Important note:

The updates below are intended solely for the information of claimants. They are not intended as a substitute for general legal advice to persons who are not clients of Cooper Legal.

 

Psychiatric Hospital Claims

2nd Quarter 2011

Introduction:

It has been about 7 months since we forwarded a newsletter regarding progress of the claims. We have a number of matters to report. We also have a number of forms for you to sign and return to the office. We ask, therefore, that you read this newsletter carefully.

Overview:

Since our last newsletter we have:

  • been continuing to fight the Legal Services Agency (LSA) to maintain your funding, including arguing 12 appeals in the High Court. While we have had some success, both parties have now applied for leave to appeal some of these appeals to the Court of Appeal
  • settled two individual claims, one through direct negotiation with the Crown Health Financing Agency (CHFA) and one through a judicial settlement conference
  • started to amend your pleadings, these being the legal documents by which your claim is brought in the High Court
  • continued to maintain pressure on the Government and the Crown to settle the claims out of court, particularly by continuing to provide the Human Rights Commission with our input into its review of the Government's response to historic abuse claims.

Court action:

We advised you in our last newsletter about judicial settlement conferences (JSC), conferences chaired by a High Court Judge whose role is to assist the parties to settle the claim, as a way of dealing with the very large number of claims before the High Court. Four clients of this firm have been allocated JSCs for 2011. Two clients of Johnston Lawrence, the other firm with whom we have undertaken work for psychiatric hospital clients, also had JSC dates allocated.

Three JSCs have proceeded, to date. The two Johnston Lawrence claims have been settled through the JSC process. The first Cooper Legal claim will shortly be settled, as well. Due to confidentiality clauses in the settlement agreements, we do not know how much the Johnston Lawrence clients received in settlement of their claims. What we do know is that the settlement sums were very modest. That has also been the case for the Cooper Legal client. One "positive" of the process is that CHFA has been willing to pay a contribution to the legal costs incurred, which ensures that each client is left with no debt owing to the Legal Services Agency (or this firm) and keeps the settlement payment for themselves.

It is fair to say that we are somewhat concerned about CHFA's approach to settlement of your claims. We will continue to make our concerns known until we are satisfied that CHFA is acting in the same (or a similar) manner to the Ministry of Social Development, which is the department responsible for settling the Social Welfare claims. We note, in that regard, that the High Court has been very clear with Crown Law that Government departments must act in the same manner in resolving the historic abuse claims. We do not understand Crown Law to have a different position. What we think needs to happen, therefore, is better information-sharing between CHFA and MSD as to how settlement offers are calculated and what factors are taken into account.

Having made those comments, we are pleased that there finally appears to be some progress in resolving psychiatric hospital claims. We expect that there will be some court time available at the end of 2011, as a Social Welfare trial set down for that time is likely to settle. We have already suggested to Crown Law that we use some of that time, if it becomes available, to deal with more psychiatric hospital claims through judicial settlement conferences.

Legal aid:

Although we are making progress with your claims, legal aid problems continue. The Legal Services Agency is still trying to withdraw legal aid from as many of you as possible. The Legal Services Agency will use almost any reason to withdraw your legal aid. That means if you do not keep in contact with us, or you do not cooperate with us in terms of the work we need to do on your behalf, then the Legal Services Agency will use that as a ground for withdrawing your legal aid.

In our recent newsletters, we have reported to you on our challenges to the Agency's refusal or withdrawal of your legal aid to the Legal Aid Review Panel (LARP). We have continued to file reviews with the LARP. As we reported in our last newsletter, in the case of clients for whom we have not yet obtained psychiatric reports, most of the decisions have been favourable. In other words, LARP has reinstated legal aid to enable us to obtain an expert report which addresses Limitation Act issues. As we also reported in our last newsletter, we have a very big backlog of reports to obtain and only a very small number of experts who can do them.

We continue to have difficulties obtaining funding to do work we need to do on your behalf. That includes ongoing difficulties in having the LSA pay for work we have already undertaken for you. We remind you, again, about the global invoices. The global invoices are the invoices we send in to the Agency every 3-6 months for work we have done on behalf of the entire client group. Those letters are often confusing. Towards the top of the letter, you will be told what your share is of the global invoice, which will usually be a reasonably small amount (not exceeding a few hundred dollars).

We repeat the advice we have given in previous newsletters and that is you should contact the Agency by telephone or letter if you are unhappy about their decisions. While the Agency invites you to contact this firm, our suggestion is that you contact the Agency, as that will not incur any cost on your file. The telephone number and contact details for the Agency will be on any correspondence you receive from it.

"Out of court" process:

As stated above, one client has settled a psychiatric hospital claim directly with CHFA. We have already noted that the settlement was modest - indeed it was below what we would have recommended that the client accept. As at the present point in time, there is still no formal process by which claims can be settled directly with CHFA. We are hopeful that such a process will develop, and reasonably promptly, now that some claims are settling through the JSC process. In that regard, some of you have already helped out the clients whose cases have gone through JSC by agreeing that we can use information from your files to provide statements to support those clients' claims at the JSC. Naturally, we hope that CHFA will look to settle the claims of other clients who make similar allegations to those whose claims we have now settled. We can only "wait and see" if that actually occurs.

Human Rights Commission and United Nations:

The Human Rights Commission (HRC) has still not issued its report into the Government's handling of your claims. We have been advised that completion of the report is not far away, but we have no deadline for its completion. What we can say is that the Chief Human Rights Commissioner has stated publicly that an independent commission should be set up to evaluate, if necessary investigate, and then take whatever action is required, including payment of compensation, or an apology or acknowledgement to those who have been abused in State care.

Johnston Lawrence clients:

Johnston Lawrence Ltd is no longer undertaking historic abuse work. This is because the partner responsible for that work, Roger Chapman, has recently retired. We have agreed to act for some of the Johnston Lawrence clients, mainly because there are no other lawyers specialising in this sort of work. The advantages in us acting for the Johnston Lawrence clients are that we now have a bigger database from which we can obtain evidence to support individual clients' claims, particularly through the JSC process. We have written a separate, additional, newsletter to the Johnston Lawrence to let them know how we undertake our work.

Listening and Assistance Service:

We have referred to the Confidential Listening and Assistance Service (CLAS) in our last two newsletters. As we have advised you, that Service is able to hear your story and it is also able to assist you to access counselling services, both to tell your story and to deal with the abuse you have suffered. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation.

In the event that you have lost the contact details for the CLAS, they are as follows: PO Box 5939, Lambton Quay, Wellington 6145, Tel. 0800 356 567, or you can look at their website at www.listening.govt.nz. We understand that the Service will be travelling throughout New Zealand.

Closure of files:

We are continuing to close files where clients have changed their contact details and we have not been updated with new contact details for 6 months or more. It is essential that you let us know if you change address and/or telephone number. We do not obtain that information from the LSA or the Department of Corrections. If you do not tell us your new contact details, we have no way of finding you. For that reason, we are now obtaining an alternative contact address from you, in the event that you forget to give us an updating address when you move. You should nominate a person with whom you have regular contact and who will know where you are at any given point in time.

For those clients with whom we have lost contact, we continue to apply to the Court to withdraw as the lawyers on the record, where we have filed that client's claim in the High Court. The High Court requires that we advertise such applications in newspapers closest to that person's last known residence and publish the client's last known address. In cases where we do have an address and/or an email contact, then the High Court has allowed us to serve applications at that last known address, or by email. We are also closing off files where clients will not cooperate with us in terms of the work we need to do to protect your claim. In most cases, we can reach agreement with a client as to how to proceed. In some cases, clients will not or cannot give us instructions on how to go ahead with their claims. In those cases, we have no option but to withdraw as the lawyers.

Mail from us:

We repeat that it is important you respond to any mail that we send to you which requires some input from you. This is particularly important if your legal aid has been withdrawn. In that case, we will need you to complete forms and return them to us. That will also be the case if we are unsuccessful at LARP in overturning the Agency's decision to withdraw your legal aid and we consider you should appeal that decision. If you do not return forms when we request them from you, in the event your legal aid has been withdrawn, then we will take it that you do not wish us to fight the decisions of the Legal Services Agency and we will therefore proceed with taking steps to close off your file in this office.

For many of you, we are still working through draft documents that we have sent to you and which we need to complete for your case. It is important that you respond to our requests for you to provide information and/or sign documents we send to you. It is also important that you follow the instructions we have given you.

As we are working to settle more and more claims, we rely heavily on the fact that many of you were in the same institutions, at the same time, and make very similar allegations against the same people. For us to present a strong case for each individual, it is very helpful to rely on statements made by others who had the same or very similar experiences. Up until now, we have asked potential witnesses to sign an individual document, agreeing that we may use the information we have from your files to support another person's case.

Once again, we also remind you that when we send you documents and letters, it is sensitive and confidential information. To that end, once again, we ask that you do not talk about the information we have provided to you, with others who were also in psychiatric hospital care. That includes email and social networks.

We also remind you that each client's individual claim is at a very different stage of progress. What is happening on one person's claim will not be the same as what is happening on another, in terms of their individual progress.

Contact with this firm:

Our staff remains the same - Sonja, Katie, Sam, Courtney, Rebecca and Susannah. As per usual, Rebecca or Susannah will typically be your first port of call. Where Rebecca or Susannah are unable to assist you, they will be able to refer you to one of the solicitors.

We repeat, as we have stated in other newsletters, that we try to keep your costs down as much as possible. That will mean that we may not reply to every letter you send in to us. It may also mean that we do not return some toll calls, particularly where you are simply looking for an update. We repeat that we will be in touch with you, on an individual basis, regarding any important news that affects your claim.

This is the first year we have felt as if we are making some progress with your claims. We are grateful for your ongoing work with us to achieve an outcome for you. We do know that some clients find it too hard to continue with their claims. If you feel like that, then please contact us. We will discuss with you whether there are any alternative ways in which we might be able to assist you to achieve a resolution of your claim that meets your needs and will enable you to put the issues of your past behind you. If you are certain you do not wish to continue, we will close your file.

Summary:

We believe we are finally starting to move forward. Johnston Lawrence has now settled two psychiatric hospital claims. Cooper Legal has also settled two psychiatric hospital claims. We reiterate that the settlement offers made and accepted were very modest. Having said that, however, part of the settlement was to meet the legal costs incurred and also to provide a letter of apology.

In spite of the above progress, we are still battling with the Legal Services Agency. As we said, above, the Legal Services Agency continues to maintain its negative view about these cases. We believe it is determined to stop this work, in whatever way it can. We are fighting the Legal Services Agency in its attempts to close down funding for your claims. We also continue to try and persuade the Agency that we are making progress and that it should support us.

We remain committed to achieving an outcome for you that will recognise the abuse you have suffered and will ensure that you receive an acknowledgement and compensation for that. We continue to work hard to achieve that outcome. Finally, we are making some progress. Once again, we thank you for your continued support for our work. We are hopeful that it will result in positive outcomes for you, as an individual, in the not too distant future.

Regards, Sonja & Team


PSYCHIATRIC HOSPITAL ACTION

3rd/4th Quarter 2010

Introduction:

It has been about 7 months since we last forwarded a newsletter regarding progress of the claims. We have been monitoring developments which affect your individual claims which will be addressed in this newsletter. We ask, therefore, that you read this update carefully.

Overview:

Since our last newsletters we have been:

  • continuing to fight the Legal Services Agency (LSA) to maintain your funding;
  • closing off the files of a small number of psychiatric hospital clients whose claims could not continue after the Supreme Court decision;
  • developing a process by which some psychiatric hospital claims, at least, might be settled through the High Court; and
  • continuing to maintain pressure on the Government and the Crown to settle the claims out of court, particularly through providing the Human Rights Commission with our input into its review of the Governmentâ's response to historic abuse claims.

Court action:

We outlined the result of the Supreme Court decision in the psychiatric hospital cases in our previous newsletter. Regrettably, we have had to discontinue a small number of claims for clients where their allegations could not surmount the hurdles identified in our previous newsletter. We had hoped to work on every other client's case by amending the court documents to take into account the Supreme Court's decision. Although we asked the LSA for funding in April 2010, to do that work, we have not yet been advised that we can do it.

We did say that the High Court had allocated time in the middle of June 2011 for two psychiatric hospital cases to be heard. Because most of the psychiatric hospital cases are presently held up due to funding difficulties, we have had to advise the High Court that we cannot go ahead with the two cases. However, there has been a development in that regard which may mean some movement in the psychiatric hospital cases. That development is outlined below, in the section titled "Judicial Settlement Conferences".

Judicial Settlement Conferences:

There has been an important new development that may lead to us being able to settle more cases. The High Court recently asked that we trial judicial settlement conferences (JSC) (conferences chaired by a High Court Judge whose job is to assist the parties to settle the claim), as a way of dealing with the very large number of claims before the High Court. This suggestion was made because of the High Court's observation that many of you have suffered harm as a result of your experiences in care and that you should receive some compensation for that. We have now trialled three Social Welfare clients' cases through the JSC process, including the foster home case referred to above, and have settled each of those cases. Only one of those cases involved a residence, in that case Campbell Park School (Otekaike). The other two cases involved abusive and/or neglectful parental and/or foster care.

We are hoping to trial some psychiatric hospital JSCs as soon as possible. It is likely that Johnston Lawrence, the other law firm we work with, will do the first one or two cases given that we have been able to trial three Social Welfare cases already.

We are hopeful, based on the success of the Social Welfare JSCs, that we may be able to start settling some psychiatric hospital claims through this process. We will keep you advised, but warn that this will still be a lengthy and time-consuming process. Further, because we have not yet had any psychiatric hospital JSCs, we have no idea, at this point in time, what approach the Crown Health Financing Agency (and Crown Law) will have to settlement of the claims.

Legal aid:

We have referred to our problems with legal aid in the last few newsletters. Those problems are continuing. The LSA has withdrawn aid for a large number of our clients this year. In total, the LSA has withdrawn aid on over 56 psychiatric hospital files so far, which amounts to one-third of all psychiatric hospital client files managed by this firm.

We advised you in our last newsletter about the review of legal aid. The Government is now implementing a change whereby the LSA will be folded into the Ministry of Justice. We do have real concerns about what that will mean for the historic abuse claims, as your claims are against the Attorney-General. We will be making submissions to the Government about the need to ensure that your claims are dealt with fairly and with as much independence from Government as possible. We will keep you advised of developments.

As in previous newsletters, we encourage you to contact the LSA by telephone or letter, if you are unhappy about the LSA's decisions. We also understand that the LSA may have begun sending you out copies of all correspondence which it sends to this firm. A lot of that correspondence is incomprehensible and/or difficult to understand. While the Agency invites you to contact this firm, our suggestion is that you contact the LSA, as that will not incur cost on your file. The telephone number and contact address for the Agency will be on any correspondence you receive from it.

Please note: if we do not hear back from you promptly confirming that we should review any decision to withdraw your legal aid, or appeal a LARP decision upholding the withdrawal of your legal aid, or if we have no way to contact you, then we will not take any further steps on your file except to close it.

"Out of court" process:

As in our last two newsletters, there have been no offers made by Crown Law to settle any psychiatric hospital claims. We continue to be extremely disappointed at this lack of progress. Having said that, we refer to the latest development discussed above, about the agreement to trial JSCs for psychiatric hospital clients. We can only ‘wait and see’ if this results in settlements of your claims.

Human Rights Commission and United Nations:

You will be pleased to learn that the United Nations Committee Against Torture (UNCAT) is still monitoring the New Zealand Government's handing of your claims. The Government provided a report to the UN in May 2010, which suggested that the claims were being handled appropriately. We replied to that report at the end of June 2010. We were strongly critical of the Government's report, pointing out numerous problems with the way in which the current approach to historic abuse claims is prejudicing our clients.

As stated above, the Human Rights Commission (HRC) is still underway with its own investigation into the Government's handling of your claims. For your information, we have provided a great deal of information to the HRC about our concerns with the way in which your claims are being handled – not only by the Government, but also by the Government agencies, including the LSA, Crown Law and even the High Court.

We have seen a draft report, which we hope will be finalised within the next month or so. We had delayed issuing this newsletter in the hope that the HRC report might have been finalised by now. We are hopeful that the report, when issued, will be reasonably critical of the Government's handling of the historic abuse claims. We are also hopeful that there will be a strong recommendation made that the Government should set up a process "out of court" to deal with the claims as has been the case in other Commonwealth countries. Once the report has been published, we will provide a synopsis of the important points on our website. For those of you who do not have access to the internet, we will eventually issue a newsletter outlining the HRC's findings and recommendations.

Listening and Assistance Service:

We have referred to the Confidential Listening and Assistance Service (CLAS) in our last two newsletters. As we have advised you, that Service is able to hear your story and it is also able to assist you to access counselling services, both to tell your story and to deal with the abuse you have suffered. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation.

In the event that you have lost the contact details for the CLAS, they are as follows:

PO Box 5939,
Lambton Quay,
Wellington 6145,
Tel. 0800 356 567,
or you can look at their website at www.listening.govt.nz.

We understand that the Service will be travelling throughout New Zealand and will be including visits to the prisons. If you are in prison and they will not allow you to telephone the 0800 number, please ask the prison to telephone us and we will confirm that you should be permitted to make that call.

Closing files:

We remind clients that we will close files where clients have changed their contact details and we have not been updated with new contact details. It is very important that you let us know if you change address and/or telephone number. We do not obtain that information from the LSA or the Department of Corrections. If you do not tell us your new contact details, we have no way of finding you. Where we have lost contact with a client and we have filed that client's claim in the High Court, we apply to the Court to withdraw as the lawyers on the record. The High Court requires that we advertise these applications in newspapers closest to that person's last known residence and publish the client's last known address. In cases where claims have not been filed in court and clients have not responded to our requests for contact, we send in a final invoice to the LSA and close off that client's file. Given the legal aid difficulties, it will be virtually impossible for us to re-open a client's file in that circumstance.

Mail from us:

We remind you that it is important to respond to any mail that we send to you which requires some input from you. This is particularly important if your legal aid has been withdrawn. In that case, we will need you to complete forms and return them to us. That will also be the case if we are unsuccessful at LARP in overturning the Agency's decision to withdraw your legal aid and we consider you should appeal that decision.

We remind you that there will be other cases where we need you to work through draft documents that we have sent to you and which we need to complete for your case. Where we are drafting evidence for you, we will need to send completed documents to you to be formally signed and returned to us. It is important that you respond to our requests for you to help us, and that you follow the instructions we have given you.

It is also important, when we do send you documents and letters, that you understand it is sensitive and confidential information. To that end, we ask that you do not talk about the information we have provided to you, with others who were also in Social Welfare and/or psychiatric hospital care. This includes email and social networks. There is a very important reason for that. The Ministry of Health and/or Crown Law are very suspicious about the credibility of many of the claims being brought. If there is evidence that you have been discussing information we have been providing you, with others who have been in psychiatric hospital care, then you run the risk of your credibility being damaged if that comes to light.

In addition, we note that each client's individual claim is at a different stage of progress. What is happening on one person's file will not be the same as what is happening on another, in terms of individual progress. The purpose of these newsletters, however, is to bring every client “up to speed” with the progress of work on behalf of the whole group.

Contact with this firm:

Our staff has slightly changed again. Our staff are now Sonja, Katie, Sam, Courtney, Bexx and Susannah. We are always very busy progressing work. As per usual, Bexx will typically be your first port of call. We remind you that she has a good working knowledge of every client’s file and is a qualified legal executive. Where Bexx is unable to assist you, she will be able to refer you to one of the solicitors.

As we have stated in other newsletters, we do try to keep your costs down as much as possible. That will mean that we may not reply to every letter you send in to us. It may also mean that we do not return some toll calls, particularly where you are simply looking for an update. We will let you know, via letter or telephone call, of any important news that affects your claim.

We do know that many of you are frustrated about what seems to be a lack of progress with your claims. So are we. We are working hard to try and change that and we are making some progress, as we have set out in the newsletter. We ask that you bear with us. If you are finding it all too hard, however, just let us know and we will take steps to close off your file with us. We suggest, in that case, that you keep an eye on our website for news about out of court developments that may arise as a result of the HRC report. We will be sure to add to the site the outcome of the HRC report, as well as any information which is of interest to the client group.

We also encourage you to complain to your local MPs, the Ministry of Justice (Simon Power), and also the Human Rights Commission about the Government's lack of progress in dealing with historic abuse claims.

Summary:

To summarise, it has been a reasonably difficult 7-8 months. The LSA has escalated the withdrawal of our clients' legal aid, as is evident from the newsletter. On the bright side, however, we have the first sign that there may be some movement towards settlement of some clients' claims. In that regard, we refer to the agreement to trial the claims through the JSC process in the High Court. We can only hope that we will start settling more of your claims and we will keep you advised as to progress.

We are also pleased that the HRC should soon issue its report into the Government's handling of your claims. We are hopeful that the report, which will not only go to the United Nations, but also to the Government, will finally result in a proper process being set up to provide you with compensation and services for the abuse you have suffered in care.

We want to let you know that although we are a small team, we are very determined to achieve an outcome that recognises the abuse you have suffered and ensures that you receive an acknowledgement and compensation for that. We work hard to achieve that outcome and we do feel that we are now making some progress with that. Thank you for your continued support for our work, which we hope will produce positive outcomes for you in the not too distant future.

Regards, Sonja & Team

 


 

PSYCHIATRIC HOSPITAL ACTION

1st Quarter 2010

Introduction:

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


Overview:

Since our last newsletter we have:

  • received the decision of the New Zealand Supreme Court, in September 2009;
  • continuing to vigorously resist the Legal Services Agency's ("LSA") attempts to withdraw your funding;
  • been continuing to file individual claims in court; and
  • been continuing to maintain pressure on the Government and the Crown to settle the claims out of court, through domestic and international political means, including the United Nations.


Court action:

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

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

  • Subject to the Limitation Act, the entire claim survives for all claimants who were informally admitted to psychiatric hospitals after 1 April 1972 (except those who were in Lake Alice and Queen Mary Hospitals when the date is 1986);
  • Patients who were informally admitted to psychiatric hospitals before 1 April 1972 are to be treated the same as committed patients;
  • For committed patients and pre-1 April 1972 patients, all allegations of sexual assaults remain. Similarly, all allegations of being physically assaulted in the nature of punches, hits, kicks and slaps remain. ECT given as punishment and/or control remains;
  • If an allegation of physical assault relates to restraint, including excessive restraint, that allegation would be struck out;
  • Allegations in the nature of: receiving medication in the absence of consent; being given ECT without consent; failure to provide schooling; provision of cigarettes; seclusion, even as punishment (subject to the comments below); failure to provide life skills; being required to work, etc would be struck out;
  • Periods of seclusion in "inhumane conditions", including: being deprived of toileting facilities, being left naked; and/or being left in seclusion for unreasonable periods of time would stay in;
  • Allegations such as: witnessing assaults by staff or patients on other patients; being assaulted by other patients; being threatened with assaults; being subjected to unusual therapeutic interventions; and/or being neglected, may or may not survive a strike-out application.

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

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

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

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

Legal aid:

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

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

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

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

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

"Out of court" process:

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

Human Rights Commission & United Nations:

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

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

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

Listening and Assistance Service:

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

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

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

Closing files:

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

Mail from us:

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

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

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

Contact with this firm:

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

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

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

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

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


Regards, Sonja & Team

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