Senior public servants on notice over abuse in care failings

The minister in charge of the Government’s response to the Royal Commission of Inquiry into Abuse in Care says she expects the acting public service commissioner to consider how to hold the public service accountable, including potentially taking employment action against individuals in government departments.

This week, Erica Stanford will meet Acting Public Service Commissioner Heather Baggott to discuss the report, including how officials responded when survivors tried to raise concerns, make complaints, and seek redress.

This meeting comes a fortnight after the biggest royal commission in the country’s history publicly released its 3000-page report, which found that over the course of five decades, children, young people and vulnerable adults were subjected to “unimaginable physical, emotional, mental and sexual abuse, severe exploitation and neglect” at the hands of the state and faith-based institutions.

The commission said survivors were right to call for an inquiry.

“There has been widespread abuse and neglect in state and faith-based care which has had a devastating personal and multigenerational impact on survivors, their whānau and society as a whole.,” the commission said.

“It has been minimised and covered up by the institutions responsible. Significant resources have been used to deny survivors their voice and to defend the indefensible. This must stop.”

The commission found the state had attempted to cover up the abuse for decades.

“Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations,” the report said.

The strategies used by the state were covered in detail throughout the report, particularly in the volumes relating to redress and Lake Alice.

The report named specific ministers, departments, senior public servants and members of the judiciary as those who survivors said perpetuated harm.

The commission recommended these ministers and departments all offer full public apologies.

And while many of these people are now dead, retired, or have moved on from their careers in the public service, some remain in the most powerful and influential positions in the country.

As Stanford points out, there is important context that needs to be established, such as: were the officials acting on behalf of a minister, and who holds responsibility for the widespread harm and re-traumatisation that has not come to the attention on the commission. And while some people have been named, others involved have not come to the attention of the commission.

Regardless, it seems the Government is considering all options, including telling the Public Service Commission to look closely at those individuals named in the commission’s reports.

Una Jagose – Solicitor-General

Jagose was appointed solicitor-general in 2016, and has been responsible for heading the Crown’s response to survivor’s legal claims.

The commission’s redress report, released in 2021, laid out the Crown’s aggressive legal strategies – things like using statute of limitations to try to block survivors’ civil claims, withdrawing legal aid funding, and not being forthcoming with discovery of documents.

In a precedent-setting civil case (see below) the lawyers instructed by Crown Law pursued potentially re-traumatising lines of questioning. In his statement to the Royal Commission, Earl White said the lawyer acting for the Crown suggested he had consented to being sexually abused as a child (something that is legally impossible, and was ruled out of order by the judge), she asked why he had allowed the sexual abuse to happen so many times (13), and suggested his life before going into care wasn’t that bad despite his father’s frequent, severe physical abuse.

Attorney-General Judith Collins says that who Crown Law instructs to act on her behalf is an operational matter.

But the Crown is expected to be a model litigant, and while Collins says Crown Law’s approach has not always been survivor-focused, she says she retains confidence in Jagose.

“I am confident Crown Law has listened to, and learned from, survivors and the Royal Commission and made significant changes in its approach to the litigation it conducts on behalf of crown agencies.”

In 2021, upon the release of the redress report, which shows how the state has sought to minimise and cover-up abuse in an effort to avoid offering survivors fair and full redress, including compensation, Crown Law issued an apology.

“We at Crown Law have listened to and learnt from survivors. The Crown sets itself high standards and, in most cases, we meet them. However, we have not always met the high standards people expect of us, and we apologise for that,” Jagose said at the time.

She said there had been changes to Crown Law’s approach to civil litigation since the early to mid-2000s to recognise “the sensitive subject matter and the vulnerability of the claimants and balances Crown Law’s role representing the Crown’s legitimate interests and upholding the law”.

The changes include an agreement to stop using the Limitation Act clock for cases concerning the Ministry of Social Development (it takes on-average 22 years for survivors to pursue a claim); a more survivor-focused approach to name suppression; agreement by the Crown to repay a claimant’s legal aid debt; streamlining discovery processes; endeavouring to settle claims promptly; and improvements to informal processes.

Crown Law did not issue any statement or apology upon the release of the final report.

And while Crown Law says its approach has changed, as recently as 2023, a complaint was made to the Law Society about Jagose after Crown Law withheld evidence from police in the most recent criminal investigation into the Lake Alice psychiatric hospital.

Meanwhile, lawyers representing survivors say the release of the final report reveals new information related to a civil case that has run for more than seven years, suggesting there is still an issue around Crown Law not handing over relevant documents.

Iona Holsted – Secretary for Education

Before becoming Secretary for Education, Holsted was deputy chief executive at the Ministry of Social Development.

While in that role, she was involved with survivors’ attempts to settle and pursue historic claims.

The ministry’s obstructive approach – which continues to this day – has been well-documented.

In the 2021 redress report, Holsted is singled out for criticism regarding the state’s attempts to minimise the financial and reputational impact of survivors’ claims. It mentions “some officials suggested lawyers were drumming up false or exaggerated claims”.

The report goes on to say “the Ministry of Social Development’s deputy chief executive of the time, Iona Holsted, even reported concerns in a memorandum that lawyer Sonja Cooper was behaving unethically, and speculated that she might have influenced claimants’ memories when gathering evidence, and ‘may deliberately target periods of time when records are poorest’ in the claims she made on behalf of her clients”. 

The commission finds these suggestions “entirely unfounded”. However, the memorandum was not an isolated piece of correspondence.

Despite this, Holsted was originally picked to lead the Crown Response Unit, a state entity set up in 2018 to respond to the Royal Commission of Inquiry into Abuse in Care. It is also responsible for setting up a redress scheme to respond to survivors.

Following a Newsroom report in 2023, Holsted was removed from the unit.

Meanwhile, the Ministry of Education is still defending sensitive claims relating to specialist schools, raising issues about the time that passed before survivors’ compensation claims were lodged.

In a written statement, a Ministry of Education spokesperson said: “The comments included in the 2007 memorandum are a matter of  public record. The Secretary for Education’s previous role as deputy chief executive at the Ministry of Social Development is also a matter of record through the hearings of the Royal Commission into Abuse and Care.

“Ms Holsted has heard and acknowledged the survivors of abuse in care and recognises the suffering and trauma they endured. She commends their courage in coming forward and sharing their stories with the Royal Commission.”

Holsted is leaving the ministry in December. Newsroom understands her departure is not related to the Royal Commission’s report.

Justice Forrest Miller – Supreme Court Judge

In a landmark case, in which brothers – referred to as Earl and Paul White during litigation – sought compensation from the state through a civil case, Justice Forrest Miller ruled that their abuse in care had not had a material impact on them.

Justice Miller said in his judgment, which has set a precedent for survivors’ civil claims, that the abuse suffered by Earl White – including more than a dozen instances of sexual abuse – as well as physical abuse was not to blame for negative effects on his life.

The court found that the brothers had suffered abuse, including sexual abuse in Earl’s case, and that the state had breached its duties to the pair. But largely attributed the brothers’ psychological and other difficulties to their childhood experiences at home, and possibly to a genetic predisposition.

Justice Miller accepted the view of expert witness Dr Chaplow, who said: “It appears that Earl came to feel embarrassed about it [the sexual abuse] later in life but did not find it traumatic, perhaps because from his perspective there had been an element of bargain, in which he traded favours for cigarettes and other privileges.”

In his conclusions, Justice Miller said: “In my opinion, the sexual abuse at Hokio has not made a material contribution to his difficulties … It is embarrassing for him, but not traumatic.”

The now-Supreme Court judge also said he accepted the argument that: “the more serious the allegation the less likely it is that the event occurred, and hence the stronger should be the evidence before the Court concludes that the allegation is proved”. The court found that the sexual abuse was able to be proven.

Collins said it would not be appropriate for her to comment in response to questions as to Justice Miller’s suitability to remain in the role.

Ian Carter – District Court judge

Carter was appointed a District Court Judge in 2021. Before that, he was in charge of the Crown’s case against Leoni McInroe – a survivor of Lake Alice.

Evidence give to the Royal Commission showed that Crown lawyers, including Carter, were instrumental in organising – and hushing up – a meeting to settle McInroe’s $1.5 million lawsuit which involved the secret return to New Zealand of the former head psychiatrist of Lake Alice.

It has since been established – and acknowledged by the Prime Minister – that what Selwyn Leeks did to children at Lake Alice hospital was torture.

Crown Law also failed to hand over material documents, relating to McInroe, to police in two separate investigations relating to Lake Alice.

When asked whether it was appropriate for Carter to remain in a position of such influence and power, Collins said it would be inappropriate for her to comment.

Grant Adam – NZQA chief legal adviser

The commission’s report on Lake Alice names NZQA chief legal adviser Grant Adam, in relation to his time as chief legal adviser for Ministry of Health.

In 2002, retired High Court judge Sir Rodney Gallen wrote a report based on interviews with 90 Lake Alice survivors. Gallen was asked to determine how the Crown’s settlement was to be split between claimants, but he was so shocked by their stories that he wrote a report instead.

His report affirmed the main allegations made by Lake Alice survivors and Leeks’ victims, such as sexual abuse, punishment by electric shocks and an environment of terror. He described some of the behaviour as “outrageous in the extreme”.

At the same time, the Australian and New Zealand College of Psychiatrists was attempting to find an investigation that established the facts of what Leeks did at Lake Alice, as it could not make its own factual findings and its ability to take disciplinary action was limited without this.

When Adam provided the college’s head with the Gallen Report, he said the report had come about in unusual circumstances and it was “not a judicial determination”. He said the purpose of Sir Rodney’s involvement was to decide allocation, not to establish facts or attribute fault to any individuals.

In June 2001, the Ministry of Foreign Affairs and Trade asked the Ministry of Health for comment on the Crown’s draft version of its report to the UN Committee Against Torture. After receiving a response that did not include the Lake Alice settlement process, the foreign ministry followed up, pointing out the report needed to include “complaints, inquiries, indictments, proceedings sentences, reparation and compensation for acts of torture and other cruel, inhuman, or degrading treatment or punishment”. 

It suggested the report refer to the Crown’s Lake Alice settlement process, but Adam wrote to Crown Law saying he had been wary of using the word “torture” and was keen to ensure New Zealand “was not saying in an international environment that it carried out torture on its people, given that the Lake Alice ‘treatments’ were carried out without the real knowledge or condoning by the state”.

In December 2001, the foreign ministry again asked Adam to reconsider referring to the Lake Alice settlement process. By then, payments had been made and apologies given to some survivors. MFAT said the abuse at Lake Alice could be considered torture as defined by the convention. But Adam said more settlement claims were likely and there were also “various views on whether it was a form of aversion therapy or not, but at this point in time it would not pay to dirty the waters and create problems for our current settlement processes by the government deciding for itself one way or the other”. Crown Law supported Adam’s view.

New Zealand did not mention Lake Alice to the UN committee until 2004.

In a statement, an NZQA spokesperson said the Crown entity was aware Adam was mentioned in the Lake Alice report, and referenced in the final Royal Commission report.

“What happened at Lake Alice was reprehensible, and is now rightly recognised as torture.”

The spokesperson said NZQA was not able to comment on the advice Adam provided in 2001, before his employment with NZQA. And they were not able to comment on any conversations NZQA might have had with Adam over the December 2022 Lake Alice Report. 

“Mr Adam has been employed by NZQA for 17 years and has had the organisation’s confidence as Chief Legal Counsel throughout this time.”

Ron Paterson – Medical Council member

Before joining the Medical Council, which is responsible for doctors’ registration and conduct, Paterson led the 2018 Mental Health and Addictions Inquiry. Before this he was the Health and Disability Commissioner and a health services manager at the Ministry of Health.

In November 2005, Kevin Banks complained that Leeks had forced him and other boys to administer electric shocks to another boy, which had affected him “gravely”. He said Leeks’ conduct had also affected more than 300 other New Zealanders, and he expressed concern that Leeks was still practising psychiatry.

Less than a month later, Paterson – who was the Health and Disability Commissioner at the time – wrote back saying he had decided to “not take any specific action on your concerns”.

Paterson explained similar inquiries had previously been conducted and he considered little could be gained by conducting another investigation. He suggested Banks could either take court action or contact the Confidential Forum, which had no investigative powers.

The commission said the Health and Disability Commissioner’s decision was made on the advice of the internal complaints team, and Paterson did not appear to have taken a substantive role in formulating the decision, although he signed the letter to Banks.

The report noted an unfortunate aspect was there was the potential for a perceived conflict of interest that did not appear to have been disclosed. Before his appointment as Health and Disability Commissioner, Paterson had held senior positions in the Ministry of Health and was involved in responding to the class action, of which Banks was a part.

In 1997, he helped brief Minister of Health, Bill English, on how to respond to Lake Alice abuse claims, one of which was Banks’ claim. The purpose of one of those briefing papers 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”.

Medical Council chair Dr Rachelle Love says Paterson disclosed his potential conflict of interest when he was appointed to the council in 2023.

Love says the council carefully considered the potential conflict, and as a result Paterson did not participate in any discussions or decision making relating to the Medical Council’s response to the Royal Commission.

“It is appropriate for Professor Paterson to continue to be a member and contribute to Council’s work in other areas, where a conflict does not exist.”

The council is appointed by the Minister of Health.

Paterson says as noted by the report: “I did not take a substantive role in the Health and Disability Commissioner’s decision in 2005 to take no further action on a complaint from a Lake Alice survivor.”

He says he accepts the commission’s finding that there is a potential for a perceived conflict of interest given his prior role. 

“My primary involvement had been in making the case for a wide-ranging independent inquiry for Lake Alice claimants, which ultimately occurred.”

Meanwhile, the council has offered an apology in writing and a video apology from Love, for failing to hold Leeks to account, for not preventing further harm after becoming aware of his actions, and for prioritising the doctor’s perspective over that of the patient.

“The survivors had a right to expect to be listened to, and for actions to be taken to protect them from further harm, and we did not meet those expectations.”

Frazer Barton – Law Society president

Following the release of the commission’s final report the NZ Herald reported that a formal complaint had been laid with the New Zealand Law Society following revelations the president of the legal organisation advised a religious group it could destroy the records of all the children it cared for.

According to the commission, records were destroyed because a senior staff member at Presbyterian Support Otago (PSO) decided they were “too much of a risk”.

The report reveals the former chief executive of PSO sought advice from Barton, who was a PSO board member at the time, about the wholesale destruction of all records.

According to the commission’s report, Barton told Bremner she was legally obliged to provide the documents requested by the survivor, but that all other documents could be destroyed.

In a written statement, a Law Society spokesperson told Newsroom Barton is currently on a leave of absence.

“The Law Society recognises and acknowledges the release of the Abuse in Care Royal Commission of Inquiry Report, and the appalling abuse and neglect suffered by survivors,” the spokesperson said.

“Our role as the regulator of the legal profession is to help people resolve issues around the conduct of lawyers.”

The society controls and regulates the practice of the legal profession and assists with legal reform. The president is also the chair of the board and the council and is elected by the council. 

Peter Hughes – Former Public Service Commissioner

Former Public Service Commissioner Peter Hughes, who retired from the service in February, used his Royal Commission hearing to apologise for the harm done by the Ministry of Social Development and other public service departments during his time in senior roles.

“I want to acknowledge that the Ministry [of Social Development] – in my time – did not always get things right,” he told the commission in 2022.

“As chief executive responsible for that organisation, through those claims, I saw the harm and the trauma that those survivors had endured at the hands of the state … I accept those findings in full and I’m not here today to contest them in any way,” he said at the time.

“In attempting to address and settle those claims, we did not get everything right.”

Hughes said that Crown Law and MSD “through their actions and inactions lost sight of the human beings at the centre of the claims and caused them further harm and distress”.

A justifiably cynical view

Lawyer Sonja Cooper has been fighting the state on behalf of survivors for almost 30 years. 

“My gut feeling is that the system will protect its own,” she says.

The system has been protecting the system since this abuse began, and she says she has little confidence this will change.

So while the Government has offered an unreserved apology, and promised to design a new redress system, alongside carefully considering the commission’s 138 recommendations, Cooper isn’t holding out hope that anyone will take genuine accountability for what happened – and is still happening.

“It would be fantastic if people did fall on their swords,” she says. But suspects many will hide behind their officialdom.

“Can’t you just see it? The response will be: ‘The Royal Commission covered the period 1950 to the end of 1999. I was not responsible for that period. I am being required to take accountability, because I’m the current incumbent in that position’.”

Essentially, she expects those in positions of power to paint the report as an historical document, to absolve themselves of any direct responsibility.

“These officials have basically escaped any consequences for the entirety of their careers and I think they’re probably quite adept at dodging bullets.”

While waiting to see what the Government does in response, Cooper Legal’s 11 lawyers are combing through all volumes of the commission’s report, looking for any new legal avenues to help their clients’ cases.

Knowledge versus acknowledgement

Elizabeth Stanley knows the state’s tactics inside out. 

The Victoria University of Wellington criminologist has studied human rights abuses around the world, and analysed government responses – including in New Zealand.

Stanley includes the experience of more than 100 survivors in her book The Road to Hell: State Violence against Children in Post-War New Zealand. And in 2018, upon the announcement of the Royal Commission, she spoke about the difference between knowledge and acknowledgement.

“The state’s response has largely been the antithesis of acknowledgment,” she said.

Stanley went on to note the different ways government departments and lawyers have minimised and refused to believe survivors’ experiences; how those seeking redress for historical claims were forced to interact with MSD – the offending institution; and how any redress was done through secret forums and small payments.

“For many years New Zealand officials used the law and bureaucratic powers to deny and neutralise claims,” she said at the time.

In her 2018 lecture, Stanley quoted South African retired judge and advocate Albie Sachs: “Acknowledgment is public. It involves understanding experiences; accepting the pain. And in that it invokes a sense of responsibility to act, to make things better, to prevent these things from happening again.”

Stanley told Newsroom survivors were continually calling for accountability. 

“This is a rightful claim. It’s what so many victims of crime ask for, and it’s an idea and a practice that underpins our very sense of justice,” she said.

There will be different layers of accountability, especially given the complexities of responsibility for violence and harms across institutions, she says.

There are direct abusers but also those, often in senior positions, who hold liability on account of their actions to cover over, legitimise and accept violence, and who built systems to ensure impunity for very serious offenders.

Accountability will cover apologies, as well as payments to victims-survivors, as well as further prosecutions.

Many survivors also want to be able to meet with abusers, or others complicit, in restorative justice settings. 

Meanwhile, the Government could require that senior civil servants who have been complicit in covering over abuse, or denying justice to victims-survivors, should never be in positions where they have responsibility for decisions, or are influencing decisions, around ‘care’ or around what happens to victims-survivors going forward. 

Stanley says these people should not be part of actions for redress, or in establishing new bodies for care.

“We need to ensure that those involved in abuse and injustice are not able to control the values, bodies and actions going forward.”

Accountability also means building in mechanisms for the future, she says.

“We have to move away from a structure that prioritises institutional reputations. Workers should be contracted to speak freely on abuse.”

There also needs to be a centralised system for reporting, to ensure adequate monitoring. And the current policing and legal approaches to prosecutions have to be upended.

“In short, there’s plenty to be done. The onus should be on providing accountability for past, present and future harms. So much of this report relates to the fundamental failings in this area, all of which served to victimise those coming forward.”

Public service on notice

Acting Public Service Commissioner Heather Baggott says the harm identified in the commission’s findings is shocking and there are lessons for public service agencies. 

She says the public service will make whatever changes are necessary in line with the Government’s response. She will also be looking closely at the report’s findings of fault.   

“The Public Service is integral to the state care system. We have a responsibility to ensure people in state institutions are protected and properly cared for.  

“People placed in state care, and their families, need to have trust and confidence that the system will look after them. That is our responsibility and that is our focus,” she says

It seems Baggott is waiting for direction to come from Government ministers and the formal response before taking action.

Meanwhile, both Stanford and Public Service Minister Nicola Willis, say they expect Baggott to already be closely reading the report and considering what is necessary to hold public servants to account.

“The findings in the report of the actions of some officials acting on behalf of the Crown are deeply concerning,” Stanford tells Newsroom.

“However, there is also contextual information that we do not have at this time. For example, there is a distinction between whether the actions were taken by public servants acting on the direction of a minister or ministers in previous governments or whether the actions were taken without the knowledge or consent of ministers.”

Stanford says it’s clear from the report that the behaviour described is not isolated to a few people.

“In many instances, it would have required the active participation of many people across an agency or the broader public service and a broader culture of the Crown being more concerned with risk management, liability minimisation, and reputation protection, rather than with doing what was right.”

In response to questions about whether certain people should be (or should have been) excluded from any redress action, she says it’s not up to her to make operational decisions around who is involved in specific work programmes.

“The Crown failed survivors in many ways, including how officials responded when survivors tried to raise concerns, make complaints, and seek redress.

“I expect the Acting Public Service Commissioner and agency chief executives to be aware of both the real and perceived conflicts of interest that exist if they have employees who have previously engaged in behaviour described by the Commission being involved in this work moving forward and to ensure that appropriate steps are taken.” 

Meanwhile, Willis says she has conveyed her expectation to the Public Service Commission that it carefully considers the report, both in terms of individuals but also more broadly in terms of the behaviour across the public service toward survivors. 

“A terrible injustice was done in the name of state care. It is now the responsibility of the state to make redress and this Government will ensure it happens.”

Meanwhile, Collins (as Attorney-General) has reminded all state and faith-based institutions of their legal obligation to preserve records relevant to the safety and wellbeing of those in its care.