589.    Our analysis reveals that the Departments of Health and Social Welfare and staff at the unit did not have proper processes in place to ensure the admission, treatment and detention of children and young people in the unit were lawful. Under the Mental Health Act 1969, three categories of patient could be admitted and treated in a psychiatric hospital: special,^[1211] committed^[1212] and informal.^[1213]

590.    Courts placed special patients in hospitals following criminal offending. No special patients were at the unit. A committed patient was admitted following a formal legal process that certified they were ‘mentally disordered’ and needed to be detained in hospital, without their consent, for their own good or in the public interest.

591.    Most children and young people admitted to the unit were informal patients. Informal patients did not need to be ‘mentally disordered’. A hospital superintendent could arrange for the person to be admitted to hospital for treatment without a reception order as long as they considered the person would “benefit from psychiatric care and treatment”.^[1214]

592.    Informal patients in psychiatric hospitals had the same legal status as patients in non-psychiatric hospitals. An informal patient could not be admitted, detained or treated unless they or their guardian consented to the treatment. They could decline treatment and, unlike committed patients, they could not be detained in hospital. They could leave if they wanted to, unless the formal process of the Mental Health Act 1969 was invoked. In practice the decision to admit children and young people to Lake Alice was almost invariably made by their guardians, whether their parents or the Department of Social Welfare.^[1215] These decisions were often made in the face of the objections of the child or young person concerned, so we have looked closely at how those decisions were made.

Te whakauru a te Director-General o Social Welfare - Admission by the Director-General of Social Welfare

593.    There are differing positions about whether the Director-General of Social Welfare had lawful authority to place children and young people under his guardianship in psychiatric hospitals as informal patients before 1977.^[1216] The Ombudsman considered this issue in 1977.^[1217] At the time, the Departments of Health and Social Welfare were of the view the Director-General had the same powers to act as any other legal guardian, including the power to consent to the informal admission of a child or young person under their care to a psychiatric hospital.^[1218]

594.    The Ombudsman disagreed. He found that nothing in the Children and Young Persons Act 1974 or the Mental Health Act 1969 Act gave the Director-General of Social Welfare lawful authority to place a child under the age of 16 in Lake Alice on an informal basis or gave the superintendent of Lake Alice authority to detain them there informally.^[1219] The Ombudsman found the only way the Director-General could lawfully place a child in Lake Alice was through the formal committal processes of the Mental Health Act 1969.

595.    The Ombudsman’s decision had an immediate impact. In a report to the Minister of Social Welfare in September 1977, the Director-General of Social Welfare said hospital superintendents were becoming increasingly reluctant to admit State wards to psychiatric hospitals and had been discharging those already admitted on the ground there was no legislative authority to place them there.^[1220]

596.    The Director-General acknowledged there was ‘some substance’ to the hospital superintendents’ position.^[1221] He said the Department of Social Welfare’s own assessment had concluded the only legal way to admit a State ward to a psychiatric hospital was through a formal committal.^[1222] Therefore, the Department acknowledged privately it had no statutory power to informally admit any of the children or young people admitted to the unit.

597.    In late 1977, Parliament amended the Children and Young Persons Act 1974 to explicitly give the Director-General authority to informally admit a State ward to a psychiatric hospital. Nonetheless, the Crown continues to take the view, as it did in 1977, that the Director-General had the same powers to act as any other legal guardian, including consenting to the admission of a child or young person to a psychiatric hospital.^[1223]

598.    We find the Department of Social Welfare paid insufficient attention to whether it had lawful authority to consent to the informal admission of children and young people. Even if the Director-General did have the power to enter into agreements to place children and young people in the unit informally (which is at least open to doubt) or believed it had that power, the Department routinely breached its obligation as guardian, which was to exercise that power in the best interests of the child and for their benefit. The Department failed to make informed decisions about whether admission to the unit was in the best interests of the children and young people and about the nature, purpose and therapeutic justification for the ‘treatments’ administered to the children and young people in its care.

Superintendent me te Director-General o Social Welfare - ngā herenga me ngā haepapa o te kaitiakitanga - Superintendent and Director-General of Social Welfare – obligations and responsibilities of guardianship

599.    Guardianship in the 1970s reflected the dual aspects of care and protection on one hand, and control on the other. A guardian had the right of custody of a child or young person, and guardianship included all rights, powers and duties in respect of the child or young person and their upbringing.^[1224]   Rights and powers were given to a guardian so they had the power to uphold their duties towards the child, which they could not do without the necessary means of control.

600.    Where the State was the de facto or legal guardian, the hospital superintendent and Director-General of Social Welfare were under an obligation of protection towards children and young people.

601.    The obligations and responsibilities of guardianship were wide-ranging, whether held by the State or a child’s parents. They included ensuring the child was enrolled and regularly attending school, had access to appropriate health care and was protected from foreseeable risks to their health and safety. The obligations and responsibilities continued regardless of where a child was living.

602.    The guardian was required to exercise their powers generally for the benefit of the child or young person, consistent with the objects of the relevant child welfare legislation.^[1225] The State has always had a duty to ensure tamariki in State-run institutions are safe and cared for, are cared for^[1226] to the standard expected of parents^[1227] and “[enjoy] an environment which is more suited to [their] needs than the home from which [they were] was removed”.^[1228] As the applicable social work manual put it, the obligation was to do “what a wise parent would want to do in like circumstances”.^[1229]

603.    A child or young person could be placed under the control and supervision of the Director-General by order of the court or with the agreement of a parent or guardian. Where an order was made, the Director-General became the legal guardian of the child “to the exclusion of all other persons”. When a child or young person was placed under the control of the Director-General by agreement with the parents, the Director-General did not formally become their legal guardian but had the same powers and responsibilities as if the child or young person had been made the subject of a guardianship order. In practical terms, agreements of this type created a de facto guardianship in which the Department could make day-to-day decisions about a child or young person’s care. This included placing them into and transferring them between social welfare institutions or residences.

604.    The Ombudsman found, arguably, that the legislation did not give the Department the power to decide to place a child in an inpatient psychiatric unit on an informal basis. Even if the Department did have that power, it was still under an obligation to ensure it was exercising its power for the right reasons and in the best interests of the child concerned.

Kaitiakitanga me ngā whakaurunga ōpaki - Guardianship and informal admissions

605.    Authority was provided in the Mental Health Act 1969 for an informal patient to be detained in the unit or for an informal patient to be treated without consent.^[1230] They remained at the unit under an agreement with the superintendent for psychiatric care and treatment.^[1231] Admission for other purposes, including punishment, was not lawful.

606.    Because treatment could be given to an informal patient only by consent,^[1232] the Director-General (or their delegate) would first need to be satisfied that treatment would be in the best interests of the child or young person. To properly decide whether to give consent, the Director-General (or their delegate) would need to be properly informed about the nature and purpose of the treatment and its likely effects. They would need to revisit those issues throughout the time the child or young person was informally admitted at the unit. If they knew or ought to have known that those requirements were not being met, they had an obligation to remove the child or young person from the unit.

607.    The Department routinely failed to properly evaluate whether the environment in the unit was appropriate for the children and young people admitted and whether admission was in their best interests. It failed to ask what psychiatric care and treatment was proposed or what benefit was on offer. It failed to continually review the circumstances of detention of each child informally admitted to the unit. And, when there were no longer good grounds for believing that it was in the best interests of the child or young person to remain in the unit, it failed to bring an end to the informal arrangements and have the child or young person leave the hospital.

608.    The right to free, prior and informed consent is now an established human right in international law for indigenous peoples. It is referred to several times in the United Nations Declaration on the Rights of Indigenous Peoples and was included because of the long history of indigenous peoples being subjected to decisions about them without consultation or informed consent, including the taking of lands. Therefore, the placement of tamariki and rangatahi Māori in Lake Alice and their treatment without the consent of whānau is a particular grievance for Māori.

Te ngoikoretanga o ngā umanga tika ki te whakaputa i ngā whakatau mātau - Failure by responsible agencies to make informed decisions

609.    The Department of Social Welfare well understood, in theory, the need to make informed decisions. The social workers manual set out a process for admitting a State ward to a psychiatric hospital on an informal basis. This included preparing a case history, arranging psychological and psychiatric examinations, consulting the medical superintendent of the relevant psychiatric hospital, arranging a medical examination, and providing the relevant case history and professional reports to the medical superintendent.^[1233]

610.    These steps were intended to identify whether a genuine need existed for admission and treatment at a psychiatric facility and to ensure care providers received all relevant information.^[1234] The evidence suggests the Department failed to consistently apply its own process.

611.    In practice, the Department routinely deferred to the judgement of clinical staff without properly considering its own obligations to the tamariki in its care.

Te wāhi ki te rata ki te tono whakaaetanga i te tamaiti, rangatahi rānei, me tōna kaitiaki rānei - Role of the clinician in obtaining consent from child, young person or their guardian

612.    Dr Stanley Mirams, the Department of Health’s Director of Mental Health, considered it necessary to get consent from the parent or guardian for the treatment of children and young people and that it was not appropriate for clinicians to seek a blanket form of consent. He wrote about this to Dr Pugmire in December 1976:

“In general, the consent of the parent or guardian should be obtained before any major medical or surgical treatment is carried out on a young person. Desirably, the consent should be a specific one and not just a general blanket agreement to ‘treatment as prescribed by the doctors’. Again, the desirable thing is for this to be an informed consent arrived at as a result of some discussion with an explanation by professional staff, (not necessarily the psychiatrist), as to the need for treatment, its nature, its likely outcome and any special factors, including hazards, relevant to the particular case. It is appreciated that in some emergencies such a course is impractical.”^[1235]

613.    Dr Mirams stated that consent for treatment should also be sought from the child, even if the child was in care and even if the child’s view did not decide whether the treatment was provided. He wrote again to Dr Pugmire:

“Where possible the consent of a child should be obtained and it should not be assumed that merely because the child is in care, his own participation in the decision-making process is unnecessary. I probably do not need to add that the preceding comments are not intended to imply that treatment must be withheld if a child does not consent.” ^[1236]

614.    Although the Director expressed that view, the Department provided no guidance about how to obtain and record consent to admit and treat an individual. It did not provide consent forms for staff to use and the evidence shows, despite the Director’s view, obtaining consent was not part of Lake Alice staff culture. As the 1977 commission of inquiry report noted, “Lake Alice Hospital does not use written consent forms.”^[1237]

615.   Dr Leeks wrote to the commission of inquiry into Mr Hake Halo’s case in 1977, stating he always sought consent:

“I have always received permission to treat children in the Unit from parents or guardians and in the case of State Wards request this or receive it from the Social Welfare Department in Wanganui.”^[1238]

616.    However, that is not supported by other evidence. In one example from April 1972, a survivor was referred to Lake Alice by his general practitioner and by Mr Michael Doolan who was then the assistant principal at Hokio Beach School.^[1239] Dr Leeks requested the young person come with “permission from Child Welfare Department that he will probably have electrical treatment whilst in here”.^[1240] The file contains a written form entitled “Permission for Electrical Treatment” provided “the nature and implications of this (the treatment) have been explained to me”. However, it was not signed by the Department but by Dr Leeks on the Department’s behalf.^[1241]

617.    When it came to the treatment of children and young people under the guardianship of the Director-General of Social Welfare, Dr Pugmire considered there was no need to obtain informed consent, contrary to the view of Dr Mirams. Dr Pugmire assumed the Director-General was implicitly relying on the psychiatrist in charge to use their expertise appropriately. He expressed this view in a 1976 letter to the Director-General of Health (copying in Dr Mirams):

“We have had a number of patients in the Unit for Disturbed Children who have been transferred to the care of the Superintendent of Child Welfare for various reasons. In these cases the rights of the parent have been transferred to the Director of Child Welfare and we have always assumed that the Director would expect the Consultant Child Psychiatrist to use his own expert judgement as to the need for treatment, and to proceed with what was beneficial to the child. In these cases no special request for consent for treatment was made to the Director of Child Welfare, nor does it seem to me reasonable.”^[1242]

618.    That view was echoed in a Department of Health memorandum about the Ombudsman’s investigation. The Deputy Director-General of Health, Dr Ron Barker, said the fact the Department of Social Welfare had arranged to admit the patient was itself a consent to treatment that the medical superintendent considered appropriate.^[1243] His colleagues in the Department of Social Welfare had the same approach. Mr Fountain, the Director of Social Work for the Department, is reported to have told the 1977 commission of inquiry that:

“The Department’s attitude was that if the boy who was under the Department’s care was sent to a hospital for treatment, the type of treatment used was the responsibility of the medical authorities.”^[1244]

619.    Dr Barker’s memorandum also noted, “[t]his is not to say that the Department believes that relations between its officers and the parents or guardians should be restricted to the letter of the law. The Department encourages the fullest possible consultation in each particular case.”^[1245] However, the evidence from social workers is that consultation was not the norm and Dr Pugmire’s approach was typical. Another social worker said, “The social welfare policy regarding treatment was that it was left entirely to the medical experts.”^[1246]

620.    Leaving treatment entirely to medical experts was not the law or policy. Social workers had delegated guardianship powers and responsibilities. They should have given or refused consent to treatment proposed for children and young people at the unit, having exercised their judgement in the circumstances relevant to any given child or young person. In practice this did not occur. Lake Alice staff frequently treated children and young people at the unit without obtaining consent from anyone, and the evidence points to a pattern of staff not telling parents or guardians admitting tamariki about the treatments given at the unit.

621.    After the Ombudsman released his report in 1977, Dr Pugmire began to show some concern about the lack of documented consent for children and young people under 16, and circulated a memo to his staff.

“I have been looking at the Mental Health Act 1969 regarding informal patients Section 15(1) and it appears to me that the Superintendent does not have authority to admit a child under the age of 16 as an Informal patient unless he has a letter of request or consent from the parent or guardian … As a safeguard I think we should routinely send out a consent to treatment request form to the parent or guardian and if both exist I think it should be sent to both the legal guardian and the natural parent of every child under 16 for completion.”^[1247]

622.    When Dr Pugmire introduced consent forms for staff to use, he wrote that the forms “caused howls of objection” by nurses and their union representative.^[1248]

623.    On a broader level, free, prior and informed consent is a significant issue for indigenous peoples including Māori, who have a long history of being subjected to decisions without their consent or even consultation.

Kāore i whakamōhiohia ngā mātua - Parents were not kept informed

624.    The social workers manual made it clear that, regardless of whether guardianship arose out of an order or de facto by an agreement, social workers should consult or inform parents about any actions affecting their child or young person aged under 16.^[1249] However, we found limited evidence the Department consulted or informed parents about their child being admitted to Lake Alice.

625.    In his 1977 report, Ombudsman, Sir Guy Powles, was critical of the failure of Lake Alice hospital authorities to keep social welfare officers as fully informed about Mr CD as was desirable. As a result, they were unable to keep a closer watch over Mr CD’s welfare.^[1250] The report also stated that despite a child welfare officer visiting the unit weekly, the Department of Social Welfare did not know at the time that Mr CD was receiving ECT treatment.^[1251] This is consistent with the other accounts we received of a lack of transparency and openness with social workers.

626.    Parents didn’t have it any better with clinical staff. In some cases, parents of children and young people in the care of the Department contacted the unit to find out what was happening to their child, only to be denied information and treated with hostility. For example, when writing to Dr Mirams about a complaint from a parent, Dr Pugmire accepted that the “intensity of hostility towards parents was very high”, particularly in the early years in the unit. The parent had complained that when they asked whether their son was a patient at Lake Alice, they had been told he was “a State Ward, it is none of your business”.^[1252] Dr Mirams subsequently wrote to the parent confirming that as a parent she was “entitled to all reasonable information about [her child’s] clinical state and care”.^[1253]

627.    Some survivors whose parents admitted them to Lake Alice said their parents were unaware of the treatments administered to them. In some cases, parents who did not speak English were given no help to understand the significance of forms they signed or the agreements they made. In other cases, staff didn’t tell parents about the treatments.

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