Intellectual Disability (Compulsory Careand rehabilitation) Bill

Part 3 discusses needs assessment and care and rehabilitation plans, assessment and care and rehabilitation needs, care and rehabilitation plans, and case conferences. The purpose of it is to ensure that when somebody with an intellectual disability ends up before the courts, or has behaviour that looks like they may end up before the courts—they may engage in what is considered criminal behaviour, breaking the laws of the land even though they do not understand the implications of that because of their intellectual disability—assessment, care, and rehabilitation needs can be met. The behaviour of a great many of those people can be managed if appropriate care and support is put around them. Often people get angry only when they cannot understand what is happening in their environment, and they are frustrated. Appropriate management of behaviour can be achieved.

In this bill originally, there were two groups: those who had committed an offence and had broken the law, and the non-offender group. It was felt that people like David Stephens were in the non-offender group initially, and if a care plan had been able to be put around him then, and if he could have been contained in a secure environment, then he would not have gone on to the offender group. We had a lot of representation from disability groups on this issue. They stated that they did not feel we could put in that sort of obligation and take away the rights of somebody who has an intellectual disability, just because we think they might have behaviour that will cause them to break the law. It was felt that that was unacceptable, and that was taken out. But it has not stopped the needs assessment and care and rehabilitation plans being able to be implemented for people whom we think may develop in that way and not be able to be managed in a normal community environment.

The purpose of a needs assessment has been that every person who is a care recipient under an order under the Criminal Justice Act because they have committed an offence, will have a care plan decided by the people who will be caring for them. That involves talking to the caregivers and also to the families involved in the person’s care. A needs assessment looks at the behaviour a person has had, what is driving that sort of behaviour, and what one can do to provide a care and rehabilitation plan. We did have a debate before about whether “rehabilitation” is the right term, because rehabilitation means, to a lot of people, the individual changing behaviour, whereas, actually, rehabilitation plans are more about changing the behaviour of people around someone with an intellectual disability so that they do not get into a lose-lose situation, and so that they do not get into a corner where their only out is to hit somebody. The reason we need specialised carers to be able to look after people who have an intellectual disability and also have committed an offence is that they need to know how to manage anger. They need to know how to manage someone who is frustrated, who may not be able to communicate, and who will act out if they are unhappy. There does need to be those people who are specifically trained to be able to manage this type of care.

I am pleased to say that this bill was a National Government bill, when we were in Government, and it had money with it. Those 24-hour intensive care plans and the training of care professionals have all happened because of National. We put the money with this bill to make sure that we did not just lump a whole lot of compliance costs out there into the community for those that are already caring. We put in money to develop services. The one thing that has not developed fast enough—probably because it has taken 4 years for this bill to reach this point today—is inpatient care. We do not have the inpatient care facilities—the really secure facilities. I know there was one being built at Porirua Hospital to contain people who have an intellectual disability and severe behavioural abnormalities that bring them before the courts. I believe that the Mason unit in Auckland is also having one developed. It is important that we get on with those, because, although small in number, there are those with an intellectual disability who do absolutely wreak havoc—as we see if we look at the Ryder case—in the community.

Again, I acknowledge the fine efforts of my colleague Dr Lynda Scott, and I acknowledge Wyatt Creech, who introduced this legislation in 1999. They made sure that funding was put aside for that purpose, and it is absolutely critical that we do have people who are trained in this field. It is vitally important that diagnoses and needs assessments are done appropriately and specifically to the individual. That is hugely important to the parents and to the welfare guardians of people with intellectual disabilities who are being assessed within the ambit of this bill. Funding is absolutely critical in ensuring that we do have the trained personnel and the specialists necessary to make those assessments. One person has made a substantial submission in that regard and has some concern about the need to ensure that there is ongoing funding for people such as service providers and caregivers, and to make sure that they are appropriately trained and can handle those difficult behaviours.

Certainly, there needs to be a secure environment for people like Barry Ryder who need to have an eye kept on them for 24 hours. The moment one takes one’s eye off someone like Barry Ryder he will reoffend. That was the opinion of the judge and that was the concern of many of the parents of victims who were so traumatised by him when he went out into the community. His assessment was done, and unfortunately at that time, there were not the provisions that this legislation will provide. It is absolutely imperative that we have the funding necessary to train people to do those appropriate needs assessments, and this bill will certainly make sure that people like Barry Ryder will not be out in our communities and will not pose a danger either to themselves or, more particularly in Barry Ryder’s case, to others.

Parents of 45-year-old persons who are like children and are 6 foot 2 and incredibly strong will also be comforted by knowing that their needs assessment of their children will be accurate, and that they will have the care and attention that is needed. Although the families are required to be involved with all of the assessments, etc. I did not see very clearly where welfare guardians are incorporated in the legislation, except in clause 21, which states: “During the needs assessment process, the co-ordinator must make all reasonable efforts ...”, and I just wonder what that means. I would hope that they would go to the nth degree to make every single effort to ensure that welfare guardians are contacted and involved in the needs assessment process, because they have a particular understanding and knowledge of the care recipient—the new term—and it is absolutely imperative that they be involved in that needs assessment process. They are particularly concerned about the ongoing care and protection of their charges, if they are not their biological children.

I also draw members’ attention to clause 23, “Cultural assessment”. Another member of the House, Stephen Franks, expressed some concern about cultural assessment, and I think there could have been more appropriate wording. Clause 23(2) states: “If, following the assessment under subsection (1), the co-ordinator considers that the care recipient is Maori …”— more appropriate wording would have been “considers that the care recipient is of particular ethnicity, and the care recipient agrees with that assessment, the co-ordinator must try to obtain the views of any suitable person”—rather than just any suitable Māori person—“or organisation concerned with, or interested in, the care of persons who have an intellectual disability from within that particular ethnicity.” It is important that we look at the range of ethnicity that exists.

Many parts of Part 3 I would like to support. I feel they will make a positive contribution to the care of the intellectually disabled, particularly in relation to compulsory care. I refer in particular to clause 21, which states that when discussing the needs assessment, the coordinator is to consult with persons concerned with the welfare of the care recipient. That is much needed. The families must be involved, as some of my National Party colleagues have pointed out. Clause 21 also refers to the need to consult with the welfare guardians of the patient—I must say I still have a great deal of difficulty with the term “care recipient”, which does not exactly roll off one’s tongue. But the intention of that clause is, I think, very good.

But I would like to speak particularly to clause 23, and I thank Sandra Goudie for mentioning it now. In his second reading speech, Stephen Franks talked at length about the cultural assessment aspects within this bill; and clause 23 brings out the point I want to make particularly. Sandra Goudie did read out subclause (1): “The co-ordinator must try to identify the care recipient’s culture, ethnicity, language, and any religious or ethical beliefs.” It is very sad in this day and age that we have to legislate for things of this nature. Coordinators, particularly clinicians, have a lot of training now in cultural aspects of care, and many—most, in fact, now—have incorporated those features into the assessments that they do on all patients, not just the intellectually disabled ones. Certainly in the area of mental illness, this is now common practice, and I find it extremely sad to think that we need to specifically spell out that we must take into account factors that might be very important in people’s lives.

I refer now to subclauses (2) and (3) of clause 23, and I ask the Minister whether she could tell us—I am not living in great hope, because she seems to be studiously ignoring any other requests I have made for an explanation—why in fact Māori have been singled out in this clause. Subclause (1) mentions different cultures and ethnicities, but in subclauses (2) and (3) only Māori are singled out. Is there something we are missing? Is it only Māori who actually have cultural expectations and important cultural aspects that should be considered? What about Samoans and other Pacific Islanders? What about Asians? Counties-Manukau now has patient advocates and interpreters for the Asian communities. Do Asians not count when it comes to intellectual disability? Are their needs not as great as anybody else’s? I would like to know why they have not been specified.

Sandra Goudie made a very good point. She said that ethnicity should be referred to generally, not by a specific ethnic group or breakdown. That is a very good point. As a result of that, I just cannot accept this clause as it stands, and I have put forward an amendment to have it omitted from the bill completely. If it were reworded the way Sandra Goudie explained it, perhaps it should be included, and maybe she would like to put forward an amendment. I would have found that much more acceptable, but if this clause is to stand as it currently is, then ACT New Zealand will not be supporting it—we will ask for it to be omitted—and we will not support this part if in fact it stays in the bill. I say that with sadness, because I feel that other clauses in this part do deal with valid concerns.

I ask all parties to think about legislation of all sorts that has been brought before the House of late. Cultural assessment of all sorts has become a trend with this Government. It is becoming a very big part of its bills, and also we are seeing the specific singling out of Māori. We should in this country have one law for all people, not race-based law. What we are seeing here is, again, a perpetuation of the push towards the promotion, the singling out, of separate ethnic groups within our society. What that does in effect is cause separatism, not a united New Zealand.

Part 3, “Needs assessment and care and rehabilitation plans”, is certainly one of the very important parts of this bill, which, by and large, I do support. The select committee put great emphasis on rehabilitation. That was explicitly stated in the commentary because, members said, during the hearing of submissions, examples were brought to the attention of the committee, of people with challenging behaviour, which often reflected poor management and uncertain environment: “If the person is not receiving proper care they will possibly become a danger to themselves and/or other people.” Clearly, this part of the bill is extremely important. The commentary goes on to state: “We believe there should be explicit recognition of the importance of rehabilitation, where possible, to ensure that people do not receive custodial care only.”

Clause 15, “Needs assessments required for certain care recipients”, is fairly prescriptively spelt out. There is always the great danger in this sort of legislation of being overly prescriptive, and I want shortly to take up the point of the cultural assessment provisions, because that is prescription gone berserk in this politically correct world. Once again, this part has been infiltrated by the term “care recipient”. Most people throughout the world who look to the English language to contain relatively simple, clear meaning are perplexed as to why we have to double up the verbiage and make it much more obscure, but, oh no, the Labour Government insists on that sort of somewhat inane and totally unnecessary nomenclature.

Nevertheless, I absolutely agree with clause 19, “Maximum period for needs assessment and preparation of care and rehabilitation plan”. It is good to see a time limit put on that sort of thing, which is so clearly important.

💬 Hon Rick Barker: What’s the time limit for Bill?

There was an interjection by the member for Tukituki over there. Is the member speaking specifically about the Intellectual Disability (Compulsory Care and Rehabilitation) Bill? I certainly hope he is. Clause 19(1) states: “The process of assessing the needs of a care recipient and preparing his or her care and rehabilitation plan must be completed as quickly as practicable.” Fortunately, subclause (2) states: “The process referred to ... may not continue for longer than 30 days”. I wonder whether the Minister will take a call and say what will happen if it is not completed within 30 days. It is very important to have time limits explicitly put into legislation like this, because, in reality, it is over that period of initial assessment and preparation of a plan that some disastrous and avoidable tragedies have occurred.

Again, one wonders why, on a bill that has been talked about since 1997 and that came into the House in 1999, and is finally before the Committee under urgency at the end of 2003, the Labour Party has suddenly come to its senses and realised that time limits are important. If only it could have done so with regard to the bill itself.

To go on to clause 23, “Cultural assessment”, I cannot but agree wholeheartedly with the points that both Sandra Goudie and Heather Roy have made, in terms of the extraordinary length to which the Labour Government is determined to try to legislate in such areas as culture, ethnicity, language, and any religious or ethical beliefs. It seems to me that we live in a day and age—

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Part 3 be agreed to.

Amendments agreed to.

The question was put that the following amendment in the name of Heather Roy to clause 23 be agreed to:

to omit this clause.