Intellectual Disability (Compulsory Careand rehabilitation) Bill

I move, That the Intellectual Disability (Compulsory Care and Rehabilitation) Bill be now read a third time. I thank members and past members for their contributions as the bill has passed through its various stages since first being introduced to the House in October 1999. In particular, I thank the members of the Health Committee, under the chairpersonship of Judy Keall, for their considered examination of all the issues in the bill, and for preparing the bill to be reported back to the House. I also acknowledge the Minister of the time, the Rt Hon Wyatt Creech, for introducing the bill.

Until 1992, Part 7 of the Criminal Justice Act gave the courts the ability to consider offenders who have an intellectual disability under the Mental Health Act. Since 1992, the courts have not been able to do that, because of the legislative gap between the mental health legislation and the Criminal Justice Act. Having been properly excluded from the definition of “mental disorder”, people with intellectual disabilities were also excluded from the coverage of Part 7 of the Criminal Justice Act. That meant they are currently liable to be treated inappropriately by the courts when they appear on criminal charges. These inappropriate placements include being sent to prison, being detained as special patients in mental health facilities, or receiving a non-custodial sentence.

The Criminal Procedure (Mentally Impaired Persons) Bill is linked to this bill, as it provides the legal mechanism by which people with an intellectual disability who have been charged with, or convicted of, offences are diverted to the compulsory care system. With the passage of both bills, the legislative gap that has existed since 1992 will be closed, and the courts will be able to make appropriate dispositions that provide for the care and rehabilitation of people with intellectual disabilities who offend.

For the purposes of the bill, the definition of “intellectual disability” is primarily based on one developed by the American Association for Mental Retardation. The association’s definition has recently been updated, and the Supplementary Order Paper agreed to by the Committee of the whole House brings the bill’s definition into line with that latest version. I would like particularly to commend the work of the Health Committee, which gave appropriate and very helpful consideration to improving that definition.

The bill sets out the process for assessing people assumed to have an intellectual disability, with special assessors, provisions for second opinions, and the input of members of the person’s family and community. There are three ways in which a person can become subject to the bill: through the criminal courts, through a prison manager, or through the director of the area mental health service. The Family Court can impose compulsory care under the bill only after completion of a needs assessment and a care and rehabilitation plan. The bill further provides for regular reviews and reports on the appropriateness of continued care, and people may be released from compulsory care in a number of ways, depending on how they first entered the system. The bill provides for two levels of care, either supervised or secure, based on the person’s assessed risk. It contains a number of mechanisms to ensure that the rights of intellectually disabled people are protected, and, further, contains a number of statutory powers of compulsion to require the person to comply with his or her care order. These include the requirement that the person accept properly given care and comply with every lawful direction given by his or her compulsory care coordinator or case manager.

There are provisions for specified people to use reasonable force for restraint, detention, or transportation. There are also powers for seclusion and medication. Those powers are balanced by specific safeguards against their abuse. They include court reviews of the terms and conditions of compulsory care, 6-monthly clinical reviews, independent monitoring, and the opportunity for intervention by a High Court judge. In addition to those, Part 5 guarantees people several specific rights, including, but not limited to, information relating to their assessment and care order; respect for the care recipient’s cultural identity; independent health and disability advice as well as independent legal advice; and company, to receive visitors, and to receive and send mail.

The main changes recommended by the Health Committee pertain to the definition of “intellectual disability”, the removal of non-offenders from the original legislation, and the inclusion of “Rehabilitation” in the title of the Act. Again, I would like to commend the work of the select committee, and I support those changes.

Considerable progress has been made in setting up the infrastructure for the compulsory care regime. Each of the four regions within the Ministry of Health has established a regional intellectual disability care agency, and has appointed staff who will now be able to carry out the care coordinator’s role as established under the legislation. Hospital level secure services are still at an early stage of development. The bill will provide the courts with appropriate options for the referral of offenders with an intellectual disability into a care and rehabilitation regime, and, in doing so, will close a legislative gap.

In addition to thanking the select committee, I also want to place on the record my thanks to officials and to parliamentary counsel for their considerable assistance with the passage of the bill. It has been a particular pleasure to have the consideration and support of nearly the entire Parliament on this important issue, and I commend its further speedy progress.

It is with pleasure that I rise to support the bill. The Hon Ruth Dyson made the point that one of the major changes to the bill was that the Health Committee took away the non-offender group. There were two groups: those that offended and could come under this bill and receive compulsory treatment and care, and the non-offender group.

I just want to quote from the commentary on the bill, which includes a quotation from the submission of Kathleen Taylor, who wrote: “For several years now we, as parents of a child with special needs have been encouraged to believe that the care of our children should happen in the communities in which they live. We have been encouraged to embrace ‘mainstreaming’ and ‘inclusion’ in education and leisure. We were promised adequate levels of support. Institutions were a thing of the past. Now it appears that our children can be incarcerated if authorities feel that they ‘appear to pose a risk’...”. That is why that section was taken out. We cannot incarcerate someone for compulsory care simply because they appear to pose a risk.

When we look at individual cases before us, such as those of David Stephens and Mr Ryder, we can see that the behaviour of those people has been at the level of offending. But those offences have been understood because the person concerned does not have the intellectual capacity to understand the consequences of his or her actions. What will have to happen under this bill is that when a person does assault another person, or behaves in a very antisocial way that breaks the law, that person will have to come before the courts, be found unfit to plead, and come under the jurisdiction of the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. If that happens, a person can either be placed in a secure facility or be subject to 24-hour community wrap-around services.

I have to thank the Rt Hon Wyatt Creech, who was the principal driver in developing this bill when the National Government was in power, and my select committee colleagues, especially Paul Hutchison and Roger Sowry, who worked well on this legislation to get it to the state where we have all agreed to support it in this House.

The Hon Ruth Dyson mentioned that hospital level care facilities have been very slow in development, and I would urge this Government to get on with it, because the people who will now come under this bill need somewhere to go. Some of these people are still in mental institutions or forensic care. They may be at the Kimberly Centre or Braemar Hospital. They need to be placed in special facilities, because they cannot be placed in community care—their behaviour has been such that they pose too much of a risk to themselves or to society. It is important that hospital level care facilities are developed. I know that one is being developed at Porirua and another at the forensic unit in Auckland. But that development has been too slow, and I urge that it be speeded up.

The definition of “intellectual disability” was another area the select committee worked very diligently on. It was essential that we manage to have a definition with a broad enough scope to allow for the capture of people who have a low IQ, around 70, and who may have some skills in some areas but very poor skills in others, which leads to their offending. If they do have very poor social skills, or have been trained in inappropriate behaviour, then they need to be captured by this bill so that they can go into a care programme to improve their behaviour and to protect themselves and the public. The meaning of “intellectual disability” was expanded to allow this to happen, and I think we came to a good conclusion in the end—one that we hope will work in practice.

The whole purpose of the bill is to ensure that those people who since 1992 have not been covered by the Mental Health Act do have an Act of Parliament that will protect them and the community. It is with pleasure that I support the passage of this bill.

Tēnā koe. I rise on behalf of New Zealand First to support this bill. But in so doing, I want to express some concerns I have, particularly with regard to the costs that are likely to be diverted away from the area of service delivery, and the likelihood that they will be used in managing the service. It is important that I mention that concern, particularly if we take some note of how the health service in this country has developed over recent years. Although I acknowledge that we need good management, I feel that much of the budget that has been allocated for the delivery of services has been consumed by management.

I also want to mention that the apparent emphasis on one ethnic group under clause 23 does not augur well for other ethnic groups, particularly those with similar social structures. In that regard, I refer to our Pacific Island brothers and sisters and say that the bill as it stands is silent in that respect. The bill gives some solace to the wider community in that it goes some way towards protecting it from those people for whom this bill aims to provide improved services. In that respect, the Government ought to be congratulated on promoting this bill. Clearer direction is provided to the courts and to the health professionals who will have to administer this new legislation. I note that there seemed to be no difficulty in the latter stages of the debate in debating most of the parts of the bill as one. The fact that a decision was made to deal with the earlier part of the bill in single parts, thus avoiding further opportunity to call this Government to account in the time that would normally be set for oral questions, was some cause of disappointment to me and my colleagues in New Zealand First. In conclusion, I reiterate my support and that of my colleagues in New Zealand First for this bill.

ACT New Zealand will be supporting this bill. It is necessary to address a legislative gap that has existed for the intellectually disabled in need of compulsory care, since the Mental Health (Compulsory Assessment and Treatment) Act of 1992 was instituted. This gap has seen the inappropriate placement of some of those with an intellectual disability in mental health services discharged into the community, when this is clearly inappropriate for both the person involved and the community, but, worst of all, of course, is their placement in prisons. Prison is no place for those who need compulsory care but have not committed a crime, or have valid considerations when these are taken into consideration.

This bill allows for the requirement of the intellectually disabled to accept care programmes when compulsory care is necessary. We heard quite a lot in the Committee stage about Barry Ryder. He is a very good example of exactly why this bill is necessary. Barry Ryder was sent to prison and was let out, as the law stipulated he should be—only to reoffend again. That happened, despite the fact that Neil Pugmire breached his position with regard to privacy issues by warning that Barry Ryder would reoffend again and that that course of action was completely inappropriate. Had this legislation been in place when Barry Ryder was first sentenced, the consequences, the lives that have been ruined as a result of his further reoffending, may well not have come to fruition. So ACT New Zealand will be supporting this bill, but I would like to state for the record the concerns we have about it, and they are several.

Our first concern relates to the insertion of the word “rehabilitation” into the title. We are not opposed to rehabilitation and certainly the intellectually disabled should have the same right and access to treatment that all other citizens in the country enjoy. However, “rehabilitation” needs to be defined for the purposes of the bill, and, despite my repeated requests to the Minister for a definition, this matter has not been addressed. I would have liked to see the Health Committee at least attempt to define “rehabilitation”. I suspect in this case that it really meant behaviour modification, and it would have been good to have had that pointed out. The problem with talking about rehabilitation, both within the bill and inserting the word “rehabilitation” into the title, is that it raises the expectations, particularly of the families or the caregivers or guardians of the intellectually disabled and sometimes of the patients themselves. It also places an added burden on the workforce—the health professionals who are responsible for these patients—and I think it is an unrealistic one. Rehabilitation in its broader sense means we are able to cure people, but, of course, there is no cure for intellectual disability, and that is something that should be remembered. It is very important that terms like these are defined when we are talking about very specific things in legislation.

The second concern is the change in the Supplementary Order Paper of the definition “intellectual disability”. I was not on the Health Committee, but we are told there was extensive debate about the definition. The select committee spent a lot of time and effort, and listened to many opinions about what the definition of “intellectual disability” should be but, despite that—and despite coming up with what I thought was a very flexible but realistic definition, and one that certainly the medical profession seemed happy with—the Minister in her Supplementary Order Paper went back to the original, very narrow definition. I think that will raise problems for clinicians. The third concern relates to the political correctness in this bill and in others. We are very disturbed that political correctness seems to be pervading legislation these days. The term “care recipient” was brought up by several members. They used to be called “patients”, and there was nothing wrong with that term.

💬 Dr Paul Hutchison: Quite simple. Everybody understood.

Yes, everybody knows what it is. When somebody was receiving care or treatment that person was a patient. That term was later changed to “client”, but those people were still receiving treatment so they were still patients. The politically correct title, “client”, implied that someone was paying for services. Now we have moved on to “care recipient”, which does not roll off the tongue. People have to stop and think: “Care recipient—what does that mean?” The word “recipient” is not even part of some people’s vocabulary. Anyway, this political correctness is unnecessary and just confuses issues. The law should be simple and clear. In fact, terms like “care recipient” do nothing to help in this regard.

The fourth concern is the cultural references, which I also spoke about in the Committee stage. I did attempt to have clause 23 omitted by way of an amendment, but, unfortunately, it was not supported, except by my colleagues in the National Party. My question was: why was reference made only to Māori? Perhaps this Government believes it is only Māori who suffer from intellectual disability. That is not the case, of course. People from all cultures deserve the same access and same respect when being treated. So quite why Māori have to be constantly singled out is beyond me.

💬 Darren Hughes: Just listen to yourself!

I am listening to myself, and if the member wants to take a call he should do so. Good clinical practice incorporates a sympathetic approach to cultural matters, and it is a sad day when we put into our legislation clauses about cultural awareness. Such measures are unnecessary—they should happen as a matter of course. If we single out particular ethnic groups, a mini-industry builds up around the legislation on those cultural considerations. We have seen this happen in many areas, particularly in the health field, but not isolated to it. When these things happen, an industry builds up. There is a legal requirement on the part of the district health boards, whatever areas we are talking about, to institute these things, and those staff members must be available, even when there is not much work for them to do.

The people working in this field are delighted that this legislation will be passed, and that is why I am supporting it, despite my very valid concerns. Many of those workers share those concerns with me, particularly the cultural ones. It is not acceptable in this day and age to have the intellectually disabled housed in places like prisons, and in some of our mental health facilities around the country. They do deserve treatment that is specific to them and caters for their needs. For that reason ACT New Zealand supports this bill.

It is great that this issue is finally being addressed, when we consider that work on this started in 1995 when the Ministry of Health commissioned a discussion document. It is concerning, however, that an issue directly affecting the lives and future of some of the most vulnerable members of our adult population can languish for such a long time, and perhaps that reflects our ability to ignore the issues of those with intellectual disabilities.

The bill is positive, in that it reflects society’s desire to protect and rehabilitate vulnerable members of society rather than punish them. It represents a further step in recognising that although society does not condone offending, our response to offenders with intellectual disabilities needs to acknowledge the reality that in many cases prison is not an option. The bill is important because the public eye has tended to focus on the specific issues of people with mental illness, and the needs and unique issues of those with intellectual disabilities have often gone unheralded. I congratulate the Minister, Ruth Dyson, on actioning this legislation.

United Future is pleased that the definition of intellectual disability has been altered to align with international definitions. We are pleased that non-offenders have been removed from the scope of this bill, as such a move would have created alarming possibilities for discrimination on the basis of disability. However, United Future is concerned that adequate care is resourced for those with challenging behavioural issues so that the possibility of offending is minimised. We were also concerned that the Government should ring-fence funding for compulsory care, especially in the initial stages of the development of sites for staffing and protocols. This has not been done. However, the Government has assured us that the additional $50 million funding over 3 years is tagged and able to be differentiated from other service expenditure. It will also have the protection of having to be signed off. It is essential that compulsory care is adequately resourced. United Future’s central concern is that although this legislation provides an avenue for those who have an intellectual disability and are in need of compulsory care, the needs of a much larger and vulnerable segment of the population still remain substantially unaddressed. It is expected that approximately 150 to 200 people will be covered by this proposed legislation. However, there are an estimated 11,500 to 15,000 adults who need support due to disability.

The National Health Committee’s recent report To Have an ‘Ordinary’ Life, released last month, raised a number of very disturbing concerns relating to the importance we place on the needs of those with intellectual disabilities. The committee found that adults with intellectual disabilities are treated as second-rate citizens. Their lives are simply not consistent with the vision of the New Zealand disability strategy. Unlike ACT, in this regard we support the new terminology of “care recipient” as opposed to “patient”. These people are tired of being thought of as sick rather than impaired. The current support services are overly custodial and restrictive, and they can stifle the ability of those with intellectual disabilities to make their own choices. The report, in its disturbing category of findings, highlighted that there is systemic neglect of the developmental potential of this group of people, and their families and whānau. There are also high levels of poverty, a lack of basic health-care, low educational opportunities, as well as a lack of communication support, a lack of culturally appropriate services, and a lack of purposeful futures. With the move from deinstitutionalisation in favour of community care this group has been forgotten, and the committee comments that although the bricks and mortar have been removed, many adults remain disenfranchised.

We commend the development initiatives for non-offenders, but believe that we need to see improved outcomes in the areas of respite care, vocational services, and independent supported living services. It is our responsibility to ensure all measures are in place not only to support the human potential of this group of people but also to ensure that the number of people with intellectual disabilities who become subject to compulsory care is reduced in the future. United Future is pleased to support this bill.

With a great deal of pleasure I do, indeed, say that I support the third reading of this bill, particularly so because it has taken so long before it has finally got through the House. After all, the genesis of this bill was in the 1980s and 1990s. At that time it took people like Law Commissioner Tim Brewer to urge that it was very important for this to come into being after some preventable tragedies had occurred in New Zealand. During that time more preventable tragedies have occurred.

It seems quite extraordinary that even though the bill was introduced in October 1999 the Labour Government has chosen to look at other priorities such as introducing the Health and Disability Bill, which has only perpetrated on New Zealand the most enormous conglomeration of unmitigated bureaucracy that our health system has ever known, and instead it could have concentrated on bills such as this.

However, I must say that I enjoyed that early select committee and the cross-party collaboration and enthusiasm to see this bill progress. I must acknowledge my colleague Dr Lynda Scott for her very valuable work, and, of course, Wyatt Creech, the former Minister of Health. That Health Committee was indeed unique with the presence of the former chairperson Judy Keall. While I cannot say that I necessarily miss her unique articulations and iterations, I can say that the House and the select committee are quite different without them. She was a woman of huge enthusiasm, and I am always grateful to her for bringing my 97-year-old mother a bunch of flowers on her birthday when she was 91 or 92. However, she did, indeed, have a lot of care that this bill should be well considered and that it should be brought through the House with due expediency, and that has not happened.

What makes me even more frustrated is the fact that here we see this Supplementary Order Paper that has redefined intellectual disability. I acknowledge that the Minister has explained the reason it has been redefined on a technical basis, but there is a mistake. Clearly, on one page we talk about a confidence limit of 95 percent, but on the explanatory note we talk about a confidence level of not less than 75 percent. If the Hon Marian Hobbs had that sort of confidence level with her sweetcorn she would be getting into a hang of a lot more trouble than she is in already. I hope that this was merely a typo and that it will be corrected, because it was fundamentally very, very important.

I am also concerned by the political correctness that has infiltrated itself into this bill.

💬 Hon Ruth Dyson: The member is better than this.

This is important, because these terms, unfortunately, stick and they are unnecessary. The point is that the person in the street does not understand them. It is the same with this extraordinary need of the Labour Government to legislate for cultural correctness. We have this whole clause 23, “Cultural assessment”, where not only is there the requirement to attempt to legislate culture, ethnicity, language, or any religious or ethical beliefs, but also the attention to Māori.

We never really had the explanation as to why it is so necessary in this sort of bill. We are living in a truly multicultural society, and while, of course, it is absolutely appropriate that families, whānau, and iwi are totally acknowledged and observed, why does it have to be put specifically in legislation? I think that in 50 years’ time it will not be relevant. We have sort of gone through this little 20-year time warp where there has been this absolute subconscious knee-jerk reaction to have attention to something that will not endure on universal principles over a long period of time.

I want to make just another couple of comments. One is to reiterate that one of the submitters who left me with a strong sense of concern about getting this bill correct—Kathleen Taylor—who had been through the situation of having an intellectually disabled child who had not offended, was in absolute constant worry of that child offending, but she could not find anyone to take responsibility when the going got tough. The plea that she made was, instead of such a punitive bill, she would like to see measures put in place to adequately support parents and caregivers to care for the disabled dependants in their own community. This would be a far less expensive option. With adequate levels of supervision, dangerous incidents would be extremely rare. I think again of the forethought of Wyatt Creech and the National Government back in 1999 when they provided $50 million to ensure that some of those basic facilities would, indeed, be put in place.

I note that the commentary states: “The following service development has occurred: Service specifications have been developed … The Clinical Training Agency has put out a Request for Proposal for the provision of a training course …”. Now that has not gone as well as it could but it was very important that it actually happened. “Negotiations are commencing with providers to build up capacity in preparation for services for offenders, and Work is also proceeding on the planning for other community based services.”

Now the sadness is that not all those things have come to reality. Phil Goff, back in 1999, again said that the basis of this bill was providing realistic mental health services and facilities for those who were intellectually disabled, and that has not happened. However, I end by saying that I certainly do support this bill into the House. It is timely. It is overdue, but it is certainly necessary.

Bill read a third time.