Medical Practitioners Disciplinary Committee: He amuamu a tētahi purapura ora - Complaint by a survivor

858.    In April 1991 a survivor, Mr Carl Perkins, made a complaint to the Medical Practitioners Disciplinary Committee that Dr Leeks gave him and other boys ECT as punishment while at the unit in 1973.^[1631] The Medical Practitioners Disciplinary Committee, at that time, was administratively supported by the Medical Association.^[1632]

859.    Mr Perkins said because a staff member considered he had acted out “the officers … put me in a wheel-chair and told me that I was in for big trouble”.^[1633] He described being wheeled to another building and receiving unmodified ECT.

“[Dr Leeks] kept telling me I’d be a better person. Then they covered my eyes and my mouth with sticky tape. I couldn’t even move. I was then given two lots of ECT. The pain was unbearable, and my body went stiff with the second shot of ECT. I must have passed out as I don’t remember anything else.”^[1634]

860.    When he woke up the nurses told him he had been asleep for eight days.^[1635] He noted ongoing impacts to his physical health from the treatment, asked for an investigation into whether he was given deep sleep narcosis, and asked for Dr Leeks to be held accountable for his actions.^[1636]

861.    After considering the complaint, the chair of the Medical Practitioners Disciplinary Committee considered there were no grounds for an enquiry into Dr Leeks’ conduct.^[1637] The letter did not explain the reasons for this decision. We have not been able to review any further documentation about this complaint.

862.    The former deputy secretary to the Medical Practitioners Disciplinary Committee, Ms Gay Fraser, told us that when the Medical Practitioners Disciplinary Committee ceased to exist in 1996, the Medical Council took over responsibility for its files.^[1638] In 1997, at the request of the secretary of the Medical Council, records of complaints that did not proceed to hearing were destroyed.^[1639] Ms Fraser retained index books from her time on the Medical Practitioners Disciplinary Committee and said the survivor’s complaint was found not to be sufficiently substantial and never went to a hearing, which meant the file was destroyed.^[1640]

Te Kaunihera Rata o Aotearoa: Te amuamu a tētahi purapura ora - Medical Council of New Zealand: Complaint by a survivor

863.    In January 1999, another survivor made a complaint to the Medical Council about Dr Leeks.^[1641] It was accompanied by a video tape of a 1997 documentary about Dr Leeks and the unit, titled The Children of Lake Alice.^[1642]

864.    The Medical Council convened a Complaints Assessment Committee to investigate this complaint under the Medical Practitioners Act 1995.^[1643] The Complaints Assessment Committee members were nominated by the council but could not be members of the council or tribunal.^[1644]

865.    At the time, the survivor was one of the 95 first-round claimants represented by Grant Cameron Associates and the firm gave the Complaints Assessment Committee copies of the survivor’s witness statement and medical records.^[1645] Grant Cameron Associates expressed concern about the timing of the disciplinary action and asked the committee to delay action while it discussed matters with the survivor.^[1646] The Complaints Assessment Committee was later told by Grant Cameron Associates that the survivor might wish to seek independent legal advice in relation to the complaint, and their impression was that the firm effectively distanced itself from the committee’s processes.^[1647] The Complaints Assessment Committee wrote to the survivor’s email and physical addresses to ask whether he wanted to proceed with the process,^[1648] but heard nothing back.^[1649]

866.    Mr Knowsley contacted the Complaints Assessment Committee on behalf of Dr Leeks and took issue with “propriety of pursuing the investigation”.^[1650] He noted there had been a commission of inquiry, an Ombudsman’s investigation, complaints to NZ Police and at least one complaint to the Medical Council that considered allegations about the treatments at the unit during Dr Leeks tenure.^[1651] The Complaints Assessment Committee considered there was a potential for harassment in being subjected to successive re-examinations of essentially the same issues.^[1652] In January 2000, the Complaints Assessment Committee decided to end its investigation, giving as its reasons that:

• more than 20 years had passed since the alleged abuse, during which Dr Leeks had not practised in New Zealand, and the committee considered he was unlikely to do so
• various bodies had considered similar allegations nearer to the time of the allegations including a commission of inquiry, the Ombudsman, the Medical Council and NZ Police
• insofar as the complaint could be limited to the survivor’s treatment, it had not been formulated or articulated, and the survivor had also dropped from communication, which the committee considered meant he opted out of the process
• High Court action under way at the time against Dr Leeks would provide an avenue for redress, thoroughly examine anything missed to date, and if anything did emerge, it would “doubtless be brought to the Medical Council’s attention”^[1653].

867.    This demonstrates that the shortcomings of the investigations by the Magistrate, NZ Police and the Medical Council in the 1970s continued to have negative consequences for survivors into the 2000s.

868.    Amid the publicity about a possible Crown settlement with claimants, the Medical Council wrote in July 2001 to Crown Law asking for any information relating to the settlement that it could lawfully disclose.^[1654] Crown Law responded three months later, merely enclosing a copy of Sir Rodney’s report,^[1655] which the council forwarded to the Medical Practitioners Board of Victoria with the comment that the report seemed of no use in pursuing any complaints.^[1656]

869.    At the time, the Medical Council had no power to investigate professional misconduct without having first received a complaint.^[1657]

Royal Australian and New Zealand College of Psychiatrists

870.    In early 1999, media publicity about Dr Leeks and the unit attracted the attention of the Royal Australian and New Zealand College of Psychiatrists. The college’s Professional Conduct Committee was asked to consider whether it should initiate a disciplinary process.^[1658] In June 1999, Dr Broadbent wrote to Dr Leeks, inviting Dr Leeks to comment on the allegations about his conduct at Lake Alice.^[1659] In August 1999, Dr Leeks responded to Dr Broadbent, providing his response, which was provided to the Professional Conduct Committee.^[1660]

871.    While the college had the power to censure, suspend and expel members, it had no powers to investigate or require the production of information or evidence in relation to misconduct of psychiatrists.^[1661] As a result, it typically relied on factual findings of regulatory bodies such as the Medical Council of New Zealand or the courts to establish facts for the purposes of considering action in relation to a person’s college membership.^[1662]

872.    Associate Professor Wayne Miles, the president of the college from 2001 to 2003, said the difficulty for the college was that “all the reports of the practices at Lake Alice Hospital would suggest gross malpractice, but we could not obtain from any of the possible sources clear, factual evidence of that malpractice”.^[1663] He told us the organisation was so concerned about Dr Leeks that it took the “unusual step” of requesting information from the Crown.^[1664]

873.    The college’s executive director, Mr Craig Patterson made renewed efforts to highlight to various regulatory bodies, as well as to the Government, the college’s inability to institute disciplinary proceedings without an appropriate body having first made factual findings. On 16 October 2001, Mr Patterson wrote to the Minister of Health, Annette King, asking the Government and Ministry of Health to provide any information relating to Dr Leeks’ clinical practice at Lake Alice.^[1665] He said the college had previously sought information from the Medical Practitioners Board of Victoria and from the New Zealand Medical Council, High Court and Ministry of Health.^[1666] However, no determinations of fact regarding Dr Leeks’ role in the allegations had been provided or were publicly available.^[1667] He said statements made by Sir Rodney Gallen indicated factual findings had been made and the college needed this information so it could terminate Dr Leeks’ membership, and thus his capacity to practise as a psychiatrist, if the allegations were correct.^[1668] Mr Patterson added that as long as this “inaction continues and Dr Leeks’ position remains unexamined”, confidence in psychiatry would be “eroded”.^[1669] He added that “this situation cannot be allowed to continue”.^[1670]

874.    An internal Ministry of Health email said the college had specifically requested evidence filed by Ms McInroe and another survivor.^[1671] This would have included the highly critical opinion by Dr Werry, described above. On 17 October 2001, Mr Arnold met Mr Liddell and another Crown Law lawyer, and one topic discussed was how to respond to the college’s requests for information. A note from the meeting said the “Crown should probably only provide information in so far as it is required to by the law”.^[1672]

875.    On 24 October 2001, the Ministry of Health’s chief legal advisor, Mr Grant Adam, replied to Mr Patterson enclosing only a copy of the part of Sir Rodney’s report that had been made public.^[1673] He also said the report had come about in unusual circumstances and it was “not a judicial determination” but rather Sir Rodney’s “recording of the claimants’ own oral and documentary evidence without other input” such as evidence from staff.^[1674] He said the purpose of Sir Rodney’s involvement was to decide allocation, not to establish facts or attribute fault to any individuals.^[1675]

876.    Mr Patterson also wrote to the Medical Council of New Zealand urging it to investigate Dr Leeks’ clinical practice, so the college could, in turn, act if the allegations were proven by terminating his membership.^[1676] The college also issued a media release calling on the Medical Practitioners Board of Victoria to urgently investigate the allegations against Dr Leeks. It demanded statutory bodies with the necessary powers in both countries look “aggressively and unequivocally” into his alleged practices, which could “only be described as severe child abuse and torture”.^[1677]

877.    In December 2001, the college issued a media release urging survivors to lodge complaints with the Medical Council of New Zealand or the Medical Practitioners Board of Victoria, which it considered the only way to see “justice served”.^[1678]

878.    The Medical Practitioners Board of Victoria opened an investigation into Dr Leeks in June 2002, but, as we discuss below, it did not proceed with a hearing. Dr Leeks’ membership with the college remained in place^[1679] until his death in early 2022.

Te Kaporeihana Āwhina Hunga Whara: Te pīra McInroe - Accident Compensation Corporation:  - McInroe appeal

879.    In November 1994, Ms McInroe appealed against the Accident Compensation Corporation’s (ACC’s) rejection of her claim for cover because of medical misadventure while at Lake Alice, and she provided supporting opinions from two psychiatrists, Dr McGeorge and Dr Armstrong. ACC had denied the claim in August 1993, saying her treatment was appropriate and appropriately given, and there was “no evidence of medical error or negligence”.^[1680] In January 1996, the review officer found Ms McInroe was entitled to cover for personal injury caused by medical misadventure.^[1681] The finding of medical misadventure triggered a statutory obligation on ACC to refer the finding to the Medical Council of New Zealand for investigation.^[1682] Crown Law lawyer Mr Ian Carter was aware of this obligation on ACC because he made a file note that, in the event of a medical misadventure finding, “ACC automatically refers it to Medical Disciplinary Tribunals”.^[1683]

880.    However, the council said it never received a section 5(10) referral about Ms McInroe’s case,^[1684] and ACC told us it had no record of having referred the finding to the council or any other investigative agency. When asked why it had not made a referral, ACC said it was probably because a review officer, not the corporation itself, had made the finding of medical misadventure.^[1685]

881.    ACC’s failure to make a referral was a serious oversight. Review findings are binding on ACC.^[1686] It did not appeal against the decision to provide cover and it was obliged to make a section 5(10) referral.

Medical Practitioners Board of Victoria 

882.    Around early 1999, some survivors involved in litigation against the Crown through Grant Cameron Associates independently complained to the Medical Practitioners Board of Victoria about Dr Leeks.^[1687] The board hesitated to investigate because of doubts about whether its jurisdiction extended to the conduct of doctors in other countries before they had registered in Australia.^[1688] However, the board reconsidered its position after the Crown completed the first round of settlements with Lake Alice claimants,^[1689] and in 2002 the board opened an investigation into a complaint against Dr Leeks, following a formal complaint made by Grant Cameron Associates on behalf of 47 claimants.^[1690]

883.    After four years of investigation,^[1691] the board wrote to Dr Leeks on 26 June 2006 notifying him that it would hold a hearing on 19 July 2006 to examine whether to find him “guilty of infamous conduct in a professional respect”.^[1692] Two days before the hearing, Dr Leeks wrote to the board saying he undertook to retire from all forms of medical practice in Victoria or anywhere else in order to “[avoid] a costly formal hearing”. He did not admit to any of the allegations raised in the complaint.^[1693] The board cancelled the hearing and wrote to Grant Cameron Associates explaining that its prime role was to protect the community, which was assured now that Dr Leeks had undertaken not to practise again.^[1694]

Manaakitia a Tātou Tamariki - Children’s Commissioner

884.    The civil settlement and release of the Gallen report in late 2001 prompted Children’s Commissioner Roger McClay to act too. On 17 October 2001, Mr McClay wrote to the Minister of Health asking for officials to check the whereabouts of former Lake Alice staff to ensure none was “currently working with children”.^[1695] The minister replied that it would not be possible for officials to do a check on former Lake Alice staff. The minister also advised that such an inquiry by the Ministry of Health would not be warranted or appropriate, stating that it would be unjust and inappropriate to act in any way that assumed the guilt of former staff.^[1696] However, she invited Mr McClay to meet Ministry of Health officials to discuss the issues he had raised.

885.    According to a Crown Law file note of the meeting on 28 January 2002, officials told Mr McClay the government had investigated the allegations including interviewing staff members, and that on the basis of its investigations the government had decided it was not “appropriate to conduct a further investigation of the former staff”.^[1697] The file note states Mr McLay was told that “the information obtained by the Crown was obtained in confidence, for the purposes of the litigation” and that “the Government(sic) is not free to release the information”.  The file note also states that claimants had been compensated for their “experiences” rather than on the basis of “wrongs”, and that it was “very hard to work out what went on at Lake Alice”.^[1698] As for Dr Leeks, the officials told Mr McClay the Crown’s position on taking legal action against him might have been different if he still lived in New Zealand, but he did not.^[1699] They also referred to the possibility of investigations of Dr Leeks by the Medical Council and the Royal Australia and New Zealand College of Psychiatrists, as well as the potential for a private prosecution.^[1700] Mr McLay took no further action on the subject after this meeting.

886.    We gave the Office of the Children’s Commissioner a selection of documents in the Crown’s possession before the 2002 meeting summarising the evidence it had collected and the conclusions it had reached about survivors’ allegations. After reviewing the material, the Office of the Children’s Commissioner told us it considered there were indications the Crown officials had withheld important information from Mr McLay.^[1701]

Te Toihau Hauora, Hauātanga - Health and Disability Commissioner 

887.    Several survivors, or survivor advocates, made complaints to the Health and Disability Commissioner about Dr Leeks and their treatment at the unit, but the Commissioner did not act on any of the complaints. One was made before 2004, so was not investigated because the office at that time had no jurisdiction to investigate complaints about matters that took place before its establishment in 1996.^[1702] An amendment in 2004 to the Health and Disability Commissioner Act 1994 allowed investigations into complaints about certain matters before 1996.^[1703] However, despite this, the commission decided not to investigate any of the complaints made after 2004 because too much time had elapsed since the events that were the subject of the complaints.^[1704]

888.    One of those complaints was made by Mr Kevin Banks. In November 2005, Mr Banks complained that Dr Leeks had forced him and other boys to administer electric shocks to another boy (the incident with Mr CC, described above), which had affected him “gravely”.^[1705] He said Dr Leeks’ conduct had also affected more than 300 other New Zealanders, and he expressed concern that Dr Leeks was still practising psychiatry.^[1706] Mr Banks included a lengthy statement prepared by Grant Cameron Associates, his medical notes and a transcript of a taped discussion with Dr Leeks in 2001 in which Dr Leeks admitted allowing Mr Banks and other boys to administer shocks to Mr CC.

889.    Less than a month later, Health and Disability Commissioner, Ron Paterson, wrote back saying he had decided to “not take any specific action on your concerns”.^[1707] Mr Paterson explained that similar inquiries had previously been conducted, such as those by Sir Rodney Gallen, and he considered little could be gained by conducting another investigation. He suggested Mr Banks could either take court action or contact the Confidential Forum, a forum set up for former psychiatric patients who suffered abuse in hospital before 1992, which had no investigative powers.

890.    The Health and Disability Commissioner’s decision was made on the advice of the internal complaints team. Mr Paterson does not appear to have taken a substantive role in formulating the decision, although he signed out the letter advising Mr Banks of the decision. An unfortunate aspect is that there was at least the potential for a perceived conflict of interest that does not appear to have been disclosed. Before his appointment as Health and Disability Commissioner, Mr Paterson had held senior positions in the Ministry of Health and was involved in responding to the class action by Grant Cameron Associates, of which Mr Banks was a part. He was employed as manager of mental health services,^[1708] then deputy director-general of its safety and regulation branch between 1999 and 2000.^[1709] In 1997, he helped brief Minister of Health, Bill English, on how to respond to Lake Alice abuse claims, one of which was Mr Banks’ claim.^[1710] One of those briefings, dated 15 October 1997, attached a draft Cabinet paper seeking Cabinet approval for an Ombudsman investigation into allegations made by a group of former patients at the adolescent unit at Lake Alice and noted that the purpose of the paper was to “provide advice on how to minimise the legal and fiscal risks posed to the Crown arising out of the alleged mistreatment of patients at the [unit] by employees of the Department of Health and Palmerston North Hospital Board”.^[1711]

891.    In February 1998, Mr Cameron prepared a chronology of his interactions with the ministry while representing Mr Banks and a large group of other claimants, and this document showed Mr Paterson was a recipient of four letters from Mr Cameron. It also showed Mr Paterson participated in four meetings about the case put forward by the claimants, including Mr Banks.^[1712]

892.    The office should have notified Mr Banks of Mr Paterson’s previous involvement, so Mr Banks could consider asking Mr Paterson to recuse himself from decision-making. There was a potential for a perceived conflict of interest,^[1713] even though the letter complied with the Health and Disability Commissioner’s process for triage, legal advice and drafting of a ‘no further action’ letter on a complaint.

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