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High Court of New Zealand Decisions |
CONFIDENTIAL VERSION FOR PARTIES AND COUNSEL ONLY.
ALTERNATIVE VERSION OMITTING SCHEDULE OF IDENTIFYING
DETAILS TO BE AVAILABLE
FOR GENERAL DISTRIBUTION
PERMANENT ORDER PROHIBITING PUBLICATION OF THE NAMES
OR IDENTIFYING PARTICULARS OF THE PLAINTIFF, FORMER
PATIENTS, NURSING AND MEDICAL STAFF AT PORIRUA HOSPITAL
(AGAINST WHOM ALLEGATIONS WERE MADE) IN THE EVIDENCE
AND JUDGMENT
IN THE
HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2000-485-876
BETWEEN J
Plaintiff
AND
CROWN HEALTH FINANCING
AGENCY
Defendant
Hearing: 25, 29-31 October, 1, 2, 5-9, 12-15, 20, 21 November 2007
(view on 27 November 2007)
Appearances:
M J Doogan, K Basher, K Ross for Plaintiff
H Hancock, L Hansen for Defendant
Judgment: 8 February 2008
In accordance
with r 504(4) I direct the Registrar to endorse this judgment with the
delivery time of 10.00am on the 8th day of February 2008.
RESERVED JUDGMENT OF GENDALL J
TABLE OF CONTENTS
Introduction
[1]
Pleadings
[2]
Issues for determination [4]
Factual background
[6]
J V CROWN HEALTH FINANCING AGENCY HC WN CIV-2000-485-876 8 February 2008
History of these
proceedings [36]
What this case is not about [48]
Burden and standard of proof [55]
Historical background as to Porirua Hospital and Mental
Health
legislation [59]
The Mental Defectives Act 1911
[68]
Common procedures used in the 1950s [74]-[103]
ECT
[74]
Insulin Coma treatment [92]
Seclusion
[99]
Conditions at Porirua Hospital in the 1950s
[104]-[123]
Reports as to overcrowding and understaffing [104]
Plaintiff's claims
[124]
Sexual assault [125]
Physical assaults
[132]
Threats to administer ECT, seclusion and ward transfers
as a means of punishment
[135]
Required to witness assaults and abuse on other patients
and subjected to distress,
fear and anxiety, and assaulted by
other patients [137]
Evidence of former
patients [141]-[200]
Nursing opinion evidence [201]
Evidence for plaintiff of Professor Sobsey [217]
Defence evidence from former doctors
[223]
Defence evidence from former nurses [254]-[379]
Psychiatric evidence and assessments
of plaintiff [380]
Dr Barry-Walsh - Psychiatrist [381]
Ms Coker Counsellor
[397]
Professor Mellsop - Psychiatrist [404] -[448]
Insulin therapy, seclusion and ECT punishment or treatment? [449]
Insulin therapy
[451]
Seclusion [454]
Transfer to F Ward as "punishment" [475]
ECT
threats to punish [477]
Other factual findings
Allegation of sexual assault
[487]
Physical assaults [497]
Assaults on plaintiff
by other patients [522]
Witnessing assaults [530]
Allegations
against Sister B [543]
An environment of fear?
[548]
Summary of factual findings [553]
Limitation Act considerations
[556]
Assault and battery/negligence/breach of fiduciary duty [559] -[564]
Discovery of damage
[565]
Disability Law [570]
Disability The plaintiff's contentions [574]
Conclusions on Limitation issues
[579]
Causation and damages issues [593]
Mental Health Amendment Act Immunity
[599]
Section 21A Injury Prevention Rehabilitation
Compensation Act 2001
[612]
Conclusions [613]
General Comments
[618]
Judgment [624]
Costs
[625]
Introduction
[1] The plaintiff was aged 18 when she was
admitted to Porirua Hospital. It was
over 50 years ago. She claims general damages of $650,000, exemplary damages of
$45,000 and
special damages for pecuniary loss of $250,000 for events that she says
occurred whilst she was a patient at that hospital between
November 1954 and
March 1960. She alleges that she was:
a) required to undergo a procedure known as "seclusion" imposed
as a
means of punishment;
b) subjected to sexual assaults by nurses on two occasions between
August 1956 and 1958;
c) subjected to physical assaults by nurses and other patients;
d) required
to witness assaults and abuse committed on other patients by
nursing staff;
e) threatened with being
given electro-convulsive therapy (ECT), and
placed in F Ward (a secure female refractory ward) as punishment for
being unmanageable;
f) subjected to unnecessary distress from being placed in an environment
of intense and continual fear, anxiety and trepidation.
Pleadings
[2] A number of the causes of action originally pleaded
were struck out in
judgments of an Associate Judge and other Judges. The remaining causes of action
relate to events at the hospital
and are:
a) assault and battery alleging sexual and physical assaults upon the
plaintiff, for which
the defendant is vicariously liable;
b) breach of fiduciary duty by the hospital, through the actions of its
medical and nursing staff, and by failing to act in the plaintiff's
interests, or with good faith towards
the plaintiff and take all
reasonable steps to protect her from harm. This cause of action
parallels the cause of action in negligence;
c) negligence, with the hospital being vicariously liable for the actions
of
nursing and medical staff breaching their duty of care to the patient
by:
·
threatening and imposing punishment through seclusion and
insulin therapy;
· failing to protect the plaintiff from physical and sexual assaults,
as well as assaults on her by other patients;
· "requiring" the plaintiff to witness
assaults;
· threatening to punish her by the administration of electro-
convulsive therapy.
[3] The hospital was administered by the Department of Health at material times
under the Mental Health Act 1911 or its successors,
and later under the control of the
Wellington Hospital Board. The defendant accepts that it has acquired the assets and
liabilities
of the Department and the Board, and is responsible should liability arise
out of historical acts at the hospital.
Issues for determination
[4] The issues involved in this case:
a) has the plaintiff proved that, whilst she was a patient at Porirua
Hospital; she was subjected to indecent and other physical assaults by
nursing staff and/or was punished
or threatened to be punished
through various procedures; and/or suffered harm through breaches of
duties
of care owed to her by nursing staff;
b) if such is proved, is the defendant vicariously liable, whether for
compensatory and/or exemplary damages, for torts of:
· assault and battery; and/or
· negligence;
and in equity for:
· breach of fiduciary duty
c) if the
plaintiff establishes liability, under one or more of the pleaded
causes of action, what is the proper measure of
compensatory and/or
exemplary damages?
[5] From the defendant's point of view, the plaintiff's claim fails because,
apart
from failing on the facts, it fails in law because of:
a) the Limitation Act time bar;
b) Mental
Health legislation immunity;
c) Accident Compensation considerations for compensatory damages
(not exemplary
damages), and relevant only for the assessment of any
damages for sexual abuse allegations.
Factual background
[6] The plaintiff was born on 18 October 1936 as one of 11 children. During the
years of World War II, when an infant, she was
subjected to sexual abuse, in the
form being indecent assaulted by adult males. She needed to be nurtured. Whilst
her parents unquestionably
loved her, the size of their family, and the economic
conditions under which they lived, meant that there was little time during
which the
emotional and psychological needs of the plaintiff could be met. She came to resent
both mother and father, and when they
separately applied on two occasions to have
her committed to Porirua Hospital her resentment deepened.
[7] She left school at
an early age, and by November 1954 was displaying
emotional and psychological instability which was illustrated in behavioural
problems.
She was especially fond of a boy and experienced profound
disappointment when this relationship ended. She perceived this as being
a rejection
of her. Her dramatic response was to take an overdose of aspirin. She needed
attention, but her parents, and in particular
her mother, simply did not have the time
or resources to be able to manage distressing and erratic behaviour emerging in the
later
teenage years. Her mother sought medical help and formally applied for her
daughter's reception into Porirua Mental Hospital under
the Mental Defectives Act
1911. The request form that she signed provided a belief that the plaintiff was
mentally defective on the
following grounds:
"She has threatened to take her life. She admitted she took something which
made her violently
sick, she vomited all day, although she had nothing to eat
that day. She also spends hours in the bathroom, and she thinks
has lost her
looks and grown hideous, she refuses to go out, she thinks everyone is
against her, at times she is rebellious and it
is too much for me to manage."
[8] Two medical practitioners certified under the Act that the plaintiff:
"May be properly
classified as being of unsound mind".
[9] She was certified as requiring attention under the Act and the medical
practitioners
granted the request of the mother that the plaintiff be admitted into
Porirua Mental Hospital.
[10] I return to discuss some
relevant passages of the Mental Defectives Act 1911
later in paragraph [68] of this judgment.
[11] Consequently on 11 November
1954, when aged 18, the plaintiff was
admitted to Porirua Psychiatric Hospital. She remained there until 6 September 1955
when she
was released on what was called "probation" until 3 August 1956. She
was then readmitted to Porirua Hospital, and remained there
until 20 July 1957. She
was again released on "probation" until 17 February 1958. She then returned to
Porirua Hospital and remained
until 8 December 1958. She was released again "on
probation" on 23 April 1959 when she lived in a hostel in Wellington. She was
readmitted
to Porirua Hospital between 23 April and 24 December 1959 being
released "on probation" on Christmas Eve 1959. Her final
formal discharge
occurred on 9 March 1960.
[12] The clinical notes record the plaintiff's initial admission to Porirua Hospital
on 11 November 1954 and describe her as follows:
"She ... demands immediate attention to her needs. She is extremely
resentful of her admission, vociferously objected to the routine procedures
but finally co-operated quite well. She claims
to be completely well in every
way and indicates her intention of refusing food, or "tearing the place to
pieces" if
she is not allowed home forthwith. She admits, however, to
having been concerned at the way people's attitudes to her changed
from day
to day which she attributes to her unique facility for changing in appearance
which marks her out as different
from other people. There is marked
incongruity of emotion, cynical smiles and transitory ideas being
superimposed on
a fundamentally flat affect. There is no apparent
disturbance of orientation or memory."
[13] An initial, or preliminary,
diagnosis of "schizophrenia reaction" was made.
[14] The plaintiff was a physically attractive young woman. A former nurse
described
her, in evidence, as being beautiful. But she believed otherwise. There is
a suggestion that her beliefs were obsessional.
[15]
I will later deal with the narrative and the evidence as it relates to the
plaintiff's claims about her treatment or experiences
in Porirua Hospital.
[16] After the plaintiff was discharged from Porirua Hospital in March 1970, she
became involved with a
man, who said he was a counsellor, with charismatic
attraction to some. After working for a short time in Australia and the North
Island
she joined a group created by this man, known as the "United Peoples'
Organisation". Her experiences with the group over a
period of three years involved
communal living and she became emotionally involved with and deeply attached to
the man. She says
she was sexually and physically abused by him. When he
rejected or denied her affections, she pursued him and was arrested for disorderly
behaviour. She was detained at Oakley Hospital in Auckland for observation and
report to the then Magistrates Court in mid-1967.
A careful assessment was made of
her by a consultant psychiatrist at Oakley and he reported to the Magistrates Court in
Auckland
on 1 August 1967 that she:
"Has suffered in the past from recurrent attacks of schizophrenic illness and
in 1954 and
1956 was a patient in Porirua Hospital. She was only
discharged from there in March 1960. Some time after leaving the hospital
she met a man named Maxwell Rickard who claims to be a doctor and who
practices psychotherapy of a somewhat unorthodox nature in Auckland. She
has developed
a pathologically close relationship with this man and over the
years has participated in the activities of the group which
he leads, namely
the "United Peoples' Organisation". It would appear that some 12 months
ago she revealed that she
and Rickard were allegedly on more intimate terms
and was accordingly ostracized by the group when he denied her claim. She
has been gainfully employed over the years until a few months ago and has
existed on money borrowed from group members
or sent her by her mother.
The offence arises out of her pestering a group member who owns or
operates [a] Coffee lounge
where the offence occurred.
....
At interview she appears as a gawky, unprepossessing young woman who
has
difficulty in supplying a coherent account of herself. She vigorously
denies however, the presence of hallucinations or clear
cut delusions and
does not reveal any such symptoms of schizophrenic psychosis. The only
signs that could be elicited
are her disjointedness of thinking, and difficulty
in maintaining the central theme of any one utterance. Emotionally she
is
somewhat flattened and at times incongruous. She constantly returns to the
theme of her belief that her relationship
with Rickard is something special
and undying. Her dependence on him is so profound that she can experience
no sense
of wellbeing unless in his proximity. She freely admits intending to
see him again, even if in the distant future."
[17]
The psychiatrist did not consider her to be certifiable although he felt that she
would benefit from a further period in hospital.
[18] Thereafter the plaintiff lived in a friendly, but not de facto, relationship with
another man and spent most of the 1960s
living in Auckland and working in low
paid jobs.
[19] In about 1970 she became pregnant as a result of a short relationship,
and
after the child was born, the partner disappeared. The plaintiff lived with her parents
in the Wellington area until about 1973.
She then met and subsequently married her
husband in 1975. They had two children. The plaintiff says that she felt unable to
be a
demonstrative mother and enjoy her children because, she said, of her own
inadequacies in communicating and distress or limitations
which she blames on past
events.
[20] Her husband died in June 1988. In 1989, the plaintiff told her sister (who is a
social
worker residing in Australia) of things that she said happened to her whilst she
was at Porirua Hospital. As a consequence, on 16
March 1991 the plaintiff sought
her medical records.
[21] Encouraged by a friend, she decided to make an ACC claim for what
she said
were incidents of sexual and other abuse. She was living in Hamilton and saw a
doctor in November 1992. She signed an ACC
claim form, seeking treatment
expenses for injury caused by "physical abuse (1954-1959) leading to mental
consequences". The doctor's
diagnosis is recorded as "anxiety neurosis". The
general practitioner referred the plaintiff for counselling with Ms J Illingsworth,
who
reported to ACC early in 1993. That report says that the plaintiff's claim related:
"To physical and sexual abuse
occurring while she was in Porirua Mental
Hospital between 1954-1959."
[22] The counsellor stated that she told the
plaintiff that it was likely her claim
would not be accepted as the abuse occurred before 1 April 1974. The report sets
out some
of the history given by the plaintiff to the counsellor.
[23] The plaintiff, when told that a claim for physical abuse was
not covered by
ACC, nevertheless reiterated to ACC that her claim was in respect of sexual abuse
and accordingly a "Sensitive Claim".
Her claim was declined. So she applied for
review. She appeared before a Review Officer and in a decision dated 17 June 1993,
the Officer recorded that the plaintiff had said
to Ms Illingsworth:
"That during this time [at the Porirua Mental Hospital] she was physically
and sexually abused,
and treated against her will with ECT."
[24] The plaintiff had reported to the counsellor that she remembered being
stripped
and beaten about the genital area with a shoe by a nurse who had red hair.
At the review hearing the plaintiff said that although
her memories were very hazy,
she recalled a time when a nurse came and looked around a corner at her with a
"smirky" look on her
face. She said this aroused sexual feelings in her which made
her disturbed. She thought another nurse also looked at her with a
"funny look" on
her face at about the same time. She said that a recent film called "The Silent
Scream" also created sexual feelings
and disturbance in her. She said that people at
the Rape Crisis Centre had told her she was suffering from similar effects to those
experienced by other people who had been victims of sexual abuse or rape, and
therefore she "must" herself have been sexually abused.
[25] The Review Officer view was that whilst it was "possible" there had been
physical abuse of the plaintiff at Porirua Hospital,
she was not persuaded there was
significant evidence to establish sexual abuse, and the claim did not meet the criteria
of s 8(3)
under the then Accident Rehabilitation and Compensation Insurance Act
1992.
[26] The plaintiff is a determined woman, and she
appealed against the decision.
She completed a Notice of Appeal on 14 July 1993 which said, as grounds, that
medical questions raised
by the appeal included:
· "Trauma as a result of sexual abuse also psysical [sic] and mental."
· "There
was a mistake [by the Review officer] because they didn't
know all the facts."
· "The Court must be aware
that I was wrongfully committed to a
mental hospital."
[27] The relief the plaintiff sought was "councelling [sic]
and compensation".
[28] She represented herself in the District Court at Hamilton on 16 June 1994 and
was able to persuade
the District Court Judge that her appeal should be allowed. The
Judge did not hear evidence. In his decision he set out matters of
submission as
recorded by the plaintiff, and said that there was "no reason to disbelieve" her. The
Judge sets out part of the counsellor's
report which simply restates what the plaintiff
told her. The Judge nevertheless said he was satisfied that there had been assaults
which were indecent, concluding:
"My determination is that the appellant was a victim of an indecent assault
or indecent assaults when she was in the hospital in the period 1954 to 1959
and the Corporation should deal with her
claim on that basis."
[29] Consequently the plaintiff has received ACC funded counselling to the extent
of $3,000, and an Independence
Allowance which to date has yielded fees and
compensation totalling approximately $13,000.
[30] By about 1997 or 1998, the
plaintiff had joined a group co-ordinated by
Ms Anna De Jonge known as a "Patients' Advocacy Rights" group, a Waikato
patient advocacy
organisation. It involved people talking about past emotional,
physical and sexual abuse, ECT and other medical treatment in New
Zealand mental
institutions, and the Co-ordinator encouraged members to seek regress through the
Courts.
[31] The assessment
report to ACC, provided by a doctor in 2001 after the
successful appeal, records what the plaintiff then said:
"Currently
her main problems are intermittent sleep disturbance, problems
with short term memory and concentration which are usually
worse when
she is anxious, occasional nightmares and varied energy. She takes no
psychotropic medications, is
not currently in any form of counselling and
works on a fairly steady basis with Anna De Jonge for Patient Rights
Advocacy, writing letters, visiting
patients and supporting patients with
regard to the Mental Health Act."
[32] The doctor further said:
"She gets on reasonably well with her neighbours and with the local
community. She feels she does not communicate effectively
although
meeting with her she was able to give a good and full account of what has
been happening to her over
the years. She has a degree of social maturity
and responsibility particularly in terms of her ability to work for and on
behalf of other people."
[33] The doctor said:
"There is no significant evidence of problems in the years preceding
the
claimed sexual abuse although she did have significant emotional distress
from her mother in the first few years
of her life. I am not clear whether
ACC has accepted the claim for claimed sexual abuse in 1940 and 1943. I
am also
not clear if ACC has accepted the claim for sexual abuse or other
forms of physical assault that occurred whilst she was an
in-patient between
1954 and 1958."
[34] Apart from the active involvement with the Patients' Advocacy group, the
plaintiff
has written letters to newspapers, members of Parliament, the Select
Committee for the Crime of Torture, the Chief Ombudsman, the
Deputy Director
General for Mental Health and others. The main focus of her letters has been that
she was given ECT and that she,
and others, regarded it as a procedure of torture
which should be banned, as it only harmed recipients. The group with which she
is
associated condemns ECT, and its aim is to persuade authorities to outlaw it as a
treatment. The efficacy of ECT as treatment
has been hotly disputed. I heard
considerable evidence which supported it as a necessary, very effective, safe and
reliable form
of treatment. On the other hand, the plaintiff, and those who share her
views, regard it as abhorrent.
[35] The plaintiff believed
she could not sue for what she said happened at Porirua
Hospital. Her evidence was that Ms de Jonge told her that she could sue and
that she
would "show her how to do so". As a consequence, the plaintiff instructed solicitors
to seek legal aid on 14 December 1998,
proceedings were issued on 20 April 2000
and an application for leave was filed on 28 July 2000. But was she out of time for
Limitation
Act purposes?
History of these proceedings
[36] In the plaintiff's initial Statement of Claim she pleaded causes of action
in
negligence, unlawful confinement/false imprisonment, assault and battery and breach
of fiduciary duty. Her claims essentially
related to what she said was her overall
treatment whilst at Porirua Hospital, and her belief that she had been wrongly
admitted.
She alleged she was detained without valid medical grounds; was
administered ECT and insulin therapy treatment without consent;
was placed in
seclusion without justification; was prescribed incorrect medication without
consultation or advice to her parents
or other practitioners; was held in an
environment of "intense and continual fear and trepidation"; received physical,
verbal and
sexual abuse by nursing staff, and witnessed or heard others being subject
to threats of physical, sexual abuse and ECT.
[37]
The plaintiff's initial contentions related (as she described in her affidavit in
support of the application for leave to bring
the proceeding) to:
"Overall the treatment which I was subject to and to which I saw other
patients being
subjected, I found myself in an environment of intense and
continual fear and trepidation."
She advanced major complaints
in relation to the administration of ECT, insulin
treatment and being placed in seclusion. She maintains those complaints, but the
causes of action pleaded had to be refined because of strike out decisions. She has
now pleaded threats of procedures "as punishment".
[38] Master Thomson dealt with the plaintiff's
application for leave to bring
proceedings, and the defendant's argument that the proceedings were barred because
of the provisions
of the Limitation Act. He concluded that leave should be granted
in respect of that Act, and also the Mental Health Immunity provisions,
but without
prejudice to the defendant's right to pursue all limitation defences and any defences
under the Accident Compensation
legislation that were available as further defences
at trial.
[39] The Master's decision was reviewed before Durie J. On
24 June 2001, he
held that the decisions upon which the Master relied (to the effect that ultimate
decisions on cognitive capacity
must depend upon a full testing and analysis of all
the available evidence at the substantive hearing) were determinative. He concluded
the claim should proceed but that limitation questions were able to be pursued by the
defendant at the trial. That has been the case.
[40] An Amended Statement of Claim was filed, essentially repeating the previous
particular allegations. Added to these were
allegations that the plaintiff was
deprived of her freedom and right of privacy, and subjected to threats of violence
and threats
by nursing staff that ECT would be administered.
[41] That amended pleading, also, was the subject of another strike out
application.
It was dealt with by the then Master who, a judgment of 9 July 2002,
struck out a significant number of the allegations as falling
within the protection or
immunity provided by the Mental Health Amendment Act 1935. Section 6, where
relevant, provides:
(1) A person who does any act in pursuance or intended pursuance of
any of the provisions of the principal Act
shall not be under any civil
or criminal liability in respect thereof, whether on the ground of
want
of jurisdiction, or mistake of law or fact, or any other ground
...
(2) No proceedings, civil or criminal,
shall be brought against any
person in any Court in respect of any such act except by leave of a
Judge
of the Supreme Court, and such leave shall not be given unless
the Judge is satisfied that there is a substantial
ground for the
contention that the person against whom it is sought to bring the
proceedings has acted
in bad faith or without reasonable care ...
[42] It is not necessary to recite in any detail the content of the Master's judgment
other than to record that he had struck out the allegations of false imprisonment,
deprivation of freedom and right of privacy, being
placed in seclusion without
necessity or justification; inadequate medical treatment relating to the administration
of ECT, insulin
therapy; prescribing medication; and inadequate consultation with
the plaintiff or next of kin. Where such particulars were repeated
under the causes of
action in negligence, assault, and breach of fiduciary duty, they were also struck out.
[43] A review of
the Master's decision was heard by Goddard J and dismissed.
[44] So the plaintiff filed a third amended Statement of Claim. This,
too, was the
subject of a strike out application. I delivered an oral judgment on 31 May 2007
striking out some parts of it. The
Crown had contended that because the plaintiff had
simply said that she was administered treatment as "punishment", or "threatened"
with other treatment or procedures as "punishment", this was not a permissible way
of circumventing the immunity provision. I held
that where the particulars alleged
were of wrongful or malicious conduct, involving improper motives (namely that of
punishment),
the pleadings could remain. Allegations of assault and improper
motive involving misfeasance could not fall within the ambit
of acts being done in
pursuance or intended pursuance of the Mental Health Acts of 1911 and 1935.
[45] So, too, allegations of threats by nursing staff
members to administer ECT
remained because of the improper motive of punishment that was inherent in that
allegation. But particulars
relating to the administration of ECT therapy were struck
out.
[46] In the end I concluded:
"The plaintiff knows what
her case is, namely that she alleges assaults,
negligence and breaches of duty of good faith to her in the ways that remain
as pleaded; they do not include the administration of electro-convulsive
therapy but they do include the administration
of other types of activity
because of pleaded punishment; and they do include the allegations that
threats were made
to her by nursing staff but not by the responsible clinician,
that is, the treating psychiatrist who ordered electro-convulsive
therapy. The
doctors' clinical decisions are protected by the Act."
[47] Naturally, the pleaded allegations of sexual and
physical assaults remained.
What this case is not about
[48] Because of the immunity provisions and the striking out of some
of the
allegations of the plaintiff, the Court has to keep in mind, and focus on, the case as it
was pleaded, even if the evidence
was not entirely confined to that. It is obvious that
the plaintiff, supported by others, holds strong views about the use of ECT,
insulin
therapy treatment, the procedure of seclusion as well as the general conditions that
existed at Porirua Hospital (and F Ward
in particular) during her time there.
[49] She is recorded as expressing strong and critical views about such treatment,
on national
radio, in interviews and in letters to the print media, Parliamentarians and
other agencies. She is an active member of the Patients'
Advocacy Rights Group
espousing the view that ECT and certain other forms of psychiatric treatment should
be banned. In the plaintiff's
words, its use is "torture". She is supported in these
views by Ms de Jonge who, the plaintiff said, showed her how to sue the defendant.
[50] Some of the evidence that I heard, including opinions expressed by the
plaintiff's witnesses and a Canadian academic, support
her view. However, there
was also extensive medical evidence to support the contrary opinion. This case is
not about whether ECT
is a valid and suitable treatment. It was a lawful treatment at
the time and remains such. But it has to be used for a proper purpose,
and not for
malicious motives of punishment, or as a threat of punishment.
[51] If ECT treatment and insulin therapy treatment
were accepted procedures at
the time, which was the evidence, then examination of the appropriateness of these
procedures now is
outside the ambit of this case.
[52] There is no basis for the Court to make any findings that the plaintiff's views
are justified,
or for that matter, unjustified.
[53] But the essence of this case is whether direct torts of assault and battery were
committed
upon the plaintiff; whether for improper and malicious reasons she was
threatened with certain procedures as punishment; and whether
there were negligent
acts of, or breaches of duty by, the nursing and other staff which damaged her
through distress, unnecessary
anxiety and emotional harm.
[54] But, in the course of the judgment it is necessary for me to describe, in a
limited way, the
treatments or procedures of ECT, insulin therapy, and seclusion
adopted in the 1950s at Porirua Hospital and other psychiatric institutions
in
New Zealand. As with some medical procedures, these were distressing and
unpleasant. Obviously, improper threatening
of procedures for purposes of
punishment would increase any anxiety that might already have existed in relation to
the procedures.
Burden and standard of proof
[55] Obviously the burden of proving her case rests upon the plaintiff. Being a
civil case, the
standard is the balance of probabilities. Because some of plaintiff's
allegations include indecent and physical assaults, regard has to be had
to the gravity
of those allegations and to their consequences. The test is as described in Managh v
Wallington [1993] 3 NZLR 546 at 550-551 by Tipping J in delivering the judgment
of the Court of Appeal:
"In all cases [civil], the standard of proof is
the same the balance of
probability consistent with the gravity of the allegation.
The degree of gravity will obviously
be influenced by the potential
consequences for all concerned of the allegation being found proven. This is
why the
civil standard of proof is flexible and depends on what is at stake, as
Lord Scarman put in it Khawaja v Secretary of State
for the Home
Department [1984] AC 74. But a flexible standard of proof, depending in
large part on consequences, does
not mean that there are two civil standards
of proof ...
..."
[56] In Honda New Zealand Limited v New Zealand Boilermakers'
etc, Union
[1991] 1 NZLR 392, Hardie-Boys J, in referring to the standard of proof appropriate
in a civil case where what is at issue is the alleged commission
of a crime, said at
395:
"... what has been said extends beyond that kind of issue and provides a
general principle
applicable to all kinds of allegation. It calls for flexibility,
according to the nature of the particular allegation. The
matter was recently
touched upon in this Court by Somers J in Budget Rent-a-Car Limited v
Auckland Regional Authority
[1985] 2 NZLR 414, when he said at p 425:
... although this is a civil case to which the civil standard of
persuasion
applies the very gravity of what is alleged makes the
probability of its occurrence more remote or unlikely and hence
the
more difficult to establish."
[57] Whilst this is not a criminal case, nevertheless I bear in mind that Judges
in
criminal proceedings may warn a jury of the need for caution where there is evidence
about the conduct of a defendant which is
alleged to have occurred more than 10
years previously (s 122 Evidence Act 2006). Simply put, evidence of long aged
matters may
(not must) be unreliable, because memories may (not must) be
imperfect.
[58] But the standard of proof remains the civil one.
Where limitation issues
arise, as here, the burden of proof is on the plaintiff to show why time should be
extended because of "disability"
so as to overcome the primary rule. But, it is for the
defendant to prove on the balance of probabilities that a claim is brought
out of time,
i.e. that the date of discoverability (if a relevant consideration) predated the statutory
cut-off point; Humphrey v
Fairweather [1993] 3 NZLR 91.
Historical background as to Porirua Hospital and Mental Health legislation
In the 19th Century the mentally ill were
regarded in New Zealand, and
[59]
throughout the world, as troublesome, "abnormal" and a law and order problem.
Their behaviour was
said to "upset the peace". The insane or those with disordered
minds (whether functional or organic), were described as "lunatics",
"imbeciles' or
"idiots" - all terms carrying a pejorative connotation. The mentally ill were housed
in what were known as "lunatic
asylums". The dilemma was whether they should be
treated as prisoners requiring supervision, or as individuals requiring therapy.
In the late 19th Century, after Parliamentary Inquiries, new policies were
[60]
developed in New Zealand which resulted
in the construction of Seacliff Hospital in
Dunedin (completed in 1883) and Porirua Hospital near Wellington (completed in
1910).
[61] These and other hospitals were located in rural areas away from the
distractions of built up urban areas, and were generally
associated with operational
farms. It was felt that work on these farms was beneficial to patients.
[62] In the Historic Places
Trust citation for the Mental Health Museum (formerly
F Ward) at Porirua Hospital, it said:
"In its hey-day Porirua Hospital,
as the latest embodiment of the new
philosophy, represented all the contradictions and aspirations of mental
health
care philosophy at the time. The main hospital building was
demolished in 1943 leaving only F Ward as the last surviving
ward of the
old hospital. The uneasy relationship that, in hindsight, clearly existed
between the need to keep patients
under constant surveillance the Victorian
prison aspect of mental health care which was present in the former F Ward
and the need to facilitate patient care and therapy through outdoor
activities and recreation, which can be seen
in the courtyard and sun shelter
aspect of F Ward ....
.... the emphasis was on morale reform at one end of the
spectrum, and
physical restraint at the other."
[63] The main buildings at Porirua Hospital were substantially damaged
in an
earthquake in 1942, and in 1943 only the F Ward building remained of the original
hospital. This ward was built in 1910, and
continued in its role until the early 1970s.
In some parts its design was similar to the plans of Police "lock-ups" of the early
1900s which had originated in the 1880s. The overall plan was a very long barrack-
like building with a straight passage or corridor
running down its middle with
individual bedrooms, and a room for dental care, arranged on either side.
[64] In addition, there
were some rooms called "seclusion" rooms which were
essentially single secure cells for disturbed patients. These rooms had a high
stud,
the windows were covered over and ventilation was provided either through wire
grills or holes.
[65] I conducted a view,
after the hearing of this case had concluded, of F Ward as
it now stands.
[66] By the time Porirua Hospital was built, the medical
profession was in two
minds as to whether or not it was preferable to maintain a secure prison-like
environment in mental hospitals
or to create more humane conditions where there
was a measure of freedom through outdoor therapy. It is said that the Mental
Defectives
Act 1911 attempted to change the image of mental illness by introducing
the principle of a villa system featuring outdoor work and
exercise. The set up was
designed to protect some patients from being accommodated with the chronically
insane. The provisions of
that Act substantially applied in the 1950s and 1960s
when the plaintiff was a patient. Contradictions in health care philosophy
nevertheless, remained, despite the 1911 legislation.
[67] Because F Ward housed the more seriously disturbed and unmanageable
patients, many had very limited gardening or outdoor therapy, with patients being
left to sit around either in the Day Room or outside in the courtyard for most of
the
day. Those who were less disturbed were able to perform domestic and other tasks
such as cleaning, polishing, making beds and
working in the kitchen. Work was
generally sought after by those patients because it gave them something to do.
The Mental Defectives
Act 1911
[68] This Act was seen as a significant advance in mental health legislation, yet
nevertheless its provisions, and its
title, still retained Victorian images. For example,
s 2 defined a "mentally defective person" as a person who:
"Owing to
his mental condition, requires oversight, care, or control for his
own good or in the public interest, and who according to
the nature of his
mental defect and to the degree of oversight, care, or control deemed to be
necessary is included
in the one of the following classes:
Class I "Persons of unsound mind" that is, persons who, owing to
disorder of the mind, are incapable of managing themselves or their
affairs:
Class II "Persons mentally
infirm" that is, persons who; through
mental infirmity arising from age or the decay of their facilities, are
incapable of managing themselves or their affairs:
Class III "Idiots" that is, persons so deficient in mind
from birth or
from an early age that they are unable to guard themselves against
common physical dangers
and therefore require the oversight, care, or
control required to be exercised in the case of young children:
Class IV "Imbeciles" that is, persons who though capable of
guarding themselves against common physical dangers
are incapable, or
if of school age will presumably when older be incapable, of earning
their own living by
reason of mental deficiency existing from birth or
from an early age:
Class V "Feeble-minded" that is,
persons who may be capable of
earning a living under favourable circumstances, but are incapable from
mental
deficiency existing from birth or from an early age of competing
on equal terms with their normal fellows, or of managing
themselves
and their affairs with ordinary prudence:
Class VI "Epileptics" that is, persons suffering
from epilepsy:
[Class VII "Persons socially defective" that is, persons who suffer
from mental deficiency
associated with anti-social conduct, and who by
reason of such mental deficiency and conduct require supervision for
their own protection or in the public interest:]."
The last class of "Persons socially defective" was added in 1928.
[69] It can be seen that the class of persons who were admitted to mental hospitals
under that Act was wide. So, persons were
admitted who:
a) suffered congenital mental defects and were chronically disabled and
not able to be
effectively treated so as to recover;
b) were the senile and aged sent there to die;
c) were epileptics
or intellectually handicapped persons (such as those
suffering from Down Syndrome);
d) were the criminally
insane;
e) were those of borderline mental disability arising out of very low IQs
so to be described
as "feeble minded";
f) were in criminal prisons but proved to be dangerous to themselves and
others,
and generally uncontrollable. For example, violent, disruptive
and unmanageable female patients at Arohata were transferred
to
Porirua Hospital pursuant to the Act;
g) the "socially defective".
[70] This latter category
may have encompassed a number of young persons who
in their teenage years could not satisfactorily manage in their families and the
community and were said to be "dangerous to themselves
or others". As required by
the Act, such persons had to be certified by two medical practitioners as being of
"unsound mind" and
incapable of managing themselves or their affairs. That is how
the plaintiff initially came to be certified by medical practitioners
in November 1954.
[71] Evidence from some of the former patients suggested that committal to
Porirua Hospital was not uncommon
for disruptive or disturbed teenagers whose
excessive uncontrollable behaviour was such that their parents, Child Welfare, other
social agencies or the prison systems could not manage them. Their committal was
lawful under the Mental Health Act 1911. It inevitably
proved to be distressing to
those who did not have chronic disabilities, and had some insight so as to resent and
rebel against committal.
They were accommodated along with seriously ill and
mentally disabled people of all categories.
[72] Community attitude towards
the mentally ill still contained elements of
suspicion, even hostility. Official documents continued to refer to the mentally ill
as
"inmates" (for Births and Death Registration Act purposes), and terms such as
"probation", "escapes from custody" and "recapture
of escaped persons", remained
in official use.
[73] The number of patients admitted (whether by committal or as voluntary
boarders)
increased to the extent that careful hands-on treatment, counselling, and
psychotherapy were difficult, indeed largely impossible.
Voluntary patients were not
turned away and consequently overcrowding became chronic.
Common procedures used in the 1950s
Electro-Convulsive
Therapy (ECT)
[74] Few anti-psychotic or tranquillising drugs were available for psychiatric
treatment, even in the 1960s. ECT
was the main therapy available. It was given in
the 1950s unmodified, that is without anaesthesia or muscle relaxant. It was used
to
treat schizophrenia as well as depression or disturbed behaviour.
[75] A machine passes electricity across the skull with
the energy being dissipated
in the skull hair and membranes covering the brain with only a small amount of the
electron dose reaching
the neurons of the brain. This sets off a seizure, which causes
immediate unconsciousness and memory loss for the procedure, and
the seizure
artificially induced is the same as that seen in epilepsy.
[76] It is said that the seizure causes some outpouring
of neurotransmitters
(chemicals such as aminoacids, adrenaline, dopamine, endorphin used to relay,
amplify and modulate signals
between a nerve cell and another cell in the central
nervous system). That was one of the main therapeutic effects sought through
the
use of ECT in New Zealand for several years. After the late 1950s, the use of a
muscle relaxant and anaesthesia became common
so as to make the experience more
"pleasant", or less traumatic.
[77] At the time of the plaintiff's first admission to Porirua
Hospital, unmodified
ECT was common. Academic writers and others, including those who have received
ECT, have called it "punishment
for something that they have done". Obviously, if
ECT is used without clinical indication with the sole and deliberate intention
of
inducing fear and submission into a person, or causing them harm in retaliation for
challenging behaviour, then it would be punishment
and unacceptable under any
circumstances. So too, to threaten the use of ECT as a punishment is unacceptable.
The plaintiff, and
others who support her, say it was used to punish and not to treat.
[78] Dr Melding, a clinical psychiatrist with specialist
expertise in the use of ECT
and anaesthetics, said that the plaintiff's medical notes do not indicate that she was
given ECT for
punishment or in retaliation. The clinical notes on her file refer to her
having disturbed behaviour and other symptoms such as weight
loss, which would
have indicated a disturbed mental state and a reasonable clinical indication for the
treatment.
[79] Dr Melding described ECT as
a very effective form of treatment then, and
now, for certain psychiatric conditions.
[80] As I have said the plaintiff regards
ECT as "a punishment and a torture", and
Ms de Jonge and others share her view. She and they continue to wage a strong
campaign seeking
to have the procedure made unlawful. The plaintiff written to
newspapers, and lobbied Parliamentarians and others, strongly condemning
ECT as
torture, being administered only for punishment. Her view is that ECT is used to
"keep patients quiet and break their spirit",
leaving them with permanent memory
loss and emotional damage.
[81] Professor Sobsey, a professor of educational psychology at
the University of
Alberta, Canada, was called to give evidence on behalf of the plaintiff. In his
opinion, custodial institutions
in the 1950s were commonly overcrowded and
understaffed, and there was "an extreme power imbalance between patients and staff
which
heightened the risk of abuse of all kinds by staff". At times this witness
strayed into areas of advocacy not altogether uncommon
with some expert opinion
witnesses and it is obvious that he holds firm views over the use, or misuse, of
certain procedures.
[82] He said by the 1950s there was a growing recognition that ECT was a
procedure that had severe potential for abuse, and was
frequently abused, so as to be
used as punishment and a threat to control behaviour. He described the side effects
of ECT as being
variable, and said that generally, if used unmodified, it would have
been an extremely frightening experience for patients.
[83]
He debated, or challenged, a number of matters that were dealt with by
Dr Melding in her evidence. But no-one disputed that to
use ECT to punish patients
or to threaten to use it as punishment, would have been seriously improper.
[84] But he went further
to submit that if clinicians "allowed a patient to believe"
that he or she was being punished or tortured, whether or not it was
the intention of
the doctors and nurses involved, that would be "unprofessional and counter
therapeutic". That is a submission with
which I have some difficulty. "Allowing
one to belief" would seem to require some knowledge of the patient's belief. He said
that
if the overall experience of hospitalisation is experienced by a patient as abusive,
then the impact of ECT is "almost certain to
be experienced as abusive by the
patient". What the witness seemed to say (or argue) was that if the patient thought it
was punishment
then, in the absence of being told otherwise, it was experienced as
abusive. That goes without saying. But the issue is whether the
clinician is legally
or ethically responsible for such belief? Professor Sobsey, when asked if he had
described ECT as torture,
said:
"I do not say that ECT is torture, I say that ECT can be used as torture, any
more than I would say that surgery
is torture but in the long run surgery can
be used as torture and I would say exactly the same thing about ECT."
[85] This
illustrates that on that issue there can be no disagreement amongst the
experts, or for that matter, lay people. The more difficult
issue involves the evidence
of Professor Sobsey that ECT is "aversive and is experienced as punishment". He
went on to say:
"This does not mean that ECT cannot be or is not therapeutic, any more than
a natural fear of being cut open would mean
that surgery cannot be
therapeutic. It does mean, however, that fear and avoidance of electricity is
natural and if
it is to be used as therapy, that fear must be overcome."
But the case is not pleaded as "allowing a belief of punishment" but threatening
punishment.
[86] Dr Melding's evidence was that upon unmodified ECT being administered,
there was limited awareness of the seizure,
but of course not the anticipatory anxiety.
She went on to say:
"ECT needs to be put into perspective with other medical procedures of that
time and even
later, many of which were, and are, uncomfortable, unpleasant
and painful, yet until recently were regularly performed without
benefit of
anaesthesia or sedation."
[87] She refers to the inconsistency of reports on patient and family dissatisfaction
with ECT and that there is much controversy in the area. Dissatisfaction is more
likely to be expressed in the studies by critics
of ECT, and satisfaction by medical
proponents or supporters of the procedure.
[88] Leaving aside the issue of whether ECT should
be an acceptable medical
procedure, the question here is whether the doctors and nurses in this case reasonably
believed on clinical
grounds that it was a required method of treatment for the
patient, or whether it was deliberately threatened by nurses as punishment,
and
intended by them to be administered as such. As the pleading stands, the case
concerns threats to punish, which must carry with
it a malevolent motive.
[89] Dr Melding's evidence was that on her evaluation of the use of ECT, and in
the clinical materials
and notes, this was proper treatment for the plaintiff, a patient
with a diagnosis of "schizophrenic reaction". It was thought, at
the time, that insulin
treatment followed by ECT was the best course of treatment for the plaintiff. Indeed,
the plaintiff apparently
responded well to this treatment, according to the notes.
[90] If there was a subsequent relapse, then ECT would have been the
treatment of
choice, as it is not a long term treatment and its effects on the brain last only about
six weeks. In Dr Melding's opinion,
the notes indicate that ECT treatment was
given on set days which does not support a punishment hypothesis but rather a
treatment
regime.
[91] For the ECT to have been administrated for reasons of punishment, there had
to have been improper motives and unethical
behaviour fuelled by vindictive
motives of ill will. If so, the staff threatening such punishment acted in a malicious
way. As Professor
Sobsey said, whether this occurred is not a matter for expert
opinion but a question of fact for this Court.
Insulin Coma treatment
[92] This was a treatment carrying with it certain dangers, which required close
supervision over several hours. During the 1950s
a variation of it called "Sub-coma
insulin therapy" was in practice in New Zealand. In an article in the New Zealand
Nursing Journal
(1945) 38.2, 29-32 Psychiatric Treatments, Dr R W Medlicott (who
had been doctor at Porirua in 1940s and early 1950s) stated:
"[Sub-coma insulin theory] is a variety of insulin treatment, not to be
confused with insulin coma therapy, in which
injections [of insulin] are
given each morning in sufficient amount to produce a sub-coma shock
consisting of drowsiness,
weakness and usually excessive perspiration. The
shock is then interrupted before a coma develops by giving the patient a
glucose drink followed by his normal breakfast. This ambulatory or sub-
coma treatment is of value in persons suffering
from anxiety states, hysteria
and mild depressive states, especially when associated with loss of weight."
[93] The concept
of combining insulin coma therapy with ECT was well
established at Porirua in the 1950s and was justified on the then current scientific
understanding. The plaintiff was given sub-coma insulin treatment on 15 January
1955, and on almost a daily basis to 2 February
1955. It would have been very
unpleasant for her. She was noted to be screaming and throwing herself to the floor
and fighting violently
against taking the glucose to terminate the insulin coma, and
having outbursts of emotional instability. As it would have been essential
then for
staff to terminate the treatment by forcibly administering glucose, this would have
been very alarming for all.
[94]
The insulin treatment was immediately followed by ECT treatments between
3 February and 25 March 1955. Dr Melding's evidence was that
this was part of a
planned treatment regime for a person diagnosed with schizophrenia, and was in
keeping with medical knowledge
at the time. It was then believed that better
outcomes for people with schizophrenia were obtained with the combination
of
insulin treatment and ECT, and it was common practice to start a course of ECT on a
daily basis.
[95] Dr Melding notes that
in April and May 1955, the plaintiff was more settled
and co-operative and there had been a great improvement in her behaviour to
the
extent that she was transferred back to K Ward on 14 May 1955.
[96] The case as pleaded was not about whether the administration
of insulin
treatment should or should not had been given, but whether it was given (or
threatened) to the plaintiff for reasons of
punishment.
[97] In closing, the plaintiff's Counsel conceded that the evidence could not
establish that allegation.
[98]
Insulin therapy is no longer administered because, according to Dr Melding:
"In the past 50 years, there have been considerable
advances in psychiatry
and many treatments that were harmful, and had problem side effects, or did
not work have been
rendered obsolete. Examples are the loss of insulin
treatment, lobotomy, electronarcosis, and even the miracle drug of the
1960s
chlorpromazine, and some of its successors. The only survivor is ECT,
which has now been in continuous use for
nearly 70 years. The main reason
for its continued use is that it works."
Seclusion
[99] Patients were placed in secluded
isolation if violent or unmanageable, and it
was seen as an intervention for disturbed behaviour. It was usually initiated by
nurses
but a patient had to be regularly reviewed by doctors who were required to
sign the seclusion documentation.
[100] There were single
rooms in F Ward, and elsewhere, used for seclusion. They
had shutters over external windows that could be closed to prevent patients
breaking
windows and hurting themselves. The rooms were generally very dark but some
daylight came into the room. I have seen examples
of these in the former F Ward,
when I undertook the view.
[101] The rooms used for the seclusion sometimes had the beds removed
so as to
remove a risk that they would be used as weapons by disturbed or destructive
patient, but sleeping facilities were available.
A toilet "potty" was provided,
although if there was a risk of harm through use of this as a weapon, it was removed
and two nurses
would, when requested, escort the patient to the toilet.
[102] Seclusion patients were taken each day to be bathed and walked unless
too
unwell. Patients usually wore their own clothes in seclusion unless too disturbed in
which event they would be placed into canvass
nighties or frocks which were
impossible to rip and were designed to reduce the risk of harm to the patient.
[103] Patients might,
over night, be locked in a secure single room and although
this was perhaps perceived as "seclusion" it was not categorised formally
as such.
There were other single rooms into which difficult patients could be put at night.
Likewise if patients were put into a
room for "time out" to calm down for a short
period of time, it only became formal "seclusion" if isolation time was required.
Conditions at Porirua Hospital in the 1950s
Overcrowding and inadequate staffing
[104] The psychiatry branch of medicine was
not a popular medical discipline, and
there was a serious shortage of qualified psychiatrists as well as psychiatric nurses
during
the 1940s and 1950s.
[105] After the war, a significant number of nurses, trained and untrained, were
encouraged to immigrate to
New Zealand from Great Britain and parts of Europe, the
Netherlands in particular. But by the 1950s, the patient doctor/nurse ratio
in
psychiatric institutions in New Zealand was abysmal.
[106] Departmental and other records are replete with references to the problems of
overcrowding and understaffing
during the 1950s. Clinicians, staff and patients had
to endure difficult conditions. Not every report is critical, but a general
theme
emerges. I set out some extracts from reports of the Hospital Superintendent,
District Inspectors, Official Visitor and
others as examples.
[107] An Official Visitor, on 5 April 1950 asked to see F Ward "because I had
heard it was not all it might
be", and his report says in part:
"I found that this ward is capable of handling about 80 patients and at the
moment
it is accommodating about 130.
I am informed that patients are arriving at the rate of about 750 yearly,
roughly 40%
of whom are voluntary boarders. Many of these are old people
who cannot be cared for at home.
I am fully aware that
this whole institution is badly overcrowded
something like 300 too many patients. But I want to say that this
overcrowding
has been going on for many years until one gets tired of being
told that when such and such a new building is completed, it
will be relieved.
I have reached the stage when I am beginning to doubt if the surplus will
ever be overtaken under
present methods of administration.
The sleeping ward I saw would make a wonderful page in "Truth". The beds
were placed
hard against one another on both sides of the ward and the
centre aisle had no less than sixteen mattresses, shakedown beds,
on the
floor with scarcely room for a nurse to walk. The shakedowns were so
placed that the head of each bed overlapped
another so that the patients had
to sleep with their heads on the feet of the next patient. This I consider is a
lamentable state of affairs for a public institution and should be remedied
forthwith.
It would seem that the department
in charge of mental hospitals is not
functioning as it should. ..."
[108] In 1954, a report of the Director of the Division
of Mental Health Hygiene
included the reference that:
"Overcrowding is not a new problem and not peculiar to New Zealand
mental hospitals."
[109] On 12 July 1954, the District Inspector reported that new villas had been
occupied and were "excellent":
"But steps are required if practical to relieve the congestion to be seen in
wards and villas."
[110] On 6 September
1955 he reported:
"The overcrowding could not be exceeded [sic] and in my opinion calls for
drastic and immediate
attention. Any hope for the patients in these wards
must at present be at a minimum [referring to Wards 2, 5, 7, 8 and Kaumatua
and Nairn]."
[111] A further report from the District Inspector (probably made some time in
1956) says:
"For many
years now there has been a shortage of both male and female
staff.
I am of the opinion that the age old fear of mental
hospitals and the very
prevalent idea of those not familiar with such institutions that one might be
attacked by some
violent patient is the main cause of these shortages so far
as the female staff is concerned.
....
We here
at the moment are deplorably short of medical staff, the normal
number is between five or six doctors. Today we have two doctors
plus one-
half time doctor which is quite inadequate to properly supervise and care for
some 1,600 patients."
[112]
The Medical Superintendent at Porirua reported to the Director of the
Division of Mental Hygiene on 15 April 1955 (for the year ended
31 December
1954) statistics as to the number of committed patients and voluntary boarders, with
the hospital. Despite the provision
of 102 further beds during the year, the hospital
remained overcrowded to the extent of 260 patients.
"The accommodation,
as difficult as it is now, will, within the expiry of
[2 years] become impossible."
[113] The report further states:
"The nursing staff
position, especially on the female side has been
consistently unsatisfactory during the year. At the close of the year the
nursing staff shortage was 82 nurses and 22 attendants. The over 54%
shortage of nurses has naturally reduced the efficiency
of the Hospital's
work."
[114] In the report for the next year ending 31 December 1955, the Medical
Superintendent noted
that the overcrowding was assessed at 365 as against the figure
of 260 patients the previous year. Accommodation had been provided
for additional
patients by converting day room accommodation into dormitories, and patients
sleeping in unoccupied staff quarters.
He said:
"The nursing staff position remains unsatisfactory especially on the female
side.
....
Following
the resignations of [Drs R and McL], who have entered private
practices, the medical staff was extremely short during the
last quarter of
1955 and the early part of [1956]. With the appointments Drs [M],
Coulston, Lind and Patrick (part-time),
the position is now quite
satisfactory."
[115] The Official Visitor reported on 20 February 1957 that he had been visiting
Porirua for close on 40 years and overcrowding has always been apparent. He said:
"I am well aware of the wonderful improvements
that have been made
during the last few years but the leeway has never been made up and I am
anxious to know if conditions
will be allowed to continue as at present, or
will the situation be faced and adequate accommodation provided.
....
The institution has become a ward of the Wellington Public Hospital. When
an old patient there becomes too troublesome
to be looked after, this patient
is removed to Porirua and in many cases is dead in under a month. Such
patients should
never be sent to this institution but unfortunately there is no
other home provided for them.
I am well aware that
the authorities know of the overcrowding and have
known of it for many years. The time has now come when something must
be done.
The word overcrowding has been repeated so often that it apparently fails to
make an impression. The
visit to the overcrowded wards on a hot summer's
night might give the word a little more meaning.
In this land of
plenty, the conditions at present existing are somewhat
astounding."
[116] Things appeared to improve as the District Inspector,
on 30 July 1958, said
that a visit to the several wards revealed:
"Everything was excellent better I think than I have
ever seen the wards
before."
[117] The Official Visitor, who had earlier been strident in his criticism, supported
that by
saying:
"Everything was "in a satisfactory state in Rauta and the lower building, the
latter having now taken on "a
healthy atmosphere and is spotlessly clean.
This transformation is all due to the excellent staff who pride themselves on
keeping it clean and tidy." (1 October 1958)
[118] But a year later, in 1959, the Superintendent reported that:
"The
numerical strength of the medical staff reached a parlous state towards
the end of the year, but additional medical staff
are joining the hospital at the
commencement of the year [1960].
The nursing staff shortage at the end of the year
was 62 nurses and 27
attendants. ... It is so many years, particularly on the female side since the
nursing staff has
been up to full establishment at the very large overtime
hours worked are now almost accepted as normal."
[119] And further:
"This hospital remains the most overcrowded of the Division's hospitals and
the figure was, and is approximately 250
patients in excess of patient
accommodation."
[120] On 7 May 1961, the Superintendent reported that more voluntary patients
were seeking admission than those
sent for compulsory treatment, and "medical staff
is inadequate". He noted:
"The ever recurring complaint of insufficient
patient accommodation and
gross overcrowding."
[121] The evidence was that no patients were turned away and there was,
obviously,
nowhere else to cater for committed patients.
[122] Although the Official Visitor on 22 August 1962 described the present
institution
as "splendidly equipped", by January 1964 a Nursing Service report
records that F Ward (and Rauta, Montrose and Nairn):
"Are the wards most urgently in need of attention. Nursing staff are engaged
in far too much domestic work and too little
time is available to give
attention to individuals or small groups of patients. Nurses are thus deprived
of one of
the main satisfactions in psychiatric nursing, and many patients are
left too much to their own devices and with little to
interest or stimulate
them."
[123] I have set out some entries in the records to illustrate what was obvious and
reaffirmed
in evidence. F Ward, which accommodated the most disruptive,
aggressive patients, was overcrowded and although it had a greater
staffing ratio than
other wards, there remained insufficient staff to efficiently meet all the needs of
patients all the time.
Plaintiff's claims as to abuse upon her
[124] In summary the plaintiff said that frequent physical (and sexual) abuse,
punishment,
and threats, occurred throughout all her time at Porirua Hospital. These
involved:
a) cruel treatment, crossing the
line into deliberate emotional and
physical harm;
b) physical assaults following her unco-operative
or abusive behaviour,
by named nurses, (Nurse S and Nurse C) and others whose names she
does not
remember;
c) within three days of admission, when in Rauta, being struck three
times on the bottom
by a nurse when hiding behind a sofa;
d) assaults by a "Nurse M" in the early period;
e) being dragged
by the hair from her bed as punishment by Nurse S;
f) being regularly struck by nurses and dragged by the collar,
or with her
arm twisted up her back, to seclusion as punishment;
g) being struck two to three times
by Sister B (the Nurse-in-Charge of F
Ward) in the presence of Nurse C when stripped of her clothes, and
looked at in a prurient way before being placed in seclusion;
h) assaults on regular basis in F Ward through
her arm being forced up
her back, being slapped across the face and body, and being pinched
or
punched by nursing staff, mainly in the courtyard area;
i) one occasion where Nurse C forced her to the ground and
sat on the
small of her back and struck her around the head and ears;
j) assaults by other patients
with no measures being put in place by the
staff to protect her from such violence;
k) regular threats
of punishment being administered to her by being:
i) placed in seclusion;
ii) given
ECT;
iii) given insulin therapy treatment.
Sexual assault
[125] She said that she did not remember being
sexually assaulted, but that an event
occurred between August and October 1956 and that she was told about it several
months later.
[126] Her evidence was that a nurse asked her whether she remembered "the hiding
we gave you" after a chamber pot had been thrown
at the nurses, and how they had
beat her after taking her pyjamas down. She said the nurse's face was flushed when
she said that
and looked as though she was enjoying herself. The plaintiff was under
the distinct impression that there was something sexual in the event.
[127] While she said she
could not remember the event, she had fleeting images
and some feelings akin to sexual arousal which convinced her that it had happened
and on more than one occasion, even though she said the nurse had told her about the
event on only one occasion.
[128] Her evidence
was that another patient RW told her about the event a couple
of months after it had taken place, and before the nurse had said anything
to her. She
said that RW said she was in the room next door and had heard the whole thing, and
that the patient said that the plaintiff
"had been beaten around the genital area so
hard that she had been unable to sit down the following day". The friend had said
that
the trick was to "tighten the muscles in my bottom so that it would not feel so
bad".
[129] If that narrative or chronology is
correct, the plaintiff was told something by
a fellow patient before any communication with a nurse.
[130] The plaintiff concluded
that because she has no memory of the event she
must have been given ECT so as to erase any memory.
[131] She said that other sexual
assaults occurred later, between 1956 and 1958 but
she could not remember them; "having fleeting images and feelings which convince
me it happened to me and on more than one occasion".
Physical assaults
[132] She said that female nursing staff hit her on the
bottom, body and arms, often
"boxing" her ears, generally manhandling, pushing and slapping her. She described
incidents where she
said she was held by the hair when dragged from bed one night
and, on another occasion, was held on the ground by a nurse who then
slapped her
around the head and ears.
[133] She said that she was often hurt on the wrists and arms by Nurse C.
[134] Elaborating
on her allegations of physical abuse, the plaintiff said that
Nurse C mainly hurt her when she was trying to force her to go outside
into the
courtyard. She said she was not mistaken that it was Nurse C who bullied and
assaulted her.
[135] She objected to seclusion
because it should not be done to anyone as it was
"cruel". She has the strong view, and expressed it as such, that ECT was to make
patients like zombies, to quieten them down, to control them, ... and did [not do]
anything to improve them." She said that she was
threatened with both seclusion
and ECT as punishment so as to have her behaviour controlled.
[136] The plaintiff said that she
was told by nurses that she would be transferred to
F Ward for misbehaviour. "I was threatened it, so it must have been punishment
because I was told I was going to go there if I didn't behave myself or something, or
buck up my ideas, I was going there they said."
She agreed that she might have been
aggressive but was just a normal teenager like anyone else.
[137] She said that patient fights
did not happen very often: "they were quite rare
actually. Just now and again. I don't remember many." She agreed that the staff
acted quickly to break up fights if necessary to protect patients. However, she also
said she was assaulted by other patients and
the staff failed to protect her. She was
critical of most, but not all, nurses saying that they were "inconsiderate and
undedicated
nurses not even nice". She said she was required to witness other
patients being abused by staff (or at least nothing was done
to prevent her seeing
this), and staff did nothing to prevent her being assaulted by other patients.
[138] Referring to feelings
of guilt and shame, the plaintiff said she felt quite
ashamed for being a patient (when in Porirua Hospital) because "it was a very
shameful thing to be a patient at Porirua Hospital, especially F Ward."
[139] She was critical of her father and said her mother
was very intolerant and just
wanted to be rid of her. She said she never liked Dr M because "he wasn't very
nice" and she felt the
staff generally were nasty to her. She volunteered that Sister B
ignored everybody in the ward, apart from a favourite, and that she "never spoke to
me ever as a
person."
[140] She said that Ms de Jonge supported her, and agreed with her that these
"places are like a concentration camp, which
is true. They just looked like inmates
of concentration camps."
Evidence of other former patients
[141] The plaintiff called
evidence from eight women who had been patients at
Porirua Hospital at varying times between 1953 and the early 1960s. They are all
now aged between 60 and 76. They described generally their experiences and
memories of their times at Porirua Hospital. Some were
committed patients, and
others went on a voluntary/boarder basis. Some were admitted when teenagers.
Some have separate claims, somewhat
similar to the plaintiff's case against the
Crown Health Financing Agency, but it does not follow that their evidence is
weakened
for that reason.
[142] Strangely, most were unaware of the amounts of damages that they were
claiming, some believed that they
were part of a "class action", and one in particular
is a member of the same patients' advocacy group initiated by Ms de Jonge.
[143] The evidence of those witnesses is summarised.
Ms ZLC
[144] Ms ZLC was admitted initially in 1963 at the age of 14. She
had several
admissions between then and 1969. Like a number of patient witnesses, she was
from a large family (of 16) and was initially
diagnosed with "adolescent emotional
instability". The nurses were "a horrible bunch" and she said some would use their
shoes to
beat her and others. She described being placed in seclusion if she did
anything wrong and said she regarded F Ward as a terrifying
place. She had seen
staff assault patients. She believed she was sent to F Ward as a punitive measure and
threatened with ECT as
punishment. She said that she was administered ECT
frequently but would struggle and have to be held down. Her evidence was:
"We were never be told when we were going to be administered ECT. The
only warning we received, apart from when ECT was
administered as a
punishment, was being told not have breakfast on a particular morning. ECT
was often administered
as a punishment."
[145] She says that she was locked in seclusion for refusing to obey nursing staff's
requirements, or demands.
And:
"While my conduct on these occasions may not have been exemplary, it
certainly did not amount to behaviour that
could be described as dangerous
to myself or other patients."
[146] She said that in order to gain attention at Porirua Hospital,
she would break
windows and endeavour to inflict injuries on herself. She said that some nurses were
liked but generally they treated
her or other patients as "second class citizens". It
was put to her that one of the reasons that she kept returning to Porirua Hospital
was
because, when in the community, she did not get all the attention she had been used
to. Her response was:
"You got attention
but it wasn't good, but it was attention. I mean, when
you're competing with 130 patients in F Ward and that, and that's only
a few
staff on, you don't get the attention, so you have to do something, even if it's
not good. You do something to
get attention to get noticed."
[147] She agreed that she was certainly disturbed at times in seclusion. When it
was put to her that
the plaintiff considered seclusion was a "terrible thing that should
not be imposed at all", her answer was:
"I don't know,
I suppose it was one way of controlling us, but I don't know
whether it was good or not. I don't think it was. .... I saw
it all along as a
punishment."
[148] In relation to ECT, particularly being threatened with it, she said that if you
misbehaved
you would be told you would be "on the list for ECT and the next thing
you know, you are." She described misbehaving as:
"Well doing something you shouldn't have, the nurses would tell you off,
and the next morning you would find that you were on ECT, so if that is not
cause
and effect, I don't know .... [The nurse] would say "you will be
getting shock treatment", and the next day you would be on
the list."
[149] It was put to her that the plaintiff's view was that ECT was a torture and her
response was:
"Well, I don't
know, I don't like it. I know that much. I'm terrified of it.
Whether it's torture, whether they think it helps, all I know
is, I'm terrified
of it, even now.
Q: But you accept that when you got it, the doctors were trying to help
you?
A: No, they just did it for the heck of it."
[150] She described the nurses as "the enemy", although
she agreed with the
proposition that she must have been transferred to F Ward because nurses could not
manage her behaviour in the
ward that she was in at the time.
[151] She referred to the "Bostal Girls" who "weren't mental and ... I used to be
terrified of
these kids, teenagers from Bostal because they rough and they would
really give you a hiding."
Ms MAB
[152] Ms MAB is aged 76,
and was a patient at Porirua Hospital after the time that
the plaintiff was discharged. Initially she went to Porirua Hospital as
a voluntary
boarder, being admitted in October 1960 and discharged in January 1961.
[153] She generally described frightening and
distressing conditions. She said that
she believes she was given ECT as a punishment a short time after her admission.
[154] Her
clinical notes indicate that she was suffering from reactive depression,
and cross-examination was directed at that being the reason
that she was given ECT.
She denied that, and said it was given because a doctor was angry with her. The
clinical notes of 14 October
1960 say:
"ECT with a marked initial improvement, then becomes restless ...."
[155] As a voluntary boarder she was able
to discharge herself and she went home
for Christmas, returning after a period of leave before finally being discharged.
[156]
She describes the conditions as smelly, with patients being herded to showers
and "heavily drugged people sitting or lying around".
[157] She has her own claim, and believes (incorrectly) it to be a "class action".
She became involved with a claim after there
was publicity about group action. She
said she has just gone along with whatever is proposed.
Ms PMC
[158] Ms PMC is now aged
65 and resides in Australia.
[159] She was made a State Ward at a young age and admitted to Porirua Hospital
at the age of 17 because
of, according to admission notes, "Unstable and dangerous
behaviour".
[160] She was admitted to F Ward where she remained for about
a year until
8 October 1960. She described F Ward as being a "terrible" place. She knew the
plaintiff when she was there. She said
that nurses would verbally abuse patients by
yelling at them to "hurry along" in a loud and threatening tone. She says that she
was
threatened with being placed in seclusion as a punishment if she answered back,
or upset or disobeyed staff.
[161] Because she
resisted she was usually dragged by the arms by a few nurses, or
if not dragged, would roughly be pushed with her arms up behind
her back and be
struck on the back. She said that she was hit, slapped and punched whilst in
seclusion because of her disruptive
behaviour such as banging on the walls and
doors. She said a Mäori nurse would slap her around the face and head so as to get
her
to stop banging.
[162] She said she witnessed staff assaulting patients on "many occasions" and
patients being pushed and shoved
around. She said that patients were "treated like
cattle" at Porirua Hospital.
[163] She said that she was threatened with being
put on the list to have ECT if she
did anything wrong, and she believed it was given to her as a direct punishment, and
that her
records supported that conclusion.
[164] Ms C agreed that she would swear, shout and abuse staff but she would have
a reason to do so. She said that she put up an "almighty fight" if she
knew she was
going to be placed in seclusion because she didn't like being locked up. When there,
she would constantly bang on the
door or wall. She agreed that nurses endeavoured
to calm her down by threatening to give her an injection or other measures.
[165]
ECT was "the constant fear of my life at Porirua Hospital, and every day I
would worry if I was going to get it the next day". She
said that she was threatened
with ECT, and that it was "always given as punishment". She only ever got ECT "if
I did something wrong.
You would say that was punishment because it was. When I
did something wrong I got ECT which would cause an argument between herself
and
the nurse and "that could get worse, and then I would get ECT the next day, not that
day. So they obviously would put me down.
That's how I remember it anyway."
[166] She said that her reason for giving evidence was simply to tell what had
happened to her
at Porirua Hospital, and it had nothing to do with her claim against
the defendant.
[167] Like some other women patients who gave
evidence, she was from a large
family of 11 and had been a State Ward in a number of institutions, and was sent to
Porirua Hospital
because she could not be controlled. The admission notes, and
diagnosis made, describes her thus:
"Average intelligence,
correctly oriented, not deluded or hallucinated. No
evidence of psychosis but requires attention because of unstable and
dangerous behaviour."
JH
[168] JH is aged 61. She came to know the plaintiff through the Patients'
Advocacy Group
to which they both belong.
[169] When aged 15, in August 1962, she attempted to slash her wrists, and was
placed in the Psychiatric
Ward at Wellington Public Hospital. She was then
transferred, in a distressed state, by ambulance to Porirua Hospital.
[170] She described ECT treatment and how she came to fear it. She said that:
"Everybody knew that the staff dolled out
ECT as punishment. The patients
who played up were the ones who got ECT the next day. We were all pretty
scared we
would "get it", so to speak."
[171] She said that she witnessed staff treat patients roughly by dragging them by
their arms, legs
or clothing for ECT or seclusion; verbally abusing and harshly
speaking to patients. She only went once to F Ward, briefly, to make
a delivery and
observed a nurse strike a patient who had been screaming and had not obeyed the
command to "shut up". She said she
was petrified, and F Ward appeared a terrifying
place. She said that she was once locked in a single room as punishment.
[172]
She was discharged in November 1962, four months after admission.
[173] In August 2000 her photograph appeared in a newspaper when
she was
protesting outside Porirua Hospital and Ms de Jonge, of the Patients' Advocacy
Group, saw this and invited her to join that
group. She attended a meeting of it in
Hamilton where a number of persons told of their experiences of what had happened
with medication.
[174] She believes the diagnosis made of her at age 15 was of "instability".
Ms DNJ
[175] Ms DNJ was admitted informally as
a minor patient in May 1963. It was on
the application of her father, and she was aged 16.
[176] Her diagnosis was also of "adolescent
instability". Her father had described
her as being untruthful, promiscuous, having stolen from the family and as having
taken an
overdose of barbiturates. Clinical or nursing notes record that she was
"difficult with relieving nurse and threw iron at window,
upsetting beds, throwing
crockery in day room, states that she hears voices telling her to do bad things". She
was recorded to be
"restless and hallucinated" in February 1964 (7 months after
admission).
[177] She said that she was frequently assaulted by Sister
B, subjected to verbal
abuse and ridiculed, and she had witnessed other patients being assaulted by staff.
She said that when in F Ward day room she was hit regularly by other patients
there.
[178] She said that she was threatened with ECT and she had ECT as punishment
for "playing up".
[179] F Ward was a terrifying
place for her with patients in the day room being
extremely rough and scary, fighting amongst themselves, and there being only two
staff members who, apart from shouting at the patients to stop fighting, otherwise
ignored them.
[180] Generally she supported
the contentions of others. She did not know how
much she was claiming in damages, and said that:
"All I'm doing is trying
to stick up for some people who were treated badly."
[181] She said that she had some nursing training herself, and knew how to
treat
patients; by sitting and listening to them. She said patients should not:
"sit down like zombies and rot away and
be given pills to be made to sleep at
night so they wouldn't annoy the nurses. It's wrong."
Ms CS
[182] Ms CS is aged
63. She had an unhappy childhood, her father being sent to
prison for sexual abuse on a family member when she was about 13. She
was
committed to Child Welfare care in August 1959 and admitted to Miramar Girls
home where she was sad, angry, and attempted suicide.
[183] She was admitted as a minor patient to Porirua Hospital, under the Mental
Health Act 1911, when aged 15. Her admission
note records, she "threatened
suicide, is extremely uncooperative and appeared very confused".
[184] She described her experiences
at Porirua Hospital as "pretty awful" and
remembers that seclusion was "a tool the nursing staff had to get patients to behave
and
was definitely used as punishment for unruly behaviour of patients".
[185] She said she saw assaults by nursing staff on patients,
the intellectually
disabled patients especially. She said that it often involved punching with closed
fists. Once she saw an incident
when two patients were fighting and the nurses
joined in so as to hit them. She says that staff used painful, terrifying medical
procedures as punishment, with ECT being one of those procedures. She says she
saw other patients being administered ECT.
[186]
She said that nurses used the threat of ECT to control patients.
[187] She said she was raped by another patient in his 30s. Given
the lay out of the
grounds, and what is known to have occurred in other mental institutions as to sexual
acts, or contact, between
patients (with or without consent) this event probably
occurred. The witness said it was without her consent.
[188] She described
F Ward as distressing and traumatic for a 16 year old girl.
Nursing staff treated the patients as a "herd of cattle" as they moved
them from day
room to courtyard, dining room or bathroom. The patients were "really scary" and
the witness was often secluded in
a single room. She spent 10 months at Porirua
Hospital before being discharged on 26 August 1960.
Ms SVS
[189] Ms SVS is now
aged 61. She was a 15 year old State Ward when admitted to
Porirua Hospital in May 1961. Her admission notes stated that she was
strongly
antagonistic to any forms of discipline, although she considered herself to be no
more than a rebellious teenager.
[190]
She said she was placed in F Ward rather than a children's ward, and her
experiences in F Ward were "terrifying". She said she was
placed in seclusion and
felt that she was being "punished like a criminal", being bewildered and threatened.
The day room was crowded
with 50 or more "strange patients", and she described as
distressing the experience of being kept together with a large number of
seriously
disturbed and sometimes incontinent patients in crowded conditions. She said:
"F Ward was an aggressive environment.
This was a natural by-product of
the patients' conditions, overcrowding, staff shortages and the environment.
Patients would often attack each other, pulling hair, scratching, pushing and
shoving."
[191] She says that she was administered ECT, despite her age and not being
insane,
because a doctor said that she would need a long period of treatment in order
to overcome her "attitude of defiance to those in authority".
She described not
seeing doctors often, there being no consultations or counselling, and that she ran
away on 4 July 1961 never to
return. She regarded her treatment as "inhumane and
cruel".
Ms BMY
[192] Ms BMY is now 66 years old. She suffered sexual abuse
as a child, and was
aged 18 when admitted to Porirua Hospital in January 1960, after being diagnosed
with depression in the psychiatric
ward at Wellington Hospital. Her admission to
Porirua Hospital was as a voluntary boarder, and she had several admissions to that
hospital and other psychiatric hospitals before being finally discharged in 1966.
[193] In describing her memory of experiences
whilst a patient initially in the
admission ward of Rauta, she said she felt scared and came to learn that "everything
hinged on
good behaviour".
[194] She had been a nursing student and she said that she was disillusioned that
doctors ignored her at the hospital.
So she learned not to trust doctors or nurses. She
started to run away and was secluded, she said, as punishment. She described
seclusion
and said that she was regularly slapped (two to three blows at a time) by
nursing staff, mainly in F Ward.
[195] She said she witnessed
assaults by staff on other patients, mainly in the F
Ward day room. She said that she was threatened with ECT as punishment and was
also administered it for that reason.
[196] She described F Ward as a terrifying place which she hated. She claimed that
her records
reflect that she was sent there as punishment. The records, before
transfer to F Ward record:
""Erratic, unstable and unpleasant
to staff" and "a disturbing influence in
Rauta" and [transferred] for "disturbed behaviour"."
[197] There is a reference
in the records to her cutting pyjamas and trying to
strangle herself, screaming and refusing medication.
[198] She said she believed
that nurses made calculated comment to infuriate
patients, and to induce them to fight with one another.
[199] She said she was
constantly ordered about by nurses and felt like an
"inmate". She said she has no ill will towards those at Porirua Hospital but
wished
to "tell her own story so as to be able to help others".
[200] Some of her clinical notes record "erratic and unstable behaviour"
(February
and March 1960), and "emotionally unstable and unpredictable behaviour" (May and
June 1960). Ms BMY did not believe the
accuracy or truthfulness of those records.
Nursing opinion evidence given for the plaintiff
[201] The plaintiff called an experienced
mental health nurse who had researched
and studied the history of New Zealand psychiatric nursing. She gave evidence as to
the context
of nursing practice in psychiatric hospitals in the 1950s, referring to
overcrowding in public mental hospitals becoming worse during
that period, with
wards and dormitories being crammed, and the number of patients with chronic
conditions increasing.
[202] She
dealt with Government policies at the time. She said that:
"The presence of chronically ill and disabled patients undermined
the
Division's claim that its hospitals were becoming places of treatment and
recovery. The Division took pride in
the fact that the number of voluntary
admissions was rising and their lengths of stay were decreasing. Voluntary
admissions
accounted for between a quarter and a half of all admissions
during the 1950s. The needs of chronically ill patients, however,
restricted
the hospitals' ability to create therapeutic environments which would suit the
needs of more acutely unwell
psychiatric patients. Elderly and disabled
patients required intensive physical care and supervision of their daily living
tasks; this absorbed a considerable amount of nursing time."
[203] She referred to the lack of resources and the outdated
and overcrowded
buildings and the fact that a large number of patients, combined with a shortage of
nurses, resulted in care being
"little more than custodial".
[204] She gave statistical evidence of staff patient ratios. It is abundantly clear that
Porirua
Hospital was not alone in its problems in recruiting and retaining nurses and
attendants, especially on the female staffing side.
[205] As a consequence, much of the nursing care on female wards was carried out
by relatively inexperienced and untrained staff
who were employed for a short time.
She said they may not have received as much instruction as otherwise would have
occurred.
[206]
The hours of work were long and it was not unusual for nurses to work eight
days without a break. She gave evidence about training,
turnover and general
demands on nursing staff. Substantial changes did not occur until 1958/1959. Then
a new curriculum for psychiatric
nursing was introduced, but was not fully
implemented until well into the 1960s.
[207] She said that during the 1950s a high proportion
of nurses were trainees and:
"Many, particularly on the female wards, had no more than weeks or months
of experience
in psychiatric nursing.
There was little orientation for new staff. Typically, the Matron, head
attendant or tutor
sister showed the new staff member around and gave them
the Rule Book, uniforms and key. New nurses learnt ward routines and
protocols from the next most senior nurse. This person may only have been
employed for days or weeks."
[208] She described
a general hierarchy within the nursing profession, aspects of
nursing practice (including ECT use, preparing patients for treatment
and assisting
during it), and referred to a text at that time which explained that ECT controlled
excitement caused by mania, schizophrenia,
epilepsy or delirium.
[209] Her evidence was that ECT was used to manage "out of control" or violent
behaviour in disturbed wards,
because in the absence of anti-psychotic medications it
was often considered to be the only way to manage violent behaviour.
[210]
Her opinion was that it was not surprising that patients in refractory wards
"perceived unmodified ECT as punishment, even if the
medical and nursing staff
were using it as a calming mechanism". She referred to the rules of conduct for
staff, which prohibited
punishment. She said that punishment had no place in
dealing with the sick or handicapped and any implication of punishment
was to be
avoided. That seems to me to be obvious.
[211] Her opinion was that it was "likely" nurses threatened the use of ECT,
it
being "possible" because:
"Many nurses were inexperienced and relatively untrained. They were
managing large numbers
of patients and overcrowded wards. The level of
disturbance was high, particularly on the refractory/disturbed wards. They
were dealing with the threat of violence on a daily basis. There was an
absence of effective behavioural techniques,
space to separate patients, time
for one-to-one nursing, and effective medications."
[212] She thought that it was "likely"
that some nurses used the means available to
maintain control, one being the threat of ECT. She said Charge Nurse Sisters, or
Sisters'
recommendations would have held considerable weight in the decision to
administer ECT by a doctor.
[213] She said it was a serious
offence under the rules of nursing at the time to use
threatening, insulting or obscene language. The rule in question provided:
"Any use of physical force will very seldom be necessary. On the rare
occasions when it is, it must be used reluctantly
and to the minimum extent
possible. .... Any suggestion of assault, brutality or unnecessary single-
handed intervention
physically will be dealt with severely."
[214] Some of this witness' opinion was based upon hearsay material that she
received orally from
those with whom she had discussions. She said there was
evidence of the "culture abuse amongst staff" but I did not hear any direct
evidence
of this, other than as hearsay opinion, or submission apart, of course, from
recollections of former patients.
[215]
She gave her opinion as to sexual assaults, standards of practice and seclusion
policy, and referred to the Division rules that:
"Any implication of punishment must be avoided when it [seclusion] is
necessary to the proper management of a patient."
That is self-evident.
[216] She concluded, from the plaintiff's brief of evidence, that the environment in
F Ward was "not conducive
to a patient's safety or good nursing care". And "the
combination of patients in F Ward appears to have been a poor use of the hospital's
therapeutic resources. To place a young patient in the context of physically
dangerous and disabled patients would have been frightening
and anti-therapeutic."
Evidence of Professor Sobsey for the plaintiff
[217] The evidence of the Professor covered his opinions
about standards existing
(nationally and internationally), during the time the plaintiff was at Porirua Hospital.
He described
theories which surrounded mental health care before the 1950s, and his
view that there was a "likelihood of sexual and physical assaults"
occurring in
mental hospitals.
[218] He said that custodial institutions were commonly overcrowded and
understaffed, and because
of what he said was an "extreme power imbalance
between patients and staff", there was a heightened risk of abuse of all kinds by
staff.
He said that sexual exploitation in institutional settings "represents an extreme abuse
of power". That is unarguable. If
an extreme power imbalance heightens the risk of
abuse, that proposition would apply to most institutions such as schools, the military,
welfare homes, and prisons. It is a common sense utterance which I keep in mind
but an opinion that I do not find particularly helpful
in the context of this plaintiff's
case, which is dependent upon proof of facts.
[219] He highlighted that physical assaults might
be perceived where force has to
be used to control aggressive or disruptive behaviour by patients. It was generally
accepted that
the use of reasonable force was necessary, and it would be
unreasonable to expect, from those who administered such force, a standard
of
perfection in the sense that excessive force would never occur. Nevertheless,
gratuitous physical assaults are a clear
violation of accepted standards and good
practice. That, too, is self-evident.
[220] He expressed certain views or opinions on
the evidence contained in the
plaintiff's brief of evidence. As with any expert opinion evidence, its weight
depends upon factual
findings to be drawn from the evidence. He shared the view
that it was not reasonable to expect an absolute protection from possible
physical
assaults by other patients in such an institutional setting, but he said the institution
had a responsibility to supervise
and reasonably ensure the safety of its residents. He
expressed various views about ECT and its side effects. He said
that, when
administered in the unmodified form, it was generally a frightening experience for
patients.
[221] I excluded some of
his evidence, which was critical of ECT as a treatment. It
is unarguable and again self-evident that ECT, if administered as a punishment,
would be a serious misuse of the procedure. He expressed views as to seclusion and
methods of restraint and gave other opinions
regarding nursing and medical practice
in psychiatric institutions, of which he was generally critical. He said that rules and
supervisory
mechanisms, as described in documents and other reports, as well as in
some of the evidence of witnesses, would not have been adequate
to prevent abuse.
[222] A large segment of this witness' evidence gave the impression of advocacy. I
have earlier referred (in paragraphs
[81]-[85]) to some other portions of his evidence.
Nevertheless, in the end, no reasonable person could disagree with the proposition
that sexual abuse and gratuitous physical assaults, and threats to subject a patient to
frightening and unpleasant procedures simply
for the purpose of punishment, would
have been totally unacceptable. It did not need expert opinion to persuade the Court
about that.
Defence evidence from psychiatrists formerly at Porirua Hospital
[223] I heard evidence from the two psychiatrists who were doctors
at Porirua
Hospital between 1949 and 1955 (Dr R) and between 1955 and 1972 (Dr M). Other
psychiatrists and Superintendents who worked
at Porirua Hospital over the relevant
time have since died.
[224] Both these psychiatrists are now elderly. Generally they gave
evidence as to
their training and practice as psychiatrists, and their work at Porirua Hospital. For a
significant period there was
overcrowding, with an inordinate number of patients and
a limited medical and nursing staff to care for them. But the hospital had
to admit
patients regardless of whether or not they were assessed as being in need of
psychiatric care. If a medical certificate
was issued under the Act, and an Order
made by (then) a Magistrate, patients had to be admitted. There were also voluntary
patients
who were always admitted. The hospital had a policy, despite the
overcrowding, of admitting all people in need of care. There
was no waiting list.
[225] Both psychiatrists impressed me as being genuine, reliable and credible
witnesses who have had long
unblemished careers in the medical profession.
[226] Porirua Hospital at that time was generally in the same condition as other
New Zealand mental hospitals (for example, Avondale had 150 patients with only
two doctors, and Seacliff Hospital was said to be
particularly run down and
overcrowded also).
[227] It was accepted that F Ward was in the poorest condition on the female side
of the hospital. It was, even in 1954, an old wooden building with a lot of single
rooms, a dormitory and a courtyard. Because it
accommodated some incontinent
patients, it was more difficult to keep clean. It was not a "criminal" ward but from
time to time housed
women from Arohata Prison. It was a noisy and crowded ward
to which patients who were difficult to manage were sent. This was because
it had
slightly higher staff numbers, but also in order to protect others from destructive and
violent behaviour of patients.
[228]
A psychiatrist witness said "I actually remember F Ward as being rather
chaotic in the sense that it was quite disorderly", but it
was the only place where
difficult patients could be adequately managed and there were no other options.
Naturally, disturbed patients
ought to have been in a therapeutically orientated
environment but the evidence is that this understanding is only a relatively recent
development in psychiatry. There were limited therapies available prior to the
advent of modern revolutionary psychiatric drugs
in the late 1950s/early 1960s.
[229] The psychiatrists had to rely to a large extent on senior nurses to advise them
how patients
were progressing and what behavioural symptoms they were
displaying.
[230] The doctors said that they were not motivated to punish
patients through
medical procedures or transferral to F Ward, with decisions being dependent on how
a patient who was exhibiting
difficult, disturbed behaviour could best be managed.
[231] Dr R said:
"Of course patients with insight into their condition
may have perceived
their transfer to a more higher supervised ward as punishment for them
"playing up" on the wards
("playing up" was a common term in those
days)."
[232] The doctors gave evidence about the prescribing and use of ECT, and,
generally, their opinion was that it was the most effective form of treatment available
in psychiatry then, especially for depression, and was occasionally used
as an
intermittent tranquilliser on the refractory wards for patients who were psychotic or
manic.
[233] Dr R's evidence was that:
"ECT used in this manner was in my experience consistent with what was
happening in other hospitals including
Bethlem Hospital, the longer stay
department of the Maudsley Hospital in London."
[234] They described the use of insulin
therapy, which took some time and required
nursing presence the whole time. They said it was inconceivable that it was used as
a
form of "punishment".
[235] Regarding seclusion, their evidence was that patients in refractory wards
were the worst behaved and
most difficult to manage, or to reason with, and with
very few alternative therapeutic options, seclusion was seen as the only possible
way
of handling such patients.
[236] The doctors said that, inevitably, there were occasional attacks by patients on
staff and
other patients, and nurses endeavoured to do their best to quell these.
[237] They accepted that some patients were scared of ECT
(although others
requested it to be given), and Dr R's evidence was that he was satisfied in the
plaintiff's case that when he treated
her with ECT, it was for her illness. It was
treatment required for a relief of her symptoms. The identification of symptoms
largely
had to be reported by ward sisters. He said:
"I cannot remember hearing patients being threatened with ECT, but I think
that it would likely have happened. I also think that such threats would have
been understandable especially if
the person was on ECT, and being
manipulative or aggressive to nursing staff. It is possible that such threats
may have calmed patients down."
[238] A large part of this case is about threats of "punishment". Obviously any
threat would produce
anxiety. Dr R said:
"It is in the way information is given to the patient, like if you say the same
words in a threatening
way or in an understanding and commiserate [sic
considerate] way, like "it looks like we're going to have to send you to F
Ward" or "you're going to have to go up to F Ward", same words. So, it can
reflective, how the information is given
.... in the eye of the beholder."
[239] The doctors acknowledged that at times staff had to use a degree of force to
restrain violent
patients but it was understood to be completely unacceptable for
there to be any gratuitous hitting of patients.
[240] Dr M said
that had he seen any unwarranted assault of a patient he would
have done something about it. Indeed, some time after the plaintiff's
discharge from
the hospital he was required to deal with some complaints of inappropriate assaults
on patients. He said he had a
memory of sacking up to four nurse aides for this type
of behaviour.
[241] There is a documented record of Dr M's dealings with
a complaint in late
1962 when Acting Medical Superintendent, and of him making a report to the
Director of the Division of Mental
Health. Whilst this event occurred after the
plaintiff left the hospital, it is indicative of Dr M's "no-nonsense" approach to an
incident where a fracas occurred with a patient, who a nurse apparently struck. The
nurse explained to Dr M that she believed this
to be part of the treatment, particularly
for hysterical patients as "it brings them to their senses." Dr M is recorded that he
disabused
her of that approach and told her that she could be dismissed, charged with
assault or required to resign. It is not necessary to
go into any further detail over that
event other than to state that a letter from solicitors on behalf of the staff member
was sent
to Dr M, but it did not deter him from reporting the matter to the Director.
He followed up with interviews with other nurses against
whom the particular staff
member had made various allegations, one of whom said that she had struck patients
"therapeutically" and Dr M told her that she might have to be
dismissed, but that he
would report the matter further. So it is clear that Dr M, at least, did take some
action in 1962, for what
he described as infrequent incidents when reported to him.
Whilst counsel for the plaintiff submitted that these staff members were
not
dismissed by Dr M, his evidence was that it was in fact others, more junior, who he
dismissed for similar transgressions at a
different time.
[242] Dr M had the authority to dismiss an unsuitable employee if they had been
employed for less than two years,
but if they had been employed any longer, then he
was required to write a report to the Department of Health. This, he said, is "what
[he] had to do in 1962".
[243] He said that if a person was "a nurse aide and they had not been trained, and
their way of dealing
with a patient was to haul the patient off and clonk them one,
then we dismiss them." But his evidence was that these events were
rare.
[244] Dr M, after leaving Porirua Hospital in 1972, worked at two hospitals for 12
years before retiring. His evidence was
in all his years of being a psychiatrist, he
never received any complaint from anyone about his treatment or care, despite the
fact
that many of the ill people who he had treat were resentful of being in hospital,
or resentful of their care.
[245] Dr R's evidence
was that he was not surprised to hear of patients complaining
about physical assaults because:
"I witnessed scuffles during
restraint processes. Sometimes the restraint was
more physical than I would personally have sanctioned. There is certainly
a
very thin dividing line between exerting enough force to control or subdue
someone who is acting aggressively,
but not too much so as to breach
professional standards. I am pretty sure however, that I never witnessed a
scuffle
for scuffle's sake for example, a nurse getting angry and
intentionally assaulting or provoking someone. Rather the incidents
that I
am describing were when force was used to control a disturbed patient."
[246] He said the restraint procedures were
needed constantly to manage distraught
patients, particularly as they were confined so closely together. Any force used was
only
to the degree necessary. If he had witnessed episodes of over-aggressive
handling, he would have drawn those episodes to the
attention of the Sister-in-
Charge.
[247] He said he could not remember seeing any animosity between individual
nurses and patients
but:
"It would be fair to say that some of the nursing staff (particularly the
younger ones) may have been less
capable of resisting deliberate
provocation from some of the more difficult patients. However, I do not
recall specific
instances. Patients might also consider themselves victims
without awareness of the part they play in a particular situation."
[248] Dr R made the obvious point that any physical abuse, whether under
provocation or not, was unacceptable, and said that when
at Porirua Hospital, he
believed that abusive behaviour was not tolerated. If it did happen, it would likely
have been a chance happening.
[249] Dr R concluded:
"Porirua Hospital was overcrowded, understaffed institution. We did not
refuse admission to
any person who presented or was referred. Nevertheless
the medical diagnosis and treatment of acute admissions had a high
success
rate. There was a high rate of admission and discharge most patients being
discharged "recovered and improved"
within a few weeks.
....
The environment and forms of treatment were not significantly different
from what
I had seen in London.
I do think that patients had the opportunity to complain. I personally had an
open ear to any
complaint and we had some good ward sisters who would
have also listened to any patient's concerns.
....
It was part of my morning round to listen
to complaints, and I certainly had
some repeated and chronic complainers. In particular, I recall my rounds ...
on
F Ward, where most of my time consisted almost entirely of listening to
complaints and requirements of certain patients.
....
It is true that the attitudes of the medical profession were quite different from
what they are today.
Doctors in those days were regarded as semi-gods.
They tended to be objective and disease-orientated and often
unsympathetic."
[250] Dr R obtained his specialist psychiatric qualifications in England, and after
leaving Porirua Hospital in 1955, worked in
private practice in Hawkes Bay, setting
up the Hawkes Bay psychiatric unit. In recent years, until he retired in 1998, he had
a medical
practice in Auckland with a focus on psycho-therapy.
[251] Both Dr M and Dr R impressed as reliable, credible and fair witnesses.
They
made concessions if and when necessary, and showed an acute appreciation for the
ethics and responsibilities required of those
caring for the mentally ill at Porirua
Hospital. They had an understanding and acceptance of the difficulties under which
many laboured
at that time at that, and other similar, institutions.
[252] I accept them as genuine, caring, retired practitioners who did their
best for
the patients under the trying conditions that prevailed at the time.
[253] Of course, the case as now pleaded is not about
them and their treatment, but
about the alleged threats and acts of others.
Evidence from former nurses
[254] I heard evidence
for the defence from six former nurses at Porirua Hospital
and received affidavit evidence from two others who have since died. Naturally
there were many other matrons, sisters, staff nurses and nurse aides who worked at
Porirua Hospital over the relevant period, but
through lapse of time their
whereabouts is unknown. Many would have since died.
[255] The evidence of one nurse (Nurse S) was taken
in advance at Wanganui High
Court and recorded on videotape along with the cross-examination, which was
played in the course of the
trial. All of these witnesses are in their senior years.
Nurse C
[256] Nurse C travelled from Holland to give evidence. It is
against her that the
plaintiff made specific allegations, identifying her as the nurse who mistreated her
through assaults, and threatened
to have ECT administered as a means of
punishment. Nurse C vehemently denied these allegations.
[257] Nurse C was transferred from
Kimberley Hospital in Levin to work at Porirua
Hospital in 1957 and remained there until 1963. She returned to work at the hospital
between 1970 and 1972.
[258] She described remembering the plaintiff well, being a "beautiful young girl".
She had a clear memory
of the plaintiff being in a single room in F Ward, and seeing
her endeavouring to run up, or climb, the wall. The plaintiff herself
acknowledged
that that did occur but said she was doing it deliberately in order to impress or test
the nurses. Whatever the reason,
it could have been seen as suggesting a manic or
very disturbed state.
[259] Nurse C denied the allegations of forcing the plaintiff's
arm up her back,
slapping her face and punching her, and those of dragging patients to seclusion and
hitting them about the ears.
[260] She said she would not tolerate rough handling and referred to one occasion
(whilst she was a Sister-in-Charge of Nairn Ward
some time in the early 1960s)
when a patient complained to her that a nurse aide had slapped her. As a result of
this, she had arranged
for that aide to be transferred.
[261] She said she never threatened the patient or anyone else with ECT, nor did
she hear other
nurses threaten it. She believed she had a good relationship with the
plaintiff at the time she was in hospital. She described F
Ward as being very busy
but clean, despite some of the patients being incontinent. The Sister-in-Charge
(Sister B) was fastidious and would
not have tolerated dirtiness.
[262] In 1950s the hospital was short of staff and Sister B was somewhat
"dominant and arrogant but
very immaculate". She said on one occasion she thought
Sister B may have been cruel in breaking a patient's musical instrument.
[263] She described the process of a patient being placed in seclusion, and said
once this was done the doctor would be called so
as to complete the seclusion
records. Nurses observed patients in seclusion and they were removed from it as
soon as they were well
enough to come out. Generally, she spoke of patients who
were particularly disturbed having to be put in a single room and the door
locked,
whether on admission at Rauta Ward, or otherwise.
[264] Nurse C said she loved her time at Porirua Hospital and was distressed
at
having to deal with the allegations made against her. Her first impressions of
F Ward was that she was afraid, because
there were chronic patients who sometimes
were very noisy, but she had to do it as part of her training. There were a number of
quite
disturbed patients; for example, she saw a patient attacking another patient in F
Ward in about 1958 and had to intervene to stop
the attack.
[265] She agreed that F Ward was overcrowded in terms of patient numbers, and
was understaffed. It had one sister,
one staff nurse, four nurses, two night nurses and
one night sister. Overcrowding meant that nursing care was compromised and
nurses
had to care for patients in crowded day rooms or the courtyard. She agreed
with the proposition that individual respectful attention
was virtually impossible to
achieve. There was little space and no privacy. But under the circumstances:
"We were short
of staff but did our best."
[266] In cross-examination she agreed that she had described Sister B as a fairly
dominant and arrogant,
and that:
"We respected her because she was like a colonel in the army that's the
idea I had. ... You respected
her, you just did what she told you to do."
[267] At that time, Nurse C would have been aged about 21. She said she was
largely
a junior nurse without any authority and treated her patients with respect and
did as she was told. It was the staff nurse who had
the responsibility to deal with
patients who were seriously disruptive or broke windows, although as a junior nurse
she would assist
and help. She said she wouldn't use force if patients were breaking
windows one after the other but she would get help and have them
taken away. She
remembered the plaintiff breaking a window and her being taken to surgery by the
nurse.
[268] It was put to her
that, from the patients' point of view, she would have been
seen as someone who had power or authority over them. She answered:
"I have never considered ever having power over a patient. I was there to
nurse them."
[269] She said she never
heard anyone making threats about ECT and that she
never ever threatened a patient.
Nurse S
[270] Nurse S is aged 86 and her
evidence was taken on affidavit; read and the
subject of cross-examination in Wanganui. The videotape of her giving evidence
was
played in Court.
[271] She strongly denied that she had mistreated or assaulted the plaintiff in any
way as alleged. She said she
had never assaulted a patient in her life and found the
allegations to be hurtful and distressing.
[272] I was able to judge her
demeanor, attitude, reliability and manner of response
from the videotape. I could see that she was genuinely upset at specific allegations
made against her.
[273] She said she was a nurse at Porirua Hospital in the 1940s and 1950s and
described the way the hospital
operated then. She left in 1956 to open a private
psychiatric hospital. She said F Ward was the disturbed ward for female patients
although not (as it was sometimes described by plaintiff witnesses), the "adult
female criminal ward". But she admitted there were some prisoners from Arohata
Prison.
[274] It
was a locked ward and under constant surveillance. Prior to the advent of
ECT, it was quite a violent ward where nurses would only
enter a seclusion room in
pairs or groups because of attacks by patients. After the introduction of ECT in the
late 1940s the ward
environment became more manageable as, she felt, ECT assisted
in the treatment of patients' conditions.
[275] However, she said:
"It is fair to say that F Ward was not the nicest of places. It was an old ward
that housed a lot of patients,
and it did accommodate the most disturbed
female patients at the hospital so in that sense you couldn't expect it to
be
a nice place.
....
I thought that the conditions in F Ward were very primitive and quite grim.
For example, because of the low number of staff to high patient numbers, the
patients were herded to the bathrooms in groups.
It was only way we could
manage. After a while you got used to the environment and did your best to
care for the patients
and ward. It was not until the end of the war, when we
had some English nurses come out to New Zealand that conditions started
to
improve. The improvement was a direct result of these additional staff on
the ward."
[276] She spoke of the procedures
of seclusion and the administration of ECT,
which she said was always in private. She never saw of heard of nurses threatening
a
patient with ECT. She said that nurses might report to a Sister that a patient was
very disturbed so as to encourage that the patient
be scheduled for such treatment,
but she never saw or heard of it being given as punishment.
[277] I was impressed with the genuineness
of her response, which was along the
lines of "why would we wish to punish patients. We were there to treat them." She
described
some patients as being unhappy about receiving ECT, whilst others liked it
because it produced a good result and was an effective
cure at the time.
[278] She said that when she was a junior nurse she was taught how to restrain a
patient if necessary. She recalled
an incident where a particularly violent patient
required four nurses to restrain her so that a doctor could treat her. She said
she
never saw any intentional assault upon a patient and had she witnessed that she
would have reported it immediately. The rules
of the hospital were quite clear and
nurses were taught when juniors that if they ever struck or assaulted a patient, it was
likely
that they would be sacked.
[279] She described instances where patients would fight each other. If a patient
was injured in any
way, a note would be made of it in the daily report book, and an
injury and accident report filled out.
[280] She described being
aware of a consensual sexual incident between a male
and female patient in the garden, and how staff had to watch carefully when
the
patients mixed together because some tended to get over stimulated in each other's
company. That accords with the event recounted
by a former patient (Ms CS) -
although she said it was without her consent.
[281] She denied assaulting any patient, and the specific
allegation made by the
plaintiff against her. She expressed some bewilderment as how it was that she would
have been identified.
She said:
"I feel so terrible about all of this as I have dedicated my career to help the
mentally ill people. When
I worked at Porirua Hospital (and even after I
left), I used to bring patients back to my home Titahi Bay in the weekends
because many had no family and I felt sorry for them. I would provide them
with a nice meal and a bed to sleep in and
they would spend time with my
daughter and other family members. Porirua Hospital was my life while I
was working there.
When I left Porirua Hospital, it was to set up a private
psychiatric hospital which I managed for nearly 40 years. I am devastated
that such hurtful
and false allegations have been made against me
particularly when I am 86 years of age, and no longer terribly well."
[282]
She said she has no doubt that the ECT administered to the plaintiff would
have been because she needed it, and no doctor or nurse
would have wasted their
time giving unnecessary treatment.
[283] She remained in contact with Porirua Hospital after she ceased
working there
in 1956 and from time to time, at the request of the Superintendent, looked after
certain committed patients in her
own hospital.
[284] She was exhaustively cross-examined by Counsel (not Counsel at trial).
Under cross-examination:
a)
she reiterated that she never saw or heard of nurses threatening
patients with ECT, nor saw or heard of it being
given as punishment
as "we were interested in treating patients not punishing them";
b) she said the
rules of the hospital were quite clear; a nurse should never
intentionally assault a patient and had she witnessed
that, she would
have reported it immediately. The nurses were taught this when they
were juniors and
if it did occur, there was every chance that they
would be sacked. She never received a complaint from a patient at
any time during the time that she was at the hospital;
c) she said that nurses might have to restrain a patient
who was attacking
another patient or nurse, by intentionally applying reasonable force,
but it could not be done without
cause;
d) she acknowledged that she had heard "on the grapevine" about the
incident in 1962 where Dr M had to deal with
a nurse in F Ward.
Ms S said that was an individual nurse and that "you get one in every
barrel". No one was taught that
it was acceptable to hit patients;
e) Counsel referred her to a document in the common bundle dated
2 October 1957, being
a circular from the Director of the Division of
Mental Hygiene to Medical Superintendents of all New Zealand
Mental Hospitals.
It refers to statements made by the doctor in charge
of the Department of Psychiatry at Dunedin Hospital. He is recorded
as saying various students had reported to him that:
"Apparently there are a small minority of nurses who use
strong arm methods with patients and a somewhat larger
minority who have contemptuous attitudes towards
patients."
The witness was questioned on the basis that it was about "conduct of
the nursing staff at Porirua Hospital".
But the report does not say that,
although it was sent to all hospitals. The witness said that was after
she had left and
she could not comment upon it. Counsel's next
question (or comment), was that "I suppose what this is illustrating is
that,
in spite of rule books, sometimes people acted contrary to the
rules." The report is not truth of its contents, being at least
second or
third hand hearsay, but it is evidence warning Superintendents to be
vigilant against "strong arm measures";
f) it was put to her that staff were not prepared to tell on others, as
illustrated in the document prepared by Dr M in
his 1992
investigation. Counsel said it illustrated that staff looked after one
another and didn't "pimp on one another"
but Nurse S did not agree
with that. She said that she sent nurses to the Matron's office for
misdemeanors,
though not because of any assault allegations. She
said she never saw anybody kicked or slapped by a nurse and did
not
believe that a nurse would take off her shoe to hit a patient. She
agreed that ward nurses were the
rulers of the ward and there was
little communication up or down the levels of staff, but that if
complaints had been made to a staff nurse, she would always tell the
Sister;
g) she adamantly denied allegations of assault made against her by the
plaintiff,
after 54 years. She said that if somebody had told the
plaintiff her name or pointed her out, then they were
wrong. She said
she was definitely not in the plaintiff's wards at that time, but in any
event, no assault
happened;
h) she believed that the therapeutic effect of ECT was "wonderful", and
it was treatment, not
just for depressive patients but also for those
with manic depression. Counsel sought her concession that ECT was
used to "control behaviour". The following exchange took place:
"Q: Now one of the things that
you say, and I think it's just
something you have said before, is that ECT was used at the
time you were there at Porirua Hospital to make patients
more manageable, is that right?
A: Well it helped cure them.
Q: Yeah, but one of the things you've said is that.
A: To help make them better.
Q: To make patients more manageable?"
[285] She then gave an illustration
of how she believed that ECT treatment had
provided a "remarkable" cure for a particularly disturbed patient.
[286] The exchange
however highlights a difference in approach apparent
throughout this case. On the one hand the plaintiff says that ECT was used to
"control her behaviour and make her more manageable"; whereas nurses and doctors
say that it was used to treat symptoms. Symptoms,
naturally, may relate generally to
behaviour of psychiatric patients, and if the treatment is effective it will make them
more
manageable.
[287] Nurse S said that if the patients were disturbed and the Sister considered they
needed ECT, they would be scheduled
for treatment. The Sister would then consult
with the doctor before a final decision was made by the doctor. She said that the
doctor
would come into the ward and go through the list and he would want to know
everything about what had happened before he would consent
to do the treatment.
The patients would not be examined until the morning of ECT but they would have
been under the doctor's care
and he would know about them as his patients.
[288] There is other evidence of a patient (not the plaintiff) being scheduled for
ECT, but on review by a treating female doctor, the treatment was not given and
regarded as not necessary at that time.
[289] On
the issue of punishment and threatening punishment, Counsel put to the
witness Professor Sobsey's opinion that within the international
framework in the
1950s, people recognised that ECT did have the potential for abuse, and was
frequently abused, and that it was used
as punishment and a threat to control
behaviour.
[290] The witness responded in a way which I found to be credible. She said:
"What is the use of punishing them? You are there to help them get better.
You're not there to punish the patients.
....
Punish them for what?
Q: For misbehaving, not doing what they were told?
A: But
they were there because they're sick. They're not there for a
crime or anything, so I can't accept that."
[291] I
interpolate here, that ECT, just as any other invasive treatment, has the
potential for abuse. Whether it is so used depends on the
motive and intent of the
user.
[292] Later it was put to Nurse S that nurses encouraged a Sister to place a patient's
name on the
list for ECT treatment, so this "suggested punishment, or them being
threatened with punishment". The witness did not agree. She
said that the nurse
would:
"Notice that they are not acting as normal and they think, or maybe they are
not as well as they should be and will bring attention to the Sister
in case she
needs ECT.
....
But not, I shouldn't have said to encourage, to encourage her to look at
the
patient and see, assess her, that's what I really mean."
[293] I accept that her meaning was an "encouragement to treat".
[294] The pattern of cross-examination continued to highlight the distinction
between whether the behaviour of a patient was "misbehaviour",
or a symptom of
being mentally disturbed. The following exchange took place:
"Q: Do you agree that if you have been
given ECT for swearing and
being violent, that's really that ECT is?
A: Well I've never seen it given
for swearing and violence. I've seen it
given because the patient was ill, mentally ill and needed it.
....
Q: ... I'm going to read the patient's record ... said "further disturbed
behaviour, swearing,
violent, stripping off her clothes, throwing
dishes. Following ECT becomes pleasant and co-operative although
her manner is always rude and aggressive."
Was she balanced when she was doing all that, or was
she mentally
disturbed?
Q: I'm reading what's in the nursing notes ....
A: Yeah, well
the throwing of things and tearing her clothes up, I would
say she would be mentally disturbed.
Q:
Do you agree that, as you said yourself, this is an example of ECT
being used to manage her behaviour?
A: No, I'm not saying that.
....
Q: You said that ... this caused a dramatic difference in the ward
environment as it assisted many patients' mental condition and made
them more manageable?
A:
Yeah, I mean mentally it made them more manageable.
Q: Do you agree that ECT was in a sense used to make people more
manageable?
A: No, I think it was used to help them get better.
Q: One of the effects of ECT
was to make people more quiet and
subdued wasn't it?
A: Well getting them quiet is helping them get better,
isn't it?"
[295] Several times the witness said she did not believe ECT was used as
punishment and she was challenged about the
reasons for the plaintiff being given
ECT. Counsel said:
"One of her nursing records refers to ECT to address impulsiveness.
Again,
would that be something that you would understand ECT would be given
for?
A: No.
....
Q: If, though the ECT is given in the context of somebody being
impulsive or to deal with impulsiveness, what
other reason for ECT
could have been
....
A: Well, impulsiveness is just an ordinary common human
behaviour, I
can't see that, no I don't see that as being wrong.
Q: Her nursing people say that she was
given ECT to deal with her
impulsiveness.
A: Because she was, no well I don't believe that.
Q:
You don't believe the records?
A: No I don't, I'm sorry.
Q: So you think somebody's miss ...?
A: Well I can't see that if she is impulsive that she had been given ECT.
Everybody's impulsive."
[296] But
questioning was not entirely in accordance with what the records show.
The clinical notes (whether made by a nurse or a doctor) in
respect of that entry,
record:
"4.2.57 Rather sullen and withdrawn today and still requires occasional
ECT for emotional instability and impulsiveness."
[297] The reference is to maintenance ECT and for apparent behaviourial
symptoms, in addition to impulsiveness. Nurse S repeatedly would not accept
Counsel's suggestion that ECT was used on a lot of aggressive girls in F Ward. Her
view was that it was
not used unless the doctor considered the patient was disturbed
mentally.
[298] She stated it was not only F Ward that was overcrowded
but in fact all wards,
and that:
"There was nothing that could be done about it. You couldn't put the
patients
out in the park."
[299] The questioning in relation to seclusion also sought to ascertain whether it
was used to "sort of manage
behaviour so if people were difficult, they were put into
seclusion." The witness answered:
"Only if they were destructive
to themselves or other patients."
[300] She emphasised that those in seclusion were given daily baths and taken out,
depending on
their mental condition, for walks when accompanied by more than one
nurse. All patients were routinely checked for injuries, especially
when bathed.
[301] I have set out these passages at some length because I was impressed with
Ms S as a witness, in what she said
and how she presented.
[302] My assessment of Ms S when giving evidence, was of a credible, reliable and
fair witness, and a person
who has dedicated most of her life to nursing the
psychiatrically unwell. I do not accept as proven the identification of her, by
the
plaintiff, as someone who mistreated patients. Her spontaneous, and incredulous
response, "Why would I wish to punish them, I
simply wanted, and was there, to
treat them", was compelling and genuine.
[303] That, of course, does not determine the outcome
of the plaintiff's case,
because she may simply be mistaken as to identity, and not to the event.
Nurse G
[304] Nurse G came
to work at Porirua Hospital after immigrating to New Zealand
in 1957. (She was then known as Nurse E).
[305] She described the
training measures and said she spent a significant amount
of time in F Ward, discussing its layout and the role of the ward Sisters.
She said
that a number of patients had severe psychiatric symptoms and could be very
unpredictable and violent. Some were incontinent.
[306] Of about 140 patients on F Ward, about 80 were in the day room while others
worked out of, or around, the ward, or were in
the courtyard. There were five or six
nurses or nurse aides on duty to care for F Ward during the day.
[307] She confirmed that
Sister B demanded high standards of cleanliness, although
the dormitory in which incontinent patients slept required constant nightly
rounds to
attend to soiled patients.
[308] She described patients being secluded if they became violent or
unmanageable so as to
prevent injury to themselves, other patients or staff. She
never considered that it was used excessively or as punishment. On occasions
patients resisted seclusion and had to be forcibly taken to the rooms, but she did not
ever see excessive force being used in this,
or any other situation.
[309] She described being assaulted on one occasion by a patient, and of patients
fighting each other,
requiring nurses to intervene to separate them so as to prevent an
escalation of events where other patients might have become upset,
or joined in.
[310] She said she never witnessed or heard about physical or other assaults
committed on patients by staff members,
and that it was well known within the
hospital that to deliberately assault patients was forbidden.
[311] She said she remembered
the patient RW (the friend of the plaintiff) who
suffered a significant intellectual disability and was prone to invent allegations
or
exaggerate.
[312] She said ECT was very effective for psychotic or depressed patients and
chronic depressive patients. If a
patient's behaviour was uncontrollable because of
their illness, ECT was then given, but it was not given for what she described
as
"unacceptable behaviour (say to the Bostal girls)." The Sister-in-Charge of the ward
made out the ECT list because she knew the
patients on the ward and had experience
with them, and the Sister would discuss those patients with the doctor if she thought
a patient might benefit from such treatment.
[313] She said she was never aware of ECT being given as punishment or
threatened as such. She said:
"However, I can understand
how patients may have misinterpreted their
treatments owing to their mental condition at the time; for instance if they
were deluded, hallucinated or depressed I acknowledge that some patients
were fearful of ECT. It is not a procedure that
you would be relaxed about
because you are going to be laid on the bed and have an electric current put
to your head."
[314] She said it was the decision of the doctors and Matrons whether to transfer
patients between wards and that was not done as
punishment, but if a patient's
behaviour was such that she was unco-operative or disturbed then she may have been
transferred to
F Ward. Patients were not sent there unless it was absolutely
necessary. It was a ward where more supervision was required and
it was also
overcrowded, so staff did not want anyone there who did not have to be there.
[315] It was part of the plaintiff's
case (through submissions and evidence) that
nurses protected each other from allegations. Nurse G said that she never heard of
any
allegations being made and never witnessed any inappropriate behaviour. She
did not agree with that suggestion. She said the attitude
of the day was maternal
towards patients and although it could be perceived as controlling, it was because of
the nature of the patients
and their illnesses. She said:
"I worked with many good, experienced and dedicated nurses who were kind
and considerate
to their patients. We worked under difficult circumstances,
e.g. overcrowding in some of the older wards, lots of overtime
due to staff
shortages and lack of the domiciliary and support services that now prevail.
In the seven years that I
worked at Porirua Hospital, I never saw any patient
ill treated or abused in any way."
[316] In cross-examination, Nurse
G said that the plaintiff was not sent to F Ward
as punishment. She was in Hassel Ward which was an open, modern convalescent
ward,
and she was then sent to F Ward because her behaviour was disturbed. She
was also sent to F Ward from two other wards. Nurse G said:
"If she misbehaved on those two wards, her behaviour must have been pretty
bad to be sent from two wards to F Ward.
Where else could you send her?"
[317] She said that the nurses knew the rules and:
"You didn't threaten patients with ECT.
I never heard anybody threaten
with ECT. As [the plaintiff] says, she felt threatened and she said people did
threaten
her. I don't know whether that's true or not but if you know that
you might have ECT, you would feel threatened, wouldn't
you? I mean, if
somebody said, "oh I'm going on that ECT list", I would feel threatened
without actually having been
threatened."
[318] The witness described seclusion, and occasions where two nurses had to hold
patients who were violently attacking
nurses and others.
[319] She described the process of assessing patients as needing treatment. The
nurse in charge of the day room
patients would advise the Sister of any patients who
were displaying disturbed symptoms. That was not the task of the more junior
nurses. Some patients who required maintenance ECT might be identified because
of deteriorating symptoms or behaviour, and although
it "might sound peculiar to
you", the Sister could usually pick that up because of her being able to assess
depressive conditions.
[320] She said that that was able to be done:
"Because you know the look of people. Say with the depressive, they have
a
look about them, they move slowly, they talk slowly, they are not really
interested. The moment as they start to
get better, you can pick that up.
....
You get very very observant and ... especially the old type of nurses who
train there, ... so you did learn a lot
there."
[321] She agreed that some patients were quite fearful of ECT. She could
understand that it would be
very frightening, and while some people were very
passionate about it, some fought against it and they would have to be held down.
[322] When it was suggested to her that Sister B was a dominant and arrogant
person, the witness said:
"She was in charge
of a refractory ward which had 140 patients. She had to
run the ward, she had to look after and see to the patients, she had
to train the
nurses, see that they did everything right. You would have to be a pretty ...
dominant person. I could
do all that but she was of the old school. She was
particular, she was absolutely spotless and everything was spot on, and
she
wanted everything like that, and the nurses had to do it. If they didn't want
to do that, you know, I suppose what
they did call her, dominant, bossy, I
don't know. .... I didn't ever find her unfair or anything like that. She was
an excellent nurse and she trained the nurses. .... She knew her patients and
could look all around you and tell you what
was wrong with you if you got
anything wrong. .... She was professional and she had a lot of
responsibility."
Nurse
JES
[323] Nurse JES was known as Nurse M at Porirua Hospital. She commenced
training in 1958 and worked part-time for many years
before returning to full-time
work in 1980. She worked in all wards and retired in August 1997.
[324] She described Rauta as the
acute admission ward where patients were
initially nursed in bed without visitors, so as to provide a "calming" period. She
confirmed
other nurses' general description of F Ward, housing a large number of
patients, with many spending time in the day room which required
supervision at all
times because of violent patients.
[325] Her evidence was that at the time she trained there was little anti-psychotic
or
other psychiatric medication, although Largactil was introduced when she was there.
It was not unusual for patients to be very
aggressive. During the day there were
possibly up to seven nurses on duty in F Ward. The Sister-in-Charge at that time
was Sister
B and she remembered her as a very professional nurse, but one who did
not interact with patients as she did not see that as the
function of the Sister-in-
Charge.
[326] She described ward rounds by Matrons and the procedure whereby night
Sisters would designate
patients to sleep in single rooms if they were aggressive and
not able to settle in the dormintory.
[327] She said she never witnessed
physical assaults by staff on patients and never
heard of patients being slapped, kicked or subjected to other violent behaviour
by
staff. She said:
"Many of us loved our patients and wanted to do the best by them. I was 20
years old when I started
at Porirua Hospital, and I think even as a trainee
nurse I would certainly have done something if I had seen anything like
that.
I would have reported any nurse involved in inappropriate physical contact
to their Ward Sister. It was well
known within the hospital that it was
completely unacceptable to intentionally assault patients."
[328] She says she knew
Nurse C and never saw her assault any patient. She was
never aware of ECT being given or threatened as punishment. Patient transfer
between wards was a decision made between doctor, Matron and the Ward Sister. If
a patient was abusive and aggressive and not able
to be nursed appropriately in
Rauta, the only available ward to deal with such behavioural symptoms was F Ward,
as it was locked
and had better staff numbers.
Nurse FJC
[329] Nurse FJC remains employed at Porirua Hospital as a Team Leader, having
started
her training in 1958, and completed it when she was registered in 1962.
[330] She described the female wards at Porirua Hospital and said that F Ward was
not an adult female
criminal ward, although it did house women from Arohata Prison
and some forensic patients.
[331] She described the allocation of
nursing and other staff to the admission and
other wards. She said a doctor would decide to which ward a patient would be
transferred,
depending on the patient's illness and anticipated length of recovery. A
patient might be transferred to F Ward if she threatened
other patients or staff, or
harmed themselves.
[332] She described the hierarchy where a staff nurse on any ward was always
under
the observation of the Ward Sister, who would instruct her in the duties she
had to perform. Doctors generally did daily ward rounds
to check on patients and
their medication.
[333] F Ward in the late 1950s was a long rambling, older ward at the hospital, with
four dormitories and 40 single rooms with shutters. A basement at a nearby villa
was also used as a dormitory where some F Ward patients
slept at night. When she
worked there, it housed about 130 patients with about six nurses working day shifts.
Long hours were worked
and the patients (those who were sufficiently well), were
given work tasks because the belief was that work was part of their rehabilitation.
[334] As head of the female nursing staff at F Ward, the Matron undertook four
ward rounds each day, and inspected and accounted
for every patient at the end of
each day, in what was a regimented system. The witness was adamant that Matrons
would not have regarded
any bruising or obvious injury to a patient as unimportant.
[335] She described Sister B as a very experienced and meticulous nurse,
prim and
proper and without a reputation for ill treatment of patients, as "she was simply too
professional for that". Sister B was
very aware, however, of the hierarchical system.
[336] Nurse FJC described a number of fights breaking out amongst patients who
were psychotic. Staff had to intervene to break these up. Younger patients
sometimes taunted the really psychotic patients,
in the sense of goading them into
action. Because of a lack of facilities, patients were not continually locked up and
seclusion
was not given as a punishment but only as a safeguard to protect the
patients or staff (for example, if a patient threatened to kill
a nurse or other patients).
Once in seclusion, patients were observed frequently, with nurses having an
obligation to check at least
every hour. A doctor was required to attend as soon as
possible after a patient was placed in seclusion. She said that a patient
might have to
be forcefully dragged into a seclusion room if she had been fighting or was manic,
and at times several nurses were
required to undertake that task.
[337] Her concluding comment about F Ward was:
"I spent a reasonable amount of time on
F Ward both as a trainee nurse and
later as a staff nurse. I never saw any abuses of patients on this ward. Staff
worked
incredibly hard to try to make the patients' time on ward as
comfortable as possible. I still love my memories of F Ward and
the time I
spent working there. Yes, we had to put up with working in an old and run-
down building, but I loved working
there because I felt the patients were
well cared for. I genuinely believe we made their time on the wards as
comfortable
and happy as we could in the circumstances."
[338] She described ECT similarly to evidence given by other nurses and doctors.
She
said that some patients probably feared ECT, although very few struggled
against it. She said she never saw ECT being given as punishment
nor heard a nurse
threatening a patient with it.
[339] She said nurses had to sign a document, provided at the commencement of
training, to acknowledge they were aware and accepted the very clear rules, which
included the provision that physical force was
to be avoided. She did not see or hear
anything to suggest a "culture of physical abuse" by nursing staff. She described
witnessing one incident
in the 1970s where a female member of staff flicked a
patient with a tea towel. She told that nurse that she could be dismissed,
and
reported her to the supervisor. The nurse was warned, placed on supervision and
moved to another area.
[340] She said she did
not see any sexual, physical or mental abuse involving
twisting of arms, kicking, slapping, hitting or threatening a patient with
shoes, and if
she had done, she would have complained to the Matron. Certainly if any visible
injuries had been seen, they would
have been observed by a Matron during their
ward rounds.
[341] She remembered the patient RW, describing her as having sufficient
intelligence to make up stories, and gave an illustration of RW making a created
allegation against her, written on the wall in blood.
[342] This nurse has been able to observe changes at Porirua Hospital over the
years since she started as a trainee nurse 49 years
ago, the main difference being
reduction of patient numbers (at its height in the mid-1950s there were about 2,000
patients). Staffing
levels are higher today than then, with perhaps up to nine nurses
for a ward of 30 beds. Limited treatment options were available
in the 1950s and
1960s but with today's modern psychiatric drugs, patient disturbance is at a lower
level. She said:
"You
just do not see people as grossly unwell today as you did in those days.
Back then self-harm was also more prevalent. Additionally,
there were more
patients who, if you pushed the wrong button, could become dangerous
even homicidal. Those people
were nursed with the general group. There is
a different culture and setting today. That is just the way it was.
Attitudes
to mental health today are also different. Mental health is now
talked about and promoted. But in the 1950s, 1960s and 1970s,
a patient
was sent to the "Funny Farm". Society wanted people put into mental
hospitals and hidden away. In those days
people could be sent to Porirua
Hospital because of intellectual handicapped or social difficulties rather than
mental
illness. The hospital admitted whoever was sent there or turned up.
Again, that simply reflects the culture of the time.
I remember too, that when de-institutionalisation came about, many of the
patients did not want to leave the hospital.
The staff was their family;
patients had jobs and occupations at the hospital and there were many
patients who were
unnerved about being sent back to the community."
[343] She said that if she had seen abusive behaviour she would have been
outspoken
at the time, as would a lot of people who worked there. Whilst working
long hours under difficult conditions, staff were dedicated
to their jobs and tried to
improve the lot of patients as best they could. It was necessary to be authoritarian
and assist with treatments
that were essential, but she said staff cared about their
patients.
[344] She said that if she had seen or heard about things which
concerned her, she
would not lie about it and would have said something at the time and would say so
now.
[345] Nurse FJC was a
particularly impressive witness.
[346] Was it possible that some events occurred without her or other senior nursing
staff being
aware?
Nurse K
[347] Nurse K was employed at Porirua as a trainee nurse in September 1957 and,
after qualifying, remained until
1962. She returned to work part-time after 1966, and
worked there until her transfer to Wellington Hospital in 1997.
[348] She
described initiation procedures, and the reliance upon senior staff to
orientate and instruct trainee nurses. She described the three-year
hospital-based
training scheme, which commenced in the late 1950s. There was a rigid hierarchy,
with nurses being responsible to
the Sister on the ward, who was in turn responsible
to doctors and Matrons. There were other assistants on wards who were hospital
aides, not formally trained.
She thought that from 1957 onwards her role was
primarily of a custodial nature, especially in F Ward due to the chronic illnesses
of
the patient there.
[349] She confirmed what others said of F Ward. It housed disturbed female
patients and chronic patients
who were treatment-resistant. Some exhibited quite
disturbed and violent behaviour, so they would assault nurses without warning,
through psychotic demented or unpredictable behaviour. She described it as a
"tough ward" to be in, for both patients and
nursing staff.
[350] Her recollection was that a patient was not sent to F Ward unless a diagnosis
and assessment required it,
and for a young person to be placed there, she would
have had to present with indications that she was a risk to herself or others.
[351] She referred to seclusion procedure but distinguished it from when a patient
was given "time out" by being placed in a single
room, or being locked in a single
room overnight due to her behaviour.
[352] Fighting patients would have to be separated by nurses
and placed in
different areas to reduce further harm, and to defuse confrontation. It was important
to have sufficient numbers of
staff when breaking up fights or other disturbances to
reduce the danger of damage when restraining patients.
[353] Her evidence
was she did not see patients being slapped or assaulted by
nursing staff but:
"I did see nurses and other staff reacting
to threatening and aggressive
behaviour by pushing a patient away, or warding off a blow, where staff
were acting to
protect their safety. If I had seen a physical assault that I
thought was premeditated, brutualising or cruel, I would have
reported it."
[354] She described one incident in the 1970s when she reported a staff member.
She saw a patient moved to punch a
nurse and the nurse deliberately tripped the
patient so as to defend herself from the punch. The witness thought that the patient
could have been dealt with in another way and reported the incident to the
Supervising Charge Nurse and the nurse concerned was removed
from the ward.
[355] She said the "culture" at Porirua Hospital was that violence in the work place
was not condoned. She described
the criteria for the administration of ECT as being:
"That the patient was either depressed or not responding to medication
(whether their behaviour was disturbed or aggressive and they were not
eating or drinking) these behaviours were generally
related to the illness.
ECT was only given when a doctor prescribed it.
....
The Ward Sister had some influence
into decisions regarding ECT as she
knew how the patients were behaving from day to day. Ultimately the
doctor was
the clinician and he/she determined treatment."
[356] She did not hear of patients being threatened with ECT.
[357] She spoke
well of Nurse C and said that she:
"Could not imagine her hitting a patient. She was well respected, ambitious
and
professional."
[358] She said she remembers Sister B who was very strict and tough, and never
had hands-on contact with patients
like nurses did, being a person of authority.
[359] She concluded:
"I can understand that patients may have found it dramatic
to be in a ward
with chronically disturbed people (as did the nurses), the service operated
under a medical model and
the protocols and policies at the time dictated a
patient's treatment and their placement in hospital. Seclusion was an
invasive form of treatment that protected patients and staff alike. Time out
in seclusion was not used as punishment.
I worked with a lot of honest,
ordinary people who did the best that they could in a tough work
environment. Sometimes,
for example, if patients were fighting, staff would
have to make decisions on the spot. Staff did not condone violence in the
work place and I did not see violence
practiced against patients."
[360] She agreed in cross-examination with the view regarding the practice in the
1950s, where overcrowding
meant that nursing care was compromised and
individual attention virtually impossible.
[361] She said F Ward was:
"Actually
a terrible place. It was a tough environment to work in because ...
they were a mixture but essentially they had chronic conditions
and seen to
be treatment resistant."
[362] She agreed that it was a fairly frightening environment and nurses were
worried
when they first went to work at F Ward because of the unpredictable nature
of people that were there with a day room which accommodated
up to 100 people.
[363] She described the technique of having to hold a patient by their limbs to
immobilize them in order to walk
them to seclusion or some other place, and agreed
that at times that could be a bit more vigorous. But if someone was struggling
or
fighting, the nurses might immobilize them on the floor until they calmed down, to
lessen the chance of someone being hurt.
[364] She agreed that a number of patients and staff were fearful of ECT because it
was quite a dramatic experience. She recalls
patients struggling against being
administered ECT in F Ward, with struggles being quite violent because the patient
had to be placed
into a position where the procedure could take place.
[365] She said that she personally didn't hear anybody being threatened with
ECT,
although she admitted:
"I'm not even sure it didn't occur, it may very well have. I mean, I think
nursing at
that time was pretty tough and you never had, like I say, the
chemical restraint that did come along soon after, or they were
there before I
started in the 1950s but I started in 1957.
....
So I suppose threats by some staff might
have been possible but I don't
remember saying to anyone you know "you're going to get ECT because
you're playing up"
but ... that's what's inferred, isn't it."
[366] However, she said she does not recall anybody threatening a patient with
ECT "to
punish them". She said the patient would not know that they were going to
get ECT until the morning because they would not be given
breakfast.
[367] When asked whether she had seen nursing colleagues lose their tempers and
slap a patient, she said:
"I
have seen staff ward off a blow or push someone away, that's true. We
used to have a saying, you know, that the first 30 seconds
is self-defence and
after that it's an assault. So I mean ... I think some staff did push someone
out of the way and
what have you. Again, in that climate sometimes you
would have people, patients, staff involved with patients, that have these
altercations within their relationship."
[368] She says there was not a code of silence but rather a "code of support"
whereby
staff looked after one another. She said she remembered being punched
above the eye by a patient and reacting by jumping on the patient
so as to land her on
the ground and hold her there until assistance arrived. So in that sense:
"I don't feel I assaulted
her but she took me by surprise and she was quite
psychotic at the time .... I had blood coming down and I didn't know what
had hit me so I did, I reacted, I jumped on her, pushed her to the ground,
staff came along and I moved away from the
scene."
Nurse RNB
[369] This former nurse died at age 83 but she made an affidavit on 27 April 2007.
She was a qualified nurse
at Porirua Hospital from 1954-1956, and again 1968-1987.
She was Sister-in-Charge of Rauta Ward from 1954-1956.
[370] She described
the process of placing a patient in seclusion and said:
"I do not believe that seclusion was used as punishment. However,
it is
certainly possible that patients would have perceived their seclusion as
punishment. It is also possibly true that patients
were put in seclusion in
response to fighting with other patients. Although I do not specifically recall
doing this
myself, knowing what I do about psychiatric wards I would expect
that seclusion could follow a fight in order to stop it,
to calm things down,
and to get a disturbed patient out of a situation where they could harm
themselves or others.
As I have said above, the Matron and the doctor
would have assessed whether the patient should continue to remain in
seclusion."
[371] She referred to the plaintiff's evidence that the Sister-in-Charge of F Ward
(the plaintiff believed it to be
Nurse B) had removed her clothes and looked at her in
a sinister/prurient way. Nurse RNB said that in the 1950s the Sister-in-Charge
of F
Ward was Sister L and (if it was she who was being referred to by the plaintiff) she
simply could not believe that Sister L:
"Would be the type of nurse to undress a patient for her own pleasure. She
was an excellent nurse of the highest standards
and from what I can recall of
her character she just would not have engaged in that type of behaviour. Of
course it
is possible that the Sister assisted the plaintiff to change into a
canvas nightie before putting her into seclusion."
[372]
For completeness, I add that I gained the impression that the plaintiff was
alleging that this occurred after 1956 because she confirmed
that Nurse C was
present.
[373] This witness said that Rauta, as an Admission ward, was extremely busy, and
she never saw any abusive
behaviour. She once had to reprimand a young nurse who
had been verbally rude to a patient. She said:
"There was a general
expectation and understanding that it was highly
inappropriate behaviour to assault patients. If I had ever seen a nurse
assaulting a patient I certainly would have corrected and disciplined that
nurse. I would have taken further action
if the conduct warranted it.
Everyone was given a rule book to read. The average nurse was well aware
of the inappropriateness
of this type of conduct."
[374] She described F Ward as having a large overcrowded day room and said
patients were only transferred
to that ward for medical grounds. Her evidence as to
ECT treatment was consistent with that of other nurses and she said:
"I think it is possible that ECT was used as a measure to control the
symptoms of some disturbed and disruptive patients.
It is important to
realise the context of the treatment at the time, and especially the lack of
medication for treating
mental illness. By way of example, a manic patient
could be continuously disruptive on the ward, and in a hyperactive state
for
several days. We were taught that if the manic patient stayed in this
hyperactive state they could die of exhaustion.
ECT was very effective for
these type of patients the ECT was used to control their behaviour (which
was a symptom
of their illness). Additionally, extremely depressed patients
(who often wouldn't eat) used to get ECT as it was the only
means of
treating their symptoms.
I would agree that ethically ECT should probably not have been given
simply
for rebellious or uncooperative behaviour (as [the plaintiff] alleges).
However, in my experience when ECT was prescribed
and given it was to
treat and manage illness. Our purpose was to treat not to punish."
[375] She said that most patients
did not like receiving ECT and occasionally one
had to be restrained in order that it be administered. She never heard nurses threaten
ECT which would have been totally inappropriate. She referred to Dr McL, an
experienced psychiatrist (who went into private practice
in the mid-1950s), saying:
"I did have concerns about the amount of ECT that he was prescribing and
there were occasions when nurses tried to
take patients out of the ward to
prevent them receiving ECT from him. He did not use ECT as a punishment
he just
seemed to favour ECT as a treatment option over other treatment
options. As I have said the decision to give ECT was a clinical
decision for
medical staff."
[376] If such a concern on the part of nurses existed on occasions, it tends to
suggest those
nurses (at least) were not disposed to "threaten as punishment".
Mr JF
[377] Mr JF was a male nurse who is now deceased, but
made an affidavit.
[378] Certain very serious allegations have been made against him by former
patients (not by the plaintiff)
which he adamantly denied, but they are irrelevant to
the plaintiff's case and I do not propose to detail them.
[379] He did not
work on F Ward, being a male nurse, but visited from time to time
in his Trade Union capacity. In a general way he confirmed the
overcrowding and
somewhat grim conditions which prevailed in F Ward.
The plaintiff's emotional, psychological state and personality
[380] I turn to deal with the specialist psychiatric evidence called on behalf of both
the plaintiff and the defendant.
Evidence
of Dr Barry-Walsh
[381] This psychiatrist was called on behalf of the plaintiff. He said that the
plaintiff told him that Ms Anna
De Jonge of the Waikato Patient Advocacy Group
told her about eight to ten years ago that she could sue. She only began to appreciate
that the abuse and mistreatment was not her fault after she saw her counsellor,
Ms Coker.
[382] He said the plaintiff:
· was generally anxious and at times restless;
· had substantial problems in interpersonal conflict, becoming angry
with
people often for relatively trivial provocations that related to a sense that
they were somehow exploiting
her or disregarding her;
· reported that particularly when angry thoughts of Porirua Hospital came
back unbidden,
she then remembered the "awful things" that happened to
her;
· described a number of different dreams with
the common theme of being
powerless and afraid;
· has poor memory and an inability to concentrate;
[383]
He refers to a counsellor's (Ms Coker) report of 31 October 1994, which
says:
"The sexual abuse has haunted
[the plaintiff] and she has
carried feelings of shame and disgust, believing there must
have been something bad about her ... [The plaintiff] is
learning to trust me ... Her thinking is clearer
... She is
developing feelings of self-worth ... She has stopped
blaming herself for
the abuse."
[384] I was not entirely sure to what "sexual abuse" Ms Coker was referring. If it
was of the plaintiff's childhood
events then the remarks are relevant. If however it
relate to the alleged Porirua event, it assumes an event took place of which
the
plaintiff herself has no memory, although I suppose it may be possible to feel shame
about a matter that a person believes it
to have occurred, even if there is no memory
of the event.
[385] Dr Barry-Walsh said some difficulties were raised in his mind
upon being
given the transcript of the plaintiff's interview with a solicitor. The first was:
"... in relation to the allegations
she has made, and described to [the
psychiatrist] of being struck on her genitalia by female nurses. It appears to
me from reading this transcript that this memory has been recovered in parts,
rather than being an intact memory."
He had
some significant reservations about the "recovered memory" concept,
frequently referred to by counsellors. He said:
"Recovered
memory is an area that has been even more fraught and
controversial than some issues I referred to around ECT. It refers to a
phenomenon that is held to occur on occasions
in therapy where it is
suggested that people, through the agency of their counsellor, retrieve
memories that they had
not previously had for abuse that they were
previously unaware of. There is good reason to be very careful and skeptical
about any memories recovered within therapy [and there is] some very
compelling research that raises questions about
the validity of any memories
that have been recovered. One cannot completely dismiss it, but one has to
say that there
is convincing evidence that it is very unlikely that it ever
occurs quite in the way it has been suggested by certain therapists
in
particular."
[386] Secondly, Dr Barry-Walsh said that if one could not remember an event, they
could not have a "flashback"
of it and said:
"The other problem ... is the suggestibility and plasticity of memory, so that
we can create for ourselves
false memories and have a feeling of reality to it.
And I guess it is therefore possible to create flashbacks as well."
[387]
The doctor agreed that the account of avoiding memories or actively
suppressing them was self reported from the plaintiff and agreed
with Dr Mellsop
that one cannot block out an unpleasant memory.
[388] A third difficulty emerged, when asked about the plaintiff's
apparent
familiarity with limitation considerations, the doctor said that he recalled a passage
from the transcript of her interview
with a solicitor, in the presence of Ms de Jonge,
where there was explicit discussion of the Limitation Act. He said that that
led him
to be cautious in case the self reports by the plaintiff that he or others had been given
could be partially tailored to
fit the Limitation Act criteria.
[389] He added that some of his reservations were:
"Partly because of the evidence I have
before me that indicates [the plaintiff]
is familiar with this legislation and has discussed these matters with previous
counsel."
[390] He noted that Judge Imrie upheld the plaintiff's account of indecent assault,
(although, correctly expressed,
there was no account, because she could not
remember it).
[391] The plaintiff has "long standing personality difficulties", and
Dr Barry-
Walsh's opinion as to causation was:
"Some of the symptoms she described appeared to be directly attributable to
the repeated dramatic experiences that she described in Porirua Hospital.
However, these occurred on a background of
a woman who had substantial
problems, from her own account, with her adjustment prior to admission to
hospital."
[392]
On the issue of whether the plaintiff was under a disability, and for how long,
for limitation purposes, Dr Barry-Walsh observed
that although Ms Coker, the
counsellor, suggested that in 1994 and 1995, the plaintiff was too traumatised to be
able to pursue litigation,
he:
"Could find no evidence that that is the case currently. Further, I would
point to the evidence that she was able
to pursue an ACC claim in 1993-
1994, which raises the question about the extent to which she was under
disability
even at that point. It does however seem reasonable to conclude
that as time has progressed, her capacity in this regard has
improved."
[393] Concerning "discoverability", Dr Barry-Walsh repeated the plaintiff's
statements that she had actively avoided
memories and suppressed them, because she
felt ashamed and "blamed herself for the experiences" He referred to Ms Coker's
opinion
and said:
"It seems reasonable to contend that it is only subsequent to the counselling
that [the plaintiff] made
a reasonable connection between her experiences at
Porirua Hospital and her subsequent difficulties."
[394] Questions to
be answered may be:
a) for what experiences did she blame herself?
b) what connection, if any, did she make when her ACC claim was
brought?
[395] Dr Barry-Walsh said that there appeared to have been good reasons for the
plaintiff's admissions to Porirua
Hospital, particularly the first one. She was
exhibiting a number of features which raised the question of mental disorder,
and the
risk of further self-harm. There is a lack of detail in the records, but he said the
history indicates that she had significant
problems prior to her admission to hospital.
[396] The doctor said that the range of possible diagnosis at the time of the
plaintiff's
admission to hospital included:
"First and foremost, disorder of mood or depression. Secondly, major
anxiety disorder,
and indeed as I think was entertained at the time of her
admission, schizophrenia. There are, in fact, several other possibilities.
She
was apparently very preoccupied by her physical appearance at the time.
That is often seen, when it is seen, in
conjunction with the formerly
mentioned disorders, or there are people that have what is called a body
dimorphic disorder
where they have a particular and peculiar concern about
their physical appearance."
Counsellor's evidence
[397] Ms Coker
was the ACC counsellor who the plaintiff saw in 1994/1995 and
who reported to ACC. She has not seen the plaintiff since then. She
simply
confirmed the contents of an affidavit that she had made in November 2000 in
respect of the application for leave to bring
proceedings. In that affidavit she said
that when she first saw the plaintiff, in her opinion the plaintiff was suffering from
Post
Traumatic Shock Disorder:
"Which was the result of abusive treatment at Porirua Hospital where she
was a patient in
the 1950s."
[398] She said that the plaintiff divulged:
"Not only sexual abuse, but also other treatment which had had
a lasting
effect on her including physical abuse at the hands of staff at Porirua
Hospital, the use of electric shock
treatment without her consent, her
placement in seclusion and the use of threats of such treatment by hospital
staff."
[399] She said that the plaintiff had bad flashbacks and nightmares about her time
in Porirua and these were symptoms of PTSD. She
said it was common for abuse
survivors not to appreciate how the abuse has affected them. She believed that that
was the case with
the plaintiff. She expressed the opinion that the plaintiff was at the
time she knew her, in no position to seek legal advice "as
to possible rights of legal
redress". She was still easily traumatised and had feelings of fear and shame. Her
view was that the
plaintiff could not have coped with divulging her experiences to a
lawyer at that time.
[400] However, I observe, at this stage,
that the expert psychiatric evidence was
that "flashbacks" do not occur if a person cannot remember an event. If the plaintiff
suffered
from PTSD it did not relate to any sexual abuse at Porirua. It may have
been childhood sexual abuse that has led to "flashbacks",
but I do not accept it can
be a condition which related to any sexual abuse at Porirua Hospital of which the
plaintiff has no memory.
Any trauma or distress now experienced could only relate
to how she believes she was treated at Porirua Hospital. PTSD, if present,
could
only relate to other events at the hospital. I derive that conclusion from the evidence
of both Dr Barry-Walsh and Professor
Mellsop. I later discuss Professor Mellsop's
diagnosis that, in any event, the plaintiff is not suffering from PTSD.
[401] The
plaintiff's experiences were divulged in 1992-93 to Ms Illingsworth and
later to the ACC Review Officer and the District Court Judge.
In these two areas
(PTSD, and her inability to divulge matters), the opinions of Ms Coker, formed 2-3
years later are seriously questionable.
[402] In cross-examination, Ms Coker was asked about the plaintiff's pattern of
sexualised thinking since a child, and the following exchange occurred:
"Q: What you are really saying is she puts a sexual connotation on things
which might not necessarily
be sexual; that's what that means ... A
pattern of sexualised thinking?
A: It would mean that she may
misinterpret peoples' behaviour -
Q: As sexual?
A: Yes.
Q: When it wasn't?
A:
Well, it may have been, I don't know. I haven't got my notes, I
don't know."
[403] The witness then said that the
affidavit was written several years ago from
notes that she took while interviewing the plaintiff, those notes being based on the
history that was presented by the plaintiff.
Evidence of Professor Mellsop
[404] This witness is an experienced, eminent professor
of psychiatry. He assessed
the plaintiff, reviewed the clinical files, and provided opinion evidence on
psychiatric practice and
treatments, as well as on the plaintiff's present
psychological/personality makeup.
Treatments availability in the 1950s
[405]
Treatments for mental illnesses at that time were limited, and diagnosis-
specific treatments were not then in place, with the exception
of ECT. Sedating
drugs such as paraldehyde and barbiturates were available as was insulin coma
therapy. They were used to treat schizophrenia
and for those who were acutely
disturbed or aggressive. Insulin therapy for schizophrenia was accepted but was
later to be regarded
as inappropriate. ECT at that time was generally unmodified, in
the sense of not being given with a general anesthetic and muscle
relaxant. That is
not the present practice. It was used in a relatively non-specific way for disruptive,
disorganised or obstreperous
behaviour, an approach which, although having only
marginal text book support, was "probably ... not uncommon in New Zealand". He
said this was "quite probably without clear recognition by the psychiatrist that they
were responding to, or being influenced by
the person's behaviour, which was not
inevitably part of the actual illness or psychotic symptoms."
[406] Again, this highlights
the difficulty of separating "behaviour" which was
simply "naughtiness", from actual psychotic symptoms. Psychiatry did not have
available the discrete or subtle differential diagnoses of today.
[407] In the 1950s, the official classification of diseases produced
by the World
Health Organisation included only 10 pages in relation to psychiatric illnesses,
whereas in the current version the
Mental Health section now covers hundreds of
pages.
[408] When speaking of "seclusion", the Professor said that it was an accepted
procedure used for many years in mental hospitals. There was, and is, debate as to
whether it was "benevolent or malevolent intervention".
He said:
"Over the last 50 years, there has been a progressive emphasis on the
importance of minimising the use
of seclusion and looking wherever
possible for alternative mechanisms for handling aggression towards self or
others.
It is clear there's international debate as to whether seclusion is a
necessary practical tool, or whether it is a tool
of abuse and may be
dependent upon the patient's own perception."
[409] He referred to an academic article by T Mason,
Med. Sci Law (1993) Vol.
33, No 2, to which I return when discussing seclusion at paragraph [454].
Assessment of the plaintiff
in the 1950s
[410] Professor Mellsop considered the plaintiff's likely diagnosis, and whether
treatment was appropriate, with reference
to the applicable clinical standards at the
time.
[411] He said that the history was consistent with the recorded provisional
diagnosis
of a "schizophrenic reaction". Whilst the case notes are too sparse by
modern standards for it to be totally clear what diagnosis
the treating team at Porirua
thought they were dealing with between December 1954-February 1955, he inferred
that they were working with the general concept
of schizophrenia, as had been first
identified.
[412] The plaintiff was prescribed and administered insulin treatment in January
1955 and ECT in February/March. She was much improved in April/May 1955.
[413] The doctors had a diagnostic concept of schizoid
personality which at that
time was regarded as being a likely fellow "traveller", to schizophrenia.
[414] The clinical notes
of May and August 1955 contain no suggestion of memory
deficit or that the patient's thinking was in any way impaired while on insulin
and
ECT treatments.
[415] Upon the second admission in 3 August 1956, the notes referred to the
plaintiff being aggressive towards
nursing staff and said she was to be nursed in a
single room. She was emotionally changeable, but had no impairment of memory.
A
provisional diagnosis on that second admission again appeared to be a form of
schizophrenia. There was in the notes a continuing
theme of difficulties that the
plaintiff had with her mother, nurses, and other people in the community.
[416] The Professor's
opinion was that, given the working diagnosis of
schizophrenia, ECT was one of the available indicator treatment options, according
to the thinking of the day.
[417] He said there was no indication in the files that the treating team considered
ECT or used it
as a form of punishment and to the extent that her behaviour
precipitated the use of ECT:
"That would have been likely to
have been formulated by the treating
clinicians as a manifestation of her schizophrenia."
[418] But it would hardly be likely
for a clinical note to be made of an improper or
malicious motive, although it might be possible to draw such an inference from
various
clinical notes (of nurses and doctors) depending on the contents. What the
Professor was saying was that, on his assessment of the
records (such as they were),
the disturbed behaviour would have led the clinicians (nurses and doctors), to regard
it as a manifestation
of schizophrenia.
[419] Professor Mellsop conclusions about the plaintiff's diagnosis and treatment at
Porirua Hospital were:
a) the provisional diagnosis of schizophrenic reaction on both
admissions, and later diagnosis of personality
disorder, was consistent
with the evidence then available to the clinicians;
b) insulin therapy was an
accepted treatment, at that time, given the
diagnosis;
c) the use of unmodified ECT could be regarded
as consistent with the
practice of the day;
d) there is no supporting evidence in the files that elements
of
punishment existed, but it is well recognised that a psychiatric patient
can experience treatments
as abusive or as punishment;
e) the Oakley Hospital admission in 1967 provided an assessment
consistent
with the diagnosis of schizophrenic residual state.
Professor Mellsop's examination and assessment of the plaintiff
[420] Professor
Mellsop sets out in considerable detail the history that he took from
the plaintiff. A psychiatrist is very dependent upon what he/she
is told by a patient.
Self reporting provides a foundation for diagnosis. She told him that she:
"Now belongs to "Patient's
Rights" and the "Citizen's Commission on
Human Rights",
which is part of the Church of Scientology for whom she does work.
She said was
currently looking for a venue for them to have an anti-psychiatry display in
Hamilton. [In evidence the plaintiff denied
any affinity with that group.]
[421] She said that she considers that she is now largely "fine". She did however,
comment that
it was unforgiveable what they (Porirua) have done to her. She has
had no psychiatric contact in the last 37 years, apart from
the Oakley Hospital
remand, and she said:
"That she has felt much better and more capable since she met Anna De
Jonge who "told me lots of things". In particular
"that I could sue the
Government" and that "we could look around for a lawyer".
[422] Professor Mellsop refers to the plaintiff's
statements about seeing the
counsellor Ms Coker and her assertion that:
"I had not understood, before seeing her, the link
between the way I was and
what had happened to me in Porirua."
[423] The psychiatrist assessed the plaintiff's mental state
at interview as having no
suggestion of psychotic phenomena or disturbance of mood. She had a good
functioning
memory and was fully aware of her situation. However, he said:
"I noticed a slightly paranoid attitude throughout the interview,
in that in
every phrase of her life she attributed any difficulties to the actions of others,
commencing most vigorously
with her parents, but also including many
others. She expressed these views, as often referred to above, in relation to
neighbours, members of her family, or to the Porirua Psychiatric Service,
nuns and school teachers."
[424] The plaintiff
gave the same impression when giving evidence in Court,
attributing blame to others if she did not get on with them, or if she had
difficulty
with them, as being responsible for any of her difficulties. It was a recurring feature.
It is also apparent that she
attaches blame to her mother and father for applying for
her two admissions to Porirua Hospital. This is not a criticism of the plaintiff,
but
simply a description of an aspect of her personality.
[425] The difficulties described by the plaintiff pre- and post-Porirua
were
significant, and the Professor said:
"The words she uses to describe these pre-Porirua aspects of her functioning
and activities are very similar to those she uses to describe post-Porirua
functioning. She was dissatisfied with her
life before Porirua, as after."
[426] In cross-examination and supplemental evidence, Professor Mellsop said that
the plaintiff
functioned well after each admission at Porirua and then deteriorated
when out in the community. But in the last 30 years her functioning
has been within
the normal range expected for the community, and clearly a lot better than her
functioning before being admitted.
He did not agree with Dr Barry-Walsh as to there
being evidence of major depression or generalised anxiety when admitted, but there
were the possibilities of schizophrenia and bodily dimorphic syndrome (obsessional
belief about her appearance). He said there were
a no symptoms of major depression
or generalised anxiety, but:
"What [the plaintiff when at Porirua] was saying was there
is nothing wrong
with me, I shouldn't be here, which is what we would call a lack of insight
and that is a totally
different order of diagnose that gets you into than the
depression and anxiety ones which are very much insight driven. ...
We are
all agreeing that schizophrenia stays in there as a possibility."
[427] Dr Barry-Walsh view was that the plaintiff
engaged in a fair amount of
rebellious and oppositional behaviour, where a standoff occurred, and escalations
occurred, so that her
actions prompted responses that may have aggravated the
situation. Professor Mellsop agreed. He said:
"I think that's a very
tenable hypothesis and it would have been tenable at
the time, though of course there were also competing hypotheses. Because
the words that are being used were "rebellious" and so on, imply intent of
one's actions or choices. That might have
been what was happening, or she
might have been behaving like that because of her impaired condition in the
context
of schizophrenia. We still have all the possibilities sitting there."
[428] The Professor said that it is difficult to make a confident
statement as to what
label would have been appropriate for the plaintiff's condition in the 1950s, given
that more than 50 years have elapsed, but she met the
general criteria for a
personality disorder and possibly the criteria for "either or both paranoid and
schizotypal personality".
[429] He said that personality disorders are conceptualised as lifelong, and it was
difficult to see any causal link between any
particular periods such as the
hospitalisation time and the plaintiff's later ways of feeling or thinking. He said it
was easy to
see how the diagnosis of schizophrenic reaction had been regarded as
appropriate, given what she described and what was observed
of her behaviour. The
notes record phenomena to enable the psychiatrists to clearly think of hallucinations,
inappropriate affect,
social withdrawal and heightened ideas of reference, if not
delusions.
[430] The Professor's evidence was that:
"Being
in a psychiatric hospital is a common experience and may be
negatively experienced. It would be stretching it to regard psychiatric
hospitalisation, in itself, as sufficiently uncommon or sufficiently severe a
stressor to produce later illness,
namely Post Traumatic Stress Disorder ...
especially as her pre and earlier medium term post-hospital functioning
appear to have been very similar."
[431] He said the Post Traumatic Stress Disorder concept was developed by
American psychiatry,
and there was a need:
"for the diagnosticians to try to separate complaints intrinsic to the person's
mental state,
from those developed through discussion with counsellors and
lawyers trying to be helpful, and to make sense of whatever
other feelings of
misery a person may have."
[432] His opinion was that the general experience of being in a psychiatric
hospital
in the 1950s in Porirua:
"is likely to have been quite unpleasant, but falls well short of the types of
stressors the diagnostic concept of the sort the plaintiff originally had in
mind. Feelings of general powerlessness even
subject to bullying, ethically
unjustifiable as it is, are also in that category."
[433] His opinion was that the plaintiff
did not appear to meet the criteria for Post
Traumatic Stress Disorder. He said:
"[The plaintiff] did not recount to me
any experiences of reliving the trauma
of the ECT, and has also shown only limited avoidance of psychiatric
hospitals
when any need to visit one has occurred in her later life (e.g. to
visit a friend). She did not recount any evidence of "dramatic,
acute burst of
fear, panic or aggression triggered by stimuli arousing sudden recollection
and/or re-enactment of
the trauma (ECT)." Nor did she recount any
experience of autonomic hyperarousal in recent years or even decades.
Rather than the ECT, she was responding to what she regarded as a general
climate of systematic abuse in the psychiatric
hospital."
[434] When challenged that the Professor was relying primarily on his interview
with the plaintiff, he said:
"No, I'm not. I'm relying on the way she has always recounted different
things like in all the ACC files, as well as the
bits in the original Porirua
files, and now of course I'm also influenced by having heard her evidence in
this Court."
(The Professor had heard the plaintiff give evidence earlier).
[435] The Professor said there was evidence of no impairment of
the plaintiff's
memory because there were ways of testing it, and her complaints of poor memory
did not accord with that. His view
was that the plaintiff's cognition in memory
appeared to have been normal. He assessed her as having features consistent with a
life
long personality disorder but:
"There is no evidence to support the idea that [the plaintiff] was under a
"disability"
between the time of those Porirua admissions and in the 1990s,
in the sense that she was cognitively unable to consider her situation, advise
or instruct a lawyer or think about
the alleged relevance of her views on her
Porirua experiences."
[436] He said that for most of the last 30 years she has
lived a life which included
the ability to handle ordinary learning. She has married and had children and has
been able to undertake
ordinary day to day activities. In addition:
"As highlighted in the report by Dr Justin Barry-Walsh, she was even able to
successfully conduct her own legal proceedings in relation to ACC."
[437] The evidence indicated that she was intellectually
capable (indeed she has a
high IQ) and:
"I do not consider her to have suffered from any disability of such
significance,
in the last 30 years, that would have required either clinical
intervention or impaired her ability to conduct herself in
relation to the laws
of the land or with respect to any legal concepts of competence for
discoverability, outside the
usual range of normal people.
[438] He said the plaintiff's mental abilities were "very clearly" within the range of
normal members
of society.
[439] The Professor considered that potentially relevant to the issue of time
limitations was the plaintiff's counselling
with Ms Coker and its content, and he
commented that:
"I gained the impression that her awareness of that was particularly
promoted by her more recent counselling; that it was more the counsellor's
idea that a connection should be drawn between
the Porirua experiences and
any bad feelings [the plaintiff] did have."
[440] When asked whether psychiatric admissions
should be kept as short as
possible, because admission may aggravate the problem and make difficulties worse
rather than better,
Professor Mellsop said:
"[That is] part of how we think now, but as far as I am aware, it is probably
also how they
thought then. They were never aiming to have long
admissions and, in my understanding of psychiatry 50 years ago, they were
also prepared to consider whether hospitalisation was bad for people or good
for them."
[441] When questioned about
Dr Barry-Walsh's opinion that ECT causes some
disturbance in memory around the time the treatment is administered, the Professor's
evidence was:
"Most people who have ECT have no impairment of their ability to form
new memories once they are an
hour or so post-ECT and they might only
lose memories in the minute or so before ECT."
He went on to say that he had never
seen anything beyond an hour or two although
he would defer to the opinion of Dr Melding in this area.
[442] When cross-examined
on the allegation of "genital smacking", the following
exchange took place in cross-examination:
"Q: Would you accept
that if this incident occurred and there was an
administration of ECT in proximity to the event, would you accept
that that might impair [the plaintiff's] ability to lay down or have a
memory of it?
A:
Two comments I make in response to that. One, if by proximity you
mean within five minutes, possibly, but I
note also that one of the
papers that Dr Justin Barry-Walsh tabled here emphasised that the
things
that get remembered best when you do get memory
impairment are those of the most personal significance which this
would be in that category if that occurred. So it is extraordinarily
unlikely that anything like
that stopped her remembering an event
like that.
....
[She] could have a retrograde amnesia for minor
details but something that
was important to [her] would be very readily remembered.
....
My opinion is, to
your original question, she would have had to have the
ECT extraordinarily close to the slipper smacking episode for it not to be
remembered."
[443] And further:
"[The
plaintiff] herself says she does not remember this incident. Rather she
was advised by another, that it happened. The best
modern evidence from
studies at Harvard University ... is that people cannot indeed suppress
unpleasant memories in
the fashion which has been talked about in recent
decades, but rather can choose not to discuss it.
My general impression,
from many of the statements made by [the plaintiff],
is that she has no objective impairment of memory whatsoever. That does
not preclude a subjective sense of dissatisfaction with one's memory."
[444] When dealing with memory, the Professor said
that reliability of memory can
be questionable even immediately after an event, and is clearly subject to much
greater potential
distortions by attempts to create meaning, or to explain one's
present state. He said there was no evidence at all that the plaintiff
had any
significant or lasting memory impairment from ECT, although she may well have
had short term impairment where she had difficulty
encoding new memories at the
time of the ECT but that is not recorded in any of the contemporaneous documents.
[445] The plaintiff's
cognition and memory when under inspection had appeared
normal. In an affidavit that she swore, she detailed probably true memories
of
procedures surrounding the use of insulin and ECT therapy, which memories were
inconsistent with the treatment having rendered
her incapable of encoding new
memories at that time.
[446] The Professor said that throughout the plaintiff's life:
"There
seems to have been a very ready "recognition" of the sexualisation of
things. Ms Coker in her ACC report had put that [the
plaintiff] had
sexualised thinking since aged 7 and, in a sense, the most dramatic we get
this coming through in
a number of things she says, in a number of ways.
The first thing I hear when I read that is that she is again sexualising
actions
and activities of others."
[447] When cross-examined as to transferral between wards, or treatment,
occurring for
punishment, or being threatened with punishment, Professor Mellsop
stated the obvious:
"Patients should never be punished
for anything. Punishment is not a word
that should be used. The problems that I have got are they may well need to
be transferred to a more secure environment under the heading of their
management, and they would interpret that as punishment.
....
Q: ... I don't think you disagree with the proposition that, for example,
a nurse should not
threaten a patient with being transferred to a
refractory ward as a punishment for some behaviour that might have
happened on the ward?
A: They could say to a patient legitimately, if your behaviour continues
like this we will have to put you in that other ward for your security
or other security. You can interpret that
as a threat or you can
interpret that as an adequate explanation where the staff are trying to
get them
to control their behaviour."
[448] His evidence was that recent studies show that violence does occur between
patients, and there
are quite frequent assaults on staff, but teaching and ethics
regarding the response now centres around preventing and minimising
violence, and
providing what is thought to be humane care.
Insulin therapy, seclusion and EC punishment or treatment?
[449]
Because of various Strike-Out rulings, the fourth amended Statement of
Claim, where treatment - related allegations are made, is
confined to:
a) seclusion mainly as punishment;
b) administering insulin treatment (and being slapped as
punishment
during such treatment);
c) threatening the administration of ECT as punishment.
[450] Nevertheless, I propose to broadly deal with whether ECT,
as well as
seclusion, or other therapy, was in fact administered as punishment because if so, the
malicious or improper intent accompanying
that, would be relevant to any earlier act
of "threatening".
Insulin therapy
[451] The plaintiff pleaded, and contended in evidence,
that she was administered
insulin treatment as punishment, and also that during one of these treatments she was
slapped across the
face as punishment, but in closing Counsel for the plaintiff
accepted the evidence did not support those allegations. The course
of treatment
prescribed by Dr R, in light of his diagnosis of schizophrenic reaction, was
appropriate, and it was not done as punishment.
[452] The fact that the matter was pleaded and contended by the plaintiff as such,
may illustrate her attributing motives of ill
will to those towards whom she felt
antagonistic, and her perception that punishment was the purpose behind procedures
at the hospital.
Her beliefs about insulin treatment are genuinely held but appear to
have been derived from readings, as she gave evidence of her
understanding that
insulin therapy developed from use with epileptics. Her belief was that because they
did not suffer from schizophrenia,
therefore such treatment would not cure that
condition. She maintained "it was used as punishment". That reasoning is suspect.
[453] Unquestionably, insulin therapy treatment was very unpleasant and
distressing even frightening for patients. It is not
used now. But it was a
recognised treatment in practice at the time.
Seclusion punishment?
[454] In his evidence, Professor
Mellsop referred to a paper by T Mason,
"Seclusion Theory Reviewed a Benevolent or Malevolent Intervention?" Med. Sci
Law (1993)
Volume 33 : 95-102. I have obtained a copy of that academic article.
[455] Clearly there has been continual debate internationally
over whether
seclusion was a procedure used as a method of containment in response to violent
outbursts, or whether it represented
a method of treating an underlying illness.
These are diametrically opposed propositions although it does not necessarily follow
that "containment" involves "punishment".
[456] Some contend that seclusion is not a form of treatment, but a punishment
used wilfully
for arbitrary durations and without consideration of the rights of the
patients. That is the plaintiff's belief.
[457] On the other
side of the debate, is the view that seclusion is a respected form
of treatment which many disturbed patients found valuable, and
was sometimes
necessary for the safety of a patient and others.
[458] One view was that where relationships with staff and patients
become so
demanding and stressful, a patient required time away from the stress. Because of
the nature of psychiatric illness and
consequent disturbed behaviour, relationships
with both staff and patients can become strained. Research suggests that at times the
stressors and reactions may be open to misinterpretations, or the demands from staff
for patients to assume greater responsibility,
or insight into their feelings and actions,
may become intolerable and be rejected. A period in seclusion restricted the number
and
nature of these demands.
[459] Mason says:
"Here it is suggested that the demands of therapeutic activity involved in
on-
going relationships between staff and patients, and perhaps between patients
themselves, may become burdensome
for the patient who needs time away
from the stress. However, it is arguable whether seclusion is the appropriate
place for such a respite."
[460] Other views are that seclusion involves a reduction in sensory input (that is
"de-stimulation").
This is based upon the belief that patients suffering from
excessive mental activity are stimulated by an overload of external
stimuli, and
benefit from isolation. Some psychotics in fact deteriorate in seclusion, and
experimental research has shown that individual responses to sensory
deprivation are
variable and it cannot be assumed that all psychiatric patients react similarly to
seclusion.
[461] The "containment"
aspect of seclusion is to restrict the patient by moving
him/her to a safe place where the risks of self-injury and injury to others
are
removed.
[462] Discussing whether seclusion is "punishment" or used as "punishment",
Mason says that while it has been used
as a containment measure:
"The concept of "punishment" requires some degree of elucidation. It is
referred to here
in the punitive sense, consciously or subconsciously derived,
and not in the behaviourist context of removal of a positive
re-enforcer.
....
There have been some attempts in the literature reviewed to unravel this
perplexing concept
of punishment seen in terms of a power-authority
relationship .... It would appear that the honesty of one's motives for
the
use of power/authority/punishment is central to the debate, as "there are
occasions when people, in order to
rationalise passive-aggressive impulses,
will couch disciplinary measures in terms of the patient's own best interest."
[463] Mason finds that from the patient's perspective, punitive staff motives are
seen as a reason for the use of seclusion. A study
has shown that most patients who
resisted seclusion took the attitude that it was a form of punishment. That
unquestionably
was, and remains, the plaintiff's view. But some patients in studies
felt differently. Overt violence and destructive behaviour
were seen to be the
predominant reasons for initiating seclusion.
[464] One study concluded that the level of experience of the
nurse in charge of a
ward appeared to correspond to a tendency to use seclusion, which had some relation
to staffing levels, and
the impact upon the experience of nurses in charge. Mason
says:
"[As suggested in the earlier study] seclusions were indeed
unavoidable
because the staffing level was inadequate."
[465] Mason said there might be three theoretical bases; therapy,
containment and
punishment, and he referred to the "benevolent - malevolent continuum". In theory,
initiation of seclusion could
be founded on any one of those attitudes, whether for
therapeutic, containment or punishment principles. He says:
"It would
seem an obvious statement to make that the attitude towards
seclusion is as important, if not more important, than the actual
practice
itself as this holds true for all interactive treatment and modalities.
However, its significance is often
overlooked. The attitude towards
seclusion can affect to varying degrees the fear or indifference to seclusion,
the
effectiveness or otherwise of ongoing regimes, and the lingering
memories of past seclusion experiences. The literature reviewed
highlighted
both negative and positive attitudes from both staff and patients, but usually
with discrepancy between
the two. For example, ... nurses and ... patients
who had been involved in seclusion, were asked to state the facts of the
seclusion experience, their beliefs about its use and their feelings concerning
change. Whilst there was a disparity
between how the staff believed the
patients viewed seclusion and how the patients actually responded to the
questionnaire,
there was also a difference between what the patients thought
the staffs' [sic] views were and how the staff actually responded."
[466] A study about the discrepancy between staff and patient attitudes towards
seclusion is referred to by Mason. He said:
"First, patients generally regard seclusion as negative despite some believing
it to be necessary; and second, staff generally
regard it as positive, despite
some disquiet over its use. .... The attitude to seclusion is often reported as
a necessary evil with regard
to the lack of options and "perhaps the principle
reason for the use of seclusion is the unsatisfactory nature of alternatives."
....
The major questions to be asked are not whether seclusion is therapeutic,
containment or punishment,
but what are the degrees of benevolence
malevolence that underscores each aspect.
....
The theoretical foundations
of seclusion, debated in the literature, are based
on whether it is a valid therapeutic intervention in itself, merely a method
of
containment of a psychiatric emergency or a form of punishment. Yet
despite attempts to examine these foundations,
in relation to seclusion use,
there remains a lack of agreement as to its role in modern psychiatry."
[467] So it will be
seen that, even today, there remains a lack of agreement as to the
role of seclusion in modern psychiatry. Different attitudes towards
seclusion or
isolation very much depend upon the perception of patients and staff, as well as the
intention behind the prescribing
of seclusion and the degree of benevolence or, (at
the other end of the scale), ill will, that might exist. There remains considerable
scope for debate and, as Mason says:
"There seem to be few topics which raise the emotions, defences and blood
pressure
as does seclusion which merely adds to the confusion surrounding
its use."
[468] The causes of action based upon prescribing
seclusion were struck out, but
proof of the motive or purpose for which it was used in relation to the plaintiff
remains crucial
was it used as punishment or threatened as punishment?
[469] As was apparent from the evidence of the plaintiff, and some other
former
patients, she saw a "cause and effect" situation with "playing up" or misbehaviour,
or escaping and proving difficult, resulting
in seclusion. So they see "cause and
effect" and can only conclude it was done to punish.
[470] But it may all depend on the dilemma
of whether the actions of the patient are
attributed to disturbed or mental health symptoms or to simply being naughty, unruly
or
obstreperous. From the clinicians' perspective, where a provisional diagnosis had
been made of a mental illness condition, and a
patient was committed (or admitted
voluntarily) they may well have regarded the behaviours and actions as symptoms of
the condition.
Unquestionably, they would have had in mind the need to protect an
unruly patient from self-harm as well as other patients from risk
of assault. Whereas,
if a patient, as was the case with the plaintiff, did not think she should be committed
(probably not an uncommon
belief amongst some patients in the 1950s), and
consequentially was unruly and difficult, she would quite easily regard seclusion
as a
punishment, akin to being "locked up", "sent to a room", "deprived of freedom", for
misbehaviour.
[471] After 50 years, it
is simply not possible to say that the placing of the plaintiff
into seclusion has been proved to be for improper reasons of punishment,
even
though she believes that to be the case. The nurses I heard believe it was a necessary
procedure at the time, where disturbed
behaviour dictated that, in the interests of the
patient, other patients and staff, seclusion had to occur. It is understandable,
given
recent research, that the plaintiff and the nurses have different views or perceptions.
These do not enable me to find that
the plaintiff has met the burden of proof on her.
[472] So too, with the allegation of "threatening" seclusion. I have no doubt
that at
times nurses would have said to patients, including the plaintiff, that unless
behaviour changed, so if they did not cease
(for example) to smash crockery, break
windows, create mayhem, they would be placed in seclusion. A "threat" usually
carries with
it a declaration or intent to punish or hurt. Without an underlying
wrongful motive of intent to punish or hurt, statements such as those above are not
threats to punish.
[473] I do not consider it has been proved on the balance of probabilities that
threats, intending to punish,
were made. The plaintiff was told from time to time of
likely consequences of actions, but if seclusion was not seen as punishment
by
nurses (as I find to be the case) they did not threaten it as such.
[474] As Nurse S said:
"Why would we want to punish?
We wanted to treat."
and protection of patients was believed to be necessary at times. Nowadays, with
effective drugs or greater
staff members to provide counselling, an individual
situation may not be quite the same. But by the standards of over 50 years ago
it has
not been proved that, in this case, nurses acted improperly towards the plaintiff. The
fact that she genuinely believes so
arises because of her different perception of
seclusion.
Transfer to F Ward as "punishment"
[475] I do not find this allegation
to be proved on the balance of probabilities.
Because of a few more staff, and the secure facility, transferral occurred where
clinical
behavioural symptoms were such that a doctor thought it was necessary. The
clinical notes and history (as recorded of the plaintiff)
support the reasonableness of
any transfer decision. So too, transfer back to a less secure ward occurred when
symptoms improved.
[476] No doubt the plaintiff disliked and was fearful of Ward 7 (as were some staff)
but it did not follow that her subjective
belief that she was transferred so as to be
punished was justified. The ward was very crowded and it would not make sense to
add
to its overcrowding where no clinical justification was believed to exist.
Threats of ECT as punishment
[477] The case is not
to resolve arguments over whether ECT is "Torture and
Punishment" as propounded by the plaintiff, Ms de Jonge and others, or a recognised
effective treatment for certain mental illnesses. But I did find the evidence of
Dr Melding and Professor Mellsop to be persuasive.
[478] The evidence was clear that some patients were fearful of ECT. There was,
and remains, a generalised fear of electricity
and epileptic/type seizures. It was very
natural for patients to be anxious and frightened. The same could be said for patients
awaiting
any surgery, radiation or chemo-therapy, or invasive procedures. Patients
at Porirua Hospital, and other mental hospitals, would
have been anxious about the
treatment whether knowing in advance that it was to be given at a certain time, or not
knowing when or
if, it was to occur, so that the uncertainty contributed to the
anxiety.
[479] It was said in submissions that the nurses and doctors
had a professional duty
to reduce the patient's anxiety. That may be true, but it does not translate into a
recognised cause of action
in law unless there was a breach of a duty of care and
the evidence in relation to ECT falls far short of that. And was not so
directly
pleaded, other than as a general pleading of a failure to provide care of a reasonable
standard and of subjecting the plaintiff
to unnecessary anxiety whilst a patient. But
given the circumstances of this hospital, with staff and patient numbers and facilities
as they were in the 1950s, a standard of perfection, in terms of counselling patients,
was not possible. And the immunity provisions
of the Mental Health legislation
would be very relevant in this area.
[480] The real issue in respect of this pleading is whether
there were threats of
punishment through the intended use of ECT.
[481] It has not been proved that ECT was administered for punishment
to the
plaintiff. The expert medical opinion from both Dr Melding and Professor Mellsop
satisfy me that there were clinical indicators
and justification, apparent from the
notes, for this treatment, given the provisional diagnosis and other clinical history of
the
plaintiff.
[482] As I have said regarding seclusion, the issue in the pleaded cause of action is
whether nursing staff threatened with the improper intent
or motive that ECT was to
be given to punish the plaintiff. The plaintiff believes she was threatened, given that
she is adamant
that ECT is a punishment, not a treatment.
[483] Professor Mellsop said that being in a psychiatric hospital was commonly an
experience
which may have been negatively experienced. Many patients did not
relish it and have unhappy memories, but he said it would be stretching
things to
regard psychiatric hospitalisation in itself to be sufficiently uncommon, or a
sufficiently severe stressor to produce
later illness, namely post-traumatic stress
disorder. That is especially where, as here, the patient's pre and earlier medium term
post-hospital functioning appears to have been very similar. He said the general
experience of being in a psychiatric hospital in
the 1950s in Porirua was likely to
have been quite:
"Unpleasant, but fall well short of the types of stressors, the diagnostic
concept of the sort the plaintiff originally had in mind. Feelings of general
powerlessness, even subject to bullying,
ethically unjustifiable as it is, are
also in that category."
[484] The evidence was the patients generally only knew of
ECT treatment being
scheduled for them on the morning of the procedure, when they did not receive
breakfast. Some may have been told
of a course of daily treatments at the beginning
of such course. Because it was not a "once all cure", maintenance therapy was often
needed. That would be given if disturbed psychotic, depressive or manic symptoms
emerged. It is very probable that at times nurses
would tell a patient who exhibited
disturbed behaviour/symptoms that ECT would be given if they did not get better.
Just as a doctor
may tell ("threaten") a patient with an outcome, or unpleasant
procedure (e.g. alcohol aversive medication therapy) if the patient's
condition does
not improve. The problem is, and was, that the patient may well perceive it as a
threat of punishment simply because
he/she believes the therapy itself to be a
punishment.
[485] But I have found in this case that ECT was not given to the plaintiff
with that
intent. She would have been anxious and fearful of it but usually would not know if
she was "on the list" until the morning.
Her evidence suggested that the anxiety was
more in not knowing whether this would happen or not. But, even being told in
advance
that such treatment was likely, or possible, would not have been improper
provided it was not intended to punish or hurt.
The anxiety, and fear of the
procedure existed as a constant theme, irrespective of when she was told it would or
might have to
be given.
[486] But, as with the "threatened punishment" allegation regarding seclusion, I
cannot find that the telling of the
plaintiff that she would or might receive ECT
treatment, occurred with an improper motive or intent, of threatening punishment.
This
allegation has not been established in the balance of probabilities.
The allegation of sexual abuse
[487] The allegation was
apparently not raised until the early 1990s. It is about an
event said to have occurred over 50 years ago. It is an event of which
no specific
memory is held. It is simply not possible to conclude that this allegation is proved
on the balance of probabilities.
The nature of the plaintiff's evidence, and its
inadequacy is simply deficient to meet the evidentiary burden.
[488] It is not
a case of the plaintiff inventing the allegation dishonestly if that
were the case she would have said she did remember it. But
rather, that she has
come to believe it must have happened because of what she was told, her
interpretation of her feelings. But
it is speculative and guess work.
[489] RW could not have seen any event in another room. She had a reputation of
inventing stories.
The plaintiff said the first she was aware of any such event was
when RW told her about it. She may have tended to move away from being so
precise about the timing, but I accept
from her evidence in chief that it was first
raised by RW. Indeed in her interview on 10 April 2000, she is recorded as saying
that
she was first told about it by that patient. Given the evidence of her sexualised
pattern of thinking which seems to have arisen
from early childhood abuse (and
elsewhere in her evidence she referred to being aware of another nurse being
lesbian), the possibility
cannot be discounted that she was pre-conditioned to
attributing a sexual or sinister motive to a comment by a nurse. There may have
been some comment about an incident of assault, but the plaintiff's impression was a
guess. She said that the nurse's face was all
flushed and "looked like she was
enjoying herself" so that the plaintiff "was under the distinct impression" that there
was something
sexual in the event. That is not sufficient to discharge the burden of
proof in a case such as this.
[490] Counsel for the plaintiff
submitted that either the event took place and the
impression the plaintiff got was correct, or if it did not take place, then the
nurse was
goading or teasing the plaintiff to contend that it did, and so acted improperly.
[491] However, there is a third possibility
and it is the one that I find to be more
probable. That is, that the plaintiff came to believe an invented story told to her by
the
patient RW who, if the story had been true, could not possibly have been aware
of it, as she was in a separate room. She had simply
created a fiction. Yet, the
plaintiff came to believe it and attributed to a later conversation with a nurse a sexual
connotation.
[492] In some respects, if the plaintiff's evidence is accepted, a statement by a
nurse might be seen to be a "confession", so
is technically an admission (despite
submissions to the contrary by Counsel for the defendant). The evidence of this
emanates only
from the plaintiff and not from an independent third party source.
The circumstances of this case, and the surrounding events, particularly
the
implantation of the idea in the plaintiff's mind by the patient RW, would greatly
limit any weight to be placed on what was said.
But, in any event it was far from an
unequivocal confession of a sexual act. It is altogether too vague to have significant
probative
value.
[493] The decision of the District Court Judge on the ACC appeal was generous
(and even benevolent) to the plaintiff, but
his view does not bind this Court. It was
made, without the benefit of evidence being given or heard, simply on the papers and
submissions
on behalf of the plaintiff. It has meant that the plaintiff has had
counselling and compensation.
[494] No probative evidence
has been adduced to support the "belief or feeling"
that any other sexual abuse occurred, as pleaded.
[495] I do not accept the
plaintiff's submission that the reason she cannot
remember is because she was given ECT so as to prevent any memory. The expert
evidence
from Professor Mellsop, which I accept, is that there would be no
permanent memory loss of an event some time earlier, or subsequent
to the
administration of ECT. The alleged event occurred at night, many hours before the
patient was administered ECT, and when,
in any event, a patient would already have
been placed on the list for that form of treatment the following day. The
rationalisation
by the plaintiff of the reason why she cannot remember, that she was
given ECT to erase such memory, does not meet the test of logic.
The probability is
that she cannot recount the event because it did not occur. Her strong antipathy
towards ECT, and her belief it
was used to punish, enables her to believe it was also
used to affect her memory. But her belief is erroneous.
[496] All the evidence,
including contemporaneous clinical notes and the expert
evidence, does not support her reasoning or belief. I do not accept that it has been
proven that she was sexually assaulted as alleged.
Physical assaults
[497] It is generally accepted that
the issue of physical assaults presents a complex
picture. Nurses and staff had to deal with large numbers of patients, many seriously
disturbed and psychotic, some prone to self-mutilation or self-harm, and some with a
propensity to inflict violence on others. Inevitably,
staff had to use some force to
control aggressive self-injurious or disruptive behaviour. That is accepted, I think,
by most witnesses.
[498] At times, it was necessary for more than one nurse to endeavour to restrain a
patient who was particularly aggressive and
violent. At other times, more than one
nurse was required to take (or drag if necessary) to seclusion, a patient who was not
just
reluctant but was violently resisting being taken there.
[499] On other occasions, a nurse might be attacked by a patient which
required an
immediate response, not only by that nurse but with the assistance of others. At
other times patients, when attacking
another patient, were required to be held on the
ground, or restrained through the use of force. As with, for example, Police officers,
nurses were sometimes required to use force. But it had to be reasonable, and not
disproportionate to the occasion, or more than
was necessary to quell the violence or
prevent harm to a patient or others.
[500] The rules given to nurses and others made that
abundantly clear. If a nurse or
other staff members went too far and used unnecessary force, and such came to the
attention of senior
nursing staff or the Superintendent, then the evidence was that
action was taken. I accept the evidence of Dr M as to his attitude
and approach to
this, and how he dealt with what he regarded as "comparatively rare" occurrences.
[501] But some unjustified force
did occur.
[502] In 1950s and 1960s, and no doubt much earlier, institutional life was
significantly different to that of the present.
In situations where large numbers of
people were housed or accommodated, or required to be in an institution (often but
not always
custodial) such as in the military, schools (boarding and otherwise),
welfare homes, borstals, mental hospitals - the opportunity
for bullying and the
infliction of force upon others was much greater than today.
[503] Corporal punishment in schools was common
and tolerated, and there will be
many who remember the infliction of painful assaults, for example, by teachers upon
vulnerable students
entirely for reasons of punishment. Sometimes it was applied
with malice. So too, in other institutions (such as the military) gratuitous
violence, at
a low level, but nevertheless humiliating and hurtful, was inflicted in the guise of
"discipline". Fifty years ago,
institutional life was fraught with risk. That did not
make gratuitous violence correct, then or now.
[504] The evidence, overall,
satisfies me that there were some acts of gratuitous
violence, as well as, on occasions, force used to deal with violent outbursts
and acts
by patients that was more than was reasonable.
[505] The more significant acts were those of a gratuitous nature. They
involved a
slap on the bottom, a cuff on the ear, a push or a shove, or a slap about the body.
They would rarely cause injury or
leave marks because of the relatively low level of
violence. If there had been injuries, they would, beyond doubt, have been observed
at bath time and, I accept from the evidence, noted in the records. These acts may
have occurred after considerable provocation by
a patient, or in times of stress, or
even panic, on the part of a junior nurse.
[506] Actions involving the application of more
than reasonable force to subdue a
violent patient, or to quell violent episodes between one or more patients, perhaps
fall into the
category of poor judgment on the part of the nurse. Misjudgment in the
degree of force to use in handling such situations would be
protected by the statutory
immunity, but not if the intent was malicious.
[507] I find some, but not all, of the allegations by the plaintiff of physical
assaults
upon her to be established. She said that the worst were when she was in the early
stages of her admissions while in Rauta
Ward. I accept that she was struck on the
bottom by a nurse in the day room with an open hand whilst hiding behind a sofa.
[508]
She alleged that her arm was twisted up her back and she was hit when
"thrown into the day room". I consider this was part of a process
of a nurse having
to "hoard" a number of patients into a particular area, and fell rather into the
category of pushing and shoving.
I accept that it occurred.
[509] The third allegation of an assault in Rauta Ward in November 1954
concerned the plaintiff being
pulled out of bed at night by the hair, and required to
clean up water in the bathroom. I find the allegation to have been established.
The
plaintiff alleged that it was Nurse S who was responsible. Nurse S emphatically
denied the event.
[510] Given the passage of
time and the inherent difficulties with identification
evidence after such a time, I am not prepared to accept that it has been proved
that
the nurse involved was Nurse S. The identification evidence given by the plaintiff
had some inherent problems. That is because
the identification, it is said, was made
by another patient, RW. When the plaintiff pointed out to RW the person who she
said was
her assailant (but did not know her name), RW said that it was Nurse S.
But RW may have been mistaken in naming that nurse.
[511]
The identification evidence therefore was purely hearsay, and dependent
upon the accuracy of RW, a patient diagnosed as "feeble-minded"
and having been
in institutions since 1946, in attributing to someone the plaintiff pointed out the
name "Nurse S".
[512] Evidence
of this nature (when it relates to a crucial identification issue),
would fall squarely within the sort of warning that Judges must
give to jurors about
identification evidence in criminal proceedings (s 126 Evidence Act 2006). In the
context of this civil case,
hearsay identification evidence of that type is of such
limited value that I am not prepared to find that it was Nurse S who assaulted
the
plaintiff in that way. A finding against Nurse S would be very hurtful to her and it
would be wrong to make such a finding in
circumstances such as these. However, I
am satisfied that the event happened, and involved an unnamed and unidentified
nurse.
[513]
The plaintiff said she was regularly slapped over the ear by a "large
overweight nurse" and punched on the arm when she would not
go into the
courtyard. I accept that on occasions the plaintiff was cuffed about the ear to "hurry
her along" into the courtyard.
I do not accept that bruising was caused to her arm
through punching.
[514] The plaintiff made further allegations of assault,
said to have occurred whilst
she was on F Ward, between 1955 and 1959. She said she had her arm twisted and
forced up behind her
back and was slapped around the face and body and pinched by
nursing staff at least two to three times a week. She said that her
wrists were twisted
and arm scratched mostly by Nurse C, and that sometimes in the courtyard she was
administered slaps across the
face, back and arms. She said that one occasion in
1958 she was forced to the ground by Nurse C and slapped about the ears "until
they
were black and blue". She said it took place in the courtyard, but the next day the
Matron saw her ears but did nothing about
it.
[515] I think that the plaintiff's reconstruction of some of the events is probably
imperfect, which is not surprising given
the passage of time. There would have been
occasions when she and other patients were being escorted or taken to the courtyard,
day
room and other places, and if there was resistance or difficult behaviour, they
would have to be maneuvered by one or more nurses.
In those circumstances, and
with a resistant patient on occasions, arms and wrists would be held and some mild
degree of force inflicted. Those situations would not fall
into the category of
unreasonable force.
[516] Likewise, if a patient had to be forced to the ground, which obviously
happened
on occasions from the evidence, whilst having to be subdued through
violent behaviour, distressing as that may have been, it nevertheless
could not be
regarded as unjustified in the difficulty circumstances then prevailing.
[517] I do however, find that there was gratuitous
slapping around the back, arms
and ears mainly whilst in the courtyard, by unidentified nurses.
[518] I am left with considerable
doubt as to the allegation made that Nurse C sat
on the plaintiff's back and struck her repeatedly about the ears. I think
there
probably would have been occasions where the plaintiff had to be held on the ground
by reason of violent, disturbed behaviour.
But I am not satisfied on the balance of
probabilities that there were heavy assaults about the head in such a situation.
[519]
As I have said, the evidence satisfies me that there were gratuitous acts of
assault, generally of low level violence, but nevertheless
distressing, demeaning and
improper. I am not prepared to find it proven that those nurses responsible were, as
alleged, Nurse S
and Nurse C.
[520] I think the correct position is that junior nurses, or probably unqualified nurse
aids were responsible. They
would have been unsuited to that occupation, and did
not last in it. The former nurses that I heard have had a lifetime in psychiatric
and
geriatric nursing without any stain upon their reputation, and in my view this has
been achieved because of their dedication.
[521] The gratuitous acts of violence inflicted on the plaintiff by nurse aides were
not acts of extreme violence so as to leave
any outward signs of injury, and that is
probably why they never came to light. They were not overtly done. But they were
in the
category of "meanness"; bullying, and assaults by junior staff who were not
always able to manage the demanding challenge of nursing
in those times.
Assaults by other patients
[522] The plaintiff contends that she was assaulted by other patients and the
defendant
is responsible for those events through negligently failing to prevent them.
She pleads two events on 6 May and 16 October 1959.
These dates are taken from
the clinical notes where there is a record of some abrasions and swelling to her head,
neck and groin.
She further pleads that in January and February 1959 she was
assaulted by a patient who a Bostal inmate of Arohata Prison, and was
also hit with a
belt by that patient.
[523] Unquestionably, violent patients engaged in fights from time to time. The
evidence
was that the nursing staff did their best to intervene and prevent this by
forcibly separately assailants, and sometimes placing
one or both in seclusion.
[524] At times the plaintiff was aggressive and abusive towards staff and/or
inconsiderate towards other
patients as disclosed in some of the clinical notes. There
is no doubt that she fought (at least on two occasions) with separate
patients so as to
require incident reports for minor injury, but the notes (said to be self-reports by the
plaintiff), record that
the injuries were caused by "fighting with [RW]" and "fighting
with [KE]".
[525] In those circumstances, at this distance, it is
impossible to say who was the
protagonist in any "assault", and whether the incidents simply involved disturbed
and aggressive patients
fighting each other when away from the supervision of
nursing staff.
[526] The plaintiff clearly was aggressive at times. She said
she was aggressive if
someone hurt her "so as to make me aggressive". She was asked in evidence if her
aggression was the reason
she had to be transferred to F Ward and her answer was:
"I might have been because they make me aggressive. I wasn't when
I went
there."
[527] At one point in the evidence, the plaintiff admitted knocking a nurse out (a
"lesbian nurse") by throwing an item at her, although she said
that the outcome was
accidental. Her evidence was that in F Ward a lesbian nurse sent her a "love note"
which she thought was nice.
She threw a carrot at the nurse and hit her in the eye
and knocked her out.
[528] I do not consider it established that nursing
staff permitted or failed to
prevent fights, and I accept that staff did as much as they reasonably could to ensure
they did not
happen. But given the circumstances of the patients, and the difficulties
their actions imposed on themselves and others, it was
inevitable that some events
occurred, regrettable as they may be. This was institutional living, fraught with the
possibility of
explosive behaviour, and the staff did their best to prevent it.
[529] I do not consider that it is established that the defendant
is liable in
negligence for events in which the plaintiff was involved in fighting with other
patients.
Witnessing of assaults
[530] The plaintiff pleads that she witnessed assaults on other patients which were
very distressing and "scary". They included
patients being dragged away to be
administered ECT, other patients having their ears cuffed and being dragged to
seclusion, threats
made to her friend RW, general mistreatment and blows to patients
who displeased nurses, and dragging (apart) of patients who had
been fighting each
other.
[531] Some of these witnessed events clearly related to aggressive patients having
to be subdued, separated
or taken for treatment. Others, I accept, involved
witnessing gratuitous low level violence, cuffing, slapping and pushing
of a similar
nature to that experienced by the plaintiff.
[532] It was put to her in cross-examination that she confused restraining
actions by
a group of nurses, in relation to a disturbed or violent patient who had to be placed in
seclusion, with deliberate assault.
But the plaintiff denied that, saying that there was
no confusion, and that it had happened to her also. She did agree however, that
if a
patient was particularly resistant about going to seclusion, it needed a number of
nurses to deal with them, and that was something
she observed.
[533] I do not think it is the case, as contended by the plaintiff, that she was
"required" to witness these events.
She and others saw them because they were
happening at the hospital. The question of whether the defendant is liable in
negligence,
or for breach of some duty to the plaintiff, for her seeing some
mistreatment upon others, is difficult to answer. It may
fall within the broad
category of sustaining damage in the form of "mental injury" as a secondary victim
from witnessing a deliberate
tort inflicted on others.
[534] It is generally recognised that there is a need to show some recognisable
psychiatric injury before
the necessary elements involved in the cause of action for
negligence exist. Grief, distress or being upset, do not give rise to
any cause of
action.
[535] In van Soest v Residual Health Management Unit [2000] 1NZLR 179 (CA), a
majority of the Court of Appeal
accepted the general proposition that a claim by a
secondary victim for mental suffering, caused by awareness of injury to a primary
victim through the negligence of a defendant, will not lie unless the effect on the
mind of the secondary victim has manifested itself
in a recognisable psychiatric
disorder or illness.
[536] But the Court emphasised that medical experts' views about the nature
of
particular mental conditions are bound to change over time and the Court should be
prepared to adopt a receptive attitude to medical
evidence about what constitutes a
recognisable psychiatric disorder or illness, so that the law will have a means of
determining
what kind of mental suffering can properly be the basis for a claim by a
secondary victim.
[537] In the present case, however,
the psychiatric evidence, which I accept, is that
the plaintiff suffers no recognisable psychiatric injury from witnessing assaults or
acts of comparatively low
level violence at the hospital. I accept the opinion of
Professor Mellsop that the plaintiff does not suffer from post-traumatic
stress
disorder or any other psychiatric condition.
[538] She has unhappy memories of her time at Porirua Hospital but that is
not
sufficient to found a cause of action in negligence, in respect of witnessed events, as
alleged. But, I accept that if the plaintiff's
time (whilst subject to detention) was
made more painful or stressful than it should have been, by reason of an actionable
breach
of duty on the part of the defendant, then some remedy ought to be available.
To use historical terms, it would be for "pain, suffering
and loss of enjoyment of
life" experienced then. In negligence, it would have been reasonably foreseeable
that a patient witnessing
an assault upon another patient, would suffer distress.
[539] The law is, or should be, as described, obiter, by Lord Bridge of
Harwich in
Reg v Dep. Gov. of Parkhurst Prison, exp. Hague [1992] 1AC 146 (HL) at 166:
"Whenever one person is lawfully in
the custody of another, the custodian
owes the duty of care to the detainee. If the custodian negligently allows, or
a fortiori, he deliberately causes, the detainee to suffer in any way in his
health he will be in breach of that duty. But
short of anything that could
properly be described as a physical injury or an impediment of health, if a
person lawfully
detained is kept in conditions which could cause him for the
time being physical pain or a degree of discomfort which can
be properly be
described as intolerable, I believe that could and should be treated as a
breach of the custodian's
duty of care for which the law should award
damages. For this purpose, it is quite unnecessary to attempt any definition
of the criterion of intolerability. It would be a question of fact and degree in
any case which came before the Court
to determine whether the conditions
to which a detainee had been subjected were such as to warrant an award of
damages
for the discomfort he had suffered. In principal, I believe it is
acceptable for the law to provide a remedy on this basis
...."
[540] So to that extent, any degree of distress, pain or discomfort suffered by the
plaintiff at the time by reason of what
she witnessed, would merge with and
aggravate the similar emotions, accompanied by humiliation, indignity, degradation
and fear,
which might have arisen from actual physical assaults upon her.
[541] The nature, severity and duration of abuse upon her and its
then physical and
mental effects, as well as any additional pain and suffering that eventuated at the
time from witnessing other
assaults, are in my view all considerations to be weighed
in balance in determining whether an award of damages for discomfort, and
such
like, is made, depending upon the degree of intolerability and commensurate pain.
[542] The evidence of Professor Mellsop
(which I accept) is clear that the plaintiff
has suffered no recognisable psychiatric injury or anything now which arises out of
witnessing anything that happened to others. She cannot be awarded damages for
unpleasant memories. If any award of damages for tortious
events is justified, it
would be to reflect pain, distress and suffering experienced at the time.
Allegations against Sister B
[543] Before I leave the topic of assaults, I record that I am not prepared to make
adverse findings of improper assaults or abuse
on the part of Sister B. Her
whereabouts are unknown (if she is still alive, which is unlikely).
[544] Other witnesses
who were former patients made allegations about Sister B's
actions. The plaintiff's allegation against Sister B is confined to a
claim that she was
"stripped naked" before being put into seclusion and looked at by the Sister-in-
Charge of F Ward, and "I did not like the expression in her eyes". She said that the
main
perpetrators of assaults upon other patients were the Sister-in-Charge and
Nurse C.
[545] It would be unfair and wrong to make
factual findings against Sister B. On
the "stripped in seclusion" allegation, the evidence was that some patients had their
clothes
removed so as to put on a canvas type garment which was incapable of being
used for the purpose of self-harm. That is what would
have happened on that
occasion.
[546] The attribution of a sexual connotation to the event, and the assessment by
the plaintiff
of the "look" in the Sister's eye, may be an example of the personality
trait of the plaintiff tending to sexualise equivocal events.
[547] Determining other patients' complaints about Sister B is unnecessary for the
purpose of this case.
An environment of fear?
[548] The plaintiff pleads that she suffered unnecessary stress:
"From being placed in a environment of intense and continual
fear and
trepidation."
[549] It was part of Counsel's submissions that nursing and other staff at the
hospital had a duty
to ensure that the plaintiff's anxiety was reduced and they failed
to recognise the effects of the environment upon the plaintiff
and to take active steps
to reduce, or prevent escalation of, her anxiety.
[550] Unquestionably, things at Porirua Hospital at
that time were unpleasant. By
all accounts it was a grim and foreboding place. Because of the number of patients,
their type of disabilities,
shortages of staff, the age of F Ward and the like, things
were often dreadful. The nature of the conditions of many patients, and
how their
symptoms manifested themselves, would have been disturbing and even frightening
to other patients with insight, and also
to staff. Nurses were initially fearful, so it is
little wonder that patients (who had insight) were also anxious.
[551] Sadly,
this was an inevitable consequence of the conditions of patients, and
the mixture of the seriously disabled, the chronically ill,
the aged and senile and
aggressive and unpredictable patients. But the actions of the defendant in placing the
plaintiff into this
environment arose lawfully through committals, on two occasions.
Within that environment, she was transferred from ward to ward at
the direction of
doctors because of her behaviour, or as they saw it, symptoms. I have not found that
this was done, as she alleged,
for reasons of "punishment". So too, the prescribing
of certain procedures, unpleasant and frightening as they were, occurred because
they were recognised treatments, not for punishment. Admitting a patient to the
hospital, placing her in particular wards, administering
treatment, keeping her there
even though it was a grim environment - had to fall within the immunity of the
Mental Health legislation,
discussed further at paragraph [599].
[552] The plaintiff may have seen an ECT treatment on another patient, but this
would have
been inadvertent. I accept the evidence that all treatments were required
to be in private and the evidence falls far short of showing
that the plaintiff was
required to witness ECT.
To summarise factual findings on pleaded allegations
[553] The following pleaded
allegations of fact are established on the balance of
probabilities:
a) assaults on the plaintiff by unnamed (junior)
staff - (assault and
battery);
b) witnessing of assaults on other patients, but not being "required"
to do
so - (negligence).
[554] Pleaded allegations of fact not proven on the balance of probabilities:
a) sexual assaults in 1956 and between 1956-1958;
b) assaults by other patients;
c) threats
of ECT as punishment;
d) being sent to F Ward as punishment;
e) being put in seclusion, and threatened
with this as punishment;
f) being stripped naked in seclusion;
g) allowing the plaintiff to witness ECT of others.
[555]
So I turn to the issue of whether the plaintiff can recover compensatory
and/or exemplary damages for the findings in her favour
based on the two causes of
action.
Limitation Act
[556] The plaintiff's proceedings had to be brought within two years from the
date
on which the cause of action accrued, unless brought with the consent of the
defendant before the expiration of six years from
that date, or with leave of the
Court; granted within that time; s 4(7) Limitation Act 1950. The time does not
commence to run against
an intended plaintiff who is under a disability in terms of
s 24. A cause of action accrues for limitation purposes when all the
fact necessary to
establish the claim are in existence.
[557] Where damage is not a necessary element of the cause of action, such
as in
the tort of assault and battery, this accrues when the victim should have recognised
that he or she had not given true consent
to the battering conduct. Where there is a
physical assault, this is at the time the assault took place. Questions of "reasonable
discoverability do not arise, as it is inapt to speak of later discovering what had been
known at the outset" P v T [1988] 1NZLR
257; S v G [1955] 3NZLR 681, although a
person may not, in some cases, come to understand they did not consent until later
(e.g.
childhood sexual abuse cases).
[558] Where the claim is based upon negligence, elements of the cause of action
are the existence
of a duty of care, breach of such duty, and consequent loss or
damage. The cause of action in negligence does not accrue until the
damage has
occurred (or can be identified), or when the plaintiff has reasonably discovered the
link between the damage and wrongful
act. So the concept of "reasonable
discoverability" has emerged. The accrual of a plaintiff's cause of action in
negligence can be delayed until the time that a reasonable person in the position of
the plaintiff with his or her characteristics,
should have made a connection between a
defendant's tortious conduct and the harm that has been suffered as a result of that;
Trustees
Executors Ltd v Murray & Morel & Co Ltd [2007] NZSC 27. So
sometimes a claimant may contend that what occurred was a negligent act, rather
than an assault, so as
to seek to avoid limitation problems.
Is assault and battery negligence?
[559] This topic is discussed briefly by Tipping J in
S v Attorney General at para
[120]. It was obiter because the matter was not argued before the Court of Appeal.
Nevertheless his
remarks are instructive:
"In this case the arguments for the Department seemed to have assumed that
an intentional
tort like assault and battery could also be characterised and
sued for as the tort of negligence. If the defendant deliberately
causes the
plaintiff physical and mental harm, it is not altogether easy to reconcile that
mental ingredient of deliberation
with the different mental state inherent in
the tort of negligence.
....
I acknowledge that in Canada, in
contrast to Australia, the view has been
taken that a tort of intention can be characterised and sued for as a breach of
a duty of care, that is, as negligence. Whether this dual characterisation is
appropriate may be relevant to limitation
issues (as we have seen). It may
also have relevance to vicarious liability in some cases."
[560] I do not have to resolve
the issue (although it is hard to see how a deliberate
intentional infliction of force upon a person can be other than an assault)
because the
outcome is the same by reason of the facts in this case.
[561] It has been argued that equitable causes of action do
not carry any time
limitation and therefore that the part of the plaintiff's claim framed as a breach of
fiduciary duty could not
be statue barred. I do not accept that submission.
[562] Plaintiffs often, now, plead causes of action in equity, such as breach
of
fiduciary duty, so as to attempt to avoid a Limitation Act bar. If the breach is
tortious rather than fiduciary, the limitation
period is that provided by statute and not
the approach of equity.
[563] The position is as set out in Stratford v Philips Shyle-George
& Co (2001)
15 PRNZ 573 per Tipping J at para [17]:
"A cause of action accrues for limitation purposes when all the facts
necessary to establish
the claim are in existence. The relevant facts for the
tort of negligence are those necessary to establish duty, breach and
consequent loss. If the tortfeasor is a fiduciary, the position is the same
unless there is also a breach of a fiduciary
duty (i.e. a breach of a duty of
fidelity or loyalty). Thus, if the breach established against a fiduciary is
simply
a breach of a duty of care by a person who happens to be in a
fiduciary relationship with the plaintiff, the claim is in reality
tortious and
limitation issues are dealt with on that basis rather than in equity."
[564] The causes of action established
are first, in assault and battery, and secondly,
in negligence through the plaintiff being able to witness assaults on other patients.
The claim is tortious, and not based in equity, for limitation purposes.
Discovery of damage
[565] Problems of discovering the
elements of a cause of action (and separately of
"disability") have loomed large in many cases. I am satisfied that the narrative
now
given by the plaintiff in evidence has been shaped, or fashioned, in an effort to
overcome obvious difficulties. It may not have
been deliberately manufactured, but
arises rather through a process of rationalisation with or through the support, advice
and encouragement
of others. That is what gave Dr Barry-Walsh, the psychiatric
witness for the plaintiff, some disquiet when he referred to a passage
in the transcript
of the interview taken by the plaintiff in the presence of Ms de Jonge.
[566] There are some passages in the
transcript of that interview (which was
admitted in evidence by agreement) which gives support for the unease that
Dr Barry-Walsh
felt. In one passage, there is reference to a solicitor suggesting:
"What we're saying here is that these acts caused this,
caused you to feel
humiliated and lose your self-esteem, causes mental injury, and what we're
saying is that you didn't
understand that these caused this until you ...
Plaintiff: No, I did understand.
Adviser: You did understand, did
you?
Plaintiff: Was I supposed to or not? Hang on. [quotes from document].
The plaintiff did not comprehend the acts
specified in paragraph 6 as the
cause of the injury and loss specified in paragraph 7 until a date as to which
she
cannot be specific.
Advisor: Yeah.
Plaintiff: Did not comprehend.
Advisor: You really only came to understand.
When you were with
[counsellor] did you start to understand how your life had been wrecked by
what had happened.
Plaintiff: Yeah, well I didn't really know that ... I didn't know that that. If I
did know, I couldn't do a thing about
to help myself, I couldn't do anything
to ...
Adviser: Because of your lack of self-esteem?
Plaintiff: Because
of my, the way I had been handicapped. I mean, can you
imagine a handicapped person going to a Court case and you are
handicapped. They can't talk properly, speak properly. You can't talk to
people normally, nobody would listen, that's right."
[567] The later references seem to relate to "disability" and in a reference to the
necessity to rephrase the pleading, and the
plaintiff says:
"No, well I knew that they had abused me and that they had done all of those
things. If I didn't,
I wouldn't be able to think, would I? I mean, I knew they
had done things and that was why I felt so bad, but you can't do
a thing
about it and I couldn't. Yeah maybe you could just rephrase it. I hope it will
still be alright and that it
will help then if you're going to rephrase it."
[568] There are further references in the transcript to contributions made by Ms
de
Jonge at that meeting, to support the proposition that ECT was given as punishment,
and she is reported as encouraging the plaintiff, for example by saying:
"You learnt not to talk about it."
[569] When the plaintiff said that she never had mental problems anyway, Ms de
Jonge is
recorded as saying:
"You have problems ..."
Disability the law
[570] On the question of disability, and being of unsound
mind, the position is
well-known. The test on unsoundness of mind under s 2 is discussed in T v H [1995]
3 NZLR 37 (CA) where Hardie-Boys J (Casey & Gault JJ concurring) says at 49:
"Whether or not a person is of unsound mind must depend
on the purpose of
inquiry, and must in all cases be a matter of degree. ... That purpose is
plainly to ensure that
a person who is incapable of, or disabled in the more
general sense from, instituting proceedings does not lose the right
to do so
while the incapacity or disablement continues. In light of that purpose, I
have no doubt that one who from
established psychiatric or psychological
causes is unable to bring him or herself to initiate proceedings, is to that
extent of unsound mind and so under a disability while that condition lasts."
[571] Tipping J said, at page 61:
"A
plaintiff claiming a disability by way of unsoundness of mind must, in
my judgment, show two things: First, that the alleged
unsoundness pertains
to a part or facet of the mind relevant to and sufficiently inhibiting the
capacity to sue;
and second that the alleged unsoundness results from the
demonstrable and recognised mental illness or disability, rather
than being
just an inability to face up to the prospect of suing.
The Court of Appeal, later in P v T [1998] 1 NZLR 257 discussed the
judgments in T v H, and said that a person claiming a disability by way of
unsoundness of mind for
limitation purposes must show that the alleged
unsoundness:
(a) resulted from a demonstrable and recognised
mental illness or
disability; and
(b) sufficiently inhibited the capacity to sue as to preclude him
or her
from bringing proceedings, rather than being just an inability to face
up to the prospect
of suing."
[572] I respectfully agree with the view expressed by Thomas J in W v Attorney
General [1999] 2 NZLR 709 at [90], that if a person is incapable of instructing a
solicitor and commencing proceedings because, for example, through childhood
sexual abuse she suffers psychological trauma so as to have that incapacity, it is not
necessary to go further and translate the
psychological condition into unsoundness of
mind.
[573] However, it must be a question of fact whether any disablement is of such
a
degree as to realistically impair or prevent that person from suing or taking legal
action earlier than in fact happened. A person
may be under some form of disability
for one purpose and not another, and they may also, for example, have some
emotional reluctance
to face a prospect of suing yet nevertheless not be under a
Limitation Act disability. It must be a question of fact in any particular
case.
Disability the plaintiff's contention
[574] The plaintiff claims that she was under a disability, initially by unsoundness
of mind and later, after discharge from Porirua Hospital, because she was
emotionally and psychologically affected to such an extent
that she was unable to
talk about acts which she alleged, or to obtain legal advice so as to be able to sue.
She further contended
that she did not understand that the acts which she alleged
occurred at Porirua Hospital had led to injury and loss until a date
between late 1994
and November 1995. That relates to "discoverability" rather than "disability"
although the ability to sue has
to be related to a wrong and its consequences.
[575] Her claim is that she did not discover the link between the alleged acts and
the psychological state that she says has been caused by such acts. She said it was
only when she had counselling from Ms Coker that
she was able to make the
necessary link.
[576] It is not enough for a plaintiff, or his or her advisors, to recite a formula or
mantra derived from the cases so as to invoke the two-fold proposition that the
damages element of the cause of action was not reasonably
discoverable until much
later, and that the plaintiff could not bring proceedings because under a disability,
through incapacity
to sue. She has been told that by others.
[577] In every claim for historical abuse which is prima facie outside the Limitation
Act provisions, those propositions are pleaded or contended. It is a compelling
inference that the plaintiff was advised of those
propositions, or considerations, by
her colleague in the Patients' Rights advocacy group, who told her (to quote the
plaintiff) that
she could sue the Government and she would show her how.
[578] The plaintiff's evidence was that she did not think that she could
sue, until
she was told she could by Ms de Jonge. It is clear that the development of decisions
in limitation matters involving historical
cases such as this, would have been well-
known to Ms de Jonge and the "Patients' Rights Advocacy" group. The trigger for
the litigation
was being told that she could bring a civil claim for the facts which she
already was well aware of, and had provided a basis for
the ACC claim.
Conclusions as to Limitation issues
[579] The cause of action in assault and battery had accrued when the acts
occurred. Of course time did not commence to run until the plaintiff was discharged
from Porirua Hospital.
[580] The cause of action
in negligence, arising out of her witnessing tortious acts
committed on other patients, was complete upon her becoming aware of what
were
the affects of such breach of duty towards her. Those affects were increased distress,
emotional upset and anxiety whilst at
the hospital. They were in a sense immediate,
but even if not recognised or "linked" until later (whether in the sense of unhappy
memories, or otherwise, which continued after her discharge) she was undoubtedly
aware of them and any link between them and her
unhappy time at Porirua Hospital,
at least in November 1992. The factual position is abundantly clear from
contemporaneous
documents and earlier actions of the plaintiff. At that time she
signed an ACC claim form for "physical abuse (1954-1959) leading to mental
consequences". She saw
a counsellor who reported that the plaintiff's claim related
to the physical and sexual abuse occurring whilst at Porirua Hospital.
She was aware
of any link or connection between that which she says occurred, and what her
distress was. This is further apparent
in her Notice of Appeal form completed by her
on 14 July 1993 referring to "trauma as a result of sexual abuse also psysical [sic]
and mental". At the very latest then, the accrual of any cause of action in negligence
could not have been after July 1993, and the
cause of action in assault and battery
was complete many years earlier.
[581] On the question of "disability", I do not accept
the plaintiff's claim that she
was under a disability so as to be unable to sue for historical abuse. She had to
contend this in
order to avoid the Limitation Act bar, but "disability" depends upon
the facts of this case, not upon submission.
[582] The facts
overwhelming show that the plaintiff was under no such disability.
I accept the expert opinion of Professor Mellsop that there is
no evidence to support
a claim that the plaintiff was under a disability after the 1990s in the sense that she
was unable to consider
her situation, advice or instruct a lawyer.
[583] Over the last 30 years she has led a life which has included the ability to
handle
ordinary living, and she was successfully able to conduct her own legal
proceedings in relation to the ACC claim (indeed there is
reference in evidence to
her saying that "I won my case"). She has not had any psychiatric contact in the last
37 years. She has
a high IQ and the evidence from herself, and her sisters, is that she
is a resourceful, determined woman who will battle for her
rights (she describes
herself in a letter dated 14 October 1992 as "a fighter"). Professor Mellsop said:
"I do not consider
her to have suffered from any disability of such
significance in the last 30 years, that would have required either clinical
intervention, or impaired her ability to conduct herself in relation to the laws
of the land or with respect to any
legal concepts of competence for
discoverability, outside the usual range for normal people."
[584] The correct position,
in my view, is that the plaintiff was well able to bring
proceedings, as she did with her ACC claim. In her evidence she endeavoured
to
explain away those facts, suggesting that she was unsure whether those claims
related to other sexual or physical abuse at other
places and times, but I regard this as
an unreliable rationalisation. She was always able to pursue proceedings, and did so
specifically
for what she said had happened to her.
[585] Her failure to make the present claim earlier than she did was simply
because, as
she said, she chose not to bring proceedings. It was not because of any
disability. She believed that she was not able to sue and
indeed that belief was
correct, certainly in respect of the tort of assault and battery.
[586] I do not accept the opinion evidence
of Ms Coker, who counselled the
plaintiff 12 years ago, as to her "belief" that the plaintiff was similar to other "abuse
victims"
who often do not recognise the impact of abuse on how they have evolved
subsequently. That opinion does not accord with the facts
I have found from the
evidence.
[587] Likewise, I do not accept her view that the plaintiff was in no position to seek
legal advice.
This overlooked the fact that she had already made her own ACC
claim, pursued a review interview and won an appeal. The witness'
views are
similar to those often expressed by counsellors, and their clients. In some cases they
are validly based, but in this
case they do not accord with the established facts. I
prefer and accept the expert opinion of Dr Mellsop, which supplements my view
of
the facts.
[588] The plaintiff endeavoured to explain that she hated doctors and could not face
disclosing to them the circumstances about which she now complained.
Unquestionably,
she holds very antagonistic views towards psychiatrists and
psychiatry, which forms part of her campaign in opposition to the use
of ECT. But
medical records contained in the common bundle illustrate that the plaintiff has on
frequent occasions since 1992 consulted
medical practitioners for a range of
generally minor elements or injuries. I do not accept the argument that she was
unable to speak
about her historical allegations for that reason.
[589] She was able to disclose her allegations to the counsellor to whom she
was
referred by the general practitioner in late 1992/early 1993, and the record of her
interview on the application for a review
of ACC of 17 June 1993 shows that she
was more than able to speak about what she alleged. Much of what she alleged
relates to the
perception or belief of sexual abuse at Porirua Hospital (which I found
to be not proved) but she was subject to gratuitous violence
there, and she knew of it.
She also knew what she had witnessed in respect of some other patients.
[590] She obviously believed
at that stage that there was a connection because she
specifically applied for counselling and compensation. As I have said, any
cause of
action in negligence accrued no later than that time in late 1992. The cause of action
in assault and battery accrued many
years earlier. Any disablement from bringing
proceedings had dissipated no later than July 1993, probably very much earlier.
[591]
Her claim, if based upon a cause of action in negligence, had to be filed at the
very latest by July 1999. The Statement of Claim
was dated 20 April 2000 and the
application for leave to bring the proceedings was dated 28 July 2000.
[592] The claims under both
causes of action are out of time and are statute barred.
Causation and damages
[593] It is not necessary for me to deal with
these topics given the conclusion that
the plaintiff's claims are statute barred. Obviously there would have been significant
issues
involving causation, in any event, because of the evidence of Dr Mellsop,
which I accept, that the plaintiff:
a) has
no recognisable psychiatric illness or condition, and does not
suffer from PTSD;
b) has a life-long
personality trait which existed before, during and after
her time at Porirua Hospital;
c) experienced
traumatic events in her early childhood life involving
sexual abuse, and difficulties with her parents, together with
later
abusive events at the hands of a man which have obviously influenced
her life.
[594] The consequences
of the established assaults, and witnessing those upon
others, relate to unhappy memories rather more than any currently existing
damage,
but compensation for humiliation, distress and suffering at the time, at a relatively
modest level of damages would, but
for the Limitation Act bar, have been awarded.
[595] This is not a case where exemplary damages would have been appropriate.
[596] Assaults in hospital were unquestionably unacceptable. There is authority
that vicarious liability for exemplary damages in
such a situation is inconsistent with
the underlying policy behind it, namely to punish an offender for wrongdoing and to
act as
a deterrent for the future: Kuddus v Chief Constable of Leicestershire
Constabulary [2001] UKHL 29; [2002] 2 AC 122 (HL) and see the discussion in S v Attorney-General
[2003] 3 NZLR 450, paras 81-95.
[597] In the present case, a compensatory award would have been adequate and
proper for the tortious acts of junior
staff many years ago, but there would be limited
value in denouncing the events further than would have been done by a
compensatory
award.
[598] The remarks of Tipping J in S v Attorney-General at para [122] are pertinent:
"The difference between ordinary
damages and exemplary damages is the
difference between compensation and punishment. The ultimate purpose
and effect
of vicarious liability is to allow compensation to be awarded
against someone else when that person is in a qualifying relationship
with
the principal wrongdoer. A major policy plank is to give the plaintiff an
effective remedy in circumstances
where the remedy against the principal
wrongdoer may be ineffective. The policy reasons for the availability of
compensation
from the vicariously liable secondary party do not support a
capacity to impose a punishment on that party. It is one thing
to say that the
secondary party should compensate for the principal party's wrongdoing. It
is quite another to say
that the secondary party should be punished for that
wrongdoing when that party's own conduct does not deserve punishment."
Section 6 of the Mental Health Amendment Act 1935
[599] The defence says that the immunity provided by this legislation covers
all of
the plaintiff's allegations except those of sexual assault and gratuitous physical
assaults. It says that if, or where, there
was the use of more force than reasonable in
the context of restraint; threats of ECT; transfer to F Ward as punishment; the
witnessing
of acts of restraints and gratuitous assaults; and "allowing" patient
assaults on the plaintiff; claims based on these actions are
all barred by the
legislation.
[600] The immunity was continued in the form of s 124 of the Mental Health Act
1969, and although
this was subsequently repealed in 1992, the immunity remains
available in respect of acts done or omissions occurring prior to its
repeal; Attorney-
General v McVeagh [1995] 1 NZLR 558 at 565-66.
[601] The defence submitted the word "act" includes omission, and in P v Crown
Health Financing Agency HC WN CIV 2003-485-1625,
19 December 2006, Simon
France J so found. I agree with him.
[602] The essence of the defence's submission is that any act done
"in pursuance of
the provisions" of the Act is cast so wide that provided what was done was "intended
to be done" for one of the
purposes of the Act, whether it is treatment, care, control
or detention, it is protected even if done in bad faith or without care.
I do not accept
that submission where it relates to "bad faith".
[603] I accept the argument that to achieve the ultimate purposes
of the Act, there
will be many actions, events, and purposes which were necessary, or appeared to be
necessary for the running of
the hospital. They included maintaining order, and
discipline and control of patients through application of reasonable sanctions
or
physical interventions; the administration of forms of treatment and medicine;
physical restraint of patients and providing secure
conditions to avoid danger to
themselves and others.
[604] The defendant says that the use of threats is a means of control necessary
for
the implementation of the purposes of the Act. I am not sure I agree with that
submission and it will come down to a question
of degree.
[605] If the motive for the administration of the treatment or procedure is
malicious, that is intended punishment,
then a threat of punishment for that reason
alone would fall outside the immunity. It would be similar to a gratuitous assault.
Punishment
is a direct antithesis of treatment.
[606] The defence said its view was supported by the decision of the House of
Lords in Pountney
v Griffiths [1976] AC (HL) where the House of Lords held that
acts done "incidental" to the similar statutory provisions are also
covered by the
immunity and that control and disciplinary measures are a necessary part of acts that
are incidental to the legislative
purposes. Therefore, the defence said, use of
reasonable force as part of an act of control was permissible. I agree, but
an assault,
or threatened assault, is not the use of reasonable force.
[607] Lord Widgery C J, in delivering the judgment the subject
of the appeal, said
where there is an alleged assault by a nurse upon a patient, three possible situations
arise, [at page 319]:
"First, if the truth of the matter is that the nurse used no more force than was
reasonably necessary to exercise
control, no criminal offence is committed at
all. No question here arises of the nurse having done any act for which the
nurse would have been liable to criminal proceedings apart from [the
immunity].
The second possible situation
is that whilst purportedly exercising control
over the patient, the nurse uses more force than was reasonably necessary.
Apart from [the immunity], the nurse would be civilly and possibly
criminally responsible in respect of the use of such
excessive force.
However, since this would be an act purportedly done in pursuance of the
Mental Health Act 1959, the
nurse would have a defence under [the
immunity section], and would also have the protection of the necessity for
the
leave of the High Court before the proceedings were begun.
The third possibility is that the alleged assault was committed
at a time when
the male nurse was not on duty, or in circumstances in which the act could
clearly not be justified
as an act of control within the terms of the nurse's
duty. For example, if a nurse ... made an attack on the patient which
could
if no sense be said to be an act done in the course of his control as a nurse,
then it would seem to me that
the offence would not be one protected [by the
immunity] ...."
[608] The House of Lords said that was a correct approach.
The defendant's
position is that threats of punishment were acts of control, like the application of
force during restraint procedures, and leave to proceed could not be avoided
by a
plaintiff merely alleging that punishment was the motive for the alleged acts.
[609] I accept the argument that the defendant
would have been entitled to the
benefit of immunity in respect of giving of insulin treatment, transfer to F Ward and
seclusion.
If they were acts of treatment, care and control done in good faith and
without lack of care. If, however, transfers to F Ward and
seclusion were given as
punishment, or in fact delivered as a means of punishment, then the motive was not
one of treatment but punishment.
The same would apply to threats accompanied by
the motive of punishment. They would be outside any available immunity.
[610] So,
it is accepted that immunity could not possibly exist for sexual assaults or
gratuitous physical assaults, and I find it would not
exist if punishment of a mentally
ill person was the motive for the act, whether it be threatening to prescribe or
perform a procedure,
or the substantive act itself. Punishment or motives of
punishment have no place in the treatment of the ill.
[611] These
views are naturally obiter, because of my findings as to liability based
on limitation issues.
Section 21A Injury Prevention
Rehabilitation and Compensation Act 2001
[612] The defendant accepted that the effect of this section is that the plaintiff in
this case could continue her claim, but once judgment is given, regardless of the
outcome, she loses cover that she had for any personal
injury arising out of the
alleged assault (s 21A(5)(d)). That may be an unfortunate outcome but proceeding
with the case was a matter
of her choosing and advice. If, but for the Limitation Act
bar, she had been awarded damages those would have been required to take
into
account payments and entitlements received by the plaintiff to date (something in
excess of $13,000). That requires no further
discussion.
Conclusions
[613] The plaintiff has established on the facts:
a) her cause of action in assault and
battery, in the form of her being
subjected to physical assaults by junior nurses or nurse aides at
Porirua Hospital;
b) that she witnessed similar assault upon other patients from time to
time which
has subjected her to distress, such giving rise to an action
in negligence.
[614] It has not been proved that those
wrongful acts have caused any recognised
psychiatric or physical illness or condition.
[615] But for a Limitation Act bar, the
plaintiff would have been entitled to a
modest award of damages for distress and suffering at the time of the acts referred to.
[616] The plaintiff has failed in her claims of sexual abuse, the administration of
insulin therapy and seclusion procedures for
reasons of punishment; the threatening
to administer or impose those procedures, as well as ECT, for the purposes of
punishment;
and the transferring of the patient to F Ward as punishment, or the
threatening to do so for such purpose.
[617] Despite the findings
recorded in paragraphs [613](a) and (b), the plaintiff's
claims have been brought outside the statutory time bar and are dismissed
for that
reason.
General concluding comments
[618] The Court acknowledges the distress felt by the plaintiff, and other former
patients who gave evidence of their memories about very difficult times at Porirua
Hospital. Because of the nature, age and size
of the institution, and the number and
type of patients that were housed and lawfully committed there, it was inevitable that
distress
was felt.
[619] The plaintiff and other former patients who gave evidence unquestionably
experienced very unhappy memories, given
conditions at Porirua Hospital in the
1950s and 1960s, and available treatment facilities. Overcrowding, inadequate staff,
and the
mixture of seriously ill mental patients together with the chronically
disabled, the aged, and unmanageable teenagers, created a difficult and often dismal
environment.
It was frightening for patients and staff. It may have been no different
to that which existed then in most mental hospitals throughout
New Zealand. Senior
management and staff laboured under great difficulties. Generally they did the best
that could be reasonably
achieved in the circumstances.
[620] Inevitably, violent and frightening acts on the part of patients occurred. They
were an inevitable
product or outcome of behavioural symptoms, and had to be dealt
with. So, too, the prescribing of various treatment was necessary
because, at that
time, they were recognised treatments, and medication options (available today)
were very limited. Mental Health
Act Immunity applied to the personnel at the
hospital for such acts and procedures, provided there was no malicious motive.
[621]
The Court acknowledges that now many patients hold deep grievances over
conditions as they were at that time. But because of the
passage of time of up to 50
years, the plaintiff has had (and I suspect it may be the case with some others) the
insurmountable hurdle
of the Limitation Act bar to overcome.
[622] The Court system may not be amenable to dealing with damages claims for
grievances
held by former patients. If any remedy is thought proper, it might
preferably be addressed through the executive branch
of Government. I have heard
what the plaintiff and others have said they felt about the circumstances in which
they were then placed.
It would hardly be the case today, that difficult, emotionally
unstable, or unmanageable and rebellious teenagers would be placed
into mental
health institutions, unless, of course, there was some diagnosis of a recognised
mental illness. But that was not the
standard of the mid-1950s.1 In the case of the
plaintiff, she was lawfully committed on two occasions, in line with the then
legislation
of the Mental Health Act 1911. She contended, after discharge, that she
had been wrongly committed. But she was lawfully placed into
Porirua Hospital and
the medical evidence is that the provisional diagnosis reached was, in light of
psychiatric knowledge at the
time, reasonably made.
[623] She, and the former patients from whom I heard evidence, wanted to "have
their stories told". They
have been able to do that. But, for this plaintiff, her claim
must fail in law. She is barred by the provisions of the Limitation
Act.
Judgment
[624] It follows that there must be judgment entered for the defendant. The
plaintiff is
legally aided. The defendant sought costs pursuant to s 40 of the Legal
Services Act 2000.
Costs
[625] Section 40(3) permits
costs to be awarded against a legally aided person only
in "exceptional circumstances". I do not consider that they exist
in this case.
However, s 40(5) relates to the situation where, if costs cannot be awarded against a
party because he or she is legally
aided, the Court may make an Order specifying
what costs order would have been made against that person but for the operation of
1
It may not have been the "dark ages" but they truly were far distant times Dwight Eisenhower was
then President of the USA.
the section. In those circumstances, a successful party might apply to the Legal
Services Agency for some redress.
[626] I invite
Counsel to provide written submissions as to whether any Order for
costs should be made under s 40(5) and if so, its quantum. Counsel
for the plaintiff
is entitled to know what the defendant's submissions in this regard are, and
accordingly should have 21 days to
respond to any submissions filed on behalf of the
defendant. If costs are not now sought, Counsel may advise by way of
memorandum.
"J W Gendall J"
Solicitors:
S M Cooper, Wellington
Crown
Law Office, Wellington
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