L v. RIDCA Central (Regional Intellectual Disability Care Agency)

The claimant (L), a 45-year-old woman with an intellectual disability, appealed a decision by the Family Court which had ordered a 12-month extension to the compulsory care order that L was under. The care order had been initially ordered under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (“IDCCR Act”) because of L’s violent behaviour, including assaults on several caregivers and two police officers.  Even though L was found fit to plead during the trial, compulsory treatment was ordered instead of passing sentence. At the time of this appeal, L had already been in compulsory care for more than 2 years, which exceeded the likely period of any restriction that might have been imposed on her for the assault offense. Most this time L had been under secure care, significantly restricting her liberty.

At the Family Court hearing, a review by a specialist assessor was put forward by the respondent as justification for the continuation of the compulsory care order. The review considered that 12 additional months of compulsory care was appropriate due to L’s difficulties with controlling her mood and aggressive behaviour towards caregivers. The hearing highlighted that L had a strong wish for the compulsory care to end; that she would struggle to cope in the community without care; and that her caregivers considered that more work could be done for her to be able to control her aggression. The Family Court reasoned that extending the care order was justified on the basis that L still posed a degree of risk to the community, and that her progress was due to the close support structure provided for under care.

The Court considered section 85 of the IDCCR Act, which authorized the Family Court to extend the compulsory care order, but did not provide clearly when this power could be exercised.  The Court applied the approach taken in a prior case, VM v RIDCA Central (CIV 2009-485-451 HC Wellington, 8 December 2009), in which the court had noted that, in determining whether to extend a compulsory care order, such extension must be justified by the risk the person presents to others, the general seriousness of the initial offense and the likelihood and timeframes of further progress.

On the first ground of appeal, L argued that the Family Court, in considering the relevant factors from VM, had been wrong to conclude that a further 12 months under compulsory care was justified. The Court determined that because L had not been given the kind of care that could have assisted her to transition from her compulsory care situation (despite such recommendation having been made for her care from the start) , L’s right to liberty might now be given greater weight than at the time the initial order note was made;  the extension of compulsory care thus required increasing justification. The Court also argued that in relation to L’s progress, the progress she could make under further compulsory care had been overstated in comparison to what was presented in the review.  Further, the Court pointed out that as the identified risk was towards L’s caregivers rather than the general public it was important to consider whether compulsory care should be continued at all.  The Court also determined that, based on past evidence, while there was a moderate risk that L would lash out at caregivers, the risk of serious harm was probably low. This risk was considered the same whether L stayed under compulsory care, or if she was released from it.  Finally, the Court highlighted the fact that compulsory care should not be extended just because the Family Court considered that it would be best for L to do so.  In conclusion, the Court found that the Family Court placed too much weight on the medical recommendations made in the review and insufficient weight on L’s rights.

On the second  ground of the appeal, L claimed that the Family Court had erred in extending the order, when it made no finding that L posed a serious danger to herself and/or others. The Court inferred that the Family Court decided to order secure care because that was what the special assessor’s review recommended and because the Family Court determined that L would continue to ‘lash out’ at her caregivers. The Court questioned whether this lashing out involved ‘serious danger’, noting that the legislation used the term ‘danger’ not ‘risk’, and that the danger had to be ‘serious’. Thus, Court stated that neither the assessor nor the Family Court addressed the appropriate test. Since the Family Court failed to consider whether this test had been met, the Family Court had erred in finding that secure care was appropriate.

On the third  ground of the appeal, L challenged whether the Family Court should have ordered care for 6 rather than 12 months. At the time, the Family Court concluded that a 6 month extension would most likely result in another application when that term expired and that L would need transition from secure to supervised care before the care order could end. The Court noted that although the expectation was that the care would be altered to supervised care after 6 months, it was possible that L would have remained in secure care for the full 12 months. The Court stated that the Family Court had given too little weight to L’s rights considering that she had already been under secure care for two years. During this period there would have been opportunities to put in place transitional arrangements.

Ultimately, the Court quashed the compulsory care order imposed by the Family Court.

“The legislation has used “danger” instead of “risk” and that danger must be serious. The assessor did not address this test and nor did the Judge. I consider that the Judge was in error in determining that secure care was appropriate without considering whether this test was met.” Paragraph 51.

“A person with L‟s intellectual disability may always need a degree of care. While in that care and receiving the regular assistance of a psychologist some progress might be achievable. But that alone cannot justify an extension of the care. The question must be whether continued coercion (in the form of an extended compulsory care order) is justified in the light of: the progress that is realistically achievable and over what time frame; the time that has already passed under compulsory care; and the kind of risk to health and safety that has brought the care recipient into this regime and that the care recipient is considered to continue to pose.” Paragraph 63.

“In these circumstances I cannot see how the small gains from continued compulsory care can warrant the continued restriction on L’s liberty. L’s liberty has been curtailed to a considerable degree (in secure care) for, now, nearly two and a half years which is a period that exceeds the likely period of any sentence under the criminal justice system at least for the offending that was charged. L was brought under this regime on the recommendation that her anger management was addressed and a support package provided. The state is now only fully providing the intervention that it envisaged when the care order was first made and it remains unclear whether it will be sufficiently successful for a change to supervised care let alone for a successful transition back into the community. The increasing justification necessary to extend the compulsory care is not present.” Paragraph 65