PSYCHIATRIC HOSPITAL ACTION
1st Quarter 2010

Introduction:

It has been about nine months since we last forwarded a newsletter regarding progress of the claims. There have been recent developments, good and bad, which affect your individual claims. Please read through this newsletter carefully.

Overview:

Since our last newsletter we have:

• received the decision of the New Zealand Supreme Court, in September 2009;

• continuing to vigorously resist the Legal Services Agency's ("LSA") attempts to withdraw your funding;

• been continuing to file individual claims in court; and

• been continuing to maintain pressure on the Government and the Crown to settle the claims out of court, through domestic and international political means, including the United Nations.

Court action:

As stated above, we received the decision of the Supreme Court in September 2009 about the interpretation of the 1969 Mental Health Act.

The result of the Supreme Court decision and earlier Court of Appeal and High Court decisions means:

• Subject to the Limitation Act, the entire claim survives for all claimants who were informally admitted to psychiatric hospitals after 1 April 1972 (except those who were in Lake Alice and Queen Mary Hospitals when the date is 1986);

• Patients who were informally admitted to psychiatric hospitals before 1 April 1972 are to be treated the same as committed patients;

• For committed patients and pre-1 April 1972 patients, all allegations of sexual assaults remain. Similarly, all allegations of being physically assaulted in the nature of punches, hits, kicks and slaps remain. ECT given as punishment and/or control remains;

• If an allegation of physical assault relates to restraint, including excessive restraint, that allegation would be struck out;

• Allegations in the nature of: receiving medication in the absence of consent; being given ECT without consent; failure to provide schooling; provision of cigarettes; seclusion, even as punishment (subject to the comments below); failure to provide life skills; being required to work, etc would be struck out;

• Periods of seclusion in "inhumane conditions", including: being deprived of toileting facilities, being left naked; and/or being left in seclusion for unreasonable periods of time would stay in;

• Allegations such as: witnessing assaults by staff or patients on other patients; being assaulted by other patients; being threatened with assaults; being subjected to unusual therapeutic interventions; and/or being neglected, may or may not survive a strike-out application.

As we indicated in our last newsletter, we have started looking at every client's claim to consider whether your claim can proceed, in part or in whole. Where there are issues with this with regards your particular claim, we have written to you individually.

We ask that you bear with us while we work through this difficult exercise. It is not easy for us to advise some clients that their claims can no longer now proceed.

Having made the comments above, we note that the High Court has now allocated time in the middle of June 2011 for two psychiatric hospital cases to be heard. One case will be for a client of this firm and the other case will be for a client of Johnston Lawrence, the other law firm with whom we work. The specific cases have not yet been allocated. It will ultimately be the Court's decision as to which case proceeds. To a large degree, that decision will, from our perspective, need to take into account whether we have legal aid funding, the strength of the claim, the availability of witnesses and/or the strength of the expert evidence. It is unlikely that any final decision will be made as to which case will go ahead for some months yet.

We have referred, in recent newsletters, to a new section being included in all claims being filed, referring to a series of international and New Zealand human rights instruments, including the Bill of Rights Act, the United Nations Convention Against Torture and the Universal Declaration of Human Rights. We have now run one test case arguing this matter. We lost the issue at High Court level. Due to the complexities of that particular case, we are not appealing the decision. We have, however, argued the issue in another case that was heard in the High Court at the end of 2009. Depending on the outcome of that case, we may look to address the issue in the appellate courts, including the Court of Appeal and/or the Supreme Court. We will keep you advised of progress in relation to that.

Legal aid:

It is fair to say that we are still having legal aid problems, which we have told you started at the beginning of 2008.

We are also experiencing increasing difficulties with the High Court in delaying cases where legal aid has been withdrawn. In some cases, that has meant clients have been forced to discontinue their claims.

For those clients whose applications for an initial grant of legal aid have been declined, in particular, we have undertaken work to have those decisions reviewed by LARP. If you are one of those clients, you should be aware that until we have a decision from LARP, the only work we can undertake on your behalf is attempting to obtain a grant of aid. We will be in touch with you once we have an outcome.

As some of you may be aware, Dame Margaret Bazley undertook a review of the Legal Services Agency in mid 2009. Her report was released at the end of 2009. Dame Margaret Bazley identified serious problems with legal aid, including: the cost of legal aid; the inability of some clients to access legal aid who should have it; and also major communication difficulties between the LSA and lawyers. As a result of Dame Margaret Bazley's report, the Government is implementing a change whereby the LSA will be folded into the Ministry of Justice. Steps are already being undertaken to effect that change.

In the context of your claims, Dame Margaret Bazley stated that the Government should look to set up a process for resolving your claims out of court. That is a very important recommendation and one which, we hope, the Government will give serious consideration to. In that regard, we refer to the developments with the Human Rights Commission, which are addressed further on in this newsletter.

"Out of court" process:

As in our last newsletter, there have been no offers made by Crown Law to settle any psychiatric hospital claims. We are extremely disappointed at this lack of progress. It remains clear to us that where the Crown can rely on technical defences, it will not "talk" about settling a claim.

Human Rights Commission & United Nations:

In our last newsletter, we advised you that we had complained to the United Nations Committee Against Torture ("UNCAT") in respect of the refusal of successive New Zealand Governments to put in place any process for resolving your claims out of court. We are aware that the Human Rights Commission ("HRC") has been monitoring the Government's progress and intends to report to UNCAT in May of this year.

To that end, we report that the HRC is currently undertaking its own investigation into the Government's handling of your claims. The HRC will focus, in particular, on comparing the New Zealand approach with that of other Commonwealth countries. We have already observed that in many Commonwealth countries, Inquiries have already been undertaken into the abuse of children in care. Compensation and restitution programmes have been set up to address those clients' claims. We have also referred to the New Zealand Government's settlement of the claims in the Child and Adolescent Unit of Lake Alice Hospital relating to the abuse of adolescents in the 1970s.

We have already provided some information to the HRC as part of its investigation process. We will continue to provide further information, if requested, by the HRC. We will also continue to report to the United Nations in respect of the issues we are facing in progressing your claims.

Listening and Assistance Service:

We referred to the Confidential Listening and Assistance Service ("CLAS") in our last newsletter. We have advised you that the Service will listen to your story. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation. We have already advised you that the Service is able to assist you to access counselling services to help you tell your story.

Since the CLAS has been up and running, we have had meetings with the Chairperson, Judge Henwood, and the Chief Executive, Gordon McFadyen. We have been advised that, in addition to accessing counselling services, the CLAS has also assisted clients with: accessing records (including Ministry of Health and Police records); finding employment; reuniting families; assisting at Parole hearings; accessing parenting courses and the like. To date, we have been impressed with the way in which the CLAS has endeavoured to work with our clients to address their issues. We have also been impressed that the Service understands that it cannot provide one of the most important outcomes that you need and that is an acknowledgement that you suffered abuse in care and that you should receive an apology (and compensation) for that.

In the event that you have lost the contact details for the CLAS, they are as follows: PO Box 5939, Lambton Quay, Wellington 6145, Tel. 0800 356 567, or you can look at their website at www.listening.govt.nz. We understand that the Service will be travelling throughout New Zealand and will be including visits to the prisons. If you are in prison and they will not allow you to telephone the 0800 number, please ask the prison to telephone us and we will confirm that you should be permitted to make that call.

Closing files:

We have stated in a number of newsletters that we will close files where clients have changed their contact details and we have not been updated in that regard. Accordingly, it is important that you let us know if you change address and/or telephone number. Where we have lost contact with a client and we have filed that client's claim in the High Court, we apply to the Court to withdraw as the lawyers on the record. Our applications to withdraw as counsel are advertised in national newspapers through New Zealand. In cases where claims have not been filed in court and clients have not responded to our requests for contact, we send in a final invoice to the LSA and close off that client's file. It will only be in rare cases that we will re-open a client's file in that circumstance.

Mail from us:

It is also important that you respond to any mail that we send to you which requires some input from you. In particular, we may need you to complete some forms and return them to us.

We may also need you to work through draft documents that we send to you and which we need to complete for your case. In some cases, once we have completed documents, we will need to send them to you to be formally signed and returned to us. It is important, in each of those situations, that you respond to our requests for you to help us, as soon as possible.

It is also important, when we do send you documents and letters, that you understand it is sensitive and confidential information. To that end, we ask that you do not talk about the information we have provided to you, with others who were also in psychiatric hospital care. This includes email and social networks. There is a very important reason for that. If you discuss information we have been providing you with others who have been in care, then you run the risk of your credibility being damaged if that comes to light.

Contact with this firm:

You should all now be aware that we are known as Cooper Legal. We have a slightly increased number of staff, namely Sonja, Katie, Sam, James, Courtney, Bexx and Sophie. We continue to be very busy progressing work. As per usual, Bexx will typically be your first port of call. She has a good working knowledge of the files and is now qualified as a legal executive. Where Bexx is unable to assist you, she will be able to refer you to one of the solicitors.

Once again, we remind you that we are trying to keep your costs down as much as possible. Please be reassured that we will keep you up to date via newsletter, or individual letter, with any important news affecting your claim.

One of the ways in which you will be able to keep up to date with all developments is by keeping your eye on the website, if you have internet access. We will be sure to add to the site any information which is of interest to the client group. That site can be found at sonjacooperlaw.co.nz.

We are pleased that we have been able to report in this newsletter that the HRC is formally investigating the Government's management of these claims. We are also pleased that the United Nations is monitoring progress in that regard.

You should be reassured that we continue to work hard in the office to progress your claims. We are making some progress, although that is very slow and not particularly satisfactory. Nevertheless, progress is being made and we can only continue to work to ensure that progress continues to be made.

Regards, Sonja & Team

Important note:
This newsletter is intended solely for the information of claimants. It is not, and is not intended as a substitute for, legal advice.