775.    A fourth investigation got under way in 1977 even as the NZ Police investigation was still in progress. It involved three professional bodies: the Medical Council of New Zealand, New Zealand Medical Association and Australian and New Zealand College of Psychiatrists.

776.    The Medical Council was, and still is, the regulatory body for doctors. The council’s main responsibilities in the 1970s were the registration and discipline of medical practitioners.

777.    The Medical Association was a professional membership organisation for doctors and medical students.^[1458] In the 1970s, the association had a statutory role in recommending two of the 11 council members.^[1459]

778.    The Australasian Association of Psychiatrists was established in 1946 in Melbourne, Australia, becoming the Australian and New Zealand College of Psychiatrists in 1964^[1460] and the Royal Australian and New Zealand College of Psychiatrists in 1978. It is a membership organisation responsible for training, providing education and professional development, and advocating for its members in both countries.^[1461]

779.    In the 1970s, the council and the association played a role in disciplining medical professionals (the disciplinary bodies and their roles are set out below). The college had no powers to investigate or require the production of information or evidence in relation to misconduct of psychiatrists, so the college relied on the findings by these and other relevant disciplinary bodies.

Disciplinary bodies in 1970s

The Medical Association: The Medical Practitioners Disciplinary Committee

The New Zealand Medical Association had a Central Ethical Committee that could refer complaints to the Medical Practitioners Disciplinary Committee. The disciplinary committee was a body for the medical profession, appointed by the council of the association and the Minister of Health.^[1462] The disciplinary committee was responsible for hearing lower-level charges of professional misconduct.^[1463] If it made a finding of professional misconduct, it could order a fine, impose conditions on practice, censure practitioners, and order payment of costs and expenses of the inquiry.^[1464]

The Medical Council: Penal Cases Committee

The Medical Council of New Zealand’s Penal Cases Committee consisted of two members of the council and a solicitor.^[1465] It dealt with more serious allegations that could amount to disgraceful conduct.^[1466] If the Penal Cases Committee considered the practitioner’s conduct was disgraceful, it could refer the complaint to the chair of the council, who would convene a meeting of the council to hear the charge.^[1467]

Medical Council

If the Medical Council considered there was disgraceful conduct or a practitioner had been convicted of an offence punishable by at least two years’ imprisonment, the council had powers to discipline them.^[1468] The disciplinary powers included suspension from practice or cancellation of registration as well as fines, censure and costs orders.^[1469]

Te amuamu a te purapura ora, a Mr Kevin Banks - Complaint by survivor, Mr Kevin Banks

780.    Mr Kevin Banks complained to Dr Pugmire after he was discharged from the unit on 27 May 1977.^[1470] The complaint was ultimately referred to the New Zealand Medical Association’s Central Ethical Committee.^[1471] It consisted of four allegations.^[1472]

• Dr Leeks had deliberately administered ECT to Mr Banks as punishment “on more than one occasion”; for example, as punishment for smoking.
• Dr Leeks administered painful shocks to Mr Banks more than once that were not conventional ECT. These shocks were administered for what Dr Leeks considered to be ‘unsatisfactory behaviour’.
• On some occasions, two boys had their arms strapped together and were given shocks jointly. This happened to Mr Banks at least once.
• Mr Banks recounted an incident when one of the older boys (Mr CC) sexually assaulted him and four or five other boys in the unit. Dr Leeks told the boys to bring the ECT machine to the treatment room, where Mr CC was also taken. Under Dr Leeks’ direction, each boy took turns to administer painful electric shocks to Mr CC.

781.    Dr Mirams recorded these complaints in notes of his interview with Mr Banks, which Mr Banks signed as a true summary.^[1473] Mr Banks also elaborated on the allegations and discussed a further incident where Dr Leeks applied the electrodes of the ECT machine to his chest and gave him a painful shock.^[1474] Mr Banks also said nurses gave painful shocks when no doctor was present.^[1475] Former charge nurse Steve Hunt was one of these nurses.^[1476]

782.    Dr Mirams noted he considered Mr Banks would be “quite a satisfactory witness in any formal proceedings”.^[1477] He considered two matters might complicate a disciplinary hearing. First, Mr Banks said he had told his stepmother about the sort of treatment he was receiving and she had told him it was doing him good.^[1478] Second, he considered Mr Banks was now in a satisfactory state of health.^[1479]

783.    Dr Mirams mentioned that some of Mr Banks’ allegations had been brought to the attention of NZ Police.^[1480] He did not mention that he had forwarded similar allegations made by other individuals to NZ Police on 14 June 1977.

Te tūhuratanga a te Medical Association’s Central Ethical Committee - Medical Association’s Central Ethical Committee’s finding

784.    The Central Ethical Committee sought a response from Dr Leeks to the allegations. Dr Leeks explained what he said were the clinical justifications for Mr Banks receiving several courses of ECT, given by Dr Leeks and other psychiatrists.^[1481] He also said Mr Banks had received a course of three sessions of aversion therapy in response to several vicious attacks by Mr Banks on another boy.^[1482] He said the shocks were not painful and were a legitimate treatment aimed at preventing further violence.^[1483] He said he had no knowledge of boys being strapped together and shocked and could only describe the allegation as a ‘fabrication’.^[1484] The Central Ethical Committee accepted these responses to the first three allegations and decided not to investigate them further.^[1485]

785.    The fourth allegation was more serious. Dr Leeks acknowledged he had allowed several boys to administer electric shocks to Mr CC (who had been accused of sexually assaulting them).^[1486] Dr Leeks said he spent time with each of the boys alone and then together as a group and decided it was reasonable the boys who had been sexually assaulted should do something to demonstrate their feelings of hurt and degradation to Mr CC.^[1487] According to Dr Leeks, the boys had asked to be included in Mr CC’s “aversive programme”.^[1488] Each boy was asked to say how it felt to be assaulted. At that point, each pressed the switch and gave the victim “a single shock from the aversive faradic circuit”.^[1489] They all did this in turn before Dr Leeks “took over and completed the aversive therapy session”.^[1490]

786.    The Central Ethical Committee had “considerable doubts as to whether it is ethical to administer aversion therapy to a committed patient unless his informed and voluntary consent is first obtained”.^[1491] There was no way it was acceptable psychiatric therapy to allow victims to punish a patient.^[1492] The committee appreciated Dr Leeks may have acted in good faith but felt strongly this “constituted grossly unethical conduct likely to bring the reputation of the medical profession into disrepute”.^[1493] For this reason, the Medical Association referred the fourth allegation to the New Zealand Medical Council’s Penal Cases Committee for investigation of potential disgraceful conduct.^[1494]

Te urupare a Penal Cases Committee - Penal Cases Committee’s response

787.    Dr Humphrey Gowland, convenor of the Penal Cases Committee, wrote to Dr Leeks on 3 November 1977 to give him notice the Committee had received a complaint that he had been guilty of disgraceful conduct.^[1495] Dr Gowland noted that the complaint was that “in the course of giving treatment to a patient with an ECT machine you permitted young fellow patients to administer the shock treatment to the patient concerned by means of the ECT machine”.^[1496] He invited Dr Leeks to provide a written explanation and appear at a hearing on 23 November.^[1497]

788.    Dr Leeks responded, providing his explanation for what happened and accepting the invitation to be heard.^[1498] He said Mr CC had a history of sexual assaults and at some point attacked a younger boy at the unit.^[1499] He said he had secured Mr CC’s consent to a two-week course of aversive therapy, which he described as “one of the behaviour therapies which was being used between late 1972 and mid-1974 for sexual and assaultive offenders”.^[1500] Halfway through the treatment, staff learned the boy had sexually assaulted five other boys.^[1501] Dr Leeks said he decided to involve the five boys in administering shocks to Mr CC on the basis it would help the boys deal with their feelings about being sexually abused by Mr CC.^[1502] He also said he considered it would be a way for Mr CC to understand the feelings of his victims.^[1503]

789.    The Penal Cases Committee obtained an expert opinion on Dr Leeks’ actions and explanations from Professor John Roberts. Professor Roberts said the technical requirements of the type of aversive therapy Dr Leeks said he was using were “far from straightforward”.^[1504] He said it was absolutely essential to the effectiveness of the treatment that the subject agreed to the treatment and wanted to change his behaviour.^[1505] He also said Mr Banks “clearly identifies the treatment with punishment”, adding that “if the boys saw the treatment in terms of punishment, then I find it very difficult to understand the justification for incorporating them in these sessions”.^[1506] It was clear Professor Roberts was reluctant to criticise a colleague. He said he was concerned about Dr Leeks and suspected he was being called to account for utilising a technique that “in the light of the present day no longer is regarded in the same favourable way in which it was at the time which is under consideration”.^[1507] He was also clear he considered it inappropriate to include the other boys in the electric treatment session.^[1508] He said, “I can understand the logic of Dr Leeks’ argument, but I cannot accept the premises from which he argues”.^[1509]

790.    The Penal Cases Committee met on 23 November. No records of the meeting or the outcome existed by the time we came to investigate. However, the committee did not lay a charge or proceed any further.^[1510]

791.    Following the hearing, Dr Leeks wrote to the Medical Council to request a letter of good standing so he could be registered to practise in Australia.^[1511] Dr Leeks continued to practise in Australia until 2006.

Ngā ngoikoretanga o ngā tōpūtanga rata ngaio - Shortcomings of the medical professional bodies

792.    The decision by the Central Ethical Committee to progress only the fourth allegation to the Penal Cases Committee appears to have been based on a preference for Dr Leeks’ account over that of the complainant. There may be records that no longer exist or that we have been unable to obtain. However, the Central Ethical Committee does not appear to have enquired into factual inconsistencies between the accounts or sought input from other witnesses to the events.

793.    The expert opinion by Professor Roberts shows a reluctance to criticise a colleague and prioritised concern about Dr Leeks being unfairly treated over the safety and wellbeing of patients.

794.    Because of a lack of records, we have been unable to review the decisions made by the medical disciplinary bodies in relation to Mr Banks’ complaint. In its evidence to the inquiry, the Medical Council acknowledged that due to the passage of time and incomplete records it was unable to provide reasons for its decisions in relation to Dr Leeks.^[1512]

Te wāhi ki te Australian and New Zealand College of Psychiatrists - The role of the Australian and New Zealand College of Psychiatrists

795.    In the lead up to the commission of inquiry in the late 1970s, the New Zealand branch of the Australian and New Zealand College of Psychiatrists was concerned about the criticism of Dr Leeks’ treatment of Mr Hake Halo.^[1513] The chairman of the New Zealand branch committee, Dr Dobson, wrote to the Minister of social welfare to express concern that skilfully applied psychiatric treatment may be brought into disrepute. He said the committee considered patients or their relatives may become reluctant to accept ECT, which was a safe and effective treatment if applied skilfully.^[1514]

796.    In its report to the college’s General Council, the New Zealand branch reported that at its monthly meeting it had discussed the possibility that the commission of inquiry’s scope may be widened to consider ECT as a treatment overall, which would be undesirable.^[1515] The committee thought it would be difficult for public opinion to be influenced towards a greater acceptance of ECT, but agreed the branch would be ready to present its knowledge in an authoritative, expert and impartial manner.^[1516]

797.    Dr Jim Methven appeared for the New Zealand branch of the College of Psychiatrists at the hearing for the commission of inquiry.^[1517] Dr John Werry, a child psychiatrist, also appeared but in his individual capacity and not as a representative of the college.^[1518] Dr Werry told us they went along thinking they might be able to support Dr Leeks, but it didn’t work out that way.^[1519] He said they did not know much about Dr Leeks or his practices before the hearing.

798.    Dr Werry said as the hearing progressed he and Dr Methven were shocked by what they heard.^[1520] He said it seemed as if Dr Leeks was diagnosing tamariki with childhood schizophrenia to justify keeping them at Lake Alice.^[1521] Dr Werry said that with the benefit of hindsight they should have been more forceful in trying to change things and to confront Dr Leeks after what they had heard at the inquiry.^[1522] However, he acknowledged the difficulty in criticising colleagues and said, “if you’re going to do that, you need evidence that is going to stand up in a court of law”.^[1523]

799.    In the New Zealand branch’s report to the college’s General Council for its meeting scheduled for October 1977, it again reported it had discussed the commission of inquiry’s report.^[1524] The branch considered parental consent was the main issue but that ECT attracted a great deal of publicity.^[1525] It considered allegations that shocks were administered from an ECT machine to a patient’s legs for punishment was not an ECT issue and was probably under NZ Police investigation.^[1526] It also recorded that the committee had “strongly directed the allegations” that ECT was used as punishment to the relevant medical disciplinary bodies to minimise publicity.^[1527] It noted the need to balance efforts to minimise publicity that could have repercussions for psychiatry and reinforce myths about legitimate ECT with the need to scrutinise their own clinical practice and take note of the social climate.^[1528] 

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