Intellectual Disability (Compulsory Careand Rehabilitation) Bill

It is with pleasure that I take a call on the title, which has been changed to the Intellectual Disability (Compulsory Care and Rehabilitation) Bill, with the term “rehabilitation” having been added. I have to say, while the term “rehabilitation” is used, it is difficult sometimes to see how rehabilitation fits in with intellectual disability, which is a permanent, ongoing condition. What really fits in is support services putting structure and scaffolding around a person’s life, so that that person can then behave in a more appropriate manner.

I am not sure that that is called rehabilitation; I always think of rehabilitation as helping individuals to engage in new and enriching ways. I suppose that if the amount of support structures necessary can be put around somebody, then rehabilitation may be an appropriate term if behaviour can be changed. We know that—

The CHAIRPERSON (Hon Clem Simich): In this debate, could we stick strictly to the clause under discussion? It is the title clause, clause 1. Unlike other debate over the last 2 days when we have ranged fairly widely, this debate is narrow and must be kept narrow.

Yes, I have heard that from Chairpersons before, who then go on to let everyone else have a wide-ranging debate, but I will stick to the title. I am sticking to the title, because “rehabilitation” has been added to it. I am talking about the new title of the bill, and whether it is appropriate to have “rehabilitation” added by the Supplementary Order Paper to this bill. The title was Intellectual Disability (Compulsory Care) Bill, which was very appropriate because that is what this bill is all about.

The legislation covers those people who have an intellectual disability—I do note that the Minister has changed that definition, even though we at the select committee spent hours and hours talking about the definition, so we will be asking why it has changed—who are people born with an intellectual disability, or who suffer a birth trauma and have an intellectual disability, but it does not apply to people who suffer a brain injury, for example a traumatic brain injury. They are not covered by this bill. So people with an intellectual disability are covered by this bill, and the specific title for this bill needs to cover that. It needs to cover those with intellectual disability, because the Mental Health Act no longer does.

The title is the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. The words “compulsory care” are important, because that is what this bill is about. It is about taking those people who have an intellectual disability and who offend. We have taken out the non-offender group, which was originally in the bill, but these are people who offend, and who therefore need compulsory care. It is very sad—extremely sad—to have people who have an intellectual disability being hounded by a community or coming before the law and being put in jail. So the whole point of this bill is to give compulsory care for people who have an intellectual disability, in specific circumstances, in specific facilities designed for them, and with a care package that will be wrapped around them.

Adding “rehabilitation” to the title relates to the parts of the bill where we have added needs assessment and rehabilitation plans. So having a rehabilitation plan for people can mean that they will be able to be released into community care, rather than being in 24-hour, permanent locked care. But as we know with the David Stephens case, there are some people for whom that will never be able to be the case. Because of their behaviour, their lack of anger management, and the fact they do not understand the consequences of their actions, they will have to be in permanent, ongoing, compulsory care, as identified by the title of this bill.

I do not think that we should in any way change the title. I have not moved any amendments or substituted anything for this title, because it does determine, in a clear and defined way, what this bill is about. Compulsory care imposes limits on individuals and limits their freedom, so that is why a specific Act of Parliament is needed.

I will take a short call to back up what Dr Lynda Scott said about the word “Rehabilitation” in the title. I think rehabilitation is a word that is often misunderstood, and that in this case we are asking for trouble, in a way, by including it in the title. In fact, I am going to propose an amendment to have the word “Rehabilitation” removed from the title. We will amend the amendment—

💬 Dr Lynda Scott: You are going to amend the amendment?

That is right—so that we move back to the title being the Intellectual Disability (Compulsory Care) Bill, which I think describes the intention of this bill much better. Rehabilitation, I notice, is not defined either in the bill itself or in the Supplementary Order Paper. I would have thought that with its inclusion in the title it should, perhaps, have been defined. That would have made a good deal of sense. It should have been defined so that we know exactly what it is.

Intellectual disability, of course, is a lifelong condition. It is a description of somebody’s intellectual capacity. Rehabilitation implies that somebody can improve from a set position. We know that that is not the case with intellectual disability. When people are disabled, the measurement of their disabilities cannot be improved upon. The implication is that people’s behaviour can be improved, and that indeed is sometimes the case, despite the fact that these people are often functioning at a very low level throughout their lives. But the base from which they operate will never be able to be changed with treatment. Although their behaviour may be modified in a positive way, their base condition will see no improvement at all.

With regard to the title clause, we will put an amendment forward; indeed it will be an amendment to amend the amendment. But it is important that in the interests of stipulating what the bill is truly about, the word “rehabilitation” is removed from the title. I do not mean by that that we should make no effort with these people. I believe the opposite. These people should be put into facilities that are there specifically to cope with their particular problems. The word “rehabilitation” in the title is a misnomer.

I am speaking to the title of the Intellectual Disability (Compulsory Care) Bill, now to be known as the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. I must say that for slightly different reasons this addition to the Supplementary Order Paper of the term “Rehabilitation” needs to be approached.

Let us have a look at the “Intellectual Disability” part of the title, which was the nub and one of the most important definitions to get right. When we think of that as being the important part of the title, we look to the Supplementary Order Paper where there is a change in the definition of “Intellectual Disability”. I go back to the commentary of the Health Committee, whose members went to huge efforts to ensure that the meaning of intellectual disability was defined.

So we need the opportunity of having the Minister in the chair, willing to explain the meaning of intellectual disability and why the committee has changed it. It is very important that she does so. The select committee said, on the one hand, that it had concerns regarding the standard of testing to be used, specifically given the narrowness of the definition of intelligence quotient—originally set at 70, or so—but, on the other hand, it said further that it had considered submissions and that it would be very important effectively to have a margin of error of 5, which would mean a cut-off at an IQ of 75. We go to the Supplementary Order Paper, which is highly relevant to the title, and we see a change. So it will be important that the Minister does indeed give the Committee an explanation why the select committee has made this fundamentally important change.

After all, this bill is about being able to define, diagnose, and care for those with intellectual disabilities, which is absolutely related to the title. This is nub of it. The difficulty is that we have a Supplementary Order Paper that has amended the title, and that has also amended the definition of “intellectual disability”.

With regard to the addition of “and rehabilitation”, and the amendment to the amendment by Heather Roy of the ACT party, I think that, in many respects, if we go back to what the select committee said about the emphasis on rehabilitation, then on the one hand there is no need to have “rehabilitation” in the title—and I agree in that respect—but on the other hand it would be a little churlish of me not to recognise the importance that the select committee placed on rehabilitation. The select committee said there should be explicit recognition of the importance of rehabilitation, where possible, to ensure that people do not receive custodial care only.

We have a slight dilemma there. On the one hand we have the Labour Government adding a Supplementary Order Paper, under urgency, to a bill that has been around for 4 years. Not only has the Government changed the definition of the key words “intellectual disability” in the Supplementary Order Paper, but it has also added in the term “and rehabilitation”—quite redundantly and quite unnecessarily, because the emphasis has been placed on that in the select committee commentary, which points out how absolutely fundamental that is.

Speaking on the real nub of the title, which happens to be the question of the definition of “intellectual disability”, I have grave concerns as to the process followed by the Labour Government in bringing in the Supplementary Order Paper without consultation, under urgency, and changing something that is so fundamentally important. Over many decades, there has been a huge debate as to how to accurately define “intellectual disability”.

I want to take a short call to say that although New Zealand First recognises the inclusion of the word “rehabilitation” in the title, we accept the comments made by the select committee in its report. One concern I have about its inclusion, although I welcome it as part of the title and therefore as part of the bill, is that “rehabilitation”, as such, is not defined. It is certainly not defined in the Supplementary Order Paper. I must commend the Government—given that we have challenged its process so far in terms of the way it has dealt with the amount of legislation this week, and, in particular, the fact that the last debate concerned a Supplementary Order Paper to the tune of 40-odd pages—for this one being reduced to 10 pages. So one can only presume that the Government is starting to see the light, and that the introduction of such lengthy Supplementary Order Papers at such late notice is being considered a little bit out of order.

Even though other parties in the Chamber may want to prolong the debate, in looking at the Supplementary Order Paper, and at the title, in particular, I think it is relevant that the word “rehabilitation” be included. If that issue is not addressed—and some people may argue that “rehabilitation” should not be included in this particular bill—I think we are doomed to retain the attitude we have had for far too long in this country, and to condemn those who are the subject of this bill to a lifetime of enduring the illnesses they have been afflicted with, without any care or concern expressed by the community. Therefore, I welcome the inclusion of the word “rehabilitation” in the title.

As I look at the title “Intellectual Disability (Compulsory Care and Rehabilitation) Bill”, I think: what about making it the “Intellectual Disability (Compulsory Care and Rehabilitation or Not) Bill”? It must be remembered that rehabilitation will not always be possible. Earlier on, I talked about Barry Ryder, whose case was a key one in helping to bringing about this bill. It was recognised that Barry Ryder could not necessarily be rehabilitated, and the judge said that, without doubt, he was most likely to reoffend. The first question asked by the parents was about why experts thought that he could ever be rehabilitated. Rehabilitation will not necessarily be an option. Therefore, the bill could be called the “Intellectual Disability (Compulsory Care and Rehabilitation or Not) Bill”, or the “Rehabilitation Where Applicable Bill”. Rehabilitation is not absolutely always something that can be achieved. I would like to acknowledge our concerns about “rehabilitation” not being defined. I think definition is absolutely necessary, and I acknowledge the words of Pita Paraone in recognising that. It is to be hoped that the Minister will ensure a definition is provided, perhaps in the form of a Supplementary Order Paper, before the bill goes too much further.

Pressing on, with regard to whether “rehabilitation” should be in the title—I see you leaning that way, Mr Chairperson—I will stick to the title and explain about rehabilitation not necessarily being achievable. Justice Chisholm, in his prognosis for Barry Ryder, said: “In my assessment, you represent an extremely high risk of reoffending.” When Ryder was unaccompanied and not being supervised, he was caught, by an adult, with a boy in a secluded area by a school, with a knife, a tube of lubricant, and a book about anal intercourse. Ryder has ruined the lives of four boys, and the judge has said he will likely reoffend, and that it is likely he cannot be rehabilitated.

I bring members back to the title, which is about rehabilitation. That may not necessarily be achieved, and I think we need to be realistic about that. Much as we might all like to see people being rehabilitated when they are a danger either to themselves or to the public, through no fault of their own but through circumstance bringing it about, rehabilitation, as identified in the title, is not necessarily always achievable. I raised another case earlier about a woman aged 33 who went into violent rages. Because she went into those rages, her parents could not find an agency that would care for her. This was a real concern, and a problem. I do not know whether that person can be rehabilitated, but in terms of the title, possibly not. Who knows? The one thing that was of real comfort to the parents was that she did find a secure and safe environment at the Kimberley Centre. That was something they were most appreciative of. They were also appreciative of the expertise of the services that were provided at Kimberley. Any rehabilitation that may have been able to take place would have been provided for at Kimberley, and in that case it was a positive, but in the case of Barry Ryder, it was definitely a very clear negative. Having the word “rehabilitation” in the title is a bit of a concern, but because we are so supportive of this bill we will not agonise unduly over the title. As I said before, it is to be hoped that a definition for the term “rehabilitation” will be provided in the bill by the Minister, before it goes much further. I think it is absolutely necessary that we do have a definition of rehabilitation, and we look forward to that being the case.

Throughout this bill the Health Committee has inserted references to rehabilitation, so that at least the title does reflect what the bill now contains. The reason why I support my colleague Heather Roy’s amendment to omit the word “rehabilitation” from the bill is relatively simple. I am a humble man. I do not like to see Parliament pretending to do something that science and doctors tell us is impossible. It is a little bit like Wellington City setting up a sign outside the airport that says “Earthquake-free Zone”. It is just as useful. Although “rehabilitation” may be a word that everyone likes—and it makes a warm fuzzy feeling for a select committee that was busy sticking warm fuzzy bits into the bill—as I understand it the key thing that distinguishes people who are to be subject to this Act from those who are insane and subject to other provisions, is the realisation that they are not capable of rehabilitation, and that their illness is a permanent disability. Of course the symptoms can be ameliorated, and of course behaviour modification may improve the way in which they are cared for, but the criterion has been set because they simply are not capable of rehabilitation or, under current medical knowledge, there is no prospect of rehabilitation. They will stay with whatever quotient they are given that categorises them in these forms.

Parliament should not be legislating a scientific nonsense. Of course, if we accept the amendment and restore this bill to the more realistic objectives in its title, and reject the wishful thinking that has gone into it, then there are a number of provisions that would have to follow through. But they, too, would make the bill more honest. If we take the word “rehabilitation” out of the title, we can then go through each of the five or six places where I have seen the word “rehabilitation” inserted, and we would no longer have the prospect of some poor caregiver or institution at some stage being required by a judge to give effect to a provision that is incapable of being given effect. As we go through we will see that the plan for care, which previously was a care plan, now has to be a care and rehabilitation plan. The title is the first place where this nonsense appears. There are a number of clauses where that ridiculous word should be taken out. It is not defined. From my understanding, the select committee did not know what it was talking about. It just thought it would be very nice to look pious and well intentioned, so it stuck in some references to rehabilitation.

The select committee’s comments under the heading “Emphasis on rehabilitation”, on page 7 of its report, are about programmes to meet needs, and the recognition of the importance of rehabilitation. We can recognise the importance all we like, but if the whole bill is founded on a view that these people are not curable, that rehabilitation is not what is done—or maybe it is. This is one of the words that Labour members like to redefine from time to time. It is a little bit like the principles of the Treaty of Waitangi, or any of those other slogan words that mean whatever they want them to mean. Rehabilitation once was a respectable word that meant to restore people to the living state that they had previously. These people are going to be restored or rehabilitated to their former condition, but the fact is that their former condition was probably worse. They have never had a good state to be rehabilitated to. The word “rehabilitation” is a nonsense, and it should not be in this bill. It simply makes the title longer. It is inserted only to make people with woolly minds feel better, and it will cause legal problems if anyone takes it seriously. The provisions in which the word “rehabilitation” have been inserted throughout the bill, where it is added after the word “care”, can mean nothing if this bill is truly to distinguish the state of these people from those who are—

💬 Edwin Perry: What’s your solution?

My solution is simply to take the word out. If we want to have something nice in there, we can put in a substantive provision that says people are entitled to all the care programmes that can ameliorate their condition, so far as is reasonably practical with the resources available. That is what I think members of the committee probably wanted it to mean. But they did not say that. Instead they plucked out of the air a word that they thought sounded nice, stuck it in the title, and stuck it throughout the bill. Interestingly, in all the criteria for care and rehabilitation plans, nowhere does it actually say that a care and rehabilitation plan has to have a plan for rehabilitation. It is just stuck in as a title matter.

I move, That the question be now put.