The road to hell is paved with good intentions, writes Breda O'Brien. Hardly an original metaphor, but one cited by retired Judge Fred Kaufman on the first page of the executive summary of Searching for Justice - An Independent Review of Nova Scotia's Response to Reports of Institutional Abuse.
Those good intentions were the desire by the provincial government of Nova Scotia to expedite compensation to victims of institutional abuse and not to drag them through the adversarial processes of traditional litigation.
So they set up a redress scheme, known as the Compensation Program. Kaufman spent two years, at a cost of $1.5 million, investigating where and how this programme went disastrously wrong. His conclusions published last month make for vital reading in an Ireland on the verge of implementing a Residential Institutions Redress Bill.
"The program was seriously flawed. So flawed that it has left in its wake true victims of abuse who are now assumed by many to have defrauded the government, employees who have been branded as abusers without appropriate recourse, and a public confused and unenlightened about the extent to which young people were or were not abused while in the care of the Province of Nova Scotia. This report cannot begin to separate out the true and false claims of abuse. One of the by-products of a flawed government response has been to now make that determination (in the majority of cases) impossible."
The key problem was the fact that "little or no validation was required for claims (which) was a recipe for disaster". In Ireland we plan to have a system where a person or Order will not even know they have been accused.
However, as Kaufman puts it, "A government response that fails to appropriately balance the interests of complainants and suspects is flawed regardless of whether individual complainants or suspects are in the the right or in the wrong."
There are fewer institutions in Nova Scotia than in Ireland, a half-dozen or so, which by the 1960s were being run directly by the provincial government. Whereas industrial schools in Ireland were mostly closed by the 1970s, some of the youth facilities in Nova Scotia were still operational at the time of the investigation.
Kaufman says that two presumptions underlay the Nova Scotia government's lack of concern with validation of claims. First, they presumed only a tiny percentage of claims would be fraudulent. Second, the compensation would proceed without prejudice to the reputations of those who had worked in these facilities. What they forgot, according to Kaufman, was that in small communities the payment of thousands of dollars of compensation would lead the public to their own conclusions about the guilt or innocence of all who worked there.
Initially, the desire to provide a compensation scheme grew out allegations against three current or former employees, and the sentencing of two of them. A dozen or so other claims rapidly followed. Kaufman states unequivocally that sexual and physical abuse was a reality. He does say, however, that it is wrong to replace one stereotype, that of the unreliability of accounts of sexual abuse, with another, that sexual abuse claims are never false.
The provincial government estimated there would be some 300 claims. By the time the Compensation Program was wound up in 2000, according to the Halifax Chronicle-Herald, there had been 1,264 claims, and a total of $39 million in compensation and counselling had been paid out. According to it, no other member of staff in any of the facilities has been found guilty in a criminal case. The Nova Scotia Government Employees' Union began to protest vociferously at the fact that its members were receiving no opportunity to defend themselves, and that their lives were being destroyed by innuendo and unsubstantiated claims.
Who in Ireland will defend the basic rights of the accused in a similar fashion ? What ever happened to innocent until proven guilty?
Police investigations were ongoing, and a special internal investigation unit was set up. The unit, initially sceptical that there was any significant level of false claims, eventually published a report which stated that fraudulent claims were made on a large scale.
Kaufman was more cautious, saying that he was not in a position to judge the extent of wrongful claims. However, he does say: "There is significant evidence, direct and circumstantial, that false and exaggerated claims were made to the government, and that these claims were motivated by monetary awards being offered by the program and the known absence of a true validation process." He refers to the "terrible anguish, humiliation, physical and mental distress suffered by employees against whom false allegations of criminality have been made."
The Compensation Program had to be halted twice, first because of the patent injustice being done to an identifiable group of people, the government employees and, second, because it was costing a fortune. Clumsy forms of verification began to be introduced, including lie detector tests for government employees. At this point true victims of abuse began to be traumatised, as what was intended to be a gentle process became much more adversarial.
In short, it was a mess. From an Irish point of view, Kaufman's 105 recommendations make most important reading. Recommendation 42 sets the minimum requirements for validation. They include "proof under oath; the opportunity to challenge the account given by the claimant; the opportunity for the parties to tender witnesses and documents supporting or challenging the claimant's account; the obligation for government to consider whether there is available evidence, including that of the alleged abuser, to challenge the claim; fact-finding by one or more independent adjudicators experienced in evaluating credibility and reliability for these or analogous types of claims."
These are complex and difficult issues, but we have the advantage of being in a position to learn from Nova Scotia's mistakes. The question is, will we do so?
bobrien@irish-times.ie