Sunday, 15 October 2017

Church apologises to a sexual abuse survivor

Updated again Monday afternoon

The Church of England has today released two documents:

This has been reported in the media:

Separately, the New York Times has this report on a different case: Doubts Grow Over Archbishop’s Account of When He Knew of Abuse.

Updates

EIG has issued a response to the above documents: Statement from Ecclesiastical Insurance Office plc .

The full text of EIG’s letter of reply to the Bishops is here.

Church Times Bishops challenge Ecclesiastical over ‘horse trading’ of survivor settlements

Posted by Simon Sarmiento on Sunday, 15 October 2017 at 9:47am BST | TrackBack
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Categorised as: Church of England
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Interesting timing.

The NY Times publishes its article on Saturday 14 October.

The CofE puts out this Gilo package on Sunday 15 October. The three bishops' letter is dated a month ago, 14 September. (By the way, the three bishops' letter may have been useful as a settlement/PR device or pastoral effort, but its suggestions are rather feckless.)

I'm not seeing a date for the Archbishop's letter, so I wonder whether it too could have been released before the Primates' meeting, yet was not.

And was this package released today because some other shoe is about to drop later this month?

Carlile report? Something else?

Posted by: Jeremy on Sunday, 15 October 2017 at 1:40pm BST

Some encouraging movement here on the part of these three bishops. Let's hope the other bishops, the archdeacons, and diocesan staff undergo a similar enlightenment.

The response from Ecclesiastical come over as technically correct (as far as I can judge) but insensitive and somewhat defensive. Maybe they would be encouraged to a more caring attitude and positive approach by their other customers, as well as these three bishops?

Posted by: Janet Fife on Sunday, 15 October 2017 at 4:58pm BST

Janet, an insurer is not in the business of providing pastoral care; that is the Church's job.

As for paying out claims--which is part of business of insurance -- EIG seem to think that they paid out even though there was no evidence that they were providing coverage at the time:

"In many historic abuse claims, there is no evidence of insurance coverage. We deal with issues such as this in the spirit of the Guiding Principles, and, even in cases where there is no documentary evidence that Ecclesiastical was the insurer, have chosen to accept liability. Mr. xxx's claim is such an example."

Posted by: Jeremy on Sunday, 15 October 2017 at 6:15pm BST

There are a number of issues to deal with in relation to insurance, but they are certainly not unique to the Church - there are strong parallels in compensation for medical negligence, which I used to know quite a lot about.

For example, the goal of compensation is stated as being "to put the injured person into the same situation as they would have been had they not been injured" or something similar. The underlying assumption, though, is that this can be done by paying money. Financial compensation takes the place of care, almost by default.

The consequence is that claims are put into the hands of insurers for whom money is essentially the only thing, and obligation to care easily gets lost at this point. There is even a conflict between money and care, where in the course of care, admissions may be made which cost money. Organisations are happy to shift responsibility because it gets rid of the problem under the banner of a convenient slogan ("in the same position as they were before" - so that's OK then). Organisations are worried about their finances, often, because finances are fragile, and obviously want to get the cheapest insurance possible - and the cheapest insurers are the ones who achieve the smallest settlements. The insurers end up negotiating with vulnerable people, who may not have access to the best advice.

The whole process of obtaining compensation requires that victims/survirors tell and retell their story many times, over an extended period, under implied hostile scrutiny. This in itself can compound the damage already caused, though it is hard to see how stories can be validated without being tested. As we have seen, it can also take some time for the full effects of an injury or assault can become apparent, so there is also a danger in premature "full and final" settlements - the words "full and final" are an artefact of financial certainty rather than care - and necessary for insurers, for example, who have to comply with financial regulations - they are managing risk. But they can prove toxic for claimants where there are latent issues at the time of settlement.

Posted by: Mark Bennet on Monday, 16 October 2017 at 11:17am BST

Continuing from previous

In the medical world we hear a lot about "ambulance chasers" and inflated claims, and how compensation is financially challenging in times of tight budgets. This is (for any truth it might have, and there are people who try to exploit compensation systems) an implied attack also on those who stand as advocates for the vulnerable, try to hold the line on at least making a reasonable effort to give financial settlements which get close to the rhetoric of full compensation - sometimes for catastrophically affected lives. The faults of the system are displaced onto those who work for the victims (who are the visible cause of cost), rather than being addressed as system failures [quite a lot of medical accidents seem to me to be a consequence of overstretch - the attribution of fault to staff doing their best is another toxic consequence of culture, but that's another story]. The costs are managed financially (deny liability, negotiate settlements) and politically (change the rules to protect the main budget) rather than operationally (change the practice so mistakes and abuses don't happen, and are caught quickly if they do) or culturally (change how we think about this so we can own responsibility for something mission critical rather than subcontracting it or acting in denial).

Hidden in that last paragraph is a truth about humanity which makes this area a whole lot more difficult. There are people who will fabricate claims either with financial or malicious goals in mind (sometimes both). The church, with its understanding of sin, should not be surprised at this. But again, displacing the problem to the greedy or malicious, and making all our rhetoric about false claims, is yet another insidious form of denial, built into more than one professional culture. The means used to discern what is true and what is false can easily be hugely damaging to those who have genuine grievances.

It will be no easy thing to change a culture which is not unique to the church. The manner in which financial claims and care are properly held together has not yet been fully thought through or worked out in practice (there will be inevitable errors and glitches) - for example, giving busy people sufficient time that they can make care a priority over other pressing tasks, and making this possible in a way in which confidences are properly kept in the face of pressing demands to spend time on other urgent business.

The relationship with insurers in the past has undoubtedly been part of the problem, but the church needs to own its responsibility for managing that relationship, rather than treating the insurers as yet another scapegoat for failures of systems and culture. Part of that is understanding what insurance can and cannot achieve.

Posted by: Mark Bennet on Monday, 16 October 2017 at 11:30am BST

Thank you Mark, for your thorough and reasoned response.

Jeremy, I understand about the ethos and obligations of insurance companies. But Ecclesiastical is specifically a church-related company and as such should show concern for people as well as for their finances. Their letter of response was tone-deaf, it wouldn't have taken overmuch to make it sound a bit more caring.

As a consumer, I won't deal with any company that doesn't seem to care for its customers, and show a wider concern even that that. Every purchase we make, whether it's an insurance policy or fair trade food, is a vote for the kind of world we want this to be.

I have generally found Ecclesiastical a good company to deal with, but I think they could improve their handling of cases like this.

Posted by: Janet Fife on Monday, 16 October 2017 at 11:56am BST

Well said, Mark Bennet.

I agree that there is a whiff of scapegoating around the bishops' letter to EIG.

The bishops' letter may have been a result of the mediation with Gilo. But the letter calls into question the CofE's understanding of insurance, not to mention the law.

That a survivor wanted something does not make it any less ill advised.

Posted by: Jeremy on Monday, 16 October 2017 at 12:35pm BST

The Guardian article says the archbishop wrote that he was aware that Gilo had been “in communication with me here at Lambeth Palace over a period of time. I am sorry that the way your correspondence was handled has not been helpful to you, and has not been to the standard you would expect”.

Is this an apology? Ignoring 17 letters is not the standard Gilo would expect. But why, because he has unrealistic expectations, or because ignoring his letters was objectively wrong, or at least wrong in the Archbishop's opinion?

Again, the way the correspondence was handled was not helpful to him. Any normal person, we might think, would find having his letters ignored helpful enough.

A genuine apology would admit that someone high up in Lambeth Palace took the decision to ignore Gilo's letters, others knew and approved that decision, and that it was completely wrong.

Posted by: T Pott on Monday, 16 October 2017 at 2:23pm BST

"Ecclesiastical is specifically a church-related company and as such should show concern for people as well as for their finances."

I am no fan of insurers. And Janet, you and I agree far more often than we disagree.

But on this point (1) how is EIG alleged not to have shown concern for the claimant? And (2) how can any such alleged shortfall be reconciled with EIG's duties to its own stakeholders, including its other insureds?

EIG is under a duty, like it or not, to be skeptical about claims, and to evaluate them carefully.

I'm sure that process can be respectful and courteous. But I seriously doubt it's possible for the claims-evaluation process to be therapeutic for the claimant.

So I think the CofE is trying to blame someone else, with little or no basis for doing so.

Posted by: Jeremy on Monday, 16 October 2017 at 3:12pm BST

Hi Jeremy. Yes, we usually agree, which the Psalmist tells us is as pleasant as oil being poured all over Aaron's head and beard. (That has never sounded very pleasant to me, but never mind!)

I think there are 2 points here.

1) The bishops' letter pointed out that more information had emerged since the settlement was made, and therefore perhaps it should be revisited.

2) The tone of EI's letter could have been such more helpful, even if they in fact took no different action.

I hadn't been aware until now that the 'horse-trading' of claims evaluation takes place with the victim present (if I've read the above letters and articles aright). That does seem unnecessarily distressing. Perhaps the Church could appoint a victim advocate who argued the case of the victims without their having to be present?

Certainly the Church should be doing much more to provide effective and appropriate pastoral support at every stage of the process. If they/we again are trying to dodge that responsibility, well, we'll just have to keep up the pressure for reform.

Posted by: Janet Fife on Monday, 16 October 2017 at 5:31pm BST

There is insufficient material here to judge EIG's actions - simply assertion and counter-assertion, though the insurer claims to have documentation to support what it says. It may be worth noting, though, that EIG suggest that they acted generously in relation to the Church, by assuming a liability for which there was no documented proof of cover. This is not the same as them acting generously in relation to the injured person, but that is not particularly the role of an insurer, whose contract (if it exists) is with the Church or one of its constituent legal entities.

The Church is under a duty, also, to disclose to the insurer everything it knows which may affect the insurance. So if there are circumstances which were known to the Church at the time of the settlement, but which weren't disclosed to the insurer, there would be a potential issue. Also one possibility, if the settlement was inadequate, would be that the Church was inadequately insured. There are technical issues here as well as pastoral ones. Though this does not necessarily help a person who finds themselves on the wrong end of the process, it important, in analysis of the situation, to note which problems relate to which relationships in the triangle of insurer, insured and claimant. Technical issues between insurer and insured affect the claimant, of course, but the claimant is not in a position to do anything about them. The claim, in the end, is a claim against the insured rather than against the insurer.

In essence, the insurers look to be saying to the Church "we did what you asked us to do, and more than we needed to do", and it has become apparent that that is not necessarily what the Church now wants or what is best for those making claims. The Church has options including paying for what it does now want, or self-insuring the uninsured or uninsurable component of what it needs to deliver.

Posted by: Mark Bennet on Monday, 16 October 2017 at 9:22pm BST

As I understood last year, the problem for Gilo with the EIG was not the fact that they were not exercising pastoral sensitivity but that they were preventing others in doing so. Silence, apparently at the instruction of the insurers was what he and other survivors experienced. To quote a letter that Gilo wrote to me last June and which he gave permission to appear on my blog, Surviving Church the following was the problem.
‘Cover-ups, denials, obscuring of issues, intentional inertia, fog, smoke and mirrors, blanking of questions, unchallenged power of bishops, legal games, incestuous dependence on your own insurer to limit liability, unethical closing down of cases and withdrawal of support on the instructions of EIG, bewilderingly adversarial settlements – all of which I and many others have experienced – all this must come to an end’.
The narrative of the EIG and the Bishops seems to be at variance but no doubt it will be clarified in time. Meanwhile Gilo appears to have won at the very least a proper hearing for his perspective of what went on in the past. I sense that change is afoot but that change may be very expensive for the Church now that it has to provide not only financial support but also long-term pastoral care for survivors. Who knows how much more there is to be revealed?

Posted by: Stephen Parsons on Monday, 16 October 2017 at 9:36pm BST

What the bishops describe as "horse trading" is settlement negotiation.

Does any party accept the other side's opening offer in a negotiation?

Does any party in a negotiation fail to point out the weaknesses in the counter party's position?

Do the bishops have an alternative to propose that would settle as many cases privately, out of court?

I would not necessarily infer that the claimant is present during the negotiations. The claimant's counsel, however, should keep the claimant apprised of material aspects of the negotiation. It is, after all, the claimant's decision whether to accept an insurer's settlement offer.

This entire process may be new to the claimant, but it should be old hat to the claimant's counsel.

Lastly, the whole point of a final settlement is that it is final. That is one of the things a settling defendant pays for--a final settlement of the claim.

If settlements are re-opened merely because the plaintiff has second thoughts, or new information emerges, then no one would ever settle. Is that desirable?

Posted by: Jeremy on Tuesday, 17 October 2017 at 2:07am BST

More episcopal hot air, I'm afraid, and (speaking as a Cornishman and parishioner in the Diocese of Truro) I can see a particular set of episcopal fingerprints all over this. Style triumphs over substance yet again. A (no doubt) sincere attempt to meet the pastoral needs of an abuse survivor has been grasped as an opportunity for spin doctoring, and what seems like an uncritical endorsement of the compensation culture. The barely-concealed hypocrisy in pointing the finger at EIG simply will not do. It is just a variation on Archbishop Welby attacking the BBC over its safeguarding record. Beams and motes spring to mind.

If the Church believes that Gilo's suffering has not been fully compensated for by the insurers, let it delve into its own coffers and make good the justice they believe he deserves. A few thousand quid less spent on mini MBAs for wannabe businessmen sporting purple shirts would constitute a far better use of the Church's resources for mission - precisely because it would spare us more embarrassing public exposure for failing to practise what we preach. It would also show that we are prepared to be as generous and sacrificial as we claim to be, by putting our internal preoccupations into proper perspective. Wider society can see the Church's machinations in protecting its reputation and is not convinced. Renewal and Reform begins with putting our own house in order first - and that includes putting our money where our mouth is.

Posted by: Gordon Watson on Tuesday, 17 October 2017 at 7:57am BST

"Perhaps the Church could appoint a victim advocate who argued the case of the victims without their having to be present?"

In general, the claimant does not have to be present during negotiations, and normally would not be. But the vast majority of insurance claims have no suggestion of also being therapeutic or indeed restorative: they are just, as Mark says, about money. Your solicitor deals with the time of work, the lost property, the "pain, suffering and loss of amenity", and so on. The claimant _can_ be present, but normally there isn't anything to be present at: such negotiations are done by letter and email.

The problem comes, I suspect, when the claimant demands to be present (and rightly so: nothing about me without me, and all that) but actually, looked at objectively, it would be better for them if they weren't. How do you exclude someone from a process about them, which they want to be part of, because it is believed that actually it will do them more harm than good? Fifty years ago the medical professional had no problem with deceiving patients "for their own good" (which was more commonly for the ease of their relatives), but we've moved past that. The same issues, mutatis mutandis, apply: to what extent should you make decisions on behalf of competent people, and where does the bright line of incompetence lie?

Posted by: Interested Observer on Tuesday, 17 October 2017 at 8:21am BST

"A (no doubt) sincere attempt to meet the pastoral needs of an abuse survivor has been grasped as an opportunity for spin doctoring..."

It's not just spin doctoring; it's worse than that.

Here it seems that as a result of a mediation with a survivor, three bishops signed up to the project of publicly attacking an insurer and insinuating that the survivor's lawyer did a poor job.

The lawyer will likely choose not to dispute the client's view of the matter. But the insurer is politely telling us that some of what the bishops are saying is provably false.

To my eye the survivor has enlisted the Church of England in an extremely misguided attack on third parties that (unlike the Church itself) had nothing whatsoever to do with the historic abuse.

I trust that going forward, the Church will take care not to make peace with survivors at the expense of new victims.

Posted by: Jeremy on Tuesday, 17 October 2017 at 12:54pm BST

Gilo must be an amazing person.

Posted by: Cynthia on Tuesday, 17 October 2017 at 7:35pm BST

"The Church could appoint a victim advocate"

The victim usually has a solicitor, usually from a specialist firm for dealing with such cases, usually with a CFA (Claim Funding Agreement), colloquially known as "no-win no-fee". The horse trading results from these solicitors claiming more, for the victim, and for themselves, than they are legally entitled to, and/or the insurer offering less. It isn't charitable, in any sense.

In the EIG submission to the IICSA there is a breakdown of the average payments showing 55% goes to the victim, 33% to his solicitors and 12% to EIGs solicitors. For every £1 paid to victims, another 80p goes to lawyers. This is an extremely inefficient and non cost-effective way to target help to victims.

Horse trading is fundamental, and must upset the victim, especially if he believes he deserves what his solicitor claimed.

IF EIG promised not to challenge, or robustly question, claims then we would be into a PPI-style scenario, with anyone who might ever possibly have been alone with a vicar urged to fill in a form and await a windfall. Very many do not see insurance-fraud as wrong.

Rather than deal with this through law, is there an alternative? We could spend almost twice as much on victims if we could eliminate the solicitors, or save nearly half the cost,or some combination of that.

EIG have offered to work with IICSA to explore alternatives. It might mean a change in the law of liability and a charitable foundation. I don't know, but I hope the Church will engage constructively too, in finding an alternative, rather than blame an insurance company for behaving like an insurance company.


Posted by: T Pott on Tuesday, 17 October 2017 at 8:11pm BST

"We could spend almost twice as much on victims if we could eliminate the solicitors"

So then the large, experienced insurance company deals with the lone, unsupported, legally naive claimant? What could possibly go wrong? Are you saying that as a condition of making a claim, people should have to disclaim their right to legal advice? Seriously?

This is just magical thinking. The churches only accepted the reality of abuse when brave, articulate claimants were able to force them to the negotiating table. Previously, the churches hidden behind authority, power and money and told anyone who disagreed to (almost literally) go to hell. Unless you believe that churches are now fundamentally different, why would it be any different the second time around. "Let's avoid using lawyers" is what abusive spouses do in order to prevent paying their dues in contested divorces, and it would be exactly the same if churches did the same thing.

Posted by: Interested Observer on Wednesday, 18 October 2017 at 8:23am BST

A senior clergy person whispered something in my ear about this on Sunday, which has got me wondering. How many other bishops were asked to sign the letter to EIG, and declined Lambeth's 'invitation' to do so?

Posted by: Will Richards on Wednesday, 18 October 2017 at 8:23am BST

"We could spend almost twice as much on victims if we could eliminate the solicitors"

Who is this "we" you are speaking for?

Whether a claimant retains a solicitor isn't up to you, me, or the Church. That is the claimant's decision, and no one else's.

I'm always fascinated at how quick some people are to suggest that other people go without legal advice.

Posted by: Jeremy on Wednesday, 18 October 2017 at 12:50pm BST

Indeed, the Church could, in fact, give twice as much or more to victims if the Church did without solicitors. Oh, wait, isn't that what they meant?

Posted by: Vicki Zust on Wednesday, 18 October 2017 at 9:49pm BST

@Interested Observer - Well, yes, obviously pitting a naïve claimant against an insurance company would not be an improvement. You have identified a worse system than now, but that doesn't mean there cannot possibly be a better one. As to people signing disclaimers, I don't know where that's come from. But if a cheaper system can be devised involving professional mediation, or something else, as EIC seem to be suggesting, then surely it is worth considering. What that could be, I don't know. Many non-liability claims are settled by independent assessors.

@Jeremy, I was not speaking on behalf of anyone, I was referring by "we" to the country generally, taxpayers, insurance premium payers, church collection plate contributors, abuse victims, people with other funding needs. The system now virtually compels the use of solicitors.

If people want to consult a solicitor then of course they can. But surely as a taxpayer , church collection contributor and insurance premium payer I can have an opinion as to who should pay for it. As Mrs May would say, there is no magic money tree.

Maybe it will turn out there isn't a better way, after all, but I am surprised anyone would doubt that a system where solicitors get almost as much as victims is not ideal, even it if does turn out to be the least worst option.

Posted by: T Pott on Wednesday, 18 October 2017 at 9:57pm BST

Will Richards, why am I not surprised?

Posted by: Jeremy on Thursday, 19 October 2017 at 4:07am BST

"But surely as a taxpayer , church collection contributor and insurance premium payer I can have an opinion as to who should pay for it."

Oh right. So this is about denying equality of arms, so that legally sophisticated insurers can do over naive claimants. Lovely.

Posted by: Interested Observer on Thursday, 19 October 2017 at 11:21am BST

"so that legally sophisticated insures can do over naïve claimants"


No, it is not about allowing insurance companies to do over claimants. Nobody, as far as I know, is advocating a system that would allow that. It might look as if it would be attractive to insurers, by allowing them to minimise claims, but it isn't. The insurer wants a full and final settlement. This is simply not possible, no matter what anybody signs, if the claimant can subsequently allege he was misled or unfairly treated by the insurer. EIC allude to this in their letter to the bishops, when they say that the bishops suggestion the settlement might be wrong could be construed as an allegation of professional negligence against Gilo's solicitor.

Having accepted a full and final settlement, on the professional advice of his solicitor, if that advice turns out to have been inappropriate then any further claim is against the solicitor. Any future liability is off the insurers books, and is now a risk borne by the solicitor (or rather, his professional indemnity insurer, which could be the same company, of course, but usually isn't).

So, nobody wants a system where claimants are not legally protected. On the other hand, both Gilo and the bishops are unhappy with the current adversarial approach, with its inherent horse trading. They are the ones dissatisfied with the current approach.

So, a third option, neutral independent claims assessment, of course sympathetically making clear to the claimant all that may help his case, and then adjudicating a settlement, may work. It does in many fields, and it isn't about anybody doing anyone else over. Of course, there are costs with these assessors who would have to be highly knowledgeable and expert, but that may not be a problem due to the fact the current system is already expensive.

Posted by: T Pott on Friday, 20 October 2017 at 12:11pm BST

"neutral independent claims assessment"

There's no such thing. Purportedly "neutral" organisations spend a lot of time with the larger side, in this case the insurers. They get to know their people, their problems, their offices. The larger side employs people to liaise, and those people have nice expense accounts. There is a constant ebb and flow of people taking jobs across the divide. Meanwhile, the smaller side, in this case claimants, don't know the ropes. They aren't as articulate. Some of them might even not have degrees from our better universities, and live outside the Zone 3 (I know, it defies belief, doesn't it?) After a few years, the "neutral" organisation is in the pockets of the people it is supposed to tame, and completely useless to those it is supposed to support.

This concept is so well understood that it has a name ("regulator capture") and a length Wikipedia page as a starting point to read about it: https://en.wikipedia.org/wiki/Regulatory_capture

This is exactly what happened over phone hacking. Everyone knew that the allegedly "independent" "regulator" the Press Council was a joke, but few people had pockets deep enough to do anything about it. It was only when people sued newspapers (I've met Mark Lewis: he's a class, class act) rather than accepting the tame poodles of the Press Council that anything happened. Similarly, Churches covered up sexual abuse for decades, and it was only legal action which moved them.

"It [works] in many fields, and it isn't about anybody doing anyone else over."

It works in no fields. Or at least, it doesn't work for the man in the street; it works very well for the large organisations, which is why they like "Ombudsmen" and other organisations they can control by influence and job offers. If offered mediation, always refuse and go to court if you can possibly afford it.

Posted by: Interested Observer on Friday, 20 October 2017 at 3:55pm BST

My hope is that this move portends a greater understanding of the dynamics of abuse, something woefully lacking in the Episcopal Church here in the US. Specifically, if it doesn’t involve rape, mayhem or murder, the church far too often turns a blind eye. As a result, shunning, bullying and other forms of abuse go unchecked.

I can add that I know this from first-hand experience.

Posted by: Eric Bonetti on Friday, 20 October 2017 at 4:16pm BST

Eric Bonetti, I share your hope, but I fear an understanding of the dynamics of abuse (of all kinds) is still a long way off. As Stephen Parsons suggests, the Church desperately needs to understand the ways in which power operates for both good and ill - far too often, it is for ill. Until we are willing to look honestly at the way we exercise power, and its effect on the people we work with and serve, we are going to make very poor progress on many of our most challenging issues.

The trouble is that those best placed to ensure that the Church does research, understand, and train clergy in the right exercise of power, are those with most to lose from an honest appraisal.

Posted by: Janet Fife on Friday, 20 October 2017 at 5:57pm BST

"Renewal and Reform begins with putting our own house in order first - and that includes putting our money where our mouth is."

Gordon Watson, you are a Christian radical! Calling the church to follow in the sacrificial ministry of Christ. Wow! Inspiring!

Posted by: Cynthia on Saturday, 21 October 2017 at 7:15pm BST
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