Source: Radio New Zealand
Artwork made by detained man Jay, which was shared with RNZ RNZ / Cole Eastham-Farrelly
The mother of an autistic man being held in long-term seclusion has taken his case to the United Nations, arguing New Zealand has failed to act after a landmark Supreme Court ruling.
The man, who cannot be named for legal reasons but known as ‘Jay’, has been detained for 21 years in secure hospital or residential facilities after being found unfit to stand trial over minor offending, including breaking windows.
Jay currently lives in a secure wing of the Mason Clinic, where he lives alone under the constant care of three staff, an arrangement described by another judge as “untenable” and unsuited to his needs.
In August – more than a year after the hearing – the Supreme Court ruled the legal test used to justify his continued detention was unlawful.
It asked the Family Court to urgently re-examine its decision. But despite that direction, a hearing for this was only set last month, with the case not due to be heard until 26 October.
Jay’s mother’s lawyer, human rights barrister Tony Ellis, said the delay has left him trapped.
“The violation is ongoing. Notwithstanding the Supreme Court decision, Jay remains detained and the state continues to seek renewed detention orders, and an interim order for an additional 19 months detention has been issued,” Ellis told RNZ.
“He’s spent half his life in detention. His life has been wasted.”
In her complaint lodged with the UN Committee on the Rights of Persons with Disabilities, Jay’s mother – who also cannot be named for legal reasons – argued it was no longer reasonable to wait for the matter to be resolved domestically.
The Supreme Court ruled in Jay’s case in August last year, more than a year after the hearing Nick Monro/RNZ
The ‘proportionality test’
The Supreme Court ruling redefined the legal test used to detain intellectually disabled people, saying more weight must be given to a person’s rights to liberty, over risk.
This “proportionality test” meant a person’s right to liberty became stronger the longer a person had been detained.
The Ministry of Health has since told its specialist assessors that decisions to keep someone detained must start with their right to liberty and be justified against the growing impact on their freedom over time.
The Supreme Court’s judgement also made clear that Jay’s continued detention was harming him, causing his behaviour to worsen, but acknowledged the difficulty of the situation and warned of poor outcomes if proper support was not in place.
Jay’s care order has been extended more than a dozen times as experts have repeatedly assessed him as being too dangerous to release.
Since being in care he has reportedly tried to steal and hide weapons, made threats of harm to certain staff, and reportedly assaulted staff and damaged property.
Jay’s mother, who cannot be legally identified, has petitioned the United Nations to intervene on behalf of her son RNZ / Cole Eastham-Farrelly
The search for a new home
Efforts were made last year by authorities responsible for Jay’s care to find a more suitable place for him to live, but one could not be found, according to court documents released to RNZ.
There was only one facility that might be suitable but it was in another city, away from Jay’s mother, which already had a long waiting list. Jay would not become eligible for consideration for a spot there until January 2027.
It could take between six and 12 months to transition Jay there, if a decision was made to move him.
IDEA Services, the largest provider of support for people with intellectual disabilities, told the court Jay’s needs were beyond what it could safely provide.
It recommended he be moved to “a bespoke wrap-around service” that had many of the same security features he currently had, but more space and flexibility allowing him to “enjoy a range of activities tailored to his needs.”
In response, Whaikaha-Ministry of Disabled People said such a solution was difficult to achieve in practice. In a March submission to the Family Court supporting his continued detention, it argued placing Jay in the wrong setting would likely fail and pose risks to both him and his carers.
Because complaints to the UN Committee can take years to be heard, Jay’s mother has filed for interim measures to be made as quickly as possible.
“I’m hopeful we get some rapid progress. They could say this is a breach of Convention on the Rights of Persons with Disabilities, and New Zealand should correct its processes and deal with it promptly, ” said Ellis.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand