Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 934/2019 * , **

Submitted by:Malcolm John Richards (not represented by counsel)

Alleged victim:The complainant

State party:New Zealand

Date of complaint:13 March 2018 (initial submission)

Document references:Decision taken pursuant to rule 115 of the Committee’s rules of procedure, transmitted to the State party on 27 May 2019 (not issued in document form)

Date of adoption of decision:12 May 2022

Subject matter:Abuse of children in a State hospital

Procedural issues:Admissibility – ratione temporis; exhaustion of domestic remedies

Substantive issues:Lack of prompt and impartial investigation; right to an effective domestic remedy and redress

Articles of the Convention:2, 10, 11, 12, 13 and 14

1.The complainant is Malcolm John Richards, a national of New Zealand, born on 13 February 1960. He claims a violation of his rights under articles 2, 10, 11, 12 and 13 of the Convention. Although not expressly invoked, the complaint also raises in substance a violation of article 14 of the Convention. The State party made a declaration pursuant to article 22 (1) of the Convention, effective from 9 January 1990. The complainant is not represented by counsel.

Facts as presented by the complainant

2.1From 1972 to 1977, Dr. Selwyn Leeks, a psychiatrist, ran the Child and Adolescent Unit at Lake Alice Psychiatric Hospital – a State facility administered by the Department of Health. The complainant was admitted to Lake Alice Psychiatric Hospital on 19 October 1975, when he was 15, and stayed until 20 December 1975. He was sent to the hospital by his mother, who reported that he was a violent child and that she was afraid that he would kill his father if he returned home. Mr. Richards was diagnosed with schizophrenia. His treatment consisted of the administration of electric shocks, unmodified electroconvulsive therapy and drugs., During the unmodified electroconvulsive therapy, no oxygen was used as required to help restart the brain and prevent brain damage.

2.2In 1976 and 1977, a number of complaints were made to the Government and medical organizations concerning the treatment of children at the Lake Alice hospital by using an electric shock machine on various parts of their bodies and administering drugs to them as a punishment and not for therapeutic purposes. In 1976 and 1977, a Commission of Inquiry was conducted into the treatment of a 13-year-old boy at Lake Alice Psychiatric Hospital, but no wrongdoing or malpractice in the use of electroconvulsive therapy was found, one of the justifications being that such therapy given to children without anaesthetic was acceptable because their bones were supple and would not break during convulsions. In 1977, the Medical Council of New Zealand investigated a complaint by a former patient alleging the use of an electroconvulsive therapy machine by Dr. Leeks to administer painful electric shocks, but no punitive sanctions were issued, so Dr. Leeks was free to continue to practise psychiatry on children. Also in 1977, following a complaint to the police about painful electric shocks administered to the bodies of two children at the Lake Alice hospital, the police found no criminal conduct, but only a “lack of judgment” by staff. Finally, a 1977 complaint to the Ombudsman’s Office resulted in stricter rules regarding consent for patient treatment and the termination of the practice of the Department of Social Welfare of placing children and young persons subject to guardianship orders in psychiatric hospitals without recourse to the formal committal procedures contained in the Mental Health Act. The complaints did not result in any prosecutions, and the Dr. Leeks subsequently left New Zealand to work in Melbourne, Australia.

2.3Much later, in 1997, several articles were published in the media in New Zealand and later in Australia on the abuse of children at Lake Alice Psychiatric Hospital. Thereafter, former patients started coming forward. In 1999, a civil claim was filed before the Wellington High Court on behalf of 56 former patients. That number had increased to 85 by 2001, when the Government compensated these victims with a payment of $NZ 6 million (approximately US$ 3.22 million) and a letter of apology. A further 110 claimants had come forward by 2009, including the complainant, following the Government’s announcement that it would provide further compensation. All the claims of ill-treatment and abuse were addressed by a general apology and ex gratia payments to each individual. In total, $NZ 12.8 million was paid out by the Government to 195 victims. On 12 August 2009, the Attorney-General replied to the complainant that the Government did not intend to hold an inquiry into the events at Lake Alice Psychiatric Hospital because it had already paid compensation and had apologized to all of Dr. Leeks’ patients in full and final settlement of their claims.

2.4In 1999, the Medical Council cancelled Dr. Leeks’ registration to practice medicine. The Council stated that as Dr. Leeks was no longer registered with the Council, allegations of ill-treatment would not be investigated by them.

2.5In 2000, the complainant submitted his case to the police, alleging criminal conduct by former staff of the Lake Alice hospital, including Dr. Leeks. Then, in 2003, following the invitation of the Government of New Zealand to former victims who had received an apology to make a criminal complaint to the police, the Citizens Commission on Human Rights submitted several complaints to the police. The police investigation of the complaints of the complainant and other victims from Lake Alice Psychiatric Hospital initially focused on possible violations of the Mental Health Act of 1969. The police explained that the Act was the correct legal framework under which to examine the complaints, but that part of the law required complaints of that type to be made within six months of the alleged incidents. In 2010, the police therefore closed the investigation saying there were insufficient grounds to support a criminal prosecution, in particular given the passage of time since the events had taken place, the unavailability of witnesses, and the likelihood of legal challenges on grounds that the time limit had been exceeded and that there had already been an investigation in the 1970s. In March 2010, the complainant was informed of the outcome of the investigation. Following his further requests for an investigation, the police reiterated their reply on 18 September 2012 and on 16 February 2017.

2.6In 2001, retired High Court Judge Sir Rodney Gallen was commissioned by the Government to review the complaints concerning Lake Alice Psychiatric Hospital. Sir Rodney found that the administration of unmodified electroconvulsive therapy had not only been common at the Lake Alice facility but routine, and that it was administered not as therapy but as a punishment. He also found that many of the children admitted to the hospital were not mentally ill.

2.7In 2003, one of the victims filed a complaint with the Medical Practitioners Board of Victoria, in Australia, as Dr. Leeks had been practising there since he left New Zealand in early 1978. In 2006, the Board prepared for a formal hearing under the Medical Practice Act of 1994 to consider 39 allegations against Dr. Leeks for “infamous conduct” in a professional setting when practising at Lake Alice Psychiatric Hospital in the 1970s. However, on the eve of the date set for the formal hearing, 19 July 2006, Dr. Leeks resigned all forms of practice. The Board accepted this and the hearing therefore never took place, as the Board considered that it had no jurisdiction over a practitioner who had resigned. In 2011, the Australian Health Practitioner Regulation Agency took note of Dr. Leeks’ resignation, observing that as the community was now protected from Dr. Leeks’ conduct, the outcome was the same as if a complaint against Dr. Leeks had been successful.

2.8In 2017, the complainant denounced what happened to him at Lake Alice Psychiatric Hospital and submitted requests for an investigation to the Attorney-General, the Office of the Ombudsman, the national Human Rights Commission and the Minister of Justice for an investigation to be carried out, but to no avail.

Complaint

3.1The complainant claims a violation of his rights under articles 2, 10, 11, 12 and 13 of the Convention. He also raises in substance a violation of article 14 of the Convention. He alleges that he was a victim of ill-treatment and torture in the Child and Adolescent Unit of Lake Alice Psychiatric Hospital. He complains that the State party has not ensured accountability for the staff at the hospital who abused and ill-treated children in their care. The State party’s Medical Council accepted the resignation of Dr. Selwyn Leeks in 1999, thus claiming no jurisdiction over him. The Australian Medical Practitioners Board did the same when Dr. Leeks resigned from all medical practice in 2009, the day before the Board was to begin a hearing following complaints of malpractice. The State party’s police claimed they could not prosecute Dr. Leeks or other hospital staff due to the statute of limitations. Without any investigation, the alleged perpetrators received no disciplinary punishment and the State party medical authorities did not even denounce the actions of former hospital staff and their treatment of the victims. No official medical reviews of the practice at the Lake Alice facility, and no statement barring such practices, have been issued.

3.2The complainant submits that the State party did not consider that there were avenues of formal investigation available, such as a ministerial inquiry. Lake Alice Psychiatric Hospital was administered and staffed by government employees. A formal inquiry would be one possible way of achieving accountability for the ill-treatment suffered. Another avenue of investigation would be to require the medical authorities to investigate a former practitioner, even if that person had resigned. Dr. Leeks would have faced serious disciplinary measures if he had had to face the medical councils in either New Zealand or Australia.

3.3Finally, the complainant alleges that – together with the other victims – he has not had access to proper rehabilitation for torture. He also argues that the medical files of all former patients at Lake Alice Psychiatric Hospital should contain corrections regarding the flawed diagnosis of mental illness.

State party’s observations on admissibility and the merits

4.1On 27 November 2019, the State party submitted its observations on the admissibility and merits of the communication. It first notes that the complainant has used Mr. Zentveld’s communication to the Committee “as a template for his communication”, hence the State party relies on its response to that communication, and provides additional updated information.

4.2The State party submits that the only aspect of the complaint which is not inadmissible ratione temporis is that the alleged main perpetrator of the abuse at Lake Alice Psychiatric Hospital, Dr. Selwyn Leeks, has not been held to account for his actions. After recalling the history of the complaints concerning the Child and Adolescent Unit at Lake Alice Psychiatric Hospital and the authorities’ response to requests for an investigation, the State party observes that an investigation is currently under way into the sexual aspect of the complainant’s allegations, that is, the allegation of “aversion therapy” by the application of electric shocks to his genitals. For the State party, this demonstrates that the police continue to be responsive to complaints relating to this matter.

4.3The State party considers that the communication is inadmissible on several grounds. The Convention entered into force for the State party on 9 January 1990. Insofar as it seeks to impugn the actions of the State party prior to that date, the communication is inadmissible ratione temporis. Allegations of the breach of articles 2, 10 and 11 of the Convention may therefore be set aside. Moreover, although not explicitly addressed by the complainant, his communication may also raise issues relating to the right to redress under article 14 of the Convention, including compensation and rehabilitation. However, this is not applicable in this case, as the alleged act of torture occurred significantly before 9 January 1990.

4.4The State party notes that aspects of the communication seek to impugn agents outside the State party’s jurisdiction. Insofar as it impugns the decisions of institutions such as the Medical Practitioners Board of Victoria, Australia, the communication is inadmissible.

4.5Furthermore, the State party argues that the complainant has not exhausted all available domestic remedies. He has not challenged the decisions of the Medical Council of New Zealand. The decision of the Medical Council not to investigate Dr. Leeks cannot be attributed to the State party’s Government because the Council is an independent regulatory body. However, it has always been the case that decisions of the Council may be challenged in the higher courts. Neither the complainant nor other patients sought a judicial review of the decision of the Council not to investigate Dr. Leeks at the relevant time. It remains a possibility that such a review may well have been successful. Now, however, given the lapse of time since those decisions, the complainant would be unlikely to obtain a substantive remedy in any judicial review proceedings.

4.6In addition, the complainant’s most recent complaint to the police is currently being investigated and he is likely to have the opportunity to participate in the Royal Commission of Inquiry into historical abuse in State care.

4.7On the merits, the State party first submits that the documents communicated to the Committee furnish no proof that the Government has failed to discharge its obligations under article 10 of the Convention. The events occurred in 1975 and the complainant has not raised any issues of the insufficient education or knowledge of personnel during the relevant post-ratification period. Article 10 is not therefore engaged.

4.8The State party acknowledges that compliance with article 11 of the Convention is a step it can take to ensure it complies with its article 2 obligations. However, even if article 11 were relevant for the pre-ratification period – a hypothesis the State party disputes – it submits there was comprehensive compliance in the 1970s with the requirement to take effective legislative, administrative, judicial or other measures to prevent acts of torture (art. 2) and to review instructions, methods and practices and arrangements for the custody and treatment of persons who were detained (art. 11). Those early reviews by the relevant State agencies are significant because they occurred at the same time as or close in time to the operation of the Child and Adolescent Unit at Lake Alice Psychiatric Hospital; the examination of relevant issues was thorough, the Commission of Inquiry and the Ombudsman having the ability to call witnesses and receive evidence, and no prosecutorial outcomes followed the investigations.

4.9In regard to the post-ratification period, the documents communicated to the Committee furnish no proof that the State party has failed to discharge its obligations under articles 2 and 11 of the Convention, either considering article 11 on its own or in conjunction with article 2. In the 2000s, when further complaints emerged, the State party acted responsibly to consider the allegations and to compensate and apologize to former patients, including the complainant. Although the settlement process was not a government inquiry per se, the settlement examined individual cases and avoided the need for claimants to endure the stress and risk of a civil trial to establish their claims. There have also been substantial changes in medical practice since the Child and Adolescent Unit at Lake Alice Psychiatric Hospital was in operation. Medical professionals operate now within a very different regulatory framework. As a result, the events at the Lake Alice facility are very unlikely to occur again in the State party.

4.10Even if articles 12 and 13 of the Convention are relevant for the pre-ratification period, there was comprehensive compliance by the State party with these articles during that period. Investigations in the 1970s of allegations concerning the Lake Alice Psychiatric Hospital were timely and conducted in a prompt and impartial manner, in accordance with articles 12 and 13. As regards the post-ratification period, it is without contest that the complainant has exercised his right to complain to the police. The State party interprets the complainant to be alleging in the main that article 12 has been breached because, firstly, the police did not prosecute Dr. Leeks; secondly, because the Government has not held a ministerial inquiry into the events at Lake Alice; and, thirdly, because the Medical Council decision not to investigate Dr. Leeks, as he was no longer a member of the New Zealand medical profession, was inadequate.

4.11Numerous investigations have been undertaken by the police, starting in the 1970s and again more recently in the 2000s. Those investigations have sought to determine both the nature and circumstances of alleged criminal offences at Lake Alice Psychiatric Hospital and to establish the identity of any person who may have been involved. The central question which arises in the present communication is whether the decision of the police not to prosecute Dr. Leeks was a breach of either articles 12 or 13. The State party submits it was not.

4.12The State party contends that article 12 of the Convention does not oblige States parties to prosecute an individual accused of torture in circumstances where there is insufficient evidence for a prosecution to succeed. The article 12 obligation imposes a duty on a State party to investigate torture when it has reasonable grounds to do so. The police investigated and decided not to prosecute Dr. Leeks because of a lack of sufficient evidence and a determination that the public interest did not merit prosecution. That decision was taken and reviewed by senior members of the police. The decision is not inconsistent with either article 12 or 13, as has been recognized by leading commentators. The International Court of Justice has also considered that the obligation to submit a case to the competent authorities under article 7 (1) of the Convention may or may not result in instituting proceedings, in the light of the evidence before them. In any event, the police continue to be responsive to complaints about Lake Alice Psychiatric Hospital, and are currently undertaking an investigation into the allegations of the complainant and others of sexual offences committed at the Child and Adolescent Unit.

4.13As to the State party’s decision not to hold a ministerial inquiry, the Convention does not include the obligation to hold an inquiry of that nature, but only requires a competent State authority to investigate the alleged torture. That has happened, and relevant investigations are ongoing. The State party recalls that it is holding a Royal Commission of Inquiry into historical abuse in State care and it is highly likely that the events in the Child and Adolescent Unit of Lake Alice Psychiatric Hospital will be considered by the Inquiry. This aspect of the complaint is therefore premature.

4.14As to the complainant’s allegation that the Medical Council should have investigated Dr. Leeks, the State party refers to its arguments on admissibility that, on the one hand, the Medical Council is a body independent from Government, hence its decision cannot be attributed to the Government, and, on the other hand, that aggrieved claimants, including the complainant, retained the right at the time to seek review of that decision in a higher court, but chose not to exercise that right.

4.15The State party notes that, while not expressly alleging a breach of article 14 of the Convention, the complainant contends that the Government has failed to provide him with adequate compensation and rehabilitation for his time at the Child and Adolescent Unit of the Lake Alice hospital. The State party reiterates that this claim is inadmissible as the alleged torture occurred before the Convention entered into force in New Zealand. In any event, the State party did provide a remedy to the complainant in relation to the alleged events: the complainant accepted the financial settlement paid to him; he received a personal apology from the Prime Minister and the Minister of Health on behalf of the Government; and he had the opportunity to attend a confidential listening and assistance service.

4.16Finally, the State party refers to the steps it has taken to change medical practice so that the events at Lake Alice Psychiatric Hospital are very unlikely to occur again.

Complainant’s comments on the State party’s observations on admissibility and the merits

5.1The complainant submitted his comments on 10 January 2020. He contends that instead of fully investigating the claims of punishment, ill-treatment and sexual abuse at the Lake Alice hospital, the State party conducted very limited inquiries and investigations that avoided seeking any accountability for what had occurred.

5.2As to the Government’s financial redress, the complainant submits that this was a form of compensation for the rapes, drugging and beatings, but not for torture. He explains that when all the former patients voted on whether to accept the payout or to keep fighting, he had voted against the settlement. The monetary amount was divided by the number of days spent at the Lake Alice hospital, without taking into account the damage caused. Moreover, 40 per cent of the amount of the ex gratia payments were deducted to pay the lawyers’ fees.

5.3According to the complainant, the police have failed in all their investigations to date. He claims that his first complaint to the police was in 1980, but it was not taken seriously, and he was even threatened with arrest. Then, in the investigations held from 2002 to 2010 the police only interviewed 1 out of approximatively 42 complainants and refused to accept information from other parties. The pending investigation into his complaints of rape, drugging and beatings has been delayed, probably in the hope that Dr. Leeks would die before the authorities had to decide to whether or not to move forward with laying charges. There does not appear to be any real intention to prosecute these alleged crimes.

5.4As to the Royal Commission of Inquiry, the complainant recalls that it has no power to award redress to victims. He was allegedly informed by one of the Commissioners that they could do nothing for him other than to record his story and apologize for what happened. In any case, the complainant does not consider the apology received from the Prime Minister to be sincere, so he cannot accept it.

5.5The complainant insists that at the Lake Alice hospital electroconvulsive therapy was also given as a form of punishment for misdemeanours, in particular its brutal use when applied to the genitals of several boys, including himself. He does not understand why the Medical Council, when presented with serious allegations of abuse and ill-treatment amid the controversy surrounding Dr. Leeks and Lake Alice Psychiatric Hospital, did not conduct an in-depth investigation. He alleges that other professional bodies can proceed with disciplinary investigations and measures even if persons resign their position.

5.6As to the confidential listening and assistance service referred to by the State party, the complainant declares that he was awarded nine hours of counselling for trauma, not for torture and for a life destroyed, given that even now, in his 60s, he is still haunted by his treatment by Dr. Leeks at the Lake Alice hospital. Moreover, the recommendations of this service were never implemented or released to the public.

5.7The complainant considers that the State party cannot invoke as an excuse the fact that the Convention entered into force in 1990 while the facts occurred in 1975 because the allegations of torture and ill-treatment were brought to the authorities’ attention in 1999 through a class action suit and in 2001 through Sir Rodney Gallen’s report. However, the State party failed to prosecute this case with the full force of the law, which shows its unwillingness to truly investigate what happened. This unwillingness is still present in the State party’s attempt to dismiss the complainant’s case before the Committee. The complainant deems that the State party, the Medical Council and the police were negligent in their duty to protect vulnerable children while in State care.

5.8Contrary to the statement by the police that the case is not in the public interest, the complainant believes that there is a public interest in doing so, though he does not believe that Dr. Leeks and the Lake Alice hospital staff will be held accountable as a result of the Royal Commission of Inquiry into historical abuse in State care. What the State party is failing to reveal is why Dr. Leeks and his staff were allowed to get away with what they did even after it has come to light that he tortured and maimed over 200 children.

5.9Finally, the complainant alleges to have information that the Crown Law Office is holding onto 38 interviews with former Lake Alice hospital staff that would potentially convict Dr. Leeks. He believes these documents to be vital, yet they have never been given to the police. According to the complainant, the Crown Law lawyers appear to have been perverting the course of justice for years and are in a position of conflict of interest.

Additional submission from the State party

6.1On 24 November 2021, the State party provided further observations. It noted that the complainant’s reply contained several factual allegations that were not contained in his original communication and therefore provides an update on the police investigation, the Royal Commission of Inquiry and the protections and regulations that govern the use of electroconvulsive therapy.

6.2In response to the Committee’s decision in Zentveld v. New Zealand, the police undertook an extensive file review of the previous investigations relating to the Child and Adolescent Unit. A three-phase investigation plan into allegations of sexual abuse in the Unit was also developed and put into action. To ensure independence and impartiality in this exercise, police officers who had previously been involved in investigations concerning Lake Alice Psychiatric Hospital were not used for this investigation. Because of a statutory limitation period in relation to charges under the Mental Health Act of 1969, and the fact that the Crimes of Torture Act of 1989 was not in force at the relevant time, the police have focused on the Crimes Act of 1961 in assessing the allegations of abuse.

6.3In phase one of the investigation plan, the police assessed the scope of the allegations that might be investigated, and reviewed the documents in the police file from the investigations in the period 2002–2010. This included reviewing statements which had been made in connection with civil litigation against the Government, statements from former Lake Alice hospital staff, and other relevant documents. This initial review was comprehensive and completed within a month.

6.4In phase two, the police conducted interviews and analysed the evidence obtained. To assist with this work, an expert analysist was employed to work alongside detectives. The police did not treat any single victim’s evidence as being representative, but rather sourced evidence from any person who stepped forward as a potential victim. This evidence-gathering and investigation phase included the review of additional statements made in connection with the civil litigation against the Government, information and records from previous hearings and investigations by the New Zealand Medical Council and the Medical Practitioners Board of Victoria, and additional information and records from the Ministry of Health, the District Health Board for the region of New Zealand in which the Lake Alice Psychiatric Hospital operated, the Crown Law Office, the Citizens Commission of Human Rights, Police archives and Archives New Zealand.

6.5From previous statements made by former patients in connection with civil litigation against the Government, the police identified former patients who alleged that they had received electroconvulsive therapy to their genitals or that the electroconvulsive therapy they had received at the Lake Alice hospital had not been given for therapeutic reasons, but as a punishment. Of the 13 former patients identified by the police who disclosed having received electroconvulsive therapy to their genitals, 4 were deceased. Of the remaining nine, six agreed to be interviewed and three declined. Of the three who declined, two agreed to their previous statements being used. The police used detectives who were specially trained in evidential interviewing for sensitive personal crimes to conduct these interviews, so that the allegations could be more formally and comprehensively recorded.

6.6In addition to those patients who had provided previous statements, many more former patients were identified through hospital and other records. However, past police contact with former patients of the Child and Adolescent Unit has proven traumatic for certain individuals. Therefore, if former patients had not previously been involved or engaged in any investigation, hearing or class action, it was decided to minimize the risk of trauma by not approaching them, but rather publicizing the investigation and allowing anyone who wished to be involved to contact the police. Three former patients reached out to the police and requested an interview following the publicization of the investigation.

6.7In total, the police identified 136 former patients of the Child and Adolescent Unit – 133 whose previous statements were available to the police and 3 who reached out to police following publicization of the investigation – who alleged the use of electric shocks on their genitals and/or as a punishment. Of these, 63 were interviewed, 37 were approached but declined an interview, 31 are now deceased and 5 have not been located. Of the 37 who declined to be interviewed, 20 allowed the police to use their previous statements made in connection with civil litigation against the Government. As such, the police investigation is now considering the evidence of 83 former patients of the Child and Adolescent Unit (63 interviewees and 20 whose previous statements may be used).

6.8The police investigation into allegations of abuse in the Child and Adolescent Unit is now in its third and final stage. Phase three of the investigation has been focused on Dr. Leeks and former staff members of the Child and Adolescent Unit as persons of interest. The police prepared a summary of evidence gained from phases one and two of the investigation, and sought to interview people who had worked in the Child and Adolescent Unit during the relevant period. Priority has been given to the staff named by the former patients or other staff as being present or witnesses to the alleged incidents. Of the 66 people positively identified by the police as having worked in the Child and Adolescent Unit during the relevant period, 37 are now deceased, 15 were interviewed and 2 were approached but were unfit to be interviewed. Based on the investigation to date, the police do not consider the remaining 12 are likely to have new information relevant to the investigation.

6.9The police are now in the final decision-making phase with respect to the investigation and are considering whether to prosecute Dr. Leeks or any of the other staff members of the Child and Adolescent Unit. This assessment involves determining whether a prosecution would meet the test set out in the Solicitor-General’s guidelines, which requires there to be sufficient evidence for a conviction and sufficient public interest. The police have sought advice from a Crown Solicitor about whether the relevant threshold for criminal charges has been reached in relation to any individual, and whether extradition of Dr. Leeks from Australia would be an available option. It has also asked an independent Queen’s Counsel to review the Crown Solicitor’s advice.

6.10When a final decision is made by the police about whether to prosecute Dr. Leeks or any of the other former staff members of the Child and Adolescent Unit, it will inform the former patients who have been involved in the current investigation, including the complainant. The police have also kept the complainant informed as the investigation has progressed. While the investigation has progressed more slowly than anticipated due to the need to obtain expert legal and medical opinions, and due to pressures related to the coronavirus disease (COVID-19) pandemic, the police will release a decision as to whether charges will be laid as soon as possible.

6.11The State party also states that the Royal Commission of Inquiry has confirmed that it will be inquiring into the abuse experienced in the Child and Adolescent Unit at the Lake Alice hospital. In June 2021, it held dedicated hearings to inquire into these allegations. It heard from survivors of the Unit, including the complainant, experts and institutional witnesses. The final report of the Royal Commission of Inquiry is due in June 2023.

6.12As regards institutional witnesses, both the director of criminal investigations and the Solicitor-General acknowledged errors in previous investigations and inquiries into the abuse in the Child and Adolescent Unit. The police acknowledged that from 2002 to 2010 it did not accord sufficient priority and resources to the investigation of allegations of criminal offences at the Child and Adolescent Unit. This resulted in unacceptable delays in the investigation and meant that not all allegations were thoroughly investigated. The police apologized to the Lake Alice hospital survivors for these failings. The police also acknowledged that the scope of its earlier investigations should have included the use of paraldehyde as a punishment, and that various statements from survivors had been lost between 2002 and 2006 and therefore had likely not been investigated properly during that period.

6.13On 1 February 2022, the State party reported that the police had completed the investigation and had decided to lay charges against a former staff member of the Child and Adolescent Unit, who is now 89 years old. The charges are eight counts of wilful ill-treatment of a child with respect to seven former patients of the Unit. The police have also announced that the investigation found sufficient evidence to charge two other former staff members with wilful ill-treatment of a child, one of whom was 92-year-old Dr. Leeks. However, both of these individuals were medically unfit to stand trial. Since this decision, Dr. Leeks has died.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any complaint submitted in a communication, the Committee must decide whether the complaint is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

7.2The Committee notes the State party’s argument that the complainant’s claims related to decisions by Australian institutions are inadmissible, as the alleged acts of agents took place outside the State party’s jurisdiction. The Committee considers that it is precluded from examining the complainant’s allegations in respect of acts committed outside the State party’s jurisdiction and declares these claims inadmissible under article 22 (1) of the Convention.

7.3The Committee notes the State party’s argument that the complainant’s claims under articles 2, 10 and 11 of the Convention are inadmissible ratione temporis because the alleged violations occurred before the entry into force of the Convention for the State party. The Committee recalls that a State party’s obligations under the Convention apply from the date of its entry into force for that State party. However, the Committee can examine alleged violations of procedural obligations under the Convention as of the date of a State party’s ratification or accession to the Convention, or its declaration of the Committee’s competence to receive and consider complaints under article 22, even where these investigations refer to violations that occurred prior to those dates.

7.4In the present case, the Committee notes that the alleged torture and abuse of the complainant took place between 19 October and 20 December 1975, during the period that he stayed at the Child and Adolescent Unit of the Lake Alice Psychiatric Hospital, and that the State party’s declaration pursuant to article 22 (1) of the Convention was effective from 9 January 1990. The Committee observes that the treatment to which the complainant was subjected preceded the entry into force of the Convention for the State party. Therefore, the Committee considers that it has no competence ratione temporis to assess the alleged violation of the substantive obligation contained in article 2 (1) of the Convention related to the treatment to which the complainant was subjected in 1975.

7.5The Committee recalls, nonetheless, that articles 12 and 13 of the Convention establish a procedural obligation for States parties to investigate allegations of torture and other acts of cruel, inhuman or degrading treatment or punishment. The Committee observes that the complainant filed a case with the police in 2000 against hospital staff and Dr. Leeks, and that the police closed the investigation in 2010, namely, well after the entry into force of the Convention for the State party. The Committee therefore concludes that the complainant’s procedural claims under articles 12 and 13 of the Convention are within the Committee’s competence ratione temporis and that it is therefore not precluded by article 22 (5) (b) of the Convention from examining these claims.

7.6The Committee notes the State party’s arguments relating to the lack of exhaustion of domestic remedies because, on one hand, the complainant has failed to challenge before national courts the decision of the Medical Council not to investigate Dr. Leeks and, on the other hand, he will have the opportunity to participate in the newly established Royal Commission of Inquiry into historical abuse in State care. The Committee observes that, although the complainant has not disputed the possibility of contesting the decision of the Medical Council before domestic courts, the procedure before the Medical Council, which the State party itself admits is an independent regulatory body, cannot replace a criminal investigation into the facts alleged by the complainant. The Committee also notes the State party’s acknowledgment that the Royal Commission of Inquiry has no power to establish criminal liability. The Committee therefore considers that no additional effective remedies were available to the complainant for his claims under articles 12 and 13 of the Convention.

7.7The Committee notes that the complainant does not provide any arguments to explain how his rights under articles 10 and 11 of the Convention have been violated. The Committee therefore considers this part of the complaint to be ill-founded and declares it inadmissible pursuant to article 22 (2) of the Convention.

7.8However, the Committee notes the complainant’s claim that the State party has not ensured an adequate investigation and accountability for the treatment that he suffered while at Lake Alice Psychiatric Hospital, which is contrary to articles 12 and 13 of the Convention. The Committee considers that the complainant has sufficiently substantiated this claim for the purposes of admissibility. As the Committee finds no further obstacles to admissibility, it declares this part of the communication containing claims under articles 12 and 13 of the Convention admissible and proceeds with its consideration of the merits. Furthermore, the Committee considers that the complainant’s claims are admissible insofar as they raise issues under article 14, considered in the present case in relation to articles 12 and 13, with regard to the procedural aspects of the right to justice and to the truth.

Consideration of the merits

8.1In accordance with article 22 (4) of the Convention, the Committee has considered the present communication in the light of all the information made available to it by the parties.

8.2The Committee notes that the main issue before it consists in determining whether the complainant’s allegations of torture and abuse by staff of the Child and Adolescent Unit at Lake Alice Psychiatric Hospital in 1975 have been promptly and impartially examined by the competent authorities, in accordance with articles 12 and 13 of the Convention. The Committee recalls its jurisprudence that a criminal investigation must seek both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who may have been involved. That is not an obligation of result, but one of means. The Committee must therefore assess whether the authorities of the State party have taken reasonable steps to conduct an investigation that is capable not only of establishing the facts, but also of identifying and punishing those responsible.

8.3The Committee first notes that the State party does not contest the events that took place in the 1970s at the Lake Alice hospital Child and Adolescent Unit. Complaints for those events were first filed in 1976. According to the police report, dated 22 March 2010, the Unit was closed in 1979 “following concern about supervision and a number of critical investigations”. The Committee also notes that the State party does not contest the claim that the complainant was subjected to electroshocks and drugging for non-therapeutical purposes, beatings and rape while at the Unit. The letter of apology that the complainant received on 31 October 2001 mentions that the Government apologized for the “treatment” that the complainant had “received and may have witnessed” at the Lake Alice hospital. The Committee considers that the treatment alleged by the complainant meets the threshold of torture, as defined in article 1 of the Convention.

8.4The Committee further notes that in his complaint of 2000 to the police, the complainant referred to the application of electric shocks and the administration of drugs as punishment, as well as instances of sexual abuse at a time when he was still a child in State care. However, despite the gravity of those allegations and his particular vulnerability as a child at the time of events, and also despite the subsequent findings by a retired High Court judge that electroconvulsive therapy was constantly used on the children in the Lake Alice hospital as a punishment, the Committee notes that, following a police investigation that lasted for over three and a half years, the resulting report, dated 22 March 2010, did not clarify whether the alleged treatment was indeed applied as a punishment. The report notes that “there is evidence of the application of [electroconvulsive therapy] in both treatment modes. There is also evidence of the application of electric shocks in circumstances that might suggest use as a form of aversion therapy or punishment”. The report also mentions that “this is the seventh examination of these or related facts”.

8.5In that connection, the Committee recalls its recommendation to the State party to investigate promptly and impartially the allegations of ill-treatment in the “historic cases” and to prosecute the perpetrators. The Committee further recalls its finding in its concluding observations of 2015 on the State party’s sixth periodic report that “the State party failed to investigate or hold any individual accountable for the nearly 200 allegations of torture and ill-treatment against minors at Lake Alice Hospital”, together with its recommendation to the State party to conduct prompt, impartial and thorough investigations into all allegations of ill-treatment in health-care institutions and to prosecute persons suspected of ill-treatment. The police report of 2010 also notes the “intense and ongoing media interest in this case”. The Committee therefore expresses concern that, despite repeated investigations into the same matter, the acknowledgment by the police of evidence of the application of electroconvulsive shock therapy “in both modes” as well as electric shocks “in circumstances that might suggest use as a form of aversion therapy or punishment” and the State party’s acknowledgment before the Committee of the seriousness of historic complaints of torture, while admitting the continuing public interest in the matter, the authorities of the State party made no consistent efforts to establish the facts of such a sensitive historical issue involving the abuse of children in State care. They have also failed to expressly acknowledge and characterize the treatment inflicted on the complainant, which amounted to torture.

8.6The Committee takes note of the updated information regarding the recent decision by the police to finally press charges against three former staff members of the Child and Adolescent Unit, although one of them is now 89 years old, another is medically unfit to stand trial and the main suspect – Dr. Leeks – has died in the meantime. The State party admits not only that the complaints related to treatment at the Lake Alice hospital in the 1970s began to emerge and have continued since 1976, but also that as recently as 2018 a Royal Commission of Inquiry was established to look into historic abuse in State care, including at the Lake Alice hospital, and that the police decided to press charges only in 2022. The case concerns violence in State care inflicted upon a vulnerable group and independent bodies cannot be delegated to decide on criminal matters. In that connection, the Committee notes that the Medical Council also refused to take action by accepting cancellation of Dr. Leeks’ registration as a medical practitioner. The State party tacitly endorsed such an act, leading to impunity, despite its obligation to protect those in a vulnerable position against abuse and with no other legal possibility of taking their allegations to the competent authorities any further.

8.7The police report of 2010 mentions that “the charges were only considered in relation to the guilt of the main suspect, Dr. Leeks”, concluding that “there was unlikely to be sufficient evidence to successfully prosecute a charge of wilful cruelty to a child.” Then, following requests by victims, investigations were reopened in 2019 into the sexual aspect of the Lake Alice allegations, which led the police in 2021 to consider that they had gathered enough evidence to charge three persons with wilful ill-treatment of a child, though the main suspect Dr. Leeks could not be charged as he was unable to defend himself in court. The Committee expresses concern at the important lapse of time between the two police investigations that have led to opposite results, which raises doubts as to the effectiveness of the police investigation, and in particular whether it was capable of identifying those responsible for the violations. In this respect, the Committee notes that the police acknowledged errors in previous investigations and inquiries into the abuse in the Child and Adolescent Unit, which resulted in unacceptable delays in the investigation and meant that not all allegations were thoroughly investigated.

8.8The Committee further notes that the police investigation attached significant weight to the fact that the appropriate charge for the police to consider the facts of the case was time-barred by a six-month time limit. However, neither the State party in its observations nor the police have established if the complainant, who was a child when he suffered the abuse, could have effectively complained in the six-month period after he was released from the Lake Alice hospital, where he had been sent by his own mother. The Committee notes that the complainant stayed there in 1975 and then made an attempt to complain to the police in 1980, but his complaint was not taken seriously, and he was even threatened with arrest. In that connection, the Committee draws attention to the State party’s obligation under article 12 of the Convention to ensure that its competent authorities proceed ex officio to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed. The Committee notes that it was only in 2003 that the Government invited former patients of Lake Alice Psychiatric Hospital to make a criminal complaint to the police; yet, in spite of this express invitation, it was only in 2021 that the police concluded its investigation.

8.9Finally, the Committee notes that, when confronted with several complaints in respect of the events at the Lake Alice hospital, the investigative authorities of the State party chose only a “representative complaint for analysis”, which in the specific circumstances of such undisputed historic complaints triggers the risk of ignoring the systemic character of the issue at stake and all the surrounding circumstances. However, the Committee notes the State party’s statement that in the new investigation started in 2019 – and as a result of the Committee’s decision in Zentveld v. New Zealand – the police did not treat any single victim’s evidence as being representative, but rather sourced evidence from any person who stepped forward as a potential victim.

8.10In the light of the above, the Committee considers that the State party has failed to conduct a prompt and impartial investigation into the acts of torture alleged by the complainant while he was at the Child and Adolescent Unit of the Lake Alice Psychiatric Hospital, in violation of the State party’s obligations under articles 12 and 13 of the Convention.

8.11The Committee finally notes the complainant’s uncontested claim that the Government has failed to provide him with adequate compensation and rehabilitation for the torture endured during his time at the Child and Adolescent Unit at the Lake Alice hospital. The Committee therefore concludes that the complainant’s rights under article 14 of the Convention to obtain redress, including rehabilitation, have also been violated.

9.The Committee, acting under article 22 (7) of the Convention, decides that the facts before it reveal a violation by the State party of articles 12, 13 and 14 of the Convention.

10.The Committee urges the State party to:

(a)Proceed with a timely consideration by the courts of all allegations of torture made by the complainant including, where appropriate, the application of the corresponding penalties on perpetrators under domestic law;

(b)Provide the complainant with access to appropriate redress, including fair compensation and access to the truth, in line with the outcome of the trial;

(c)Make public the present decision and disseminate its content widely, with a view to preventing similar violations of the Convention in the future.

11.Pursuant to rule 118 (5) of its rules of procedure, the Committee requests the State party to inform it, within 90 days of the date of transmission of this decision, of the steps it has taken in response to the above findings.