748.    Detective Senior Sergeant, Rob Butler, from the Whanganui criminal investigation branch was tasked with carrying out the first NZ Police investigation in 1977.^[1410] The focus was on section 112 of the Mental Health Act 1969, which made the ill-treatment of [a] mentally disordered person an offence.^[1411] Mr Butler was instructed to conduct the investigation with urgency and a minimum of publicity.^[1412]

749.    Mr Butler interviewed Dr Leeks twice, on 27 June and 11 July 1977. Dr Leeks initially gave Mr Butler comments about Mr DR and Mr EB, along with four other patients who had made complaints.^[1413] A month later, he gave Mr Butler a list of 44 boys, supposedly identifying who had received ECT only, who had received aversion therapy only, and who had received both.^[1414] 

750.    Mr Butler’s notes of his first interview with Dr Leeks show they discussed the difference between ECT and aversion therapy. Dr Leeks said aversion therapy was when “an event or a behaviour is linked with an aversive stimulus, in this case an electric current … the behaviour becomes an aversive stimulus to the person so that they do not carry it out”.^[1415] Dr Leeks said ECT was quite different because a much greater current induces unconsciousness and a convulsion.^[1416] He said he had stopped using aversion therapy because, “if one is using something in an uncomfortable way, it is not a good thing”.^[1417]

751.    Mr Butler asked Dr Leeks whether he believed the boys were telling “half-truths” about aversion therapy, and Dr Leeks agreed, saying “they were really the bottom-of-the-barrel kids from Hokio, Kohitere and Holdsworth, who could not manage them. They were anti-social and destructive kids”.^[1418]

752.    On 6 July 1977, 10 days after this interview, Mr Butler indicated to Dr Mirams that there was “no possibility of [laying] criminal charges”.^[1419] At that stage, Mr Butler had spoken to only three of the six complainants and no staff members and did not yet have any expert medical opinion.

753.    On 11 July, during the second interview with Mr Butler, Dr Leeks said at least 12, and perhaps as many as 16, individuals had received ECT and aversion therapy in the three to four months during which he said aversion therapy was being carried out.^[1420]

754.    In response to an allegation that a boy had received electric shocks to his head from two nurses, Dr Leeks said it would not be “beyond his instructions” to the nurses to administer ‘treatment’ to the head.^[1421] They then discussed the case of another boy who had been given electric shocks by other boys at his suggestion. Dr Leeks admitted that, in retrospect, “he did not know whether or not he would do such a thing again.”^[1422]

755.    Mr Butler next interviewed five staff members – Mr Steve Hunt, Mr Terrence Conlan, Mr John Blackmore, Mr Brian Stabb and Mr John O’Connell. Mr Hunt and Mr Conlan confirmed Dr Leeks had administered aversion therapy to boys with behavioural problems.^[1423] Mr Conlan confirmed Dr Leeks had started aversion therapy on boys from places such as Hokio Beach School and Kohitere Boys’ Training Centre after they would not respond to any other type of therapy and had ‘offended’.^[1424] Mr Conlan said some of these boys were “simply young thugs”.^[1425] He said Dr Leeks would administer most of the aversion therapy himself in the evenings, but Dr Leeks had given him and Mr Hunt authority to administer it in his absence if a particular patient offended.^[1426] Mr Conlan said he and Mr Hunt had initially questioned whether they had the legal authority to administer such treatment, but Dr Leeks replied that his verbal instructions were sufficient and they should have no concerns carrying them out.^[1427]

756.    Mr Butler’s report said aversion therapy as practised at Lake Alice was a type of punishment.^[1428] He said most boys who received it had been uncontrollable at State-run homes and had been sent to the unit “as an obvious last resort”.^[1429] However, their behaviour remained uncontrollable, he said, and they “failed to respond to group therapy and medication, so were subjected to electric shock therapy. There is no doubt that the majority of the boys concerned were of the worst anti-social and character-disordered types”.^[1430] He said in his report that aversion electric shock therapy at the unit appeared to have been effective and apparently had no side effects on any of the patients.^[1431] In his report, he said he considered it unnecessary to speak to every boy subjected to electric shocks because there was no question the unit used both ECT and aversion therapy.^[1432] He concluded evidence was insufficient for charges under section 112 of the Mental Health Act 1969.^[1433]

757.    On 12 September 1977, Mr Butler received correspondence from NZ Police legal advisor, Neville Trendle, who said NZ Police should not prosecute Dr Leeks over his use of ECT and aversion therapy because it was not an offence under the Mental Health Act 1969 for nurses, on Dr Leeks’ authority, to administer either therapy.^[1434] Mr Trendle said it was “as plain as it can be that the aversion therapy in particular is nothing other than a form of ‘punishment’, albeit a more sophisticated type”.^[1435] However, he said NZ Police could not “disregard the honest professional opinion of Dr Leeks” and unless the use of ECT and aversion therapy was “completely at odds with the psychiatric or psychological thought of the day”, a criminal prosecution of Dr Leeks should not follow.^[1436]

758.    Nonetheless, Mr Trendle said Mr Butler described one case that warranted further inquiry. This case involved Dr Leeks letting other patients give shock treatment to a boy. He considered Dr Leeks’ lack of direct control over the boys administering the treatment made it “dangerous at least and bordering on criminal ill-treatment. If this opinion is shared by his professional peers, a prosecution may be necessary”.^[1437] 

759.    Deputy Police Commissioner, Bob Walton, read the file and said its contents were a “considerable cause for concern”.^[1438] He said his primary concern was over the use of ECT other than by a medical practitioner and seemingly without a written programme. Mr Walton instructed the Director of Crime to speak with the Director of Medical Services as to his opinion about the treatment given at the unit and seek his advice on a suitable expert who could provide an opinion on this matter. It is unclear whether the Director of Medical Services ever gave his opinion on the treatment or provided advice on who would be an appropriate expert. However, NZ Police did seek an expert opinion from psychiatrist Dr David McLachlan. This opinion was provided to NZ Police on 28 December 1977.^[1439]

760.    Dr McLachlan considered the allegations had not been substantiated, and he believed the actions of staff had not been shown to be motivated by anything other than “genuine therapeutic intent”.^[1440] He said unmodified ECT should not be used routinely, but was justified in “difficult and problem patients when all other methods have failed”.^[1441] He expressed concern that patients had reported pain and discomfort during ECT and said this should not happen, but he added there was no evidence ECT was deliberately used in “any unacceptable way”.^[1442] He said it was natural patients disliked aversion therapy and regarded it as punishment, “when that in fact was not the motive” of staff.^[1443]

761.    Dr McLachlan dismissed the allegations, stating patients were “commonly paranoid” and it was no surprise the technique could be misinterpreted as punishment. His professional assessment was that Dr Leeks had shown bad judgement in allowing other patients to give electric shocks to a boy. However, Dr McLachlan then stated that he believed Dr Leeks intended to help the boys giving the shocks, who were victims of abuse by the boy receiving the shocks, and at the same time to help the boy who was given shocks. He did not believe Dr Leeks would have had any thought that it could have been considered ill-treatment in terms of s 112 of the Mental Health Act and “it was certainly not intended by him to be so”.^[1444]

762.    He also said he knew Dr Leeks personally, and that he was well regarded by psychiatric colleagues who found him a compassionate man concerned for his patients. He said it would be entirely out of character for Dr Leeks to undertake the sort of ill-motivated practices alleged. He noted Dr Leeks was under a heavy workload at the time of the allegations, so was unable to dedicate more time to looking after patients and supervising staff.^[1445]

763.    Dr McLachlan said unit staff were doing a good job under very difficult conditions, although a small minority might have misused aversion therapy with punitive intent, which could have arisen from a misunderstanding of the technique.^[1446] Nonetheless, he said “the evidence is not sufficiently clear or conclusive for any action to be taken”.^[1447] He excused any failure by staff to maintain professional standards as unsurprising given the challenges they faced.^[1448] 

764.    Dr McLachlan’s opinion was decisive for NZ Police. On 27 January 1978, they issued a press release saying their investigation had found no evidence of criminal misconduct.^[1449]

Ngā tepenga o te tūhuratanga a Ngā Pirihimana o Aotearoa - Limitations of the NZ Police investigation

765.    The NZ Police investigation was flawed in several ways.

766.    Mr Butler advised Dr Mirams that he saw no possibility of laying criminal charges after interviewing Dr Leeks only once, without having interviewed any staff and only three of the six complainants, and without having obtained an expert medical opinion.^[1450]

767.    Specific allegations were not always put to staff members for a response. One nurse, for example, was not asked about allegations that he gave electric shocks to a patient’s head as punishment for smoking.

768.    NZ Police accepted at face value Dr Leeks’ summaries of patients and their time at the unit without looking to nursing notes or other documentary evidence to identify inconsistencies in Dr Leeks’ accounts. NZ Police did not question Dr Leeks’ estimates of how many children and young people had received aversion therapy. They appeared to accept without analysis of clinical notes his claim that he used aversion therapy only after trying all other forms of therapy without success.^[1451]

769.    What Dr Leeks told NZ Police was also inconsistent with what he had previously told Dr Mirams. In May 1977, Dr Leeks told Dr Mirams he had no knowledge of “any occasion on which medical authority has been given for the use of painful aversive shocks by nursing staff”.^[1452] In one of his interviews with Mr Butler, however, he said he gave nursing staff permission to administer shocks in his absence. Mr Butler chose not to question Dr Leeks about this inconsistency, instead describing it as a matter of “interpretation and medical ethics between [Dr Leeks] and Dr Mirams”.^[1453]

770.    NZ Police did not interview the 44 children and young people that Dr Leeks’ identified as having received ECT or aversion therapy; nor did they speak to their families. Had they done so, they would most likely have had additional evidence to put to Dr Leeks for explanation. They may also have uncovered evidence about physical and sexual offending against the children and young people in the unit.

771.    Finally, NZ Police did not obtain an expert psychiatric opinion from someone unconnected to Lake Alice. Rather, they relied on Dr McLachlan who knew Dr Leeks personally and vouched for his character. He expressed sympathy for Dr Leeks as “compassionate, concerned for his patients and working diligently for their well-being”, and on this basis he concluded it would be “entirely out of character for him to undertake the sort of ill-motivated practices that are alleged”.^[1454] He similarly exonerated other staff of having any unworthy motives, despite evidence to the contrary from six boys.

772.    Dr McLachlan should have carefully examined the claim that nursing staff had given a boy electric shocks to the head as punishment for smoking.  Instead, he dismissed it as unreliable. He referred to the patients who made the allegations, as a group, as ‘commonly paranoid’.^[1455] Dr McLachlan failed to identify the way Dr Leeks used electric shocks as aversion therapy departed from commonly understood practice of this therapy. Instead, his opinion was based on negative assumptions about the character of the tamariki and positive assumptions about the character of Dr Leeks.

773.    NZ Police should have recognised at least some of these shortcomings. By relying on a deficient expert opinion, NZ Police did not adequately address the question raised by Mr Trendle, namely whether the use of electric shocks and aversion therapy at the unit was at odds with the psychiatric or psychological thought of the day.

774.    Many years later Dr McLachlan himself was the subject of allegations of improper conduct, with claims the misconduct had been reported to medical staff in the 1970s.^[1456] In evidence to this inquiry, the Citizens Commission on Human Rights was also critical of Dr McLachlan’s involvement in performing and studying prefrontal lobotomies in the 1930s and 1940s.^[1457] There is no suggestion these matters were known to NZ Police when it sought Dr McLachlan’s expert opinion in the late 1970s, but it does reinforce the danger in seeking advice from people connected to each other within a small circle, particularly where questions of character or institutional culture may be relevant.

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