay-outs to claimants. Mr Liddell’s note of the call suggested another Lake Alice nurse, Mr Dempsey Corkran, also wanted to meet Sir Rodney.^[1571] No meetings were held.

823.    Sir Rodney, however, did have access to some of the medical records and nursing notes of former staff and said in his report that the medical records outlined at least some of the abuse at the unit.^[1572] He said they provided independent corroboration of some of the survivors’ claims.^[1573] He said the medical notes on their own showed paraldehyde was used as punishment and that unmodified ECT was in constant use.^[1574]

824.    Mr David Collins QC (now a Court of Appeal judge), who later helped Sir Rodney in the second round of settlements, also commented on the significance of the medical records, along with survivors’ accounts. He told us the records and accounts “contained revelations that were extremely distressing and contained accounts of abuses that I did not think could have happened in New Zealand”.^[1575]

825.    Justice Collins also told us he considered Dr Leeks had engaged in criminal conduct, and that it was Sir Rodney’s view that “Dr Leeks had probably committed criminal offences when carrying out his aversion therapy regime”.^[1576] He said both he and Sir Rodney contemplated going to NZ Police but felt bound by the confidentiality agreement signed with claimants and the promise both men made not to disclose claimants’ details.^[1577]

Ngā whakataunga tuarua - Second round of settlements

826.    The Government had settled one round of claims, but more claims were to come. As we set out in He Purapura Ora, he Māra Tipu, a second round of settlements soon became necessary.^[1578] The Crown appointed Mr Collins in 2002 to help survivors make their claims and to help Sir Rodney, who again had the task of determining settlement amounts.

827.    Justice Collins told us that ensuring payments were comparable to those made in the first round was a crucial factor in the settlement process.^[1579] The Crown was aware second-round claimants would receive more cash in their hands than first-round claimants because of the fees Grant Cameron Associates had deducted from the $6.5 million payment. We discussed in He Purapura Ora, he Māra Tipu, how the Crown was concerned, based on anecdotal information, that Grant Cameron Associates had received too much money from the first settlement round and how this example in respect of historical abuse claims led Crown officials to mistrust lawyers and the survivors they represented.^[1580]

828.    Ms Una Jagose, the Solicitor-General and chief executive of Crown Law, told us the Crown, therefore, decided to reduce payments to second-round claimants by 30 percent to reflect the fact they would not incur the same legal costs as first-round claimants.^[1581]

829.    However, the agreement that second-round claimants signed with the Crown to take part in the process made no reference to any reduction,^[1582] and Sir Rodney made no deduction when calculating the sums people should be entitled to. He said he assumed the Ministry of Health would do it.^[1583]

830.    As a result, Mr Paul Zentveld, one of the second-round claimants, was initially told in June 2002 that he would receive $114,912.^[1584] However, when the Ministry of Health wrote to him about the settlement the following month, they had reduced that figure by 30 percent to $80,438.^[1585] Mr Zentveld accepted this sum, but then took legal action to recover the deduction from his payment. In November 2002, Grant Cameron Associates filed proceedings in Wellington District Court on behalf of Mr Zentveld, seeking repayment of the $34,474 that had been deducted from the sum awarded by Sir Rodney.^[1586]

831.    The judge found that Mr Zentveld was entitled to be paid the full amount awarded by Sir Rodney. He found that Sir Rodney’s original determinations, without deductions, were within the meaning of his agreement with the Crown.^[1587] He also found that relying on the agreement between the Crown and Mr Zentveld would result in the Crown paying less than it was contractually obliged to pay under its agreement with Sir Rodney.^[1588]

832.    The Judge also noted that some issues would have been avoided if the Crown had not kept Sir Rodney’s agreement confidential, such as by incorporating it in its agreement with claimants so claimants understood the procedure Sir Rodney would follow in making his decisions.^[1589]

833.    As a result of the judge’s ruling, the Crown reimbursed all second-round claimants their 30 percent deduction.^[1590] Ms Jagose told us she considered the whole deduction process was “done badly”.^[1591]

834.    Between 2001 and January 2020, the Crown paid a total of $12.6 million in three settlement rounds to Lake Alice survivors: $6.5 million to 95 survivors in the first round, $5.7 million to 90 survivors in the second round and $400,000 to survivors who presented claims after the second round closed.^[1592]

Ngā ngoikoretanga i ngā hātepe whakaea nawe, hātepe whakataunga - Failings in litigation and settlement processes

835.    As the above summary shows, and as we have reported, the legal process had many flaws.

• It was slow, made worse by inexcusable delays on the part of the Crown.^[1593]
• The legal system placed many barriers in the way of survivors, which put them on the back foot^[1594].
• Crown lawyers exploited every legal advantage to try to defeat the claimants, with an adversarial mindset, despite the merits of the claims^[1595].
• Many officials and others in power had a resistant attitude to the claims, the claimants and their legal representatives^[1596].
• The Crown made arbitrary deductions from some settlements for costs^[1597].
• The settlements did not acknowledge physical and sexual abuse.
• The settlements were ‘without prejudice’ (that is, with no admission of wrongdoing).
• The process did not lead to criminal or professional disciplinary accountability.
• Human rights breaches and the State’s obligation to carry out a prompt and impartial investigation into the allegations of torture were not recognised.
• No effort was made to engage with Māori survivors in a manner that recognised their culture and tikanga Māori.
• No effort was made to recognise Pacific peoples’ culture and language.
• No effort was made to recognise the needs of disabled people.

836.    We now develop some of these points, expanding on the account given in the redress report.

I tahuri ngā rōia a te Karauna ki te ara kakari - Crown lawyers adopted an adversarial mindset

837.    Crown Law’s initial response to the Lake Alice claims focused on legal technicalities and identifying options to defeat the claims, rather than assessing the merits of each claim or potential breaches of human rights. That is, at least in part, a product of the adversarial system. But in this case, the merits were particularly strong, many years were lost, and much damage was done before the Government ultimately came to the right decision to settle the claims. The public of Aotearoa New Zealand would, we think, expect the Crown’s legal advisers to take a broader view of their role. To identify meritorious claims early on and give the Government balanced advice about settlement options, especially in cases of serious abuse and breaches of human rights. We found no sign that the responsible lawyers at Crown Law approached the Lake Alice claims in that way.

838.    Instead, in June 1995, the Crown and Dr Leeks applied to strike out Ms McInroe’s claim,^[1598] including on the basis of defences that could be described as technical.^[1599] For example, the Crown relied on the Limitation Act defence, arguing that the claim was too late, rather than saying it lacked merit.^[1600] The Crown also relied on a defence in the Mental Health Act 1969, which applied to acts done in good faith and with reasonable care.^[1601] In arguing this, the Crown and Dr Leeks' lawyer, Mr Knowsley were, in effect, declaring to the courts that Dr Leeks treated his patients in good faith and reasonably. If Dr Leeks could show he acted in this manner, the Crown would also avoid liability. The immunity under the Mental Health Act could also be used as a defence against criminal charges, so if Dr Leeks had succeeded in using the immunity in this civil case, a police criminal prosecution for the same acts would have been compromised.

839.    The application to strike out Ms McInroe’s claim was unsuccessful but the Crown’s procedural applications and unjustified delays dragged the claims out for years. As we note in He Purapura Ora, he Māra Tipu, litigation has had a negative impact on survivors, including re-traumatisation.

Te utu ki ngā rōia i tū mai mā ngā purapura ora - Payment of legal fees to solicitors representing survivors

840.    Mr Cameron told us he sought Crown funding for his clients’ legal fees on 13 separate occasions during the first round of settlements. All were declined.^[1602] Mr Cameron also considered the possibility of legal aid funding, but decided it was highly unlikely to be granted for the kind of work required for his Lake Alice clients.^[1603] Mr Cameron told us he also offered to fund the initial investigations (capped at $80,000), conduct the settlement process (capped at $250,000) and work for legal aid rates. The Crown was made aware that if the funding requests were declined, the likely option to fund the claimants’ legal fees was by way of contingency arrangement.

841.    Grant Cameron Associates had reached agreement with the clients to pay a capped contribution to disbursements. The costs of the firm’s time was covered by a contingency arrangement by which client costs were capped at a maximum of 40 percent of any payment agreed. Mr Cameron told us this was to ensure clients received a substantial portion of any settlement money.^[1604] Mr Cameron told us that the amount deducted from the settlement for legal costs was less than actual time incurred by the firm over the previous five to six years. The firm wrote off the shortfall. Before invoices were sent to each client, Mr Colin Pigeon QC was asked for his opinion on whether the proposed fees complied with New Zealand Law Society rules. Mr Pigeon found they were reasonable and proper.

842.    The Crown’s refusal to pay legal costs placed the burden on claimants and their lawyers to fund their own investigation and greatly restricted the firm’s ability to pursue the Crown for better settlement offers or to challenge those offers. The firm could not go on funding the negotiations itself forever and, in most cases, its clients could not afford to seek legal advice elsewhere.

843.    Some survivors told us they were shocked at the amount they were eventually awarded and the fees deducted from that amount, but felt they had no choice but to accept the amount.^[1605] Most first-round claimants told us they believed the Crown should have met the cost. They still felt aggrieved that the Crown had paid second-round claimants’ legal fees but not theirs.^[1606] The nearest the Crown has come to an acknowledgement of this inequity was at our hearing in June 2021 when Ms Jagose said that “although the Government attempted to achieve equity between the two rounds, this was poorly executed”.^[1607] We have recommended that the new redress body should be open to all survivors, including those who have been through previous redress processes.^[1608]

I tepea ngā puretumu ki ngā utu ā-pūtea - Redress limited to financial payment

844.    On 14 September 2001, during the first-round settlement process, Sir Rodney wrote to Crown Law seeking its agreement to provide counselling to claimants at the cost of the Crown.^[1609] Grant Cameron Associates subsequently wrote to Crown Law asking for comment on how the Government intended to respond to Sir Rodney’s recommendation. Mr Liddell replied on 26 November, saying the $6.5 million payment had “exhausted” the Crown’s resources and Cabinet approval would be needed to fund any counselling. He advised Mr Cameron that he “should not necessarily assume that a positive response will be forthcoming from the Crown”.^[1610]

845.    Mr Cameron told us he was “surprised” at this response because it seemed out of step with the Government’s message that it was “determined to resolve the grievances of all people who may have suffered the unacceptable practices that went on at Lake Alice”. He said “a true resolution of the grievances entailed rehabilitative treatment where necessary”, and this was something Sir Rodney also had in mind.^[1611]

846.    Our redress report examined the Crown’s failure to adequately consider non-financial forms of redress such as counselling and psychological care. Even the way survivors’ claims were assessed revealed a lack of awareness about the psychological damage caused by their time at the unit. This was something Justice Collins observed about his time with second-round claimants. He said neither he nor Sir Rodney “had any training in psychology or counselling” and he often wondered whether “the process of interviewing applicants may inadvertently have re-traumatised some of them”. He said that were he to perform the same role today, he would have ensured “an appropriately qualified health professional was involved in the interviewing of applicants”.^[1612] In He Purapura Ora, he Māra Tipu, we said the puretumu torowhānui scheme should provide appropriate support services to survivors, including cultural supports, and ensure its own workforce has the proper skills.^[1613] Appropriate cultural expertise would also be desirable.

847.    Many survivors would have agreed with Justice Collins. One told us she was “willing to accept anything” after the trauma she re-lived during the first-round settlement process,^[1614] while another said he felt angry the Government’s response was “only about money to make us go away. There was no offer of rehabilitation to help our recovery”.^[1615]

I iti te reo o ngā kaikerēme - Limited voice for claimants

848.    Claimants were given no opportunity to explain to a broader audience what happened to them at Lake Alice. Many felt the process was reduced to dollars and cents and their participation was confined to an interview or two. They had no avenue for expressing their strong feelings about how they had suffered – and continued to suffer – as a result of their time at the unit. Mr Peter Henaghan, speaking for many claimants, said it was not the justice he had hoped for.^[1616] Mr Donald Ku said he had no opportunity to relate his experience, and he realised now how crucial that was to him.^[1617] Mr JJ, said it was “very important to me that people hear what we went through”, but such an opportunity never arose.^[1618]

849.    The Crown acknowledged to us that the settlement process lacked any mechanism for claimants to make their experiences known to the wider community. However, it said this inquiry provided a means for survivors to “be properly heard at last”.^[1619]

Kāore i uru ki ngā whakataunga ngā tūkino ā-tinana me te taitōkai - Settlement excluded physical and sexual abuse 

850.    From an early stage it was clear that some of the claimants had raised allegations of sexual abuse in Department of Social Welfare custody. As the claims progressed, some claimants also made allegations of sexual and physical abuse at Lake Alice. However, the settlements in 2001 were confined to improper medical treatment only and excluded compensation for sexual and physical abuse.^[1620]

851.    One consequence of taking this restricted approach was that many of the same survivors were forced to pursue subsequent claims through other agencies, including the Ministries of Social Development and Education, for physical, sexual and other forms of abuse. This was needlessly traumatic for survivors, as well as costly and inefficient for the Crown. A second consequence was that the Crown missed opportunities to investigate physical and sexual abuse while perpetrators were still alive and memories were still fresh. The most notable example was prolific sex offender Mr John Drake, who was accused of indecent assault and sexual violation of children and young people at numerous Department of Social Welfare residences and Department of Education–run institutions, including Holdsworth School where he was acting principal. In 2001, at least four former Lake Alice patients had come forward with such allegations, and by the time he died in 2011, the number of boys alleging Mr Drake abused them had grown to seven. By the end of 2020, the number had reached 18.^[1621] Mr Drake was never held accountable.

852.    As late as 2013, Crown Law, on behalf of the Ministry of Social Development, was asserting that the medical treatment administered at the unit was “accepted practice at the time”,^[1622] and, in 2017, there was “no evidence that ECT was used as punishment and that further investigation or action … was required”.^[1623] Such statements are difficult to reconcile with the Prime Minister’s acknowledgement in her apology in 2001 that what happened at the unit was “unacceptable by any standard, in particular the inappropriate use of electric shocks and injection”.^[1624]

853.    In recent years, the Ministry of Social Development has investigated allegations of various kinds in response to complaints by survivors, although it has never initiated investigations of all those sent to the unit. It found a variety of practice failings, including parents not being told about their tamariki being placed at Lake Alice,^[1625] no action on complaints about electric shocks,^[1626] allegedly not following proper admission procedures^[1627] and not monitoring the education of the children and young people placed at the unit.^[1628] To our knowledge the ministry did not consider or address the lack of access to language, whānau and culture.

854.    In October 2008, staff from the ministry interviewed Mr Don Brown, the educational psychologist who raised concerns about the misuse of ECT in 1974. Mr Brown told them the unit’s use of “electrodes placed on the genitals and on the legs” put an end to any referrals to Lake Alice.^[1629] We could not find any evidence that the ministry shared this information with NZ Police.

Te korenga o te haepapatanga - Lack of accountability

855.    The civil settlement process that survivors pursued did not in itself lead to any meaningful accountability for Dr Leeks, other staff or any of the relevant institutions. To some extent that is an inherent feature of the approach adopted. The strongest form of accountability comes from the criminal law and/or professional discipline regimes. Civil claims, at best provide a more indirect form of accountability.

856.    The decision whether to make a complaint to NZ Police or disciplinary body should ordinarily be one for the survivor concerned. In this case, however, there were opportunities for Crown agencies to take steps that may have led to accountability. For example, in 1997, the Ministry of Health told their Minister he had options to establish further investigations or inquiries, which in turn might lead to referrals to NZ Police or complaints to medical authorities.^[1630]

857.    Despite the overall lack of accountability, the Lake Alice group achieved greater success in pursuing redress than any other survivor group to date, as we have noted above. This can be put down to several factors. Primarily it was the result of the determination and patience of the survivors themselves, their legal representatives and supporters who were willing to challenge the legal and medical establishment despite the many hurdles. In the case of the legal representatives, it required lawyers willing to take on and persevere with difficult cases without any guarantee of payment or success. The claims were supported by evidence from the survivors, together with supporting evidence from the medical files and independent experts. The claimants also made up a critical mass of survivors who had been through the unit and their experiences were collected and presented together. Many survivors were able to articulate what had happened in the unit and provided evidence that they had not suffered from a mental health condition, which may have increased their perceived credibility. Ultimately, it required intervention from the highest levels of government (indeed as high as the Prime Minister) directing Crown agencies to resolve the legal claims despite the objections of Crown lawyers and officials. Survivors making claims of abuse related to other institutions, particularly health institutions, have faced additional barriers.

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