Friday, 9 March 2018

Update On Ombudsman

In November I posted on the High Court decision relating to the use of the term ombudsman in New Zealand. The Court of Appeal has now considered the issue and overturned the earlier decision. The decision is here 

The Court of Appeal looked at the historical development and use of the term. They comment in paragraph 8 of the judgment, that the need for legislative protection of the term ombudsman was driven by a concern that the use of the term outside the Parliamentary context had become increasingly widespread. Sir John Robertson apparently wanted a complete prohibition although this met with some opposition, when the then Minister of Consumer Affairs considered that the term had passed into common usage. Of course since this discussion in 1990 and thereafter, the term has become far more widely used particularly in universities, not just in North America but extensively in Europe and other places. This particular barn door has not only been open but destroyed in the following 30 years. But this factor did not loom large in the decision of the Court of Appeal.

It appears that the successor to Sir John Robertson, Sir Brian Elwood, issued criteria for considering applications for use of the name. He devised a two-stage test, the first of which was to balance the public interest in the use of the name against the undesirability of proliferation. The second test was a more elaborate examination of the use of the term, although the eight tests would look familiar to any ombudsman under the International Ombudsman Association criteria. Sir Brian opined that applications would be rarely granted, and only three have apparently been allowed. The most recent was of course my own application in 2011, described by Justice Simon France as an outlier. The Court of Appeal commented that my approval did not in fact shed any light on the use of the statutory discretion to use the term.

It is unfortunate that the Court of Appeal may not have been made aware of the criteria of the International Ombudsman Association, because the eight tests outlined by Sir Brian Elwood, are very similar to the criteria adopted by the IOA. There does not seem to have been any analysis of the very considerable amount of research and analysis over the many years since his decision, and the academic and other research from IOA members, found among other places, on their website and in the peer-reviewed journal published by the IOA.

But in any event the organisation Complaints Limited, the applicant in the High Court and appellant in the Court of Appeal pressed their case based on alleged invalidity of the Elwood policy. The Court of Appeal considered the categories of discretionary powers from previous authorities and found that the particular use was based on (paragraph 47)

 "Powers that by dint of the nature of the subject matter justify the establishment of a carefully articulated policy, but always with the reservation that no case is to be automatically rejected because it does not fit the policy"

They considered that the effect of the stage 2 factors is that the policy effectively amounted to a complete ban on the use, which was not what Parliament intended nor was it consistent with section 14 of the New Zealand Bill Of Rights Act 1990 (freedom of expression). They considered that the policy unduly restricted the scope of the discretion to a degree not contemplated by Parliament and precluded the decision-maker from taking into account other relevant considerations, in addition to proliferation and the risk of confusion.

It is regrettable that no consideration appears to have been made of the criteria in the IOA standards to set up an ombudsman office. Both the New Zealand Parliamentary Ombudsman and Complaints Limited do not appear to have considered the use and the large body of research from the IOA. This may have cut short the need for judicial review to the Court of Appeal in my view.

A consideration of the IOA standards would have supported the Court of Appeal's view about the unduly restrictive policy. So it will be interesting to see if the term can now be used more widely as a result. My thoughts are that use of the IOA standards would be of assistance in creating any new policy about the use of the term.

Tuesday, 27 February 2018

When Judges Bend the Rules

I have been reading two separate items, the first being a blog entry by Joshua Rozenberg about Lord Denning, and a recent decision of the High Court overturning a District Court decision on a construction contract issue. The common theme between the two is that of judges bending the rules to suit the justice of the case. My thoughts started when I read this article:-

Lord Denning was notorious for bending his perception of common law to reach what he thought was the correct result despite principles of law or precedent which said otherwise. Of course, many of his ideas have now been exposed as being somewhat prejudiced – he did not approve of people of colour sitting on juries, made openly anti-Semitic comments and thought hanging was a good idea. But he is perhaps best known for his open and direct writing style. He did not hesitate to create new law, and in cases such as Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 he created a new concept of promissory estoppel, and Gouriet v Union of Post Office Workers and Others [1977] CA, where he said "Be you ever so high, the law is above you."

The House of Lords did not hesitate to overturn decisions from Lord Denning when they departed from the law. So while he was able to make some changes, the parties were obliged to appeal to get a conventional application of law.

So the High Court decision in Floorman Waikato Ltd v Mcrae [2017] NZHC 1063 illustrated a New Zealand District Court Judge looking at the equity of a case and making a decision attempting to exclude well-established construction contract law. The case was about a very small contract for floor sanding for Mr McRae. The flooring company had applied to the District Court for summary judgment for the outstanding account of $6872.50. This is of course well within the jurisdiction of the Disputes Tribunal which can hear claims up to $15,000. Nonetheless the plaintiff was entitled to seek summary judgment and did so on the basis that it had sent Mr McRae a construction claim under the Construction Contracts Act 2002. The act has a fast track method to enable contractors to protect cash flow, which means that when someone receives such a construction claim, and wishes to defend the claim, they must respond with a schedule in the statutory form. The failure to provide a schedule within the required time then entitles the claimant to apply to court for a judgment. That is all well and good, but in this case Judge Ingram considered that his residual discretion to refuse summary judgment should be applied, stating that he thought that the "manifest financial penalty which must attach to the operation of the Construction Contracts Act 2002, is offensive to my sense of justice in the circumstances of this particular case, and I do not accept it can fairly be brought within the terms of r 12.2, and I am not satisfied there is no defence to the plaintiff's claim." No doubt being aware that someone might cite his judgment for its precedential value, he then went on to say that he thought that the use of the act was inappropriate when the claim was within the jurisdiction of the Disputes Tribunal and where there was a layperson involved who did not know about the consequences of the act and the failure to provide a schedule. He indicated that he would transfer the application if he could, but that either party would need to file a claim in the tribunal.

Instead, the plaintiff appealed the decision. In the High Court Justice Paul Davison then had to overturn the decision, because of the very clear process outlined in the Construction Contracts Act. He said that in this case, judge Ingram was plainly wrong as the result of taking an irrelevant matter into account, and in his view that the act should not apply to residential renovations involving homeowners. So the end result was that the flooring company was able to obtain judgment or the claim together with costs, which I expect would have been very substantially greater than the judgment for the claim.

I don't know if Judge Ingram would be flattered or dismayed by the comparison with the approach of Lord Denning. But in a practical way, he sought to achieve some real fairness as between the parties, but regrettably fell foul of the explicit wording and procedure in the Construction Contracts Act. He was not able to use the discretion to refused to enter summary judgment to avoid the regrettably clear process.

I expect Mr McRae is somewhat disillusioned by the court process. The case illustrates the dichotomy between attempting to do the right thing and applying the law. Such niceties would be of little comfort after receiving the costs award.

Thursday, 14 December 2017

Lower Hutt City Council and Mediation

This is a short post just to comment on the story in the New Zealand Dominion Post daily paper, about dysfunctional relationships within the elected Council of the Lower Hutt City Council. This council is a principally suburban district adjacent to Wellington, with a relatively small population compared to some. Like many smaller local authorities, they appear to struggle to get good candidates to run for council, and when there, they appear to have some real difficulties with relationships with each other.

It is worth putting a link to the article to explain the background. This is

The problem appears to be that the councillors have very different views on a number of issues including whether council staff should be paid the living wage (rather than the basic minimum wage) and also arguments about getting free meals while attending council meetings. It appears that because of these disputes, the council has had to refer to outside lawyers and considerable expense to obtain opinions about what appear to be fairly trivial matters.

So the councillors decided that they would use Justices of the Peace or lawyers prepared to work for free or at low cost when disputes arose. The point of my post is to wonder why they did not consider using the many highly skilled mediators who practice in Wellington and Lower Hutt. I am quite confident mediators would charge much less than lawyers, but more importantly, they have the skills to resolve the disputes rather than give legal opinions about the rights and wrongs. The suggestion that Justices of the Peace be used shows a basic misunderstanding of the role of a Justice of the Peace, echoed by the National Federation of Justices, who commented among others, that it would be fraught with difficulties.

There are two things we can take home from this story. Unfortunately the first is that there is still not enough knowledge in the community of the role of mediators. Any mediator would have seen this problem and immediately thought they could assist in resolving these disputes. The second is that no one contacted the two professional bodies who qualify mediators, AMINZ and the Resolution Institute, or Fairway Resolution Limited who also provide mediation services for community matters. I don't know if the Council will stumble across my blog, but I would be happy to point them to many of my mediator colleagues who could assist (as could I) in facilitating these issues and even training them to better techniques for dispute resolution on the council.

Friday, 24 November 2017

Pike River Mining Supreme Court Decision through the Lens of Restorative Justice

The recent decision of the New Zealand Supreme Court about the decision to offer no evidence in a prosecution of the mine manager, has attracted considerable publicity. The decision can be found at Anna Elizabeth Osborne And Sonya Lynne Rockhouse v Worksafe New Zealand
 [2017] NZSC 175 [23 November 2017].

The decision starts by pronouncing that "it is contrary to the public interest and unlawful for an arrangement to be made that a prosecution will not be brought or maintained on the condition that a sum of money is paid." Justice Ellen France summed up at the very end of the decision by commenting that the decisive feature of the case was that it was simply not possible to put any distance between the basis for payment of the money and the decision to offer no evidence.

The Pike River families who brought the case were pleased with the decision because they felt that Mr Whittall should have been prosecuted. He had of course used the proceeds of his directors insurance to make an offer of a substantial sum of money to the families of the victims, and so the prosecution against him was struck out.

Apart from the fact that little attempt at restorative justice has been attempted to resolve the principal issues, this case does offer an interesting perspective on an aspect of restorative justice settlements where reparation may be offered. The purpose of reparation in this case was to avoid a conviction and the consequent sentence. But I suggest that the problem began when the reparation was negotiated without considering whether this should be done through a process of restorative justice conferencing. This left the families of the victims feeling the hurt of their tragic losses but an impression that the consequences of the many failures by the mine operators were left unpunished and therefore they did not obtain justice in the case. So the failure to involve the families in the discussion about the decision to offer no evidence resulting in reparation but no justice illustrates the need to carefully prepare for a restorative justice process.

The decision indicates that the proposal to settle the case did come with an offer by Mr Whittall to meet with the families to convey his personal empathy and condolences. There does not seem to have been an apology, although that is not mentioned.

Howard Zehr (cited from The Little Book of Restorative Justice) emphasises that crime is a violation of people and of interpersonal relationships, and that violations create obligations. The central obligation is to put right the wrongs. It is necessary to address the harms and the causes. So the decision to try to resolve the possible prosecution by payment of money and a meeting with the victims had some elements of an attempt to put right the wrongs. Zehr says that an effort to put right the wrongs is the hub or core of restorative justice. Putting right involves addressing the harms that have been done, and addressing the causes of the harms, including the contributing harms. Because it is victims who have been harmed, restorative justice must start with victims but is ultimately concerned about restoration and reintegration of both victims and offenders as well as the well-being of the entire community.

This is where the process became derailed. The company running the mine closed down and ultimately went into liquidation. Reading the press reports of the time, it is clear that the families felt that this was somehow an avoidance of the moral obligations. So Mr Whittall as the director was the person seen as the offender, and who had therefore the obligation to put matters right. At that time it was the Department of Labour who was responsible for prosecuting work safety offences. They therefore were in the role of a prosecutor. A prosecution process has nothing to do with addressing the harm that has been done or the cause of the harm. A Royal Commission was established to address the causes of the accident, and the families were invited to participate. There had been some attempts to engage with the families, with varying degrees of success. But a proper restorative process would start with the victims and work with them to address the harm. For very human reasons they would be seeking to find the fault behind the disaster, but the liquidation of the company and the  payment organised by Mr Whittall's lawyers appear to have been taken as avoidance of any fault or blame. There appears to have been little inclusive or collaborative processes and a frequent theme of the press reports interviewing the families, is that they felt left out and marginalised. A good example is the issue of entry to the mine to recover the bodies of the victims. It is clear the families felt excluded by a bureaucratic process, and that they have welcomed the commitment by the new government to enter the mines. Zehr talks about the need for respect, and it is clear that the Pike River families did not feel respected as part of the process.

So does the Supreme Court decision affect the restorative process where reparation may be part of an agreement that a charge not be prosecuted to a conviction? The court set out very clear guidelines, but did not discuss whether reparation in a restorative justice context would be affected by the principle that you cannot buy an acquittal. The difference may be the collaborative process of restorative justice, which was not an element in this case.

So how should this have been handled? A collaborative consensus driven process to looking at the causes, addressing the harm and addressing how the victims could be restored? I leave that thought to the politicians who sadly thought more of fault avoidance than a more holistic approach.

Tuesday, 14 November 2017

Ombudsman and the Statutory Protection

New Zealand was one of the first countries to introduce the office of the ombudsman after the Scandinavian countries. Our ombudsman scheme was established in 1964 under the Parliamentary Commissioner (Ombudsman) Act 1962 but it was not until the 1975 Ombudsman Act as amended in 1991 that the word "ombudsman" was protected by statute.

What changed since the origin of the office was a considerable expansion of the use of the term outside of the original use for the Parliamentary ombudsman scheme. In the United States, the term began to be used extensively for people appointed as an ombudsman to universities and similar tertiary institutions. There is a specific professional body where most affiliate, called the International Ombudsman Association, which operates an annual conference, a professional journal and training.

The New Zealand ombudsman became concerned about protection of the term and so arranged for an amendment to the act in 1991 restricting the use unless there was specific consent from their office. There are a number of statutory or industry bodies which were granted permission, including the Insurance Ombudsman (now called the Insurance and Savings Ombudsman) and the Banking Ombudsman. The only other permission was granted specifically to the office of the ICANN Ombudsman, where permission was given in 2011. That was of course an application which I made and which was granted subject to conditions that I not use the term in New Zealand because of the restrictions.

That was not a difficult condition because my office was global within the ICANN community. There were only ever a small number of referrals to my office from New Zealand, and the complaint handling software was based in Los Angeles, California. On a practical level I did a lot of the work online, but sitting at my office in Wellington, New Zealand, although I also travelled extensively to the ICANN meetings around the world.

This issue has now been the subject of an application for judicial review by Financial Services Complaints Limited, which runs an industry based service and wanted to use the term ombudsman. They considered that since other similar bodies have been granted permission, this restricted them in their marketing of the services. Their application was ultimately declined in an interesting decision from Justice Simon France issued in March of this year. The reference is Financial Services Complaints Limited v Chief Ombudsman [2017] NZHC 525.

In his decision he refers to some of the history of the term and the reason why the term became restricted. Interestingly, there was some resistance to the restriction from officials and also from the Minister of Consumer Affairs, although because of the passage of time the details are somewhat murky. The then ombudsman Sir John Robertson managed to persuade Parliament to introduce the restriction however. The history was outlined in a paper which he presented to the International Ombudsman Institute, which is an international body of mainly Parliamentary ombudsman. Citing from the decision and from his paper it is interesting to note:-

"While I have not achieved the total prohibition sought in the first place, the statutory power which I now have to control the use of the term “Ombudsman” is a practicable and sensible solution to the problems which I foresaw in 1985, at least insofar as New Zealand is concerned. We are a small country population-wise, where the Parliamentary Ombudsman is a well-established and, relatively speaking, well-known and understood concept. It was, therefore, important not to allow the positive influence which the office has been able to bring over the past thirty years, to the understandably at times contentious edge between the authority of the state and the rights of the citizen, to be diminished unnecessarily by the word “Ombudsman” becoming trivialized. I think there is some magic in the name “Ombudsman” which needs to be nurtured and protected in the public interest."

Ultimately the decision rested on issues of statutory interpretation and Justice France concluded by saying:-

"The application fails. The Chief Ombudsman’s policy is not inconsistent with the statutory purpose. Although it is legitimate to ask when a consent will ever be given under s 28A of the Act, the restrictive policy cannot be said at this point to have closed the door to any successful application in the future. The decision was not unreasonable."

What attracted my attention however was not the argument which was raised and the basis on which the application was refused. There was considerable emphasis on the need to protect the term, but no discussion at all on the use of the term outside of New Zealand. I mention this because of the very extensive use in the United States and Canada and also now Europe for university and industry ombudsman. The current membership of the International Ombudsman Association as cited from their annual report in 2016 was 744 – including a number of members from New Zealand. The judge's attention was not brought to the existence of this organisation and the fact that if there is concern about use of the term, then it does not take into account the very extensive use overseas.

But further than this, the judge was obviously not told about more recent research on the use of the term. There have been a number of learned papers written by authors from Queen Margaret University in Scotland where there has been a centre for research on ombudsman, although they use the term ombuds. This aspect was not discussed either in the decision, because the judge was not referred to this research from what I can read from the decision. This research introduces a new angle to the use of the term because the authors consider that the term "ombudsman" is gendered and therefore can be abbreviated to ombuds. In a paper on the University website they talk about an attempt to introduce the gender neutral term to Northern Ireland, which was rejected, in the words of Varda Bondy and Margaret Doyle, stating that the attempt failed when the legislature were deemed arguments about brand recognition were more persuasive than arguments about equality. See for the full article. There is forthright comment about the failure to recognise inappropriate use of gender specific terms.

The purpose of my note is to consider whether some of the larger issues about the extensive use overseas and about the gender of the term should have been considered in this argument. I raise it because I wonder whether this needs to be looked at in a bigger sense. I speculate whether the term ombuds could be freely used in New Zealand, because of the specific and now perhaps old-fashioned term ombudsman does not recognise gender diversity. The last word will be from the Court of Appeal as I understand the matter is set down there for argument later this year.

Monday, 31 July 2017

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals
Chris LaHatte LLB MMgt (DipRes) FAMINZ (Arb/Med)

Ma te rongo ka mohio
Ma te mohio ka marama
Ma te marama ka matau
Ma te matau ka ora
Through information comes awareness, through awareness comes understanding, through understanding comes knowledge, through knowledge comes wellbeing.
It is inevitable that when members of a profession provide professional services, particularly to individuals, that there will be mistakes and errors. It appears to be very well accepted that there should be a means to address mistakes and errors, so that any wrongs which may arise may be explained and if possible corrected. While there is often a possibility of the cnminal justice system intervening in matters of professional discipline (such as theft by a lawyer or sexual assault by a medical professional), many issues which cause harm are not criminal in nature.[1]Those disciplinary procedures are similar to the process of criminal justice with the common features of a victim, retribution and punishment. Most professions in New Zealand have now moved to a disciplinary structure which involves a formal complaint process, an investigation, and when needed, a hearing before a disciplinary tribunal. Complaints against a professional will in most cases come from members of the public who feel that they have been let down by the professional services provider, but can result as an additional consequence of breaches of crlminal law.[2]
Dispute resolution writers have described an expansion of restorative practices into other areas, such as schools, employment disputes, disciplinary action in the military and this paper anticipates a further expansion into complaints against corporate bodies for non-compliance with regulatory schemes.[3]
A [4]number of the professions such as the New Zealand Law Society do offer what is called early intervention , as do places such as the office of the Ombudsman, which use similar techniques to fry to resolve complaints at an early stage[5] . The purpose of this paper is however, to present as an additional tool to disciplinary bodies, the concept of using Restorative Justice as a way of resolving disputes that may be unsuitable for early intervention, of dealing with the issues on a holistic basis, using concepts such as the circle and facilitators.
What is Restorative Justice?
For the purpose of this paper I will outline restorative justice from its origins to the present practice in New Zealand. While it has become a generally accepted concept, not everyone is familiar with the practice and the techniques. Restorative practices are presently found in the sentencing process of the criminal courts of New Zealand, originating from the Family Group Conference which was developed under the Children and Young Persons and Their Families Act 1989, and more recently as part of the District Court sentencing practice. In more recent years it has also become a tool used in primary and secondary schools, particularly with disciplinary and behavioural problems with the children.  
Restorative justice is considered to have originated in Canada in about 1974[6], when probation officers realised that there could be different and better ways of dealing with offending particularly with young people. This developed into what became known as “victim offender reconciliation program” or VORP, a program to bring victims and offenders together with a facilitator or mediator, to talk about the offending and how the hurt could be repaired or reconciled. An American called Howard Zehr became involved from an academic perspective and wrote extensively, including his pioneering text in 1990, book “Changing Lenses: a new focus for crime and justice”. While the Family Group Conference concept was indigenous to New Zealand, it became apparent that it was a form of restorative justice, and one of the judges involved in the youth justice system, Judge McElrea, arranged the first conference to discuss adult restorative justice based on the FGC concept. This led to pilot schemes and more recently to incorporation into standard sentencing practice.
Chris Marshall describes restorative practice as having three core assumptions[7]. The first is a concept of crime as injury more than infraction, looking at the harm to real people rather than an abstract transgression against a code. He considers that there is a key idea, that it has a notion of justice is right-relation and crime is wrong-relation. So there is a need for establishing a right relationship between the parties, of mutuality equality and respect in community. He discusses the concept of restorative justice as repair or healing of relationships, contrasting this with the punitive justice system, pointing out that punishment does little or nothing to heal either the offender or the victim. He emphasises that the relationships violated by the crime are what need repair, and restored to rightness. Neither the offender nor the victim are heard in a punitive justice system, and so restorative justice seeks to repair the harm of crime, by listening to the voice of both the victim and the offender. It is important, Marshall emphasises, to recognise that the principal harm of crime is the loss of trust, which strikes at the network of relationships which form our society. To resolve this he looks at the core business of restorative justice practice, encounter, truth telling, accountability, confession, contrition and restitution.
It is important to recall some of the things which restorative justice is not. It is not primarily about forgiveness or reconciliation although that can be a result. It is also not mediation, because the emphasis is on conferencing and dialogue. In the context of professional mistakes, there needs to be some understanding of how the errors or mistakes were made, and the offender needs to understand the needs of the complainant/victim in the process. If crime is seen as injury, then negligence or bad behaviour in the context of professional practice, is also likely to cause some injury. The civil law of negligence of course derives from the concept of a civil wrong leading to damages. [8] In the early days of law the difference between criminal and civil wrongs was not so great, and systems of restorative justice were used to restore the relationship between the parties so that the death of a victim would be compensated by payment to the victim's family. Of course, not all disciplinary issues are matters of negligence, but they have in common with criminal justice, a code and breaches of the code alleged by the victim and prosecuted by the professional disciplinary body. In addition, there is often a very close relationship between the professional and their client/patient. It is common to find the term "fiduciary duties" applied to describe aspects of the relationship, and such fiduciary duties clearly carry a close relationship between the parties. So it is likely that the relationship has some history and shared intimacy. Injury to this relationship may therefore have greater significance particularly to the victim, who would regard the breach of fiduciary duty in very personal fashion.
Restorative justice has been described as a compass, and not a map. So, as the result of a conference, the parties could agree to make a proposal to the tribunal to make the formal decision. But it would have to be the tribunal which ultimately made the decision, and therefore the tribunal would need to be prepared to adopt any recommendation reached at a restorative justice conference. Restorative justice is concerned about roles and needs, and so there would need to be involvement but only with the offender, complainant/victim but likely peers who could discuss the standards of performance and where they have failed.
So restorative justice is the alternative to a retributive model of justice. The fundamental premise is that crime (or an offence against a professional disciplinary code) is an injury to people and relationships. There must therefore be a response by addressing the harm caused through dialogical processes that attempt to meet the needs of all involved parties and promote repair of the relationships. There are questions such as who has been hurt, and what are their needs. Who is responsible and what obligations exist? What can be done to demonstrate accountability and promote healing? How can we prevent this happening again? There is a need to promote respect reassurance and repair, and to develop harmony and healing.
Application to Professional Discipline
For the purpose of this paper, I have examined a number of professional disciplinary bodies, although it is not intended to be an exhaustive analysis of all such structures. There are for example a number of smaller professions where it is relatively unusual to impose professional discipline.[9] I have included a table of the bodies where I have made specific enquiries about the use of early resolution/intervention and whether restorative justice is used. I discuss this further in this paper.
Typically, a professional disciplinary body operates from a starting point of a code of ethics.[10] This has been suggested to be the distinguishing mark of a profession,[11] and sets the framework for the expected behaviour. Decisions about the discipline of members will often cite the code of ethics as the basis for the punishments or sanctions imposed where the breach has been proved. This can be usefully compared with a criminal statute, where the state through the criminal courts, can impose a sentence in many forms. And the other typical feature of professional discipline is that there is often a victim. For lawyers and accountants, this may be a client who has lost money due to actions of the professional, for medical professionals, it may be a patient who has suffered injury through inadequate treatment and so on. And just as with the criminal justice system, it is useful to see whether the voice of the victim is heard in the disciplinary tribunals.
Zehr[12] refers to power as an element in restorative justice processes. I propose that in the context of a profession, the holder of knowledge possesses power over the layperson.
Sociological writers have talked about the "aggregation of professional power in its members [13]
Lawyers are sometimes accused of keeping their esoteric and perhaps gnostic knowledge of law and using this to gain advantage. In Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer [14] there is a useful discussion on status and power and referring to lawyers occupylng positions of considerable status. Similarly doctors are sometimes seen as holders of special knowledge which they can bestow on grateful patients. This power operates in two ways. The holder of that power and knowledge is considered to have a special responsibility in advice and use of that power, and the sanction can be that of the civil proceeding for professional negligence. But someone in possession of that power, may be considered vulnerable in that the loss of that power by professional discipline, may reduce their standing in the profession, and in the worst examples the disciplinary process will strike them from the rolls of the professional body, therefore ending their career. In this process naming and shaming has a significant factor in imposing professional discipline, and there is a common theme in those processes of seeking suppression of names. Balanced against suppression, it is also common for the victims to want the professional identified as part of the punishment. It is also not unknown for other members of the profession to advocate naming, so the blame does not fall on to their colleagues.
This may be seen as a reversal of the criminal justice restorative justice processes, where often the offender will come from the lowest socio-economic groups, and the victims may see themselves as upright citizens.
This can also be placed in the context of the six vs of victim recovery. Because of the disparity in power and knowledge, and the dependency on trust created by the fiduciary relationship, the victim will be particularly vulnerable. They will often continue to need to use the professional services, and therefore need to feel safe. The professional bodies often emphasise the need for maintenance of high levels of practice. But I wonder whether the reassurance from the professionals, the peers of the offender, would really meet the needs of the victim, and a restorative justice conference may be that opportunity to restore confidence, even if the professional is no longer going to practice, but confidence in the profession itself. The voice of the victim will also be important. The disciplinary process is very similar to a criminal justice prosecution in that the preparation of the case is undertaken by the professional body and the tribunal. As with criminal prosecutions, the needs of the professional body may overtake the needs of the victim.
For example, the prosecution may be seeking to make an example of egregious behaviour but in doing so, may overlook the injury done to the victim. Giving the victim a voice at a conference, and ensuring that they are heard as an equal party at the conference, will help restore the dignity.
Veracity may be even more important with a professional disciplinary tribunal which does not have the same publicity as a criminal court. It would be very easy, I suspect, for a victim to form the view that there was a secret conspiracy of professionals seeking to protect their own. So openness in the process would be critical, and reassurance about the truth of what is happening may best be done in the context of a conference.
The next v, of validation, which is considered to be the other side of voice is the opportunity for the victim to have their say, be listened to and recognised. This may help in opening empathy between the professional person and the victim.
Vindication is critical particularly in issues of professional competence. The victim will want to know who caused the injury and who was taking responsibility. It is important to have acceptance of moral blame by the professional, who must accept that their actions have caused the problem, and moved to a commitment to fix the issue as far as possible. Often the victim will  want to know that the professional will not make this sort of mistake again, so a promise to behave better or avoid repeating the problem will be important.
Working with victims will require that they find value in the process. The comment is often made, "I don't want this to happen to someone else". The professional disciplinary body will also have a strong interest in finding meaning for the process, and may have a strong common interest with the victim, to find value of the process. Although healing for the victim may be more important, reassurances about future competence will also be important for the professional organisation. In a sense, because of the effect of bad actors on a profession, they may be seen as having a victim's role, because it reflects on them when a member behaves badly. So they may need to find a value in the process and look to a healing process.
Perhaps the most important issue to be resolved at the conference will be an examination of the power imbalance, and of the breaches of the fiduciary duties owed by the professional to the victim. For a proud professional person, who will have an intimate knowledge of the particular discipline, to back down and acknowledge their failure will require a substantial adjustment of their worldview.
A further issue at a restorative justice conference is to consider who has a stake in this situation. In most cases there is likely to be a victim, but because of the express desire of the professional bodies to maintain standards, they have a dual role both as the prosecutor, but also as a party affected by the breaches of standards. In a state prosecution of a crlminal offence, in recent times, a victim advocate will represent the interests of the victim. The state prosecutor is there to ensure that the sentencing decision meets the needs of the state. This is sometimes expressed as deterrence. This is different from a disciplinary body seeking to ensure that the high standards of the profession are maintained. So it is my view that at the conference, there should be a person who represents the profession. As part of the repair of the relationships, it will be important for the professional to have a better relationship with their professional body, as well as with the victim. Of course, some of the disciplinary offences may not come with a victim, and in a sense, the professional body could be considered a victim. But the repair of the relationship remains an important issue. Another way of looking at this, would be to consider that the profession forms a community, and therefore using restorative justice in that profession forms a particular type of community justice. Zehr[15] discusses the use of community justice rather than state justice, and talks about the alternatives which are the retributive or judicial models, but does suggest that "community justice offers a wider range of outcomes than does our contemporary retributive paradigms which may be particularly applicable to use in a disciplinary tribunal context
From my examination and enquiries of the use of early intervention or mediation, the next step of restorative justice processes does not appear to have been adopted by any professional bodies. It is difficult to research what happens at the mediations because of the confidentiality. But I have not seen any examples of the use of restorative justice which has recommended a result to the body which has the power to impose professional discipline. I prepared a table based on a question which I posed to the disciplinary bodies, and have included the responses in the table which is attached to this paper. What is interesting is that there seems to be an acceptance of the use of early intervention and possibly mediation, but no use of restorative justice itself. This is not intended to be an exhaustive list of disciplinary tribunals, but does illustrate that if there is acceptance of a mediation approach, then I suggest it is likely that restorative justice may also be a useful tool. In Webb Dalziel Cook[16]  it is anticipated that in the words of the authors "where, previously, the focus of disciplinary procedures was to punish the practitioner in an attempt to protect the public, the Lawyers and Conveyancers Act 2006 is also concerned with reconciliation for the complainant him or herself”

In my research, I found what I consider a useful example of professional disciplinary action where restorative justice could have been used. In this case[17] a midwife was censured and fined and ordered to undergo counselling and mentoring following an affair with the husband of a patient. The relationships in this case went beyond the usual patient/ provider situation because all of the parties were formerly friends. The midwife was then asked to look after the pregnancy of the couple, but during the course of the care, commenced an affair with the husband. So the relationships were more complicated, but the report refers to breaches of trust and the effect on the parties. This was a particularly complicated case which included an appeal to the High Court, and referring back to the tribunal to reconsider some facts. The initial decision was 29 October 2015, and the final decision was issued 23 December 2016. Clearly the effect on the parties would have been considerable because they would have had this hanging over their heads from the time of the offence in June 2013 to January 2014. I venture to suggest that a reference to a restorative justice process would have the potential to deal with the issues far more efficiently and without the exhausting tribunal and court process.
There was no criminal element in the behaviour of the parties, but the midwife accepted that her actions amounted to professional misconduct and that she should be disciplined. Much of the decision is concerned with adherence to the Code of Ethics and The Midwives Handbook for Practice. This case illustrates the role of the profession beyond that of the prosecutor, in maintenance of appropriate ethical standards. But in a situation where the professional was contrite and accepted the consequences of her actions, restoration of the relationships should perhaps have been a priority. The tribunal did refer to a "journey to rehabilitation" but was also concerned about a penalty to send a message to the public and other midwives about conduct. I can only speculate as to what would have happened if there had been restorative justice used rather than a penalty hearing. In a situation where the misconduct was admitted, the path through the tribunal and High Court must have been excoriating.
My proposal is therefore to recommend to disciplinary bodies that as part of the toolkit in dealing with their members, that there should be use of the restorative justice process. This
would require consent, of all the parties affected, which if they are already using mediation, would not be a new step. It would also require a buy in from the committee or tribunal which imposes the discipline.

There is a real question as to how this process would actually work. Obviously there would need to be a filter process so that only appropriate cases were referred to a restorative justice result. I anticipate that the common use of early intervention would quickly identify appropriate cases. Then once the parties reached an agreement to hold a conference, an appropriate facilitator would be brought in to arrange for the conference and undertake the usual preconference preparation. The result of the conference would then be sent to the disciplinary body, who would have a report as to the outcome, and be able to consider the recommendations.
Such a process would engage both the victims affected by the professionals, the professional body itself, and the person being disciplined, in a way which I hope would maintain faith in the profession in a way which was less damaging but more inclusive, and with listening to all of the voices affected by the issues.
Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition,
Wellington, Brookers 2001
Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3rd Edition Lexis
Nexis Wellington 2016
Zehr, Howard: Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition)
Herald Press Virginia, United States (2015)

[1] There is of course a crossover between the criminal justice system and professional discipline, where the professional is dealt with under both systems. It is common for a professional convicted of a crime to be then disciplined by their professional body, which is not double jeopardy, but based on breaches of standards of the profession, rather than a breach of the criminal law. See for example Daniels v Thompson [1998] 3 NZLR 22, which is the leading case on the conflict between processing offences under the criminal law but also prosecuting other forms of remedy such as professional discipline or civil proceedings for damages.
[2] There are specific provisions in most codes of conduct which require the professional to report criminal prosecutions upon conviction. See for example the New Zealand Law Society 1437811 and New Zealand Institute of Chartered Accountants
[3] See for example Chris Marshall, Restoring What? The practice, promise and perils of restorative justice in New Zealand Policy Quarterly Volume 10, Issue 2 May 2014, where he suggests this as a further expansion of restorative justice.
[4] r-complaint-is-processed where the Lawyers Standards Committee may try to resolve matters by negotiation, conciliation or mediation.
[5] See for example reports from the office of the Ombudsman where he refers to a stronger focus on early resolution and more flexible practices assets/attachments/479/inside the office of the ombudsman.pdf?1493954285
[6] Chris Marshall op cit

[7] Op cit
[8] Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition, Wellington, Brookers 2001 in Paral.1.2 pg 4 discusses the relationship between tort and crime
[9] for example, for AMINZ, referring to the annual reports which mention disciplinary functions, in the 2016 annual report there were 3, one of which went to the tribunal, and in 2015 there was 1.
[10] see for example the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, for chartered accountants, services/memberobligations/codes-and-standards and there are many other examples.
[11] It is beyond the scope of this paper to go deeply into the nature of a profession, and for the purposes of this study, it is proposed that the essential elements of regulation, autonomy, status and prestige, and power are common to most professions. See for example Jackson, J.A. Professions and Professionalization (2010): Volume 3, Sociological Studies,. Cambridge: Cambridge University Press, pp.23-24
[12] Zehr, Howard Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition) Herald Press Virginia, United States (2015) at Page 58
[13] See Hall, R- Theoretical Trends in the Sociology of Occupations (1983) 24 Sociological Quarterly 5, 11
[14] Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3 rd Edition Lexis Nexis Wellington 2016

Monday, 8 May 2017

Legal Aid

Like many lawyers in the litigation space, I used to undertake work on legal aid. From 1978 when I was admitted to the bar, legal aid grew to a substantial part of many lawyers practice, including mine. It was very simple initially, because in criminal legal aid, the judge would often assign people on the spot. It later grew into a more sophisticated model, where the applicant needed to complete a form. The legal profession supported the use of legal aid, and set up committees of volunteer lawyers who would process the applications for legal aid, particularly in civil cases and family cases. These were unpaid positions, and the lawyers would use their own local knowledge to quickly process large numbers of applications. I was a volunteer on such a committee in Auckland for some years.

Gradually legal aid became more political, and we began to hear criticism of lawyers on a gravy train. However there were always challenges with legal aid because the hourly rate was sadly neglected for many years (no politician wanted to give lawyers for money) and some enterprising lawyers used the system with some efficiency, which is not a criticism, to earn reasonably good incomes from legal aid.

Political interference then brought in the very unbalanced report from Dame Margaret Bazley, in 2009, which was a singular lack of any empirical evidence attacked the operation of criminal legal aid particularly in South Auckland. Based on this report, legal aid was restructured and made considerably more difficult to obtain. For lawyers for the first time there was a process to obtain a provider contract, so that the lawyer had a formal contract with the then Legal Services Agency. Things grew worse, and the agency was swallowed up by the Justice Department to become a unit subject to bureaucratic control of senior Justice managers.

The abject failure to increase rates was then compounded by a very lengthy application process, which all lawyers had to complete to obtain a contract. Many lawyers who did not do much legal aid did not want to go through the lengthy process and dropped off. This is confirmed by statistics which show the number of family law providers has dropped from 1850 in 2007 to 942 in 2016 (and will have dropped further by now). There are smaller towns in New Zealand where it is now impossible to find a family law legal aid provider. And yet, many moved to smaller towns because the cost of living is smaller, because of their reduced incomes. So the average income in those small towns would make more people eligible for legal aid, but the government has manoeuvred the legal aid system to a point where lawyers are no longer interested.

I am not sure that the New Zealand Law Society has been very effective in negotiating with the government on these issues. I suspect part of it is that the politicians just refused to listen to the views of the lawyers. A number of judges have also expressed concerns about the number of self represented litigants, and the greatly increased cost of litigation where an unskilled party is involved.

So when I returned to practice after my previous role, I thought I would obtain a provider contract. Sadly, I have been defeated by the system. Despite having been a provider from 1979 until 2011, I was unable to successfully navigate through the system to obtain a contract. I sent a substantial amount of material to Legal Services, but apparently took too long to complete the forms. I will continue to do pro bono work, but choose not to do so on grounds of legal aid, because I decline to complete the forms again. While the staff at Legal Services were polite, they have obviously been given a straitjacket for new providers, which I cynically wonder is designed to weed out too many applicants.