The High Court found that the Residential Institutions Redress Board breached fair procedures when it rejected a woman’s claim for compensation for alleged sexual abuse without giving her or her psychiatrist an opportunity to produce or explain missing clinical notes. The court did not make a final order in the judgment; it said it would hear submissions on the form of any order.
The applicant, identified in the redacted judgment as P.S., sought judicial review of a Board decision dated 10 May 2006. The Board had awarded compensation for physical and psychological abuse but refused an award for the alleged sexual abuse. The applicant also challenged the Board’s treatment of psychiatric evidence and its compliance with fair procedures and other legal requirements.
At the hearing before the Board in March 2006, the applicant and her treating psychiatrist, Dr. C, gave oral evidence. The High Court said the Board had already been told that Dr. C’s clinical notes were not among the documents being relied on, apart from two extracts referred to in the applicant’s statement. The Board had not asked for the notes under its statutory powers, and had not alerted the applicant or her legal advisers that their absence might be significant.
In its decision, the Board described Dr. C as an unprofessional witness because he had not brought notes that could have helped establish when the applicant disclosed the alleged abuse. The High Court concluded that the Board attached significant weight to the missing notes and drew an adverse inference from their absence. In those circumstances, fairness required that the applicant and Dr. C be given an opportunity to provide the notes or explain why they were unavailable. The Board could also have requested the records under section 10(6) of the Residential Institutions Redress Act 2002.
The judge held that this procedural defect was crucial to the Board’s decision and breached natural and constitutional justice. He rejected the applicant’s separate argument that the Board should have arranged for its independent psychiatric assessor to hear her oral evidence, or appointed another psychiatrist or a psychiatrist member to the hearing.
The Board argued that the applicant’s application to a review committee was an adequate alternative remedy. The court noted that the review committee’s role was limited to reviewing the amount of an award and did not include deciding procedural fairness complaints or rehearing evidence. It held that this review could not cure the unfairness at first instance and that the applicant was not barred from pursuing judicial review by having sought a review.
The judgment ended with the court inviting submissions on the necessary order. It does not specify the final order made.