Survivors say torture widespread, Govt says that’s unlikely

Survivors and lawyers say torture happened at psychiatric institutions besides Lake Alice, but the Government is standing firm on its official advice that these instances don’t meet the UN definition.
And Erica Stanford’s office says it will not be releasing the advice from Crown Law and the Crown Response Office.
Instead, Stanford – the minister in charge of the Crown’s response to the Royal Commission of Inquiry into Abuse in Care – is urging anyone with allegations about torture to go to the police.
After decades of testimonies, expert evidence and legal claims from survivors of the Lake Alice Child and Adolescent Unit, in July the state finally admitted that what happened to these children was torture.
This came after Solicitor-General Una Jagose admitted the same thing during a hearing with the Royal Commission of Inquiry into Abuse in Care, and after the release of the commission’s final report that found the use of electric shocks and painful paraldehyde injections to punish children at Lake Alice Hospital in the 1970s amounted to torture.
In July, when the commission’s report was tabled, the Government said it accepted survivors’ accounts of what happened.
Again, on Tuesday, Prime Minister Christopher Luxon spoke directly to survivors – including more than 2400 who spoke to the commission – when offering a national apology on behalf of the state.
“Places where you should have been safe and treated with respect, dignity and compassion. But instead, you were subjected to horrific abuse and neglect and in some cases torture,” he said.
“You knew the truth because you lived it, and you have waited and waited for people to start listening to you. Now New Zealand has listened.
“Words do matter and I say these words with sincerity: I have read your stories, and I believe you.”
Now, survivors and lawyers are telling the Government they believe torture happened at other psychiatric institutions, including Porirua Hospital, Cherry Farm, Carrington Hospital and to those admitted to other parts of Lake Alice.
Survivor and advocate Keith Wiffin said “nobody should think that Lake Alice is an isolated incident”.
Wiffin said practices like those used at Lake Alice were “quite widespread”.
Survivors who spoke to the commission, and those who’ve recently spoken to RNZ, have detailed the use of electroconvulsive “therapy” (ECT) and painful paraldehyde injections given as a punishment or a deterrent at other psychiatric institutions.
Wiffin said those who were in residential care facilities, like him, would sometimes be taken to psychiatric institutions and subjected to torture.
Wiffin, who was in the residential facility Epuni Boys’ Home, said he was transferred to Porirua Hospital and given what he called “unmodified electrocution”.
Meanwhile, other practices used across psychiatric institutions, like seclusion, would be considered torture based on the UN definition, he said.
Seclusion was used in a mandatory way, as punishment, and has impacted on survivors’ development.
Wiffin said the state’s refusal now to categorise comparable abuse at other psychiatric institutions as torture was another example of an attempt to limit liability.
“That’s been the state’s approach since day one,” he said.
“The threshold for us to prove ourselves has always been ridiculously high.”
While that threshold had finally been met in the case of Lake Alice “now they’re almost saying you have to do it with all the other stuff, and so it is extremely difficult”. 
Wiffin said the state should be helping survivors investigate and prove these things happened, rather than forcing survivors to prove what they knew to be true.
“They look at it from a stance of that we must, at all costs, try and limit our liability.”
Sonja Cooper, a lawyer who represents about 1400 survivors, said Lake Alice was not an isolated situation.
Cooper, who also worked as a district inspector in mental health, raised this with Stanford both in person and in writing.
Following Tuesday’s apology, Stanford was asked whether the Government would proactively acknowledge that torture occurred at facilities outside Lake Alice Hospital.
The minister said she had sought advice from both Crown Law and officials working at the Crown Response Office within the Public Service Commission, and they had told her the UN definition of torture had only been met in the case of Lake Alice.
The UN defines torture as the intentional infliction of severe physical or mental pain or suffering on a person, often to punish someone, or to obtain information or a confession, to intimidate or coerce, or for any reason based on discrimination.
Stanford said this issue had been raised with her on multiple occasions, as well as in the Royal Commission’s report, and as soon as that happened she sought advice.
Stanford said government lawyers and officials had assured her they had looked through all of the cases they were aware of, including those at Porirua Hospital, Cherry Farm and Carrington/Oakley Hospital.
“And at this stage they are confident that the threshold that has to be met for that torture to occur – which is a UN condition – they do not believe has been met anywhere else …
“While it was horrific and terrible for those people, there is a set definition by the United Nations, and they do not believe that it meets that. While I say that, I don’t want to diminish what happened to those people, because it was still unimaginably horrific.”
On Wednesday, Stanford said while the Royal Commission report mentioned torture “a lot”, the advice she’s received was that “the likelihood is low” that torture occurred anywhere other than Lake Alice.
“But of course, if anyone has any allegations that it has happened somewhere else, they absolutely need to go to the police.”
On Wednesday, the Prime Minister stood by his minister’s categorisation.
“It’s a horrible conversation to have to be honest with you, because in the conversation, you feel like you’re minimising others’ serious abuse that they encountered, and it just doesn’t feel like a good conversation to have.”
Luxon said Stanford had been “very proactive” in asking questions regarding these allegations, and government agencies had told her the threshold had only been met in the case of those who were at the Lake Alice Child and Adolescent Unit.
Labour leader Chris Hipkins said he thought it was important not to get hung up on the UN definition of torture.
“There were practices that would be tantamount to torture that occurred in a number of institutions, and I do think that some of the survivors feel that their experience is being minimised, I guess, by not using the phrase torture.”
In order to give effect to the “very real apology” that was delivered on Tuesday, the state needed to move past a notion where it was trying to minimise and contain something that shouldn’t be minimised and contained. 
“It should be brought out into the open and it should be honestly addressed,” he said.
While Stanford and Luxon pointed to official advice that said other cases of abuse and medical misadventure did not amount to torture, Cooper disagreed.
The lawyer and advocate, who has been taking survivors’ claims for almost 30 years said: “We strongly disagree with this legal analysis and challenge the Government to reveal this advice, so it can be considered formally and publicly.”
On Wednesday, Newsroom asked Stanford’s office to release the advice she had received from Crown Law and officials in the Crown Response Office.
Stanford’s office initially said the advice would not be released as it was legally privileged.
However, the Official Information Act provides for a public interest test that needs to take place when deciding whether to withhold information based on it being legally privileged.
The minister’s office also has the option to release the advice with redactions, or a summary of the advice.
Luxon said the decision of whether or not to release that advice sat with the minister.
The minister’s office did not respond to a subsequent, written request for this advice ahead of publication of this article.
Meanwhile, there have also been questions raised about where the advice came from, and whether it was appropriate for Crown Law to be involved.
On Tuesday, Stanford said she had received advice from Crown Law and others. On Wednesday, she clarified the advice came from Crown Law and officials at the Crown Response Office. Independent legal advice – from outside government – was not received.
But the Royal Commission’s reports take a detailed look at the lengths Crown Law has gone to in an effort to deny and minimise survivors’ claims, to limit liability – both reputational and financial.
In response to ongoing calls for her resignation, Solicitor-General Una Jagose has said the government’s legal agency has changed the way it approaches survivor claims.
But survivors and advocates believe Crown Law is not the right agency to give advice on these issues, given how it has been implicated in the state’s attempts to cover up abuse and torture over decades.
Wiffin described Crown Law as an “architect of the resistance”. 
When asked whether the state’s apology and promises to do better hold water when officials and ministers continue to rely on technical legal arguments to deny survivors’ experiences, Wiffin said “you wait to see the proof in the pudding”.
“Because we’ve had many, many false doors. We’ve had commitments before, which just have not been met – by governments of all political hues.
“You wait to see it actually done before you believe it.”