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The insurers have listened

15 July 2016

Part of Julie Macfarlane’s settlement of an abuse claim was the reform of the way the Church and its insurers treat survivors. She reports on her progress

ANY legal claims for sexual abuse against a priest will probably be handled by the Ecclesiastical In­­surance Group (EIG), on behalf of the Church. EIG insures most dio­ceses, although not all; so the claimant’s lawyer will deal with EIG directly.

Because EIG is a separate legal entity, the Church has claimed in the past that it has no control over how claims for sexual abuse are handled and responded to. This is not true. The Church can instruct EIG how it wishes claims to be handled.

In the settlement of my own abuse case with the Church, a central plank of which was the development of a new procedure for responding to claims for sexual and physical abuse (News, 18 March), EIG has now produced a set of ten Guiding Principles for responding to claims. They have been put together by EIG — who brought a strong spirit of commitment and colla­bora­tion to the task — in consul­tation with me, my solicitor, David Greenwood, and church represen­tatives.

The Guiding Principles are, in effect, a “Bill of Rights” for sur­vivors bringing forward legal claims where the insurer is EIG. They are a significant step forward in humanis­ing the often bruising and even re-traumatising legal pro­cess. It is very important that anyone bring­ing a claim against the Church, or considering doing so, knows and understands how the Guiding Prin­ciples will apply to their claim, and how they should expect to be treated in the claims process.

EIG has also set up a confidential contact point for any questions or complaints that anyone may have about the process, including poten­tial failure to follow the Guiding Principles.

Changing the way that claimants are treated, and how their claims are handled, is a very important step forward, but there is still a lot more work to be done at two other stages in the process. One is how those bring­ing forward complaints are responded to when they first disclose — there have been disturbing revelations this week about com­plaints being ignored by church officers to whom they were first reported.

The second is the amount of compensation offered to survivors, which must be fair and reasonable. It is my fervent hope that, if the Church is not able to address these issues properly, the Goddard Inquiry will.

The commitments made in the Guiding Principles can be read in full on the EIG website. I summarise here.


General principles for how claimants will be treated
The Guiding Principles recognise how emotionally difficult and up­­setting it is to bring a claim forward, and commit to treating claimants with respect and empathy. Investigations of all claims will be con­ducted with “sensitivity, em­­pathy, and integrity” and “an overriding principle of fairness”. EIG advises the Church to respond “con­structively” to claimants from the outset and to avoid being “. . . negative, resistant or unhelpful be­­cause this . . . may worsen the claim­­ant’s wellbeing.” The goal is for the claim to be concluded as quickly as possible.


Pastoral care
There is no reason that pastoral care for anyone should be affected by making a claim (it has been a frequent complaint from survivors that they have been “cut off” from their church community when they disclosed abuse).

While the cla­imant’s lawyer and EIG will corres­pond about the claim’s progress, churches should continue “to sup­port the claimant through the provision of pastoral care”.


Immediate access to counselling
EIG advises the Church to consider offering counselling immediately to claimants, because “offering to pay for some counselling or treatment [is not] . . . an admission of legal liability”. There is nothing to pre­vent the Church from paying for counselling for survivors as soon as a claim is made; this will have no effect on the legal outcome. Sim­ilarly, EIG advises that offering an apology to the claimant will not prejudice insurance cover, and may be “an extremely important step” for the claimant.


Statute of Limitations
In the past, EIG, on behalf of the Church, has sometimes used the Statute of Limitations to deny a claim based on the length of time it has taken for the survivor to come forward. But we know that many survivors do not come forward for many years, because of how hard it is to disclose abuse. The Guiding Principles state that this de­­fence will now be used “very spar­ingly”, and only in exceptional circum­stances.


‘Consent’ to sexual abuse
In the past, EIG, on behalf of the Church, has sometimes argued that the survivor “consented” to the sexual abuse. The Guiding Prin­ciples state that a consent defence will now never be used in cases where the victim was under the age of 16 at the time of the alleged abuse. For those aged 16 and over, the Guiding Principles recognise that there is very often a “power of im­­balance” where consent cannot truly be given. The use of a “consent” defence should now be very exceptional.


Joint medical ‘experts’
As part of the investigation, a claimant will usually be examined by a medical “expert” appointed by EIG and one appointed by the claimant. EIG “recognises that requiring claimants to undergo mult­iple medical evaluations may cause further distress.” The Guiding Principles commit EIG always to consider using a single, jointly agreed expert.


Trying to settle cases as quickly as possible
Once it has been accepted that the abuse took place, and EIG has suf­ficient medical evidence to evaluate the claim, they may invite the claimant and his or her lawyer to a Joint Settlement Meeting (JSM). If an agreement can be made in a JSM, there will be no need to go to court. A JSM may even take place before formal legal action is begun; claims can be settled before this starts.


Confidentiality and ‘gag’ clauses
Unless the claimant personally re­­quests a confidentiality clause, he or she will never be asked to agree to keep information about his or her settlement secret.

For more information about what this might mean for a potential claimant or a claimant and his or her case, contact a lawyer. To con­tact EIG, in confidence, about any aspect of making a claim, email sensitiveclaims@ecclesiastical.com.


Dr Julie Macfarlane is Professor of Law and Distinguished University Pro­­­fessor at the University of Windsor, Ontario, Canada.

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