RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659; [2012] 1 NZLR 641; [2012] NZFLR 216 (19 December 2011)

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NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA491/2010 [2011] NZCA 659

BETWEEN RIDCA CENTRAL (REGIONAL INTELLECTUAL DISABILITY CARE AGENCY)

Appellant

AND VM Respondent

Hearing: 31 August and 1 September 2011

Court: O'Regan P, Arnold, Randerson, Harrison and Wild JJ Counsel: D La Hood for Appellant

^{A J Douglass and J S McHerron as Counsel Assisting the Court}

M G Coleman and M A V Raj for Attorney-General as Intervener S A Bell and R M Hesketh for Human Rights Commission as Intervener

Judgment: 19 December 2011 at 10 am

_{JUDGMENT OF THE COURT}

A We dismiss the appeal.

B Rather than answer the question for which leave to appeal was given, we give guidance in the Reasons of the Court on the approach that should be taken to applications for extension of compulsory care orders under the

_{Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.}

RIDCA CENTRAL (REGIONAL INTELLECTUAL DISABILITY CARE AGENCY) V VM COA CA491/2010 [19 December 2011]

_{C We make no award of costs.}

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No Introduction [1] Further factual background [9] The essential issue [14] The legislative scheme [18] The High Court judgment [53] Proportionality [59] Rehabilitation [73] Increasing justification [87] Our approach [92] Discrimination/Arbitrary Detention [96] The question for which leave was given [97] Costs [98]

Introduction

[1] The respondent, VM, is intellectually disabled. In 2005 she was charged with an offence, possession of a knife in a public place. She was found unfit to stand trial under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act). As part of the process to determine her fitness to stand trial, the District Court

made a finding that the evidence against her was sufficient to establish that she caused the act that formed the basis of the offence with which she was charged.¹

[2] The Court ordered that VM be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003 (IDCCR Act), exercising the power conferred by s 25(1)(b) of the CPMIP Act. The effect of such an order is to subject the care recipient to a compulsory regime under which the care recipient receives care under a care and rehabilitation plan. The care recipient must accept the care provided to him or her and comply with directions given by his or her care manager or care co-ordinator. Such directions can include a direction to stay in a facility or in another place.

[3] The compulsory care order for VM was for two years, commencing

20 December 2005. At the end of that two year period an extension was granted for one year. At the end of that extended period a further extension was sought and this second extension was granted in the Family Court in February 2009.²

[4] VM appealed against the second extension to the High Court. At the time of the High Court hearing she had been subject to a compulsory care order for about three years and three months. Simon France J allowed her appeal and quashed the compulsory care order.³

[5] The appellant, RIDCA Central (RIDCA) is the Regional Intellectual Disability Care Agency with responsibility for the lower North Island region. It was responsible for VM’s care under the compulsory care order, and it was the applicant for the renewal of this order and the respondent to the High Court appeal.

[6] RIDCA sought leave to appeal under s 134(2) of the IDCCR Act against the decision of Simon France J, though it did not seek to challenge the quashing of the compulsory care order relating to VM. The order came to an end in accordance with

_{the judgment of Simon France J. Although this made the appeal moot, this Court}

¹ _{Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP), s 9.}

² Compulsory Care Co-ordinator RIDCA Central Region v VAM FC Wellington, FAM-2006-085-

_{490, 27 February 2009 (the ―Family Court judgment‖).}

³ VM v RIDCA Central (Regional Intellectual Disability Care Agency) HC Wellington CIV-2009-

485-541, 8 December 2009 (the ―High Court judgment‖).

determined that the point of public importance raised by the proposed appeal was sufficiently great to justify the granting of leave, notwithstanding that the appeal was moot.⁴ Leave was given on the following question:

Did the High Court Judge err in his construction of the relevant considerations for an extension of a compulsory care order under s 85 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003?

[7] Both the Attorney-General and the Human Rights Commission were given leave to intervene. Ms Douglass and Mr McHerron were appointed as counsel to assist the Court, effectively to act as contradictors (they had represented VM in her High Court appeal). RIDCA as appellant and the Attorney-General as intervener made joint submissions to this Court representing the broader interest of the Crown.

[8] Section 134(3) of the IDCCR Act provides that a decision of this Court on an appeal under s 134 is final.

Further factual background

[9] Because the appeal is now moot, it is not necessary for us to provide a detailed factual account of the offence leading to the compulsory care order being made against VM. The factual background is set out in the judgment under appeal. There are, however, some contextual matters which should be noted.

[10] The first is that the offence with which VM was charged was a comparatively minor offence, carrying a maximum penalty of three months imprisonment or a fine not exceeding $2,000.⁵ The background was that VM had been fixated with a support worker for some time and had gone to the support workers home. She approached a window and pulled out a pocket knife, waved it at the window, then went out to the footpath and repeated this gesture. She said that she had gone to the window to smash it and that the knife was to use on the police. It appears that the motivation for this was that VM had become frustrated at a perceived lack of

_{attention from the support worker. The High Court Judge observed that the}

⁴ _{RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2010] NZCA 213.}

⁵ Summary Offences Act 1981, s 13A.

circumstances of the offending indicated that the offending had a serious aspect to it that was not apparent from the relatively minor charge laid against VM.

[11] The High Court Judge recounted a list of earlier incidents involving VM which had been set out in a report relating to VM. This revealed that in the period between 1995 and 2005, VM had been involved in a number of assaults, destructive behaviour, aggressive behaviour and one incident where she broke into the home of a support worker with whom she was obsessed. None of these incidents had led to

criminal charges.⁶

[12] The High Court Judge had before him assessments from health assessors to the effect that VM remains a risk to the public. At the risk of over-simplification, we think it can be stated in broad terms that the concern in relation to VM was that the level of risk which she posed at the time of the making of the initial order had not significantly reduced at the time of the second extension application. In other words, the efforts at rehabilitation of VM during the period of the initial compulsory care order and the first renewal had not made a significant difference to the risk posed by VM and the prognosis was that rehabilitative efforts were unlikely to lead to any significant further diminution in this risk.

[13] This gave rise to a concern in relation to VM, which could apply to other intellectually disabled care recipients as well. If the test for extending compulsory care orders was identical to the test for making an original order, then a care recipient who may have become eligible to be a care recipient only because of the commission of a minor criminal offence could be subject to repeated renewals and, therefore, the restrictions inherent in compulsory care orders, for a substantial period of time. The concern was articulated eloquently and clearly in the judgment of Judge Ellis, who dealt with the application for renewal of the order in the Family Court, in an extract repeated verbatim in the High Court judgment. We will not

_{repeat it again in this judgment.}⁷

⁶ _{High Court judgment, at [112].}

⁷ Family Court judgment, [44]–[59], repeated in the High Court judgment, at [44].

The essential issue

[14] The position taken by the Crown is that a decision whether to renew a compulsory care order must focus entirely on the risk posed by the care recipient to himself or herself or to the community. (The focus of the present appeal is on the need to protect the community rather than any risk to VM herself and we will also focus on that in this judgment. However, the fact that we do this should not be seen as our overlooking the fact that the need to protect a care recipient from self harm is also a factor).

[15] In his submissions, counsel for RIDCA, Mr La Hood, used the phrase ―undue risk‖ to describe the criterion for the making of a compulsory care order. He said the essential issue for a Judge determining a renewal application is: ―Does the care recipient pose an undue risk?‖ That position was supported by Ms Coleman for the Attorney-General. Mr La Hood argued that the test to be applied to an application for an extension of a compulsory care order was the same as that for the making of an initial compulsory care order. He took issue with the observation by Simon France J in the decision under appeal that a compulsory care order ―requires on-

going, and sometimes increasing, justification‖.⁸

[16] The alternative position advocated by the contradictors and the Human Rights Commission is that the renewal decision requires a consideration of a broader range of factors than just risk. Other factors said to be relevant to the decision included the proportionality of the period of compulsory care to the offending that made the care recipient a candidate for a compulsory care order and the steps taken to rehabilitate the care recipient (their success or failure and future prospects). It was common ground that a renewal should not be made if there is not a need to protect the community from a care recipient, but it was not accepted that the fact that a care recipient constitutes an undue risk necessarily requires the making of a renewal

_order.

⁸ High Court judgment, at [102].

[17] In order to put these competing arguments in their legislative context, it is necessary for us to deal in some detail with the relevant provisions of the IDCCR Act. We now turn to that exercise.

The legislative scheme

[18] The legislative context for the IDCCR Act is set out in the commentary to the Intellectual Disability (Compulsory Care) Bill as reported back to the House from the Health Committee as follows:⁹

Prior to 1992, people with an intellectual disability were included in the definition of ―mental disorder‖ under the Mental Health Act 1969 (later linked to the Criminal Justice Act 1985). This ensured that it was possible to care for people with an intellectual disability on a compulsory basis where necessary. However, the Mental Health (Compulsory Assessment and Treatment) Act 1992 deliberately excludes people with an intellectual disability, unless they are also mentally disordered (as defined by the Mental Health (Compulsory Assessment and Treatment) Act 1992). This is because intellectual disability results in substantial limitations in functioning, not a mental illness.

The specific exclusion of people with intellectual disability creates a legislative gap, resulting in limited options being available to the courts for dealing with people with an intellectual disability who are in need of compulsory care. For some this has resulted in inappropriate placement in prison, mental health services, or discharge into the community. This bill was designed to bridge the legislative gap.

[19] This legislative gap had also been identified by the Courts.¹⁰ The Bill as introduced provided for compulsory care of intellectually disabled people whether they were offenders or non-offenders. The Select Committee that dealt with the Bill, the Health Committee, recommended (by a majority) that the provisions dealing with non-offenders be removed from the legislation, and that subsequently occurred.¹¹

The Health Committee also recommended that the role of rehabilitation in the care of intellectually disabled persons who are subject to compulsory care should be recognised and it was for this reason that the word ―rehabilitation‖ was added to the

_{title of IDCCR Act.}

⁹ _{Intellectual Disability (Compulsory Care) Bill 1999 (329–1) (explanatory note).}

10. See R v Arama (1993) 10 CRNZ 592 (CA) at 593–594. In that case, the lack of options led to the imprisonment of the intellectually disabled accused.

¹¹ Intellectual Disability (Compulsory Care) Bill 1999 (329–2) (select committee report).

[20] In the result, the IDCCR Act as passed provides for compulsory care orders only for those who have committed criminal offences.

[21] The pathway into the IDCCR Act regime for VM was, as noted earlier, through the CPMIP Act. Having been found unfit to stand trial, she could not be subject to a sentence, but became a candidate for an order under Part 2, sub-part 3 of the CPMIP Act. In particular, she could have been the subject of an order that she be detained in a secure facility as a special care recipient and under the IDCCR Act¹² or

an order that she be cared for as a care recipient under the IDCCR Act¹³ or she could

have been released into the community.¹⁴

[22] VM was ordered to be cared for as a care recipient under s 25(1)(b) of the CPMIP Act. This made her subject to a regime of ―supervised care‖, which is defined as ―care given to a care recipient who may be directed to stay in a facility or in another place‖.¹⁵ This contrasts with the more intrusive regime applying to special care recipients who are liable to be detained in a secure facility.¹⁶

[23] Section 25(3) of the CPMIP Act required the court making the compulsory care order for VM first to satisfy itself, on the evidence of one or more health assessors, that VM:¹⁷

(a) had an intellectual disability; and

(b) had been assessed under Part 3 of the IDCCR Act; and

(c) was to receive care under a care programme completed under s 26 of the IDCCR Act.

¹² _{CPMIP Act, s 24(2)(b).}

¹³ _{CPMIP Act, s 25(1)(b).}

¹⁴ _{CPMIP Act, s 25(1)(d).}

¹⁵ _{Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 5(1).}

¹⁶ _{IDCCR Act, s 6(2).}

17. The same test for the making of an initial compulsory care order applies when the application is made to the Family Court under s 45 of the IDCCR Act: see s 45(1).

[24] Section 26(2) of the CPMIP Act provides that an order of the kind made in relation to VM, although actually made under the CPMIP Act, is regarded as a compulsory care order for the purposes of the IDCCR Act.

[25] There are other ways in which an intellectually disabled person can become liable to the compulsory care regime in the IDCCR Act. As our judgment focuses on VM’s position, we do no more than note these. They are:

(a) An intellectually disabled person who has been acquitted of a criminal offence on the grounds of insanity can be subject to orders under ss 24 and 25 of the CPMIP Act 2003 in the same way as a person in VM’s position (ie a person who has been found unfit to stand trial).

(b) An intellectually disabled person who has been convicted of an offence and sentenced to prison as if he or she did not have an intellectual disability can be made subject to a compulsory care order. This situation may have arisen because the offence was committed before the IDCCR Act and the CPMIP Act came into force or because the intellectual disability was not identified during the criminal justice process. Under s 29 of the IDCCR Act, a prison manager may apply to a compulsory care co-ordinator for the prisoner to be assessed, if there are reasonable grounds to believe that the prisoner has an intellectual disability. If the assessment indicates that the prisoner does have an intellectual disability, then the process for a needs assessment and a care and rehabilitation plan is initiated and the co- ordinator may then seek a compulsory care order from the Family Court. In that event, the provision under which the application will be considered will be s 45 of the IDCCR Act.

(c) A similar process exists in relation to a former special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act). That situation will arise where the intellectually disabled person has a mental illness and has been subject to treatment

under the MHCAT Act but the basis for continuing treatment under the MHCAT Act has come to an end. Again, s 45 of the IDCCR Act applies in this situation.

[26] There are thus four pathways into the compulsory care regime. Two of these involve decisions by criminal courts under s 25 of the CPMIP Act and two involve decisions of the Family Court under s 45 of the IDCCR Act.

[27] The Judge making a compulsory care order under s 25(1)(b) of the CPMIP Act must specify the term of that order, the maximum being three years.¹⁸

[28] Although an order under s 25(1)(b) of the CPMIP Act is made by a Court exercising criminal jurisdiction, any extension must be made by the Family Court. The relevant provision is s 85(1) of the IDCCR Act, which simply states that the Family Court may extend a compulsory care order on the application of the compulsory care co-ordinator. No criteria are set out. This is in contrast to a number of other provisions in the legislation which provide detailed and extensive criteria to

be taken into account in the making of decisions.¹⁹ To determine the principles

applying to decisions about the extension of compulsory care orders, it is therefore necessary to look to the legislative scheme more broadly.

[29] Section 3 of the IDCCR Act sets out the purposes of the Act. It provides:

3 Purposes

The purposes of this Act are—

(a) to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and

(b) to recognise and safeguard the special rights of individuals subject to this Act; and

(c) to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.

¹⁸ _{CPMIP Act, s 26(2)(b); IDCCR Act, s 46(2).}

19. See, for example, s 12 of the IDCCR Act, which sets out principles governing decisions affecting children and young persons.

[30] There is no reference in this provision to risk or to the protection of the community which could have been expected if the test for the making of or extension of compulsory care orders was undue risk. Rather, the focus is on the availability of appropriate measures to Courts dealing with intellectually disabled offenders, recognising that these measures will also apply in some circumstances to intellectually disabled persons who are no longer subject to the criminal justice system. That indicates that a nuanced approach to the application of these measures is called for. This is confirmed by the explicit statement of the purpose of protecting the special rights of intellectually disabled persons to whom the IDCCR Act applies.

[31] Section 11 sets out general principles governing the exercise of powers under the Act. It provides:

11 Principles governing exercise of powers under this Act

Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—

(a) the health and safety of the care recipient and of others; and

(b) the rights of the care recipient.

[32] There is no doubt that s 11 applies to decisions about the extension of a compulsory care order, because when the Family Court is considering an application to extend, it is proposing to exercise a power under the Act in respect of a care recipient.

[33] Surprisingly, however, s 11 of the IDCCR Act does not apply to the making of an initial compulsory care order for someone in VM’s position. As already noted,²⁰ the original order for VM was made under the CPMIP Act. So it was not the exercise or proposed exercise of a power under ―this Act‖ ie the IDCCR Act, as s 11 requires, although s 26(2) of the CPMIP Act says an order of this kind made under the CPMIP Act is regarded as a compulsory care order for the purposes of the IDCCR Act. Although s 11 does not apply to initial compulsory care orders, it is an important contextual component of the statutory scheme applying to compulsory

_{care orders. Its approach of balancing community protection against individual}

²⁰ Above at [21]

rights will be relevant to initial orders, even if s 11 does not make that approach compulsory. However, we think it is likely that Parliament intended that s 11 should apply expressly to initial compulsory care orders whether they are made under the CPMIP Act or the IDCCR Act itself. If we are right about that, a legislative amendment to state that clearly should be considered.

[34] In the context of the present case, the fact that s 11 does not expressly apply to the initial decision to make a compulsory care order is significant. The Crown argued that the decision on an application for extension of a compulsory care order should be made on the same basis as the decision to make the initial order. But the fact that s 11 does not expressly apply to the initial order undermines that argument.

[35] The reference to the rights of a care recipient in s 11(b) is not specific as to which rights are being referred to, and there is no reason to read it down in any way. The IDCCR Act itself sets out a number of rights applying to care recipients or proposed care recipients, such as the right to legal advice²¹ and the right to information.²² There are many others.²³ However, we think the focus of the principles set out in s 11(b) is on more fundamental rights, particularly rights

ensuring basic freedoms of the kind described in the New Zealand Bill of Rights Act

1990 (the Bill of Rights) such as the right to freedom of movement,²⁴ the right not to be arbitrarily arrested or detained,²⁵ and the right to be free from discrimination on the grounds of disability.²⁶ In a similar context, the Supreme Court of Canada used the phrase ―liberty interest‖ to describe these rights and we will adopt the same term.²⁷

[36] What s 11 calls for, therefore, is a balancing of the legitimate interest of the community in protecting the health and safety of the care recipient and others (we will call this the community protection interest) against the liberty interest of the care

_{recipient. That balancing exercise will enable the Court to achieve the purposes}

²¹ _{IDCCR Act, s 54.}

²² _{IDCCR Act, s 49.}

²³ _{See, for example, IDCCR Act, ss 50–53 and 55–57.}

²⁴ _{New Zealand Bill of Rights Act 1990 (Bill of Rights Act), s 18.}

²⁵ _{Bill of Rights Act, s 22.}

²⁶ _{Bill of Rights Act, s 19.}

²⁷ Pinet v St Thomas Psychiatric Hospital 2004 SCC 21, [2004] 1 SCR 528 at [19].

described in s 3, because it will lead to the selection of the appropriate compulsory care and rehabilitation option for the care recipient and recognise his or her rights appropriately.

[37] The IDCCR Act makes provision for regular reviews of care recipients by specialist assessors under Part 6, sub-part 2 of the IDCCR Act. Section 79 requires that the specialist assessor issue a certificate as to whether the status of the care recipient needs to be continued or needs to be changed at the conclusion of this

review.²⁸ For a care recipient who, like VM, is a care recipient because he or she

was found to be unfit to stand trial, the certificate must comply with s 82.²⁹

[38] Section 82 provides:

82 Form of clinical review certificate for care recipients no longer subject to criminal justice system and care recipients liable to detention under sentence

When a specialist assessor completes a certificate, under section 79, in respect of a care recipient no longer subject to the criminal justice system or a special care recipient who is liable to detention under a sentence, the specialist assessor must state whether in his or her opinion—

(a) the care recipient still needs to be cared for as a care recipient; or

(b) the care recipient no longer needs to be cared for as a care recipient.

[39] The Family Court Judge considering the application to extend a compulsory care order is required to take into account the most recent certificate under s 79 and may also obtain a second opinion from another specialist assessor.³⁰

[40] If the Family Court determines that a compulsory care order should be extended, the Court must then ask itself whether the care recipient must receive supervised care or secure care.³¹ The Court may order that a care recipient who is subject to a compulsory care order imposed under s 25(1)(b) of the CPMIP Act receive secure care (ie order that the level of care be intensified) only if it considers

_{that supervised care ―would pose a serious danger to the health or safety of the care}

²⁸ _{IDCCR Act, s 79(1).}

²⁹ _{IDCCR Act, s 79(3)(a).}

³⁰ _{IDCCR Act, s 88(2)(a) and (b).}

³¹ IDCCR Act, s 85(2).

recipient or of others‖. Mr La Hood said this was an indicator that risk was a determining factor in extension decisions. The degree of intrusiveness inherent in secure care orders certainly indicates that such orders are to be reserved for care recipients who pose a serious danger to the public. But it does not, in our view, have any direct bearing to the criteria for merely continuing the less intrusive compulsory care orders where the care recipient is subject to supervised care.

[41] As mentioned earlier,³² the Court making a compulsory care order must satisfy itself that the proposed care recipient has been assessed under Part 3 of the IDCCR Act. The provisions of that Part set out the requirements for the needs assessment to be undertaken in relation to a proposed care recipient and the requirements for a care and rehabilitation plan which must be prepared once a care recipient’s care needs have been assessed. Section 25 sets out the matters that must be identified in every care and rehabilitation plan, including matters such as social, cultural and spiritual needs, medical requirements, special concerns or aversions of the care recipient and other special needs of the care recipient.

[42] Among the factors which must be identified is that set out in s 25(1)(d), namely ―the circumstances in which the care recipient is likely to behave in a manner that endangers the health or safety of the care recipient or of others‖. In addition to the requirement to identify relevant factors under s 25(1), s 25(4) requires a care and rehabilitation plan to ―deal with the kind of supervision the care recipient requires to avoid undue risk to the health or safety of the care recipient and of others.‖ This is the source of the ―undue risk‖ test proposed by the Crown for all extension decisions.

[43] The words used in the equivalent provision in the Intellectual Disability (Compulsory Care) Bill as introduced were ―avoid danger to the health or safety of the care recipient and others‖.³³ The Select Committee changed ―danger‖ to ―undue

_{risk‖. The Select Committee Report gave this reason for the change:}³⁴

³² _{At [22] above.}

³³ _{Intellectual Disability (Compulsory Care) Bill, (329-1), cl 55(3).}

³⁴ Intellectual Disability (Compulsory Care) Bill (329-2) (select committee report) at 7–8.

We received advice that suggested that this test [―avoid danger‖] places an onus on those preparing a care and rehabilitation plan which would be impossible to meet without secure care in every case. The alternative wording ―undue risk‖ recognises that while some risk is always involved when offenders are placed in less secure accommodation, that risk must always be balanced with the interests of the public.

[44] We see s 25(4) as confirming that which is already apparent from s 11: an extension order should not be made unless the need to protect the public is sufficiently great to justify the interference with the liberty interest of the care recipient inherent in a compulsory care order. But we do not see this oblique reference to the term ―undue risk‖ in a section dealing with the requirements for a care and rehabilitation plan as suggesting that the legislature intended that undue risk was the statutory test for determining extension orders under s 85.

[45] It is notable that ―undue risk‖ is the test used in the Parole Act 2002 for the granting of parole to an imprisoned offender.³⁵ Parliament could have used the same test in the IDCCR Act for decisions on extension orders but elected not to do so.

[46] Mr La Hood referred us to the guidelines published by the Director-General of Health to assist specialist assessors in undertaking tasks required of them under the IDCCR Act, including in relation to reports under s 79.³⁶ Mr La Hood said that the guidance given to specialist assessors in undertaking reviews of care recipients emphasised the focus on risk and, in particular, whether the risk was such that it was still necessary to keep the care recipient under a compulsory care order. An example

of this is the following guidance for specialist assessors undertaking six month reviews:³⁷

A review process should focus on looking for evidence the compulsory treatment and rehabilitation has created behaviour change for the care recipient that significantly reduces the likelihood that he or she will cause serious harm to him or herself or others in the community. Further, that the level of harm the person is thought likely to present should not be significantly different from that of the person’s peer group. Peer group could be taken to mean other people with an intellectual disability.

³⁵ _{Parole Act 2002, s 28(2).}

³⁶ Ministry of Health Guidelines for the Role and Function of Specialist Assessors under the

_{Intellectual Disability Compulsory Care & Rehabilitation Act 2003 (2004) at 483.}

³⁷ At 483.

[47] Mr La Hood argued that, because health assessors were following these guidelines in preparing reports that were required to be considered by Judges making decisions on applications for extension, it could be inferred that the Judge making the decision should be required to focus on the same criteria.

[48] We see some difficulties in that argument. First, the guidelines are just that: guidelines. Second, the guidelines must conform with the IDCCR Act, not vice versa. Third, they are guidelines for health assessors, not for Judges making decisions on applications for extension. The roles should not be confused.

[49] We see the guidelines as confirming the position accepted by all parties, namely that compulsory care orders should not be made or extended unless the community protection interest is such as to outweigh the liberty interest of the care recipient. But we do not see the guidelines as assisting us in determining the key issue in this case, namely whether risk is an exclusive test, or whether other factors come into play.

[50] The report of a health assessor under s 79 must include an assessment of whether the status of the care recipient needs to be continued or needs to be changed. Ms Douglass argued that this focus on ―need‖ was not limited to the risk that a care recipient would pose if not subject to a compulsory care order, but appeared to allow for a broader range of criteria to be considered. We will consider that further when we come to deal with the criteria taken into account by the High Court Judge.

[51] Before leaving our consideration of the legislative background, it is important to consider the place of rehabilitation in the legislative scheme. As noted earlier,³⁸ the Select Committee proposed a number of amendments to the Intellectual Disability (Compulsory Care) Bill to emphasise the importance of rehabilitation. The most important of these was the inclusion of the word ―rehabilitation‖ in the title of the Act and the change in the name of the plans required to be prepared in relation

to care recipients from ―care plan‖ to ―care and rehabilitation plan‖. The Select

_{Committee’s reasons for this are set out in its report as follows:}³⁹

³⁸ _{Above at [19].}

³⁹ At 7.

We believe there should be explicit recognition of the importance of rehabilitation, where possible, to ensure that people do not receive custodial care only. It is important to assist care recipients to develop the range of skills they need to manage difficulties in their lives in structured programmes. These programmes should be tailored to the needs of each client. For some there will be clear progressions through their rehabilitation programme, and for others there will be fluctuations among different levels of care. For each there will be options for the appropriate level of supervision and security to avoid danger to the health or safety of others.

[52] It is notable that the purpose set out in s 3(a) of the IDCCR Act is to provide courts with ―appropriate compulsory care and rehabilitation options‖. This underscores the importance attributed to rehabilitation by Parliament.

The High Court judgment

[53] We do not propose to undertake a detailed assessment of the High Court judgment, particularly in so far as it relates to VM herself, because the compulsory care order for VM has now been quashed and there is no suggestion that it should be revived. However, the High Court’s findings on the legal test to be applied in considering applications for extension of compulsory care orders form the backdrop to this appeal and was thus the focus of the arguments of counsel in this Court, so some consideration of the judgment is called for.

[54] The Judge was clear that an applicant for an extension of a compulsory care order must demonstrate that the care recipient ―continues to pose a level of risk that merits ongoing coercive powers‖.⁴⁰ He commented on the centrality of risk within the IDCCR Act.⁴¹

[55] However, the Judge rejected the contention on behalf of the Attorney-General that ―static risk‖, that is risk that had not reduced since the making of the initial care order, was sufficient on its own for continued renewals of a compulsory care order, regardless of the length of the detention that might result. He saw this as inconsistent with the scheme of the IDCCR Act that also emphasised rehabilitation, and also considered that it would produce a situation that was disproportionate to the

_{circumstances that initially allowed the State to exercise coercive powers and to the}

⁴⁰ _{At [65] and [68].}

⁴¹ At [66].

static or diminishing risk that VM presented.⁴² No issue is taken by RIDCA or the Attorney-General with the requirement that the continuation of a compulsory care order be proportionate to the risk posed by the care recipient. But both strongly contest the reference to the need for a continuation of the compulsory care order to be proportionate to the original offending. They submitted in the High Court and in this Court that the original offence is irrelevant to any application for extension of a compulsory care order.

[56] The Judge also considered the position of rehabilitation. He said that the prospect of some rehabilitative benefit from a care regime could not on its own justify continued compulsory care. However, he said the absence of any expectation of further progress in relation to rehabilitation ―should trigger an even firmer

consideration of the appropriateness of an extension‖.⁴³ This is also strongly resisted

by RIDCA and the Attorney-General.

[57] Having assessed all of those matters, the Judge expressed his conclusions on the test to be applied in decisions relating to extensions of compulsory care orders in these terms:

[100] It is important to emphasise that the contents of this judgment are not meant to represent rules or a template. There may be considerations that have been overlooked which in the particular case may be relevant.

[101] The main conclusion I have reached is that the issues which inform a s 85 consideration will be different from, or at least wider than, the initial consideration undertaken when the order was made. Extra factors come into play when considering extensions.

[102] The underlying consideration which should inform the extension decision is that a compulsory care order is a form of detention that requires on-going, and sometimes increasing, justification. It cannot be justified solely by reference to the needs of the care recipient or what is good for them.

[103] It must be justified by the risk the person presents, usually but not exclusively to others, and that risk must be of a nature and level to justify extending the length of the detention that has already occurred. Where the material indicates no likely further gains are to be achieved, a hard consideration is required to assess if the risk justifies more detention.

⁴² _{At [69]–[70].}

⁴³ At [98].

[104] To summarise the various points discussed in the judgment in relation to extension applications:

a) risk to self or others is a necessary precondition to any extension. If the risk is primarily to self, it needs to be remembered there is no general capacity to control people for their own good;

b) the maximum penalty for the offence which led to the care recipient coming under the Act is not a measuring stick for how long the detention should be. However, the general seriousness or otherwise of the offence is a relevant factor in considering whether further detention can be justified;

c) the statutory test of ―needed‖ involves considering a variety of factors including the initial offence, the length of detention to date, the assessments of likely further progress and the timeframes attached to any projected progress;

d) the detention must be for as short a time as is necessary.

[58] We propose to address the issues arising from the High Court judgment under these three headings:

(a) proportionality; (b) rehabilitation;

(c) increasing justification.

Proportionality

[59] We consider it to be beyond argument that the compulsory care order (including the level of compulsory care and the term) must not be disproportionate to the need to protect the community or the care recipient. We did not understand any of the counsel before us to contest that proposition. Similarly, there was consensus that the balancing of the need to protect the community against the rights of the individual care recipient requires that a compulsory care order be made only if it is the least restrictive response available to the Court to satisfy the community

protection need.⁴⁴ Similarly, the level of intrusiveness of the compulsory care order should also be the lowest necessary to achieve the required community protection.

[60] However, there was significant debate about the proposition that a compulsory care order should not be extended if the extension meant that the period of compulsory care was disproportionate to the offending of the care recipient. There was some debate as to whether the High Court Judge had applied proportionality between the length of the compulsory care order and the offending as a separate factor or as a factor in his overall balancing of the interests referred to in s 11. We accept there are some indications that he did treat it as a stand-alone

factor.⁴⁵ But we focus on our own analysis rather than on what the Judge did or did

not do.⁴⁶

[61] Mr La Hood argued that it was wrong to treat proportionality of the term of the compulsory care order with the original offending as a relevant consideration in the decision whether or not to extend a compulsory care order. While proportionality with the gravity of the offending is an important principle in sentencing, that consideration does not apply to the IDCCR Act regime because it is protective, not punitive. The fact that it is the commission of an offence that makes an intellectually disabled person liable to be made subject to a compulsory care order does not alter the protective nature of the compulsory care regime under the IDCCR Act.

[62] Mr La Hood referred us to a number of overseas authorities that supported his position that there was no requirement that the protective measures taken in relation to an impaired offender to protect the public had to be proportionate to the offence committed.⁴⁷ However, each relates to the particular statutory context and we do not

_{see them as determinative in the present context.}

⁴⁴ See, in a similar context, the observations of the Supreme Court of Canada to the same effect in Winko v British Columbia (Forensic Psychiatric Institute) [1999] 2 SCR 625 at [70] and Pinet v St Thomas Psychiatric Hospital at [21]. The relevant legislation in those cases expressly required the least restrictive order, but there was no dispute that the same approach applies to decisions to which s 11 applies, despite there being no express requirement to that effect.

⁴⁵ _{See, for example, at [92] and [129].}

⁴⁶ We recognise that the question of law for which leave was given focuses on the High Court Judge’s construction of the relevant provisions. But we consider it is more helpful to articulate our view of the correct approach rather than compare our approach to that of the High Court.

⁴⁷ Jones v United States [1983] USSC 157; 463 US 354 (1983), Winko v British Columbia (Forensic Psychiatric

Institute), Kansas v Hendricks [1997] USSC 63; 521 US 346 (1997), Allen v Illinois [1986] USSC 167; 478 US 364 (1986).

[63] Counsel assisting the Court, Ms Douglass, supported the High Court Judge’s position on proportionality. She said the Judge was right to invoke this Court’s decisions in R v Elliot⁴⁸ and R v Barnes.⁴⁹

[64] R v Elliot concerned a man who had been found guilty of common assault. He was ordered to be detained in a mental hospital as a committed patient under s 39J of Criminal Justice Act 1954. That section provided that the Court could order that a person convicted of an offence be detained in a hospital ―on being satisfied by the production of a certificate by two medical practitioners that he is mentally disordered, and that his mental condition requires that he should be detained in a hospital either in his own interest or for the safety of the public‖. This was an alternative to passing sentence on the offender. In giving the judgment of this Court, Richardson J emphasised the high threshold for an order, given the use of the term

―requires‖ in the section and the emphasis on the safety of the public. He pointed out the fact that the concern of s 39J was with the hospitalisation of offenders, not their punishment.⁵⁰

[65] However, he also emphasised the importance of keeping in mind that s 39J was a provision in criminal justice legislation. He described its function as ―to provide a more suitable individualised sentence operating in the interests of the offender and in the wider public interest than would otherwise be available‖.⁵¹ He said in that sense it was a ―benevolent alternative to a custodial sentence in a penal institution‖.⁵² He then continued:⁵³

But to invoke it without regard to the gravity of the offending is to overlook that the subject is before the Court only because he has committed an offence. Reasonable proportionality between the offending and the severe curtailment of liberty inherent in an order for detention as a committed patient must not be lost. If that proportionality is not present and involuntary committal is thought necessary the authorities should invoke the procedures under the Mental Health Act in the ordinary way.

⁴⁸ _{R v Elliot [1981] NZCA 29; [1981] 1 NZLR 295.}

⁴⁹ _{R v Barnes CA69/05, 16 June 2005.}

⁵⁰ _{At 302.}

⁵¹ _{At 302.}

⁵² _{At 302.}

⁵³ At 302.

[66] R v Elliot provides support for the proposition that compulsory care orders under the IDCCR Act should be proportionate to the offending which made the care recipient eligible for the order. While there are some significant differences between the regime at issue in R v Elliot and the IDCCR regime, these do not lead us to distinguish R v Elliot from the present case. The two most significant differences that were highlighted by the Crown were the following:

(a) As Richardson J noted in R v Elliot, s 39J of the Criminal Justice Act

1954 was contained in criminal justice legislation and an order under s 39J was an alternative to a sentence of imprisonment. In contrast, a person who has been found unfit to stand trial is thereby removed from the criminal justice system and the IDCCR regime is not therefore an alternative to a sentence of imprisonment. A person who has been unfit to stand trial and made subject to a compulsory care order other than for special care (ie detention) is defined in s 6(3) of the IDCCR Act as a ―care recipient no longer subject to the criminal justice system‖. That said, it has to be acknowledged that the event triggering the power to make a compulsory care order is the commission of an offence, and the power to make the order in cases such as VM’s is contained in the CPMIP Act, which is, like the Criminal Justice Act 1954, criminal justice legislation.

(b) As is apparent from the quotation from the judgment of Richardson J reproduced above,⁵⁴ Mr Elliot’s condition was a mental illness and the mental health legislation at the time provided for a civil committal process for those considered to be a danger to the public. Thus, if the Court was minded to refuse to make an order under s 39J for proportionality reasons, but the offender constituted a danger to the

public, an alternative regime for compulsory treatment and, if necessary, hospitalisation existed. That is not the case in relation to care recipients under the IDCCR. We accept that is a difference between R v Elliot and the present case, but it does not necessarily

_{support the proposition that proportionality is not to be taken into}

⁵⁴ At [65].

account in decisions on extensions of compulsory care orders. On the contrary, the fact that the alternative to a compulsory care order if freedom from the possibility of being subject to compulsory care at all provides stronger support for the R v Elliot approach than the legislative regime applying to Mr Elliot.

[67] We conclude that R v Elliot cannot be simply put to one side as having no application to the present case. We therefore turn to consider in what way proportionality is a factor in decisions under the IDCCR Act.

[68] While there were differing views on the relevance or otherwise of the proportionality of the terms and duration of a compulsory care order to the offending that triggered it, all parties seemed to agree that the nature of the offending by a care recipient is relevant to a decision to extend a compulsory care order to the extent that it bears on risk. This accords with views expressed by the Supreme Court of Canada

in Winko v British Columbia (Forensic Psychiatric Institute).⁵⁵ That case dealt with

offenders with a mental illness and thus the Court was at pains to point out that the commission of a past offence is not always an indicator of future likelihood of offending. Nevertheless, it considered that the circumstances of the original offence may be one factor for the court to consider in deciding whether to detain a person who is not criminally responsible.⁵⁶

[69] It may well be that the nature of the offending which brought the care recipient within the IDCCR regime provides some indicator of the nature and extent of risk posed by the care recipient. When we refer to the offending in this context, we do not limit this to the offence with which the care recipient was charged, but to the events which constituted the offending. In the present case that could be a significant distinction, because it was noted in the High Court judgment that, although the offence with which VM was charged was minor, the factual background

_{to the offending could be regarded as somewhat more serious.}

⁵⁵ _{At [60].}

⁵⁶ At [61].

[70] While we accept that proportionality between the terms and length of the compulsory care order and the original offence committed by the care recipient can be a relevant factor in finely balanced cases, we do not accept that such proportionality is a prerequisite to the extension of a compulsory care order. Taken to its logical conclusion, that would require a Judge to refuse to extend a compulsory care order in circumstances where he or she is satisfied that there was a substantial need to protect the public, merely because the offence actually committed by the care recipient was, of itself, minor.

[71] In our view the nature of the original offending is relevant to decisions on extension applications in two ways. First, it is relevant to the consideration of the nature of the risk posed by the care recipient. It may well be that where the care recipient has committed only a minor offence that will support the proposition that the level of risk posed by the care recipient is at the lower end of the spectrum. That will be particularly the case where the offence was the first offence committed by the care recipient and there is no evidence suggesting that the offending was an indicator of a risk of substantially worse events occurring in the future.

[72] Second, it may be relevant where the community protection interest and the liberty interest of the care recipient are finely balanced. In such a case, where the extension of the compulsory care order would lead to the duration of the order being disproportionate to the nature of the offending by the care recipient,⁵⁷ that would be a factor to be taken into account in the decision whether or not to grant the extension.

Rehabilitation

[73] The Oxford English Dictionary provides two relevant definitions for

―rehabilitation‖:⁵⁸

3.a. Improvement of the character, skills and behaviour of an offender through training, counselling, education etc., in order to aid reintegration into society.

⁵⁷ _{As explained at [69] above.}

⁵⁸ Oxford English Dictionary (online ed). No entry for the noun ―rehabilitation‖ exists in the New Zealand edition of the Oxford English Dictionary: Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford, Oxford University Press, 2005).

b. Restoration of a person to health or normal activity after injury, illness, disablement, or addiction by means of medical or surgical treatment, physical and occupational therapy, psychological counselling, etc.

[74] As Ms Douglass emphasised at the hearing, the relevant meaning for the purposes of the IDCCR is the first. The second is inapt in cases of intellectual disability because a ―cure‖ is not available. However intellectually disabled people can be taught skills and tools to manage their difficulties and reduce the risk to the community. It is this form of ―rehabilitation‖ that is at issue.

[75] Mr La Hood and Ms Coleman took issue with the Judge’s observation that

the absence of any expectation of further progress in relation to rehabilitation

―should trigger an even firmer consideration of the appropriateness of an extension‖.⁵⁹ The Judge expressed the view that it would be surprising if those who represented a lower level of risk would be subject to extension when no rehabilitation improvements could be expected.

[76] Mr La Hood contended that a number of overseas authorities reject the idea that a lack of amenability to rehabilitation or treatment is a relevant factor in any continuing detention.⁶⁰ In one of these, Anderson v Scottish Ministers, the issue for the Privy Council was whether a section in an Act of the Scottish Parliament⁶¹ was within that Parliament’s legislative competence. The section provided for continued

detention of an offender who had been found to be suffering from a mental disorder

―the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not‖. The challenge was based on the argument that the provision was contrary to an article in the European Convention guaranteeing the right of liberty and security of person. One of the exceptions to that guaranteed right

_{is ―the lawful detention ... of persons of unsound mind".}⁶²

⁵⁹ _{At [98].}

⁶⁰ Reid v United Kingdom [2003] ECHR 94; (2003) 37 EHRR 9 (ECHR) at [52–[53]; Anderson v Scottish Ministers

[2001] UKPC D5, [2003] 2 ac 602 at [28], [60]; Kansas v Hendricks [1997] USSC 63; 521 US 346 (1997) at 356

_366.

⁶¹ _{Mental Health (Public Safety and Appeals) (Scotland) Act 1999, s 1.}

62. European Convention on Human Rights (opened for signature 4 November 1950, entered into force 3 September 1953), art 5(1)(e).

[77] The essence of the argument was that art 5(1)(e) did not permit detention of a person of unsound mind where there was neither a genuine intention to provide medical treatment nor the possibility of any benefit from such treatment. Lord Clyde dismissed this proposition in these terms:⁶³

It is in my view a somewhat surprising proposition that a requirement for treatment should be built into the exception enabling detentions of persons of unsound mind. One of the immediate concerns which one has about such persons is that of public safety and one might well assume that one object of this exception is that of protection of the public. To construe the provision as not permitting the detention of persons of unsound mind who constitute a danger to the public if released into society because they are not susceptible to treatment does not seem to me to accord with common sense.

[78] In our view that decision provides no assistance to us in the present circumstances. The case involved specific and clear legislation enacted in response to a House of Lords decision that would have meant some twelve persons suffering from untreatable personality disorders who posed a serious risk to the community

would have been released.⁶⁴ The legislation said that lack of amenability to

treatment did not mean release was automatically required, reversing the previous position. But it did not bear on the extent to which lack of rehabilitative prospects could be a factor in a finely balanced decision as to whether to continue to detain. The case also involved a quite different legislative context to the IDCCR, which has a deliberate focus on rehabilitation.

[79] Simon France J did not suggest that detention could be justified only if effective treatment was to be provided, and nor did counsel assisting the Court or the Human Rights Commission. It is not in dispute that a Judge under the IDCCR could extend a compulsory care order for a care recipient in respect of whom the need for protection of the community arises even if the intellectual disability suffered by the care recipient was not amenable to treatment.

[80] A proposition put forward by Simon France J was that rehabilitation could, however, be a relevant factor in determining whether to extend a compulsory care

_{order. Mr La Hood and Ms Coleman claimed it was irrelevant to the decision.}

⁶³ _{At [60].}

64. Reid v Secretary of State for Scotland [1998] UKHL 43; [1999] 2 AC 512: the House of Lords had concluded as a matter of statutory interpretation that treatability was a relevant factor under the previous Scottish statute providing for continued detention of persons suffering from a mental disorder.

[81] We do not agree with the Crown that rehabilitation is irrelevant, and we think it is unhelpful to put the decision maker in relation to applications for extensions into a straitjacket by excluding matters which may logically bear on the decision.

[82] As we understand the High Court decision, the Judge suggested only that in a case where the weighing of the community protection interest against the liberty interest of the care recipient was finely balanced, a Judge may take into account the possibility of rehabilitation. We do not see any reason to reject that proposition. What weighed on the mind of the High Court Judge was the possibility that a care recipient in respect of whom a compulsory care order was made in circumstances where the decision was finely balanced may find themselves subject to a series of similar finely balanced decisions extending the compulsory care order and, therefore, effectively subject to ongoing, long term preventive detention. This might occur where the basis of the original compulsory care order was a static risk which did not diminish during supervised care, but also did not become any more serious.

[83] There is merit in the caution given by Professor Brookbanks:⁶⁵

Clearly, there is a danger that legislation of this type will be use for purely preventive purposes, regardless of its potential for therapeutic benefit. Such an attitude should be resisted. The care aspect of this Bill must be given real efficacy to ensure that those from whom the public is protected are also acknowledged as people with legitimate human aspirations to whom fundamental rights and freedoms also attach.

... Nevertheless, care will need to be exercised to ensure that care recipients are not unnecessarily detained under the legislation in circumstances where meaningful care can no longer be provided – in order simply to achieve the preventive detention of the person.

[84] The focus of the Court should ultimately be on the proper interpretation of the relevant statute.⁶⁶ We think it is clear from the report of the Health Committee on the Intellectual Disability (Compulsory Care) Bill that such ongoing detention in cases of low level risk was not considered acceptable by Parliament. Emerging clearly from the Health Committee’s report, is its view that rehabilitation should be

_{seen as a major objective of the legislation. And, following from this, that}

⁶⁵ Warren Brookbanks ―New Zealand’s Intellectual Disability (Compulsory Care) Legislation‖ in K Diesfeld and I Freckelton (eds) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Ashgate, Portmouth, 2003) at 533.

⁶⁶ As it was in Reid v Secretary of State for Scotland [1998] UKHL 43; [1999] 2 AC 512 (HL).

rehabilitation options should be made available to those subject to compulsory care orders wherever possible. Those views were adopted by Parliament, as is reflected in the title of the IDCCR Act, the purpose expressed in s 3(a), and the fact that the plans applying to those subject to compulsory care orders are called ―care and rehabilitation plans‖.

[85] We conclude that the success or failure of rehabilitation efforts made during the compulsory care order, and the prospects for further rehabilitation are relevant factors in determining the issue before the Court, namely whether the community protection interest is sufficiently significant to outweigh the liberty interest of the care recipient.

[86] Mr La Hood argued that if rehabilitation were taken into account in extension decisions, a paradox would follow. He argued that such an approach would mean that a care recipient who was responding well to rehabilitative measures would be penalised because a Judge may consider an extension was justified to allow continued rehabilitation. In contrast, a care recipient who did not respond to rehabilitative efforts and was unlikely to do so in the future would be advantaged as this factor would count against an extension application being successful. While we acknowledge the logic of that submission, we agree with Ms Douglass that it is not a likely scenario in reality because the care recipient who rehabilitates will, by definition, have a lower risk at the time of the extension application that he or she had earlier. The lower risk will count against an extension. Rehabilitation success will therefore generally favour care recipients.

Increasing justification

[87] The High Court Judge was concerned that extensions based on a static level of risk could lead to very lengthy subjection to compulsory care in circumstances where the level of risk at the time that the compulsory care order was first made was only just sufficient to justify an order. The Judge considered that this would be contrary to the rehabilitative objectives of the IDCCR Act.

[88] This possibility was a concern to the Health Select Committee considering the Intellectual Disability (Compulsory Care) Bill. In its report, the Committee said:⁶⁷

The Mental Health Commission express concern in its submission that there is a possibility within the bill to renew a compulsory care order an unlimited number of times provided that a person still meets the criteria. Orders used in this way may amount to indefinite preventive detention.

We consider that there are a number of mechanisms within the bill to ensure that continuing care is justified. There are also a number of legal safeguards in place to allow the Family Court and High Court to order the release of individuals, should the court decide that continuing compulsory care is not justified.

...

It may be necessary in a limited number of cases, for example in the case of a repeat child sex offender that he or she would remains subject to the bill’s controls. This would only happen if it is not possible to manage the individual’s behaviour and if, as part of the clinical review, his or her behaviour continues to be assessed as being a high risk to others.

[89] Mr La Hood argued that the test for extending a compulsory care order should be exactly the same as the test for making the order in the first place. Thus, Mr La Hood argued, if the community protection interest outweighed the liberty interest of the care recipient at the time the order was made and the risk remained static during the term of the compulsory care order, then an extension should be granted on the basis that the balance must be the same at the time of the extension as it was at the time of the initial order.

[90] As already noted, s 11 of the IDCCR Act does not apply to the making of a compulsory care order in the circumstances applying to VM.⁶⁸ So the argument founders on that basis alone. But even if that factor is put to one side, we do not accept the argument as correct in principle. The argument depends on not only the risk being static, but also the liberty interest being static. We do not accept that the length of time for which a person has already been subject to a compulsory care

order can be ignored when assessing his or her liberty interest. This can be illustrated by a case where the assessment of the community protection interest

_{against the care recipient’s liberty interest was finely balanced at the first renewal of}

⁶⁷ _{At 16–17.}

⁶⁸ At [33] above.

a compulsory care order. If, three years later, a further extension is sought and the community protection interest remains essentially the same, the balance against the extension may be tipped by the fact that the care recipient’s liberty interest has become more compelling because he or she has already endured a significant period of reduced liberty. We do not see this as material other than in finely balanced cases. Where a care recipient constituted a significant danger to the public and compulsory care was necessary for community protection, the liberty interest of the care recipient, even if he or she had been in care for a long period, would not outweigh the community protection interest.

[91] In short, we agree with the High Court Judge that the longer a care recipient has been subject to a compulsory care order, extension decisions will require ongoing and sometimes increasing justification, because the community protection interest will need to be greater to outweigh the increased weight given to the liberty interest of the care recipient.

Our approach

[92] Drawing the threads together we summarise our conclusions as follows:

(a) Sections 3 and 11 set out the guiding principles in relation to extension decisions. Unless the community protection interest outweighs the liberty interest of the care recipient, an extension of a compulsory care order should be refused. Given the objective of the IDCCR of protecting the rights of intellectually disabled people and the high value New Zealand society gives to individual liberty, the Judge determining an extension application must be satisfied that the community protection interest cannot be met other than by a compulsory care order. To put it another way, the compulsory care order must be the least coercive and restrictive option available.

(b) It is not sufficient reason to extend a supervision order that the care recipient would benefit from supervised care and treatment and the opportunities for rehabilitation that would be provided under a

compulsory care order. If the care recipient no longer constitutes a risk of sufficient seriousness to justify the continuation of the order, the extension should be refused. However, rehabilitation is an important objective of the IDCCR Act. The Judge making an extension decision should be informed of the rehabilitation efforts that have been made and the outcome of them, and advised of the prospects of future rehabilitation. If the risk posed by the care recipient is unlikely to be reduced through rehabilitative efforts, the Judge may take that into account in determining whether the community protection interest continues to be outweighed by the liberty interest of the care recipient.

(c) The weight to be given to the liberty interest is not necessarily static.

After the care recipient has been subject to a compulsory care order for a substantial period, the Judge may determine that greater weight needs to be given to the liberty interest.

(d) The nature of the original offending is relevant to an extension decision in that it may provide the Judge with an indicator of the level of risk posed by the care recipient. This can be taken into account with the clinical assessments of the health assessors in determining the weight to be given to the community protection interest. In a finely balanced case, the fact that an extension would make the period of compulsory care disproportionate to the offending of the care recipient may also be taken into account. However, in a case where a Judge is satisfied that the community protection interest outweighs the liberty interest of the care recipient, the fact that the period during which the care recipient will remain subject to a care order would exceed the sentence to which he or she would have been subject if he or she was not intellectually disabled should not lead to the refusal of an extension.

[93] In short, we do not see the term ―undue risk‖ as an appropriate test. Rather, we believe that the guiding principle is that set out in s 11, and it is that principle

which must be applied in the light of the purposes of the IDCCR Act set out in s 3. That does not create a bright line test of ―undue risk‖, but rather requires a nuanced evaluation of all of the information available to the Judge so that he or she can balance the community protection interest in relation to the care recipient against the liberty interest of the care recipient.

[94] Dealing with this issue when it is essentially moot has provided some difficulties, because we see the real exercise as being very focused on the characteristics and rights of the individual care recipient. It has meant that we have had to deal with some hypothetical possibilities which, in our view, can distract from the real issue before us. One was the possibility of a care recipient who committed a minor offence but constitutes a very significant and ongoing risk to the public (for example a care recipient who is at high risk of offending sexually against children, but who was apprehended only for a minor offence). In such a case the community protection interest will overwhelm the liberty interest, and the assumption must be that the minor nature of the offending did not provide an accurate guide to the level of risk posed by the care recipient. Thus we do not consider it is likely that a dangerous person could be released because the nature of the offending was taken into account in the risk assessment.

[95] Another hypothetical situation was the possibility of a care recipient who commits a minor offence and is made subject to a compulsory care order in circumstances where the community protection interest is seen to outweigh the liberty interest but only by a very small margin being effectively subject to long term preventive detention. This concern was said to arise because, if no change occurs in the level of risk posed by the care recipient, then successive extensions to the compulsory care orders could be granted so that the care recipient was subjected to ongoing and lengthy compulsory care even though the degree of risk posed by the care recipient was relatively minor. We consider that our analysis of the increasing weight to be given to the liberty interest addresses the prospect of this arising.

Discrimination/Arbitrary Detention

[96] Counsel assisting the Court and counsel for the Human Rights Commission argued that the approach advocated by RIDCA and the Attorney-General could lead to unlawful discrimination against intellectually disabled people and to arbitrary detention of care recipients. As we have not accepted the ―undue risk‖ test for which RIDCA Central and the Attorney-General advocated, we do not need to engage with the discrimination and arbitrary detention issues. Neither counsel assisting the Court nor counsel for the Commission suggested that those concerns would arise on the approach taken by the High Court Judge. They do not arise on the approach we have taken either.

The question for which leave was given

[97] We now revert to the question for which leave was given.⁶⁹ It calls for our assessment of the approach taken by the High Court Judge and the identification of any error in it. We do not consider it is necessary or helpful for us to undertake that exercise and answer the question for which leave was granted. However we expect that future applications for extensions of compulsory care orders under the IDCCR Act will be guided by this judgment.

Costs

[98] We make no order for costs.

Solicitors:

Luke Cunningham & Clere, Wellington for Appellant

Waterfront Chambers, Wellington for Counsel Assisting the Court

Crown Law Office, Wellington for Attorney-General as Intervener

Human Rights Commission, Auckland for Human Rights Commission as Intervener

⁶⁹ Set out at [6] above.