Intellectual Disability (Compulsory Careand rehabilitation) Bill

Under Part 5, “Status and rights of care recipients”, we are looking at the requirements to accept care. We are talking about taking away the rights of somebody who is being compulsorily cared for and entrusted to a care manager, so it is important that care recipients are consumers under the Code of Health and Disability Services Consumers’ Rights. Just because those people are under a compulsory treatment order does not mean that they do not have the same rights as any other patient to be treated with care and respect, and given an appropriate level of services.

Many clients with high and complex behavioural support needs may be able to be managed in the community. The aim has always been to have the least restrictive environment for those patients. However, we know that there are some who need to be in a restricted environment, so it is a matter of getting the balance right—assessing when a care recipient needs to be under much tighter and more restrictive care, and when he or she, with support services, can return to a community setting.

We see that balance between the rights of individuals and their families, and the rights of the community to be protected, in the area of mental health, as well. It is always a balancing act to try to get those rights in the right balance. Part 5 talks about the rights of care recipients, but we must not forget the rights of the community to be protected. The Barry Ryder case, of course, was an extreme example, in which young boys’ lives were tragically ruined by one person who needed to be in a restricted environment. That is why we need to see this bill progressing today, and I will be pleased when we have the third reading and it becomes law. However, people under compulsory-care orders have a right to medical treatment.

We talked quite a bit in the Health Committee about how somebody could liaise with his or her family. The fact is that there will not be a huge number of those sorts of care facilities for people who need a restricted environment, so people are likely to be cared for in a place away from their families. We talked about their rights to use the telephone, to legal advice, to company, and to receive information from their families. Those people also have the right to communicate with others, whether that is the Health and Disability Commissioner, district inspectors, their own lawyers, their own doctors, or specialist assessors from whom they have sought a second opinion about their condition. The care recipient will probably not be the person asking for that—it is much more likely to be his or her family. It is also important that the people caring for someone in a restricted environment have the ability to manage their care, so this bill involves the rights of the carers as well as the rights of the individuals cared for.

There are sizable specific powers over care recipients in this section. In very specific situations, they can be put into isolation if their behaviour deteriorates out of control and they are a danger to themselves or others. A care manager may isolate care recipients if it is necessary to prevent those persons doing themselves, or others, harm. But there will be strict guidelines on how that can happen. Clause 61 talks about the restraint of a care recipient. Restraint must be used only on very rare occasions, but sometimes it is needed, and a care manager may restrain a care recipient if it is necessary to prevent that person endangering the health and safety of himself or herself, seriously damaging property, or seriously compromising the care and well-being of others.

I turn to clauses 63 and 64, which refer to the placement of care recipients. As we have already covered Part 4, I remind members that care recipients can be placed within a mental facility if no other facility is available for them at the time. That needs to be recognised, because if the Ministry of Health also accepts responsibility for removing people from safe care, it must also admit responsibility for the outcome. So if there are no purpose-built or professionally staffed facilities other than mental health facilities, those are the facilities that will have to accommodate care recipients. It is to be hoped that we will have an adequate number of facilities available for the purpose that this bill intends.

I would now like to draw members’ attention to clause 65, which refers to when a care manager may grant leave. This is where it starts to get a little bit confusing in respect of the definitions for care recipient and special care recipient, which are used quite a lot in the legislation. It would seem that the definitions are not too dissimilar. The care manager may grant leave for a 2-week period. They can go on holiday. I look at the case of Barry Ryder and I am thinking: are we going to send Barry Ryder on holiday? It would certainly have to be a supervised holiday, because it would be absolutely atrocious to give people like Barry Ryder a 2-week holiday. I can see clause 65 being the area that could cause us some problems. There could be a failure in the system that could cause us problems, and more of the sorts of things that happened with people like Barry Ryder. As we are aware, and as I have mentioned previously on a number of occasions, the judge said that Barry Ryder was likely to reoffend, and, clearly, whenever he went out into the community without supervision for any period of time, he went out to reoffend. He could not help himself. He was not a person who could be rehabilitated to any degree, in order to provide the necessary level of safety and comfort for the community. So clause 65, “Care manager may grant leave”, is a concern. It is to be hoped that before that leave is granted, a substantial amount of consultation will take place with all parties, including the welfare guardian. I am sure that there will be some concern about that.

The Minister may also authorise leave for special care recipients. Again, while I am sure all due care would be taken, I see that as an area where there may be a substantial shortfall, and where the real close care and security of not only the care recipient but also the public at large could be put severely at risk. We have seen that in the case of Barry Ryder. He was supposed to have been monitored and supervised, but he was not monitored and supervised to the degree necessary, and he offended to quite a horrific degree. So I think it is absolutely vital that in making any of those determinations about leave—where the care manager is going to grant leave for whatever purpose—cognisance is given to the absolute safety of all the persons involved, be they the care recipient, the service providers, the caregivers, or the public at large. That is absolutely vital.

I would like to go back to the placement of care recipients. It is to be hoped that there will be sufficient accommodation for care recipients. We are closing down a lot of institutions—such places as the Kimberley Centre. We can see that Kimberley has deteriorated to quite a degree, but I understand—

💬 Ron Mark: Deliberately.

Yes, deliberately.

💬 Ron Mark: Deferred maintenance.

Absolutely! But when we look at Kimberley, its grounds, and its environment, we see that it really is a community within itself. That, I think, is a vision, and it could be a really good vision for a secure environment.

I have a very specific concern with this part, which I have just picked up. I was not on the Health Committee and I have not been in the debate until very recently. I refer members to clause 57(2), because I have some real concern with that provision. I think we have a problem that has been overlooked, and I ask the Minister in the chair to consider it. Subclause (2) states: “If there are reasonable grounds for believing that the receipt by, or the dispatch on behalf of, a care recipient of any written communication or other item could be detrimental to the interests and care of the care recipient or of other persons, the care manager may direct that the communication or item be checked; but a direction to check communications or items sent to the care recipient requires the approval of the co-ordinator.”

That is fair enough. I think that is a very appropriate measure. What really concerns me is subclause (3), because it states: “Subsection (2) does not apply to a written communication or other item sent by, or on behalf of, or addressed to, any lawyer of the care recipient.” My point is that we understand what is intended here. It is very important that the patient, or care recipient, has the right to communicate with a lawyer, but it could well be suspected that the care recipient wanted to cause the lawyer harm, and, under the way this is worded, we could not check on the item. We could not do that search. I am sorry if this is—

💬 John Carter: The lawyer of the care recipient.

No, it says that—

💬 John Carter: Any lawyer of the care recipient.

Yes, that is right. It could well be that the care recipient had malicious intent to the lawyer. That is not an uncommon situation. It could well be that the institution suspected it, yet, under this bill, the item could not be checked prior to dispatch. Perhaps the Minister could explain what is intended. Perhaps I am reading it wrong, but, at first glance, to me there seems to be a loophole that is quite serious and needs reconsideration. That is the concern I have, and the main reason I took this call was to make sure that we are not passing, with all best intentions, something that would be very unhelpful and inappropriate.

The question was put that the amendments set out on Supplementary Order Paper 160 in the name of Hon Ruth Dyson to Part 5 be agreed to.

Amendments agreed to.

Part 5 as amended agreed to.

I wonder, now that we have dealt with the substantive part of the bill and the rest is more the machinery part, whether the Committee might consider giving leave for us to consider the balance of the parts as one. I seek leave for that to happen, and if members object then, of course, they can do so.

The CHAIRPERSON (H V Ross Robertson): Is there any objection to that course of action being taken regarding Parts 6 to 11? There is no objection.

Parts 6 to 11