Intellectual Disability (Compulsory Careand Rehabilitation) Bill

This part contains some substantial provisions, including definitions, interpretations, and the commencement dates. I want to talk about clause 7, “Meaning of intellectual disability”. We spent a great deal of time discussing this in the Health Committee. We did not want the definition to be too narrow. A definition that is too narrow would mean there were people who were not captured under the provisions of this bill.

I had amongst my select committee papers an article from Truth, dated 26 March 1999, that has the headlines “Handicapped flasher hounded” and “Townsfolk gang up on village idiot”. I think that shows us how far we have come in the way we treat people with an intellectual disability, because I do not believe those headlines would be used today. The article was about the pretty sad case of a chap called Peter McCallion, who had a quite significant intellectual disability. He ended up in prison, where he should not have been, was accused of all sorts of things he never did, and was beaten up severely. The people who had cared for him said: “There just aren’t any places for the Peters of this world.” That is what this bill is all about—making sure there are places for the Peters of this world who have a significant intellectual disability and who come before the law because of behaviour they are not responsible for, or who have no anger management and just act out.

The select committee came up with a new definition for intellectual disability. Rather than defining a person as having an intellectual disability if he or she has an IQ of 70 or below, the committee tried to expand the definition by stating under clause 7(1): “A person has an intellectual disability if the person has a permanent impairment that—(a) results in significantly sub-average general intelligence as measured by standard psychometric tests generally used by clinicians; and (b) results in significant deficits, as measured by tests generally used by clinicians, in at least 2 of the skills listed ...”. The reason that was added to the definition is that somebody may have an IQ that is higher than 70 but be very deficient in certain skills, especially social skills. If that happens, that person may not be captured in a rigid definition that uses just an intelligence quotient, and if that is the case, this bill will not be able to be used to have him or her placed in compulsory care or in a permanent facility. Certainly, in the case of Peter, that is where he needed to be. He needed to be in a place where he could be cared for appropriately.

Clause 7(2) states: “For the purposes of diagnosing, under subsection (1)(a), a person’s general intelligence as significantly sub-average,—(a) an intelligence quotient of approximately 70 or less ...”, but we said under paragraph (c): “a possible quotient of 75 is the effective maximum at which a person’s intelligence can be diagnosed to be of that kind.” The Minister has a Supplementary Order Paper that takes that quotient of 75 back to 70. Amongst the people I spoke to who work in the intellectual disability and mental health areas there were those who thought it was of concern if the definitions were too rigid. The skills subclause that the select committee put in refers to the ability to communicate, self-care, home living, social skills, use of community services, self-direction, health and safety, reading, writing, and arithmetic, and leisure and work. We are talking about people who can actually function in society. I am sure there are quite a few people who do not function in society who do not have an intellectual disability, but we are trying to confine the definition under this bill to those who do. So there is concern about that under clause 7.

Clause 6(2) refers to special-care recipients, meaning a person who is liable to be detained in a secure facility under an order made under the Criminal Justice Act. We have just debated the amendments to the Criminal Justice Act, from which a new bill was developed—one that we did not support.

Part 1 does indeed have some very substantial components to it. One has only to go to clause 5 to note that the term “care recipient” is once again defined. I recall Stephen Franks from the ACT party saying that this bill is absolutely inculcated with politically correct terms. One has only to go to the dictionary to note that the noun “patient” means “a person receiving care or treatment”. But, oh no, the terminology here has to be “care recipient”, which is using two words for the price of one. That is very indicative of this Labour Government, which is so keen on adding compliance costs, and verbiage that signifies very little.

It is also interesting that the adjective of the term means “having or showing patience”. Certainly, when it comes to Part 1, the community has had to show extraordinary patience, because, after all, it was back in 1997 that the courts were saying it was urgent that this bill be progressed. In 1999 under the National Government, Wyatt Creech quite rightly introduced the bill to Parliament, but under the Labour Government it has taken these many years before finally we have it back before us today. The terminology is highly important, and it is, once again, a reflection of how this Labour Government will use two words instead of one when there is an opportunity to do so. It will sure as hang do exactly that, rather than use the time-honoured word that people know and understand—such as “patient”, meaning a person receiving care or treatment.

I too want to focus for a moment on the meaning of the term “intellectual disability”. Once again, if one looks at the Supplementary Order Paper the Associate Minister of Health Ruth Dyson has brought in, without collaboration and without the consultation that did occur so well in the Health Committee, one notices an anomaly. The officials might like to prick up their ears here, because I see that the explanatory note of the Supplementary Order Paper talks about the change to the definition of “intellectual disability”, and it goes on to say “(that is an intelligence quotient that is expressed as 70 or less, and with a confidence level of not less than 75%)”. When one goes to the words in the bill—which I have temporarily mislaid—I think one finds that they talk about a confidence level of not less than 95 percent. Which is correct?

Hopefully, the Minister in the chair, the Hon George Hawkins, will take a call and sort out what this anomaly is all about. This is a hugely important definition. It is one of the nubs of the bill. In the depths of the night, the Government brought in this Supplementary Order Paper, which quite clearly has the words “a confidence level of not less than 75%”; yet when we go to the words of the definition in the bill, we see that they talk about a confidence level of 95 percent. The Minister cannot have it both ways. It is time he observed proper process, particularly when it comes to bills as important as this one. I hope he will take a call on this hugely central definition, “intellectual disability”, and confess that once again a mistake has been made because he has been sloppy—often there is sloppiness when a Supplementary Order Paper of this substantial note is brought in without consultation—or he will give an explanation of what it means.

It gives me pleasure to rise to speak on Part 1. I want to back up Paul Hutchison’s comments about the change to the definition of “intellectual disability”. Although I was not part of the Health Committee, which considered this report, I am concerned to hear that the committee spent a long time debating what determines whether somebody is intellectually disabled—I suspect the committee had very good advice from the medical profession—yet the definition in Supplementary Order Paper 160 goes back to the original definition. The Government had obviously made up its mind that the definition would be narrow, rather than allowing the flexibility that the committee obviously felt was necessary.

I am pleased to see that Ruth Dyson, the Minister responsible for the bill, is now back in the chair, because I want her to define “rehabilitation”. She will have heard my concerns about the inclusion of the word “rehabilitation” in the bill, not because I am opposed to rehabilitation but because it is important, particularly for the public and for public expectations, to have “rehabilitation” defined, so that unrealistic expectations do not become widespread within the community. It is unrealistic to expect the disabled condition of “intellectual disability” to be rehabilitated; obviously, that is an impossible task. But if the Minister is talking about behaviour modification of the intellectually disabled to whom the bill is referring, that is quite a different matter. As confusion could exist, not only among the public but also with some in the medical profession, and with judges having to rule on these cases, it is important to define clearly what we mean by “rehabilitation”. I ask the Minister to take a call and explain, or, better still, to put forward an amendment so that “rehabilitation” is clearly defined in the bill. I do not think that is an unreasonable request.

The increasing use of politically correct language in legislation was an issue raised by my colleague Stephen Franks, and also by Paul Hutchison just a moment ago. It is appearing more and more in legislation put forward by this Government, and is very obvious in this bill. I pick up on Paul Hutchison’s point about the definition of “care recipient”. Once upon a time we talked about “patients”. Somebody receiving medical care of some kind was defined as a “patient”. Certainly, the patients seemed happy with that, and everybody knew that meant somebody who was receiving treatment or care. That term was changed to “client”, and I noticed that Judy Turner used that term when speaking in the second reading. The term “client”, in the area of intellectual disability, has become the norm of late. When I worked in the medical field as a physiotherapist the people I treated were always “patients”. I never considered them to be “clients”. The word “client” implies the handing over of money in some way, the getting of something in return. Now we have moved on to “care recipient”. Again, that term has sort of been defined, but for the life of me I just cannot understand what was wrong with “patient”.

Then we see a provision in the Supplementary Order Paper that replaces the term “care recipient” with “peoples”. We seem to have done a complete loop—going from “patient” right through to “peoples”. Likewise, clause 6(2) defines “special care recipient”, whereas in the past the term was “special patient”. Again, I do not know what was wrong with that. It is the terminology used by everybody in the field. To be politically correct, we have changed all these terms.

Another confusing and totally unnecessary term that has crept in is “seclusion”. Supplementary Order Paper 160 amends subclause (5)(c) of clause 4 by omitting the word “isolation” and substituting the word “seclusion”, and that change is made in other parts of the bill. Those two words are frequently used intermittently in the health sector. Isolation and seclusion really mean the same thing. The term “isolation” has been used for an awfully long time. I ask the Minister to tell us why we are changing the term “isolation” to “seclusion”.

I am very pleased to stand to speak to Part 1. What comes to mind for me is what these particular parents are thinking as they grow older and as their children grow older. These parents start to worry and become anxious about what they can do to make sure their children are protected when the parents can no longer do that, when they are no longer capable of ensuring their children’s ongoing care, protection, safety, and security in a secure and caring environment. When we talk about “children” we are talking about grown children who may be 45 years of age, 6 feet 2 inches tall, and hugely strong, but who have the mental capabilities of a 5-year-old. The overriding concern of those parents is that their children have a safe and caring environment.

I am looking at the meaning of “facility” and “secure facility” in the bill. Those facilities are what some of the parents are seeking for their children. They want a secure environment for them. It need not be a secure facility in the terms we know, such as a hospital; it could be a residential house. But it has to be secure in the terms of this bill. But is that enough? Is it enough to know there is 24-hour care for someone like Barry Ryder, when one knows that the system can fail? For those sorts of persons, who can be a risk to themselves and to others, but more particularly to others, the system has failed to ensure that they are in a secure environment. There is the danger of that secure facility not necessarily going to the nth degree. But this bill is here and it is providing a degree of comfort for parents who do have that growing sense of anxiety as they themselves get older. It is a very real concern. I have talked to some of these parents.

I put some questions to the Minister about what services would be in place to provide secure beds for intellectually disabled people with high and complex needs, and for persons who might come within the ambit of this bill. The first 10-bed, hospital-level secure unit, Te Huia, has been established in Wellington, and others are going to be established in the main centres. But will that be enough? I put it to the Committee that, given some of the speeches we have heard today, it will not be enough. For example, foetal alcohol syndrome is becoming a recognised problem, particularly in prisons. So are 10 beds at Te Huia, and maybe eight beds here and 10 beds there, going to be enough in the terms of the facilities and secure facilities identified in this bill? How many are we going to end up having, and will they be enough to meet the concerns of parents with regard to the provision of a secure and safe environment for their children as they grow older?

Those parents wonder how their children will fit into these placements. They are somewhat hopeful, given the passage of this bill. They are also hopeful about their other concerns around caregivers and care providers—that they will be better paid, better trained, and better supported. That is a huge concern. It is as important to the care and protection of their children as the provision of secure facilities. We need to have provision for, within those facilities, care providers and caregivers. It is necessary that there is a holistic approach, if one likes, to meeting the needs of the individuals within those secure facilities or secure environments.

I would like to recognise the Hauraki Lifestyle Supported Trust, which is in my electorate. It does an excellent job in providing a secure and safe environment for the people in its care. I am incredibly heartened by the heartfelt way in which it provides for the people in its care. I see it as a model, and it has been recognised as a model. I want to acknowledge the people involved with it. It is to be hoped that the secure facilities that are identified in this bill do have that sort of support.

I just want to make a small contribution on this bill.

💬 Simon Power: Nothing this member does is small.

Well, OK, I want to make a significant contribution. In particular, I want to ask the Minister a question. In the dealings that I have as the member of Parliament for Northland, I have found that when we come across cases like this often part of the problem is that there are just not enough trained people and resources to provide the services that these people need. I know that the Government has put significant funding aside—and good on it for doing that. We hope that the funding will be enough; I guess we will find out in time whether it is. The Minister may be able to indicate whether she is satisfied that we have enough trained people out there to do the job. When we deal with these people, that is often the area where we are limited. If that is the case—and maybe it is not, but I suspect that it may be so—how will we go about getting sufficient people into the system to be able to help, with regard to these issues?

Often the resources that are needed to provide for the needs of these people are significant. It is a great shame, in some of the dealings that I have, that where the argument comes that people need support and help, it is actually an issue of going through the system and getting people who are able to give that assistance. The problem is that as a local member of Parliament one makes representations on behalf of somebody, gets something looked at, get involved with it, and makes some progress for that person, to the detriment of someone else. That is the sad issue with regard to all of those sorts of things. The question is whether we have sufficient resources. I wanted to make that point—that is, do we have enough people with the ability to deal with those issues? I suspect that we do not. I also suspect that we need to put a whole lot of emphasis into making sure we have people who are properly trained to be able to deliver the services that we require, as we put this legislation together. I draw to the Minister’s attention that it is one issue that I would like to think we will put a whole lot of focus on as we pass this bill through. We need to make sure that we are not just trying to paint over something and say we have done something, so it will all be OK, because it may not be. If we just pass a piece of legislation, that certainly does not mean it will fix the problem. There is a wider issue out there, and I wanted to make that comment.

The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Part 1 be agreed to.

Amendments agreed to, and Part 1 as amended agreed to.

Part 2 Principles and general duties