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http://www.nzlii.org...C/2011/350.html

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So those whom have issues with Alcohol or Drug addictions as a result of injuries caused by accidents please remember your Legal rights to appropriate counselling we are posting this information & links.

May we also suggest you remind those whom administer the law of their Legal Obligations.

Some cases should never make it so far as the proposed specialist Drug & Alcohol Courts.

Be reassured that there is help available to be used.

There is provison for readers comments on the http://www.nzherald.co.nz website at the end of this article.

http://www.nzherald....jectid=10790006

Editorial: Drug courts must not forget victims
13
comments


5:30 AM Tuesday Mar 6, 2012

80 to 90 per cent of crime in New Zealand is said to have been committed under the influence of alcohol or other drugs. Photo / Thinkstock

Addiction to alcohol and other drugs is behind so much of the crime in countries such as New Zealand that a specialist court for addicts could radically change our system of criminal justice. Two such courts will be set up in Auckland this year on an experimental basis for four to five years. The results will be watched with interest.

They will aim to cure addicted offenders rather than simply punish them, which is a fine objective but so is justice. At a conference in Auckland last week our judges, lawyers and drug treatment agencies heard from their counterparts in the United States where specialist drug courts have been operating for 20 years and appear to have produced a decline in repeat offences. A key to their success, the visitors said, was dispensing with the adversarial positions of prosecutor and defender. Both sides would join forces with the judge to arrange a rehabilitation programme.

Adversarial procedure is much maligned in discussion of justice these days but it exists to deal with the inevitable conflict between the interests of the wrongdoer and the wronged. Courts that bring all parties around a table to focus on the problems of the offender run the risk that victims will have no effective voice, the offence will be diminished and society will not see justice being done.

Addiction to alcohol and other drugs is behind so much of the crime in countries such as New Zealand that a specialist court for addicts could radically change our system of criminal justice. Two such courts will be set up in Auckland this year on an experimental basis for four to five years. The results will be watched with interest.

They will aim to cure addicted offenders rather than simply punish them, which is a fine objective but so is justice. At a conference in Auckland last week our judges, lawyers and drug treatment agencies heard from their counterparts in the United States where specialist drug courts have been operating for 20 years and appear to have produced a decline in repeat offences. A key to their success, the visitors said, was dispensing with the adversarial positions of prosecutor and defender. Both sides would join forces with the judge to arrange a rehabilitation programme.

Adversarial procedure is much maligned in discussion of justice these days but it exists to deal with the inevitable conflict between the interests of the wrongdoer and the wronged. Courts that bring all parties around a table to focus on the problems of the offender run the risk that victims will have no effective voice, the offence will be diminished and society will not see justice being done.

Specialist problem-solving courts such as youth courts are already well established in this country though they are not well known. How many were aware we have specialist Maori and Pasifika youth courts, and even a special court for the homeless?

Drug courts would absorb much more of the work of general courts. Between 80 and 90 per cent of crime in New Zealand is said to have been committed under the influence of alcohol or other drugs. Obviously not all such cases would be suitable for diversion to a drug court. The offender would have to be genuinely seeking help. A guilty plea would be a promising start. Then it would be the court's task to assess whether guilt was admitted merely to avoid a prison sentence.

One of the American jurists here last week, Peggy Fulton Hora, a founder of specialist criminal courts in the US, estimates that 80 per cent of drug and alcohol offenders want to overcome their addiction and can be rehabilitated. If she is right, and the costs of treatment are within reason, New Zealand would be able to stop building expensive prisons and turn some of the new ones into sanatoriums.

New Zealand's $2 million experiment, recommended by the Law Commission, will need to show that offenders dealt with by drug courts do not reoffend at the 70 per cent rate of recidivism by products of the prison system. But success might depend on much more being spent to provide a sufficient number and quality of treatment centres.

In that event, it would be fair to ask whether the same result could be gained from providing the same quality and capacity for addiction treatment within prisons, which would be preferable from the point of view of justice. Addiction, after all, may be an explanation for a criminal act but it is not an excuse. It is only fair to the victim and to society that an element of punishment is present in the most therapeutic of sentences.

In the US, Judge Hora told the Weekend Herald, there are specialist courts for crimes committed by gamblers, pregnant girls, gun owners and war veterans as well as drug addicts. It threatens to reach a point that every criminal offender can find a court where they will be seen as a victim. Judges in general criminal courts can be sensitive to addiction without losing sight of crime's real victims. Courts are for finding facts and dispensing justice. Sentences that reflect the crime can be therapeutic too.

For the link to this decision please refer to post #1
Pedersen v Accident Compensation Corporation [2011] NZACC 350 (5 December 2011)

Last Updated: 12 December 2011

IN THE DISTRICT COURT
HELD AT WELLINGTON Decision No. [2011] NZACC 350

IN THE MATTER of the Accident Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to Section 149 of the Act

BETWEEN KERRY PEDERSEN

(ACR. 148/11) Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at WELLINGTON on 21 October 2011

APPEARANCES
Ms C Hollingsworth, Counsel for Appellant. Ms T Mitchell, Counsel for Respondent.

RESERVED JUDGEMENT OF JUDGE M J BEATTIE

[1] The issue in this appeal arises from the respondent's decision of 7 May
2010, whereby it declined to agree to fund a treatment and rehabilitation programme for the appellant on the grounds that such rehabilitation programme was being sought to treat the appellant's drug and alcohol problem, rather than any condition associated with his covered traumatic brain injury.
[2] The facts relevant to the issue in this appeal may be stated as follows:

On 28 April 1990, when aged 29 years, the appellant suffered a significant head injury in a motor accident and he was identified as having suffered a Traumatic Brain Injury (TBI)in that motor accident.

Wellington, and on 7 April 2010 a representative from Te Aro Health

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The appellant did in fact suffer other physical injuries in that accident but for present purposes the ongoing issues with his traumatic brain injury are all that need to be considered in the context of this appeal.
Prior to suffering his TBI the appellant had a history of alcohol and drug addiction and had a number of convictions for offending in relation thereto.
It is the case that subsequent to the brain injury the appellant's involvement in alcohol and drug abuse continued and he has incurred a significant number of criminal convictions for offending where the use of alcohol and/or drugs was a significant ingredient.
It is the case also that the appellant did receive medical and psychological treatment for his TBI over a number of years, but the reports would indicate that because of his continued alcohol and drug addiction the rehabilitation treatment did not have a significant positive effect, and it is the case that in 2004 the respondent ceased to fund such rehabilitation because of the appellant's failure to adhere to the requirements for such rehabilitation.
It was at this time also that the appellant's weekly compensation was ceased and he was also sentenced to a term of imprisonment.
It seems to be the case that from April 2004 through to April 2010, the appellant was outside the ACC system, and certainly he was receiving no assistance for any treatment or weekly compensation.
In March 2010 the appellant was referred for alcohol drug assessment and counselling by the Court consequent upon him being charged with trespassing and theft, and with it being identified that he was drunk at the time.
A comprehensive alcohol and drug assessment was prepared by Dr R Brooking of the Alcohol and Drug Counsel and further reference to his report will be made later in this decision.
It is the case that from November 2009 onwards the appellant was receiving treatment from Dr M Stillwell, of the Te Aro Health Centre in

engaged in rehabilitation for his TBI with the Abano Rehabilitation

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contacted the respondent and the note made by the respondent's representative of that phone call was as follows:

Spoke to Jane at Te Aro Health, she advised that she would like to reactivate the claim for Kerry under the head injury and look at him beginning rehab in a place called Ranworth. She advised that it is due to the head injury that he needs to go there, I explained to her that it was clear on the file that he wasn't participating in rehab due to the drug and alcohol problems that actually weren't in relation to the head injury and this had been documented. She said that she has a report that shows he needs to have this and that the drug and alcohol stuff is related to the injury. She will fax it to me. I advised that I would look at it but that there was no guarantee that ACC would fund this. She advised that this would be the easiest way to rather than relay it on the phone. She will fax it to me.

Te Aro Health then forwarded a copy of Dr Brooking's alcohol and drug assessment report which had been provided to the Criminal Court for sentencing purposes.
This Court has identified that it was that telephone call and with the provision of Dr Brooking's report which was considered by the respondent as being an application for approval of funding of treatment, and it is the respondent's letter of 7 May 2010 in response thereto, which is now the subject of this appeal. The relevant passages of the respondent's decision letter of 7 May 2010 are as follows:

ACC has received a request from you dated 07/04/2010 asking that ACC consider funding Kerry's drug and alcohol rehabilitation. With this request ACC has also received a report dated 10/03/10 from an assessment that he had with Mr Roger Brooking.

ACC has considered all the information that we have on file and will be declining to provide funding for treatment at this stage.

Mr Pederson's file has been reviewed by both the Branch Medical Advisor and the Branch Advisory Psychologist. It has been noted that given this man's very longstanding addition problems, criminal behaviour, lack of insight into these and lack of success to date with rehab programmes it is ACC's opinion that sadly he is unlikely to be able to meet the criteria for this type of rehabilitation.

Roger Brooking's report of 10/3/2010 reports that Mr Pedersen is physically, mentally and emotionally crippled by his brain injury. ACC disagrees with him that Mr Pedersen's problems are all attributed to his Traumatic Brain Injury, for the reasons listed above. It seems Mr Pedersen is no better and unlikely to be able to voluntarily sustain a rehab programme. ACC has also been unable to make contact with the client to discuss this request with him.

It is the case that subsequent to that decision the appellant has

Given the extent of Mr Pedersen's brain injury and his problems with substance abuse, the decision by ACC to require the Stewart centre to withdraw their support

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Therapy Team and the Court has received reports from Abano as to the appellant's progress and which, in a word, is positive.

The appellant sought a review of the appellant's decision of 7 May 2010 and a review hearing took place on 18 November 2010, and it is the case that the evidence which the Reviewer had was only evidence of reports of the appellant dating back into the 1990's and early 2000's, with the only up-to-date report being that of Dr Brooking.
It was the Reviewer's decision that all the reports on file confirmed that the appellant has had a pattern of addictions pre-accident and continuing since and on that basis the Reviewer determined that a causal link could not be established that the need for alcohol and drug rehabilitation was connected with the TBI suffered in April 1990.

[3] As noted, the only up-to-date report which the Reviewer had was that of Dr Brooking in relation to the alcohol and drug assessment which he had carried out for Court sentencing purposes. It is of course the situation that the Court was concerned with the appellant's alcohol and drug addiction and therefore it was only that for which it was seeking advice. Dr Brooking stated, inter alia, as follows:

Mr Pedersen meets the DSMIV criteria for dependence on alcohol. The fact that he has a brain injury and no support makes it very difficult for him to gain control of his drinking.

The various letters and reports which are available suggest that because of his brain injury and his ongoing problems with alcohol, Mr Pedersen is unable to take responsibility for himself. Mr Titov, the clinical psychologist who assessed him in 1999 wrote: "Mr Pedersen's ability to cope in the community after his accident was impaired by cognitive and behavioural problems relating both to memory impairment and impulse control. In more recent years, it has been apparent that Mr Pedersen has developed significant problems with addictions."

In other words, Mr Pedersen is physically, mentally and emotionally crippled by his brain injury. In my view he operates with the psychological capacity of a 10 to 12 year old child. His injury has reduced his impulse control and his capacity to control his drinking. Despite the fact that he is unable to take care of himself, Mr Pedersen has been abandoned by his remaining family and in the last 10 years, has also been abandoned by agencies of the state which could assist him.

Under the heading of Treatment and Sentencing Considerations, Dr Brooking stated:

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for Mr Pedersen has proved to be catastrophic. Prior to that decision, Mr Pedersen offended only 13 times. Since that decision, he has incurred another 231 offences at an average of approximately 25 year. There is absolutely no doubt that this single decision by ACC has had more impact on Mr Pedersen's rate of offending than any other factor.

It is entirely possible that Mr Pedersen's offending, all of which has been of a relatively minor nature since 2000, has in fact been a subconscious attempt to draw his problems to the attention of authorities in the hope that he would receive some help. This help has clearly not been forthcoming (at least until now), and the justice system must therefore share considerable responsibility for Mr Pedersen's colossal history of offending in the last 10 years.

Mr Harper (Stewart Centre) who has worked with Mr Pedersen longer than anyone seems very aware that he is not capable of coping without support. When Mr Harper referred Mr Pedersen to the treatment program in Marton in early 2000 he wrote "1 have doubts of Mr Pedersen's capabilities of actually completing an addiction treatment programme and having long-term success. However, a structured supervised residential program with a mix of addiction support, social and behavioural management for his head injury and meaningful activities may work better for him."

Ranworth provides the kind of support and care that someone like Mr Pedersen requires. Unfortunately, he was sent to NSAD instead and it appears that Mr Harper was required to withdraw support from Mr Pedersen just a few months later. Given the level of professional care and support offered at Ranworth for people with brain injuries (and alcohol problems) it is quite likely that if Mr Pedersen had been referred to Ranworth 10 years ago, he would probably not have committed 231 further offences and not been sent to prison at all, let alone sent to prison 34 times.

[4] From documents provided to the Court it appears to be the case that the
appellant has in fact been accepted by the Abano Rehabilitation Service, which is associated with the Ranworth referred to in Dr Brooking's report, and a report from the appellant's probation officer dated 16 November 2010 identifies the then situation as follows:

Mr Pedersen is currently subject to a sentence of 12 months supervision with a special condition to attend residential alcohol and drug counselling. However there are long waiting lists for counselling at traditional treatment centres and none of these cater for people with traumatic brain injury. Mr Pedersen has been assessed by Abano Rehabilitation (Randworth House) and found to be a suitable candidate for their residential programme. Abano Rehabilitation is New Zealand's largest residential provider for delivering specialist services to individuals with traumatic brain injury and other complex issues.

[5] Subsequent reports of the appellant's progress have been provided to the Court and it would seem that he is adhering to the requirements of Abano Rehabilitation, and the report identifies that the treatment is for his TBI and that as a condition of this treatment he is required to remain sober and drug-free,

in conjunction with Te Aro Health to arrange for suitable medical treatment for the appellant's covered injury going forward.

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something which at least he was doing when the report of October 2011 was provided to the Court.

[6] I consider that this appeal is somewhat different from the usual situation
where the Court is required to make a determination whether the primary decision of the respondent was the correct one or not, given the evidence that was relevant thereto.
[7] In the present case, it is clear from the telephone discussion with Te Aro
Health on 7 April 2010 it was for the respondent to consider funding rehabilitation at Ranworth, being part of the Abano Rehabilitation organisation, and it seems as though the respondent considered that the appellant was simply seeking drug and alcohol rehabilitation. This is certainly not what the report from Dr Brooking identified would be the situation, and where it was clearly identified that Ranworth was a residential service for people with brain injuries and who may also have other problems as well.
[8] It is also clear from subsequent reports that the appellant has been
complying with the requirements of the Abano Rehabilitation Service in Hastings where he has been located, and the reports from Abano make it clear that the condition which is being treated is his TBI, and that in fact for such treatment to be successful the appellant is required to restrain himself from alcohol and drug use, and the evidence is that he is doing so.
[9] It is quite clear as a matter of law that the appellant is entitled to funding for treatment associated with his covered personal injury of TBI, and I find it to be the case that the respondent should indeed undertake funding for the appellant at the Abano Rehabilitation Service and such funding should continue for so long as that Service considers he requires same, and that he conforms with the conditions for receiving treatment, that is, he refrains from the use of alcohol and drugs.
[10] In those circumstances, whilst it may have been the understanding of the respondent back in May 2010 that the appellant was just seeking funding for alcohol and drug addiction treatment, I find that that was not the case, and therefore I consider it to be appropriate now that the respondent investigate the treatment which the appellant has been receiving through Abano and for it to act

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[11] This is a situation where I consider that it is not appropriate to simply determine whether the respondent made a correct decision or not, but rather to identify what the respondent's obligations are and the appellant's entitlements are, based on the medical evidence which has been presented in this appeal.
[12] As the appellant has in large measure been successful in this appeal, I consider it is appropriate for the awarding of costs, and therefore I direct that the respondent pay costs in the sum of $2,000 together with any qualifying expenses.

DATED this 5th day of December 2011

M J Beattie
District Court Judge

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