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Lawyer Tony Ellis appeared via video link at the Auckland Supreme Court hearing on Tuesday.
photo: Nick Munro/RNZ
A man with autism and intellectual disabilities who has been locked up for half his life may not be as dangerous as people say and may not even have an intellectual disability, his mother’s lawyer told the Supreme Court.
It was also claimed that the decade-old case law used to justify his prolonged detention was no longer applicable.
The man, Jay* (real name withheld), was detained for 18 years for violating the Law on Compulsory Care and Rehabilitation of Persons with Intellectual Disabilities He was deemed too dangerous to be released.
An appeals court ruled last year that the suspect was a minor but ruled that his detention was justified because multiple experts said he would pose an extremely high risk to the public if released.
The man’s mother Filing a lawsuit in the Supreme Court He sought to have the compulsory care order revoked, claiming he had been arbitrarily detained and his human rights had been violated.
Human rights lawyer Toni Ellis, who represents the man’s mother, said in her opening statement in court on Tuesday that the appeal also focused on whether the court struck the right balance between protecting the community and protecting the rights of people with disabilities.
Jay’s care order has been extended 11 times as experts repeatedly assessed his dangerousness and he has been receiving treatment in isolation at Auckland’s Mason Clinic for the past four years.
Since being admitted, he has reportedly attempted to steal and conceal weapons, threatened to harm certain staff members, assaulted staff members and damaged property within the facility. A specialist health assessment determined that Jay would be at “a high or very high risk of violent behaviour” if released into the community.
Ellis said Jay’s provocative behavior was caused by long-term detention and the prison environment.
“Of course he’s misbehaving. He’s been in custody for 20 years for being out of line and now he’s bored out of his mind. He has no mental stimulation, he just reacts.
“There are a lot of minor incident reports, but those would likely decrease if he was stimulated in a comfortable place to live,” Ellis said.
He said when Jay’s care improved, his behavior also improved.
Lawyer Graeme Edgeler attends Tuesday’s Supreme Court hearing.
photo: Nick Munro/RNZ
Graeme Edgeler, another lawyer for Jay’s mother, questioned the validity of staff reports that were used by expert assessors to assess Jay and keep him in custody, given that staff had assessed his behaviour since he was detained.
“There is no judicial process to find out whether these particular findings actually occurred, or the specific circumstances in which they occurred.”
He said factual errors regarding Jay’s behavior had been corrected but some of the assessing clinicians continued to repeat them.
Prosecuting attorney Kim Laurenson said everyone recognized that Jay’s lengthy detention had a significant impact on him.
“But it’s justified in order to protect the public.”
She said Jay was moved to a lower-security facility where he received “less restrictive” treatment for several years, but his behavior deteriorated, so he was moved back to the secure facility at Mason Clinic in 2020.
She said professional assessors had not ruled out the possibility that Jay could make improvements in the future and it was conceivable that he could be placed in a less secure location in the future, but that it might take some time.
Medical staff at the Mason Clinic considered whether Jay’s diet was “too restrictive.”
“The special evaluator determined that Jay was at high, or very high, risk of harm to others. This is not the case for most people with intellectual disabilities. The evaluator determined that Jay’s presentation was unusual and challenging.”
She said the medical staff at Mason Clinic had tried different approaches to treat Jay, but with little success.
“It shows that the people who care about Jay haven’t stopped trying new things. Or making adjustments.”
Prosecutors (left to right) Rosa Garvey, Matt McKillop and Kim Laurenson attend a Supreme Court hearing on Tuesday.
photo: Nick Munro/RNZ
Mr Lawrenson said the prosecution would address the veracity of reports about Jay’s behaviour while in care when the hearing continues on Wednesday.
Jay was first detained in 2004 after he smashed four windows of his neighbour’s house with an axe and was charged with vandalism. He was made a “care subject” under the Act in 2006 after being deemed unfit to stand trial and was required to live in a secure care facility.
Under the act, a person would be considered intellectually disabled only if they had an IQ of 70 or less.
Ellis said there are many different kinds of tests. Jay scored less than 70 on a standard IQ test, but scored as high as 84 on a test that focuses on visual and auditory skills, though he said that argument had been rejected by the Supreme Court.
Eichler said it’s an issue that should be explored further.
Supreme Court judges present at Tuesday’s hearing, from left to right: Sir Stephen Coase, Dame Ellen France, Dame Helen Winkelmann, Sir Joe Williams and Justice Forrest Miller.
photo: Nick Munro/RNZ
Both the Human Rights Commission and the IHC have been granted permission to make submissions to the Supreme Court as intervenors on the wider human rights and disability issues raised by the Act.
Both organizations and the appellant argued that one of the leading precedents used to justify extended care orders under the IDCCRA, RIDCA Central vs VM, is no longer relevant.
The 2011 Court of Appeal case focused on the balance courts must strike between protecting the public from harm and protecting the liberty of people with disabilities.
Eichler said New Zealand had become a signatory to the United Nations Convention on the Rights of Persons with Disabilities, and there had been progress in disability politics and law.
He said the longer a person is detained, the more stringent the court should be in examining the reasons for their detention.
IHC lawyer Andrew Butler told the court too little attention was paid to the impact of detention on the detainees’ interests in liberty.
He worries that the bill’s consequences of allowing indefinite detention will incentivize lawyers with intellectually disabled clients facing criminal prosecution to keep their clients in the justice system “to avoid becoming someone like Jay.”
The hearing will continue on Wednesday.
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