Someone should be going to jail

I’ll admit it, I do identify. How could I not? As a fellow parent of disabled children, I look at Marlena and Dave Peacock and at their desire to do something about the treatment of their son before they are too old to fight or something happens to either of them, and my heart breaks. I recognise those feelings, albeit from a distance. I live with that fear.

Identification may warp my perspective but there are objective facts, too, some of which have been known for a rather long time, others which authorities fought not to have released. The facts are that a man whose only crime is to suffer from autism and psychosis has been kept in semi-permanent seclusion for the last five years, under conditions that were found by Ombudsman Peter Boshier to constitute ‘cruel, inhuman or degrading treatment’ as defined by the Crimes of Torture Act. Multiple reports have called for an urgent and radical change of treatment. The chief obstacles are an apparent unwillingness to commit the necessary funding and, most absurdly, his having been judged by the people currently in charge of his welfare to be a danger to others as a result of the way they have treated him.

Ashley Peacock was the subject of a documentary last year and of a forthright and courageous series of reports by Kirsty Johnston in The New Zealand Herald this year. The publicity – which the desperate parents were forced to seek – may yet force the Ministry of Health and the Capital and Coast District Health Board to finally reckon with the findings of two separate Ombudsmen’s inspectors. But it is an utter tragedy and shame that we are even having this conversation. Why weren’t the inspections enough? What is it that makes it possible to ignore their reports and delay justice for Ashley Peacock?

This morning we heard the testimony of Lam Wing-Kee, a bookseller abducted in Hong Kong and held for five months in a small room 27 square metres in size. But Ashley Peacock’s room is half that size, and he’s been there a lot longer, so maybe next time Li Keqiang meets with John Key the Chinese press should ask him if he’s going to bring up our human rights record. This is a provocation, but to a point: for we all well-versed in the art of making some of our people disappear. When it comes to rights, not every New Zealander is deemed to be human. I have written many times about the invisibility of disabled children in our school system, but their lot is enviable in comparison to adults affected by disability or mental illness. Crimes of Torture inspectors, for instance, aren’t resourced to visit dementia units run by private providers. There are places, as a society, we simply choose not to visit.

My last job in Italy was in mental health, and I learned a few things about the system in which I worked. I learned for instance that in order to subject an individual to a compulsory psychiatric treatment such as the one that first landed Ashley Peacock in a psychiatric unit, it was necessary to acquire not only the signature of two doctors, but also of the Mayor acting as guarantor of the rights of the citizens. In the town where I worked, which has a population similar to Wellington’s, compulsory treatments were extremely rare. In any case they expired after seven days, at which point a new application would have to be made in order to prolong the treatment. Here, it was possible for a judge to make Mr Peacock’s order indefinite.

There is another difference between the Italian system and the New Zealand one that keeps popping into my mind ever since I read the first of Johnston’s reports. The difference is this: had this happened back home, I have very little doubt that a public prosecutor would have initiated proceedings against the administrators of the health board by now, for grave neglect in ensuring the welfare of patients is a crime. In other words, somebody would be going to jail. And believe me, I am no great fan of the practice of incarcerating people. But I cannot help but think that the prospect of a doctor seeing the inside of a cell, which would still no doubt be far nicer than Ashley Peacock’s, would lend proceedings some of the urgency they so badly need. It would also reassure that the country hasn't legalised torture.

In his 2013 report, Ombudsman Ron Paterson noted that while he acknowledged that ‘procuring suitable accommodation for Ashley’ remained a ‘complex matter’, he believed ‘that during the initial stages of my investigation there was a lack of collaboration, and insufficient resources available, to make real progress’. They dragged their feet. And yet nobody went to jail.

The latest report was issued in March. It found the Ashley Peacock ‘was still living in a seclusion room’, in breach of the Convention Against Torture. It found that the seclusion register and some seclusion records were incomplete, which strikes me as another excellent reason to send someone to jail. It found that not all clients had a consent to treatment form on their file. It found that not all section 76 reviews were up-to-date. These are the documents that effectively authorise compulsory treatment. How can a facility be without them and still operate legally?

General manager of mental health, addictions and disability services, Nigel Fairley, commented in a press release following the publication of the latest Ombudsman report that ‘the situation is not ideal for the client, other residents or staff’. And I know I can’t send him to jail for saying that, for reducing a five year stint in a small room, with a mattress covered in plastic for a bed and a bottle for urine, as an inconvenience, something not ideal. But I do wish I could.

In the absence of laws that protect the welfare and liberty of disabled people and the mentally ill, Ashley Peacock and his family are left at the mercy of a bureaucracy that can afford to move at its own pace. Minister Lotu-Iiga has said he has received assurances ‘from the Director of Mental Health that [Ashley] is being cared for in the best way possible’, and that the health board ‘are working closely with the family on a solution’. The existence of plain evidence to the contrary doesn’t seem to bother him. Black is white. Up is down. Cruel and inhuman treatment is the best possible care. These are the things you can say when you have all the power, and when you know that no-one is going to jail.

The first of Kirsty Johnston’s reports on Ashley Peacock’s is here and to easiest way to find the links to the others is to visit her author's page. The latest Ombudsman's report on the inspectors' visit to the Tawhirimatea unit can be viewed here. You can also visit the A life for Ashley Facebook page or view Seclusion, the episode of Attitude TV devoted to Ashley’s story.

The picture at the top of the post is of another room in the Tawhirimatea unit and comes from one of Kirsty's reports.