Ep: 73 Anne Hunt - Compulsory Care Orders
Yesterday I featured a documentary I made twenty-six years ago about how the State promised that people with mental disabilities would not be sent indefinitely to institutions but would be cared for in the community.
Today, at least 65 mentally disabled New Zealanders are currently denied that right.
Instead, they are detained in institutions and, as a recent Supreme Court case revealed, some of them are effectively doing life sentences.
Why?
Because they committed a crime which carried a jail sentence, but instead of being sent to prison the presiding Judge decided that because of their mental disability, the defendant would go into a care facility before being released back into society.
The problem is that some of these people are not being released for reasons that are not allowed to be made public.
In short there are people In our country who are being detained indefinitely for reasons that are kept secret from the public which, it seems to me, flies in the face of the principle of open justice.
The Problem
Let me be clear. These are difficult cases involving difficult defendants who, because of their mental disability (not mental illness), are deemed by the Judge at their trial to be a danger to themselves or to others, and who need specialised professional help before they can return to the community.
The legislation that allows all this to happen is The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and a section of which (S85) allows the usual 3 year maximum term for a Compulsory Care Order to be rolled over.
The application of Section 85 was recently successfully challenged in case of “J, “ Compulsory Care Recipient v Attorney‑General
“J” is a man with an intellectual disability (and autism) who has been detained under the IDCCR Act since 2006, on a secure compulsory-care order. His order has been repeatedly extended because his behaviour has not been deemed to have improved and so, at the time of the Supreme Court hearing this year, he had been in detention for almost 20 years
The Supreme Court was asked to review whether the legal test being applied to extend his compulsory care orders under s 85 of the IDCCR Act was been correctly administered — and whether J’s long detention breached his rights under the New Zealand Bill of Rights Act 1990 (e.g. right to liberty, freedom from arbitrary detention and non-discrimination).
Last August the Court allowed the appeal in part, finding that the legal test lower courts had been using to decide whether to extend a compulsory care order was wrong.
The Court of Appeal for example had previously found that extending a compulsory care order only required evidence of some risk. Instead the Supreme Court ruled that the right to liberty should be the starting point for a Judge’s decision to release a person under a Compulsory Care Order or not, and that the time such a person is detained should not be disproportionate to the offence they originally committed.
In J’s case he had carried an axe onto a neighbour’s property and used it to break windows — including a garage and van.The offence was Wilful Damage, and if J had been deemed fit to plead he would have faced a maximum sentence of 3 months in prison.
But J has been detained in secure care for nearly 20 years which raised serious proportionality and rights concerns around arbitrary detention.
Frankly, I know of convicted murderers and rapists who have been freed before 20 years.
The Secrecy Issue
It is in the Family Court, presided over by a Judge, that the decision to release or roll over a person’s detention is made, and the problem I have ( or any journalist has) in reporting on such a case is that it is a closed court.
Unlike a Parole Board hearing, for example, where journalists can apply to observe proceedings, Family Court hearings are secret – and that very fact is, in my view, contrary to the principle of open justice.
The reason I have been looking into this issue is that I recently interviewed the well-known author Anne Hunt for an episode of my podcast series Head2Head. Her grandson – Daniel - is one of the 65 people who is subject to a compulsory care order because , like J, he has a mental disability, committed some property damage and is currently now being indefinitely detained.
During the interview ( which you can watch here) Anne raised a number of concerns about Daniel’s treatment and human rights abuse. So, in fairness, I decided to hold off publishing the interview until I had contacted his care provider and ask about some of the issues Anne had raised with me – such as she was not allowed to communicate with him to even wish him a happy 30 th birthday.
So I emailed the management of IDEA Services, the facility where Daniel is being detained, and asked four questions
1. Is it correct that Anne has been denied access to Daniel? If so, why?
2. She says she understands from others that Daniel is regressing? Is this so? If so, what treatment strategy is he on and why is it not working ?
3. Would you consider an online interview with me about Daniel’s case ?
4. May I visit Daniel if he requests it? If not ,why not?
Their response was they were not willing to comment and referred me to the Ministry of Health.
Opinion
I will of course be doing that because Daniel has rights which, at face value, seem to me to be being denied. But of course I can’t report to you on that one way or the other, because what is happening to him is being kept secret the from public.
As difficult as people like Daniel can be, and as difficult as it must be to decide what is best for their own safety and public safety – never- the- less it seems to me that the secrecy that surrounds the treatment of people like Daniel and J speaks of an 1825 attitude to mental disabilities, not a 2025 one.
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