VICKY AROHA MINHINNICK V RIDCA CENTRAL (REGIONAL INTELLECTUAL DISABILITY CARE AGENCY) HC WN CIV 2009-485-541 [2009] NZHC 545 (13 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                  CIV 2009-485-541


               IN THE MATTER OF           The Intellectual Disability (Compulsory
                                          Care
and Rehabilitation) Act 2003

               BETWEEN                    VICKY AROHA MINHINNICK
                                 
        Appellant

               AND                        RIDCA CENTRAL (REGIONAL
                                          INTELLECTUAL
DISABILITY CARE
                                          AGENCY)
                                          Respondent


Hearing:
      13 May 2009

Counsel:       A J Douglass for Appellant
               D La Hood for Respondent

Judgment:      13 May 2009


                        JUDGMENT OF RONALD YOUNG J




Introduction


[1]    The appellant appeals an order of the Family Court
made under s 85 of The
Intellectual   Disability   (Compulsory     Care   and    Rehabilitation)   Act 2003
("IDCCR Act 2003") extending
her compulsory care for another twelve months
pursuant to s 133 of that Act.


[2]    This application is concerned with the appellant's
desire to call evidence at
the appeal. The application is governed by r 20.16 of the High Court Rules which
provides as relevant:




VICKY AROHA MINHINNICK V RIDCA CENTRAL (REGIONAL INTELLECTUAL DISABILITY CARE
AGENCY) HC WN CIV 2009-485-541 13 May 2009
  
    20.16 Further evidence

       ...

       (2)    In all other cases, a party to an appeal may adduce further evidence
     
        only with the leave of the court.

       (3)    The court may grant leave only if there are special reasons      for
  
           hearing the evidence. An example of a special reason is that     the
              evidence relates to matters that have
arisen after the date of   the
              decision appealed against and that are or may be relevant to     the
              determination
of the appeal.

       (4)    Further evidence under this rule must be given by affidavit, unless
              the court otherwise
directs.

[3]    Appeals under s 133 of the Act are general appeals and the appeal will be by
way of re-hearing.


[4]    The evidence
proposed to be called is from Doctor Mhairi Duff. It is not,
unfortunately, as would be expected, in draft affidavit form.      
   Counsel for the
applicant has tendered a letter from Doctor Duff which seems to identify that the
proposed evidence is:

    
  Further to our recent telephone discussions, I understand that you are
       taking forward an appeal through the High Court in
relation to a care
       recipient under the IDCCR Act 2003.             As discussed, under
       section 88(2)(b) the Family
Court (and therefore presumably the High
       Court) may call for a second opinion from a specialist assessor other
       than
the specialist assessor who issued the certificate under s 79. A
       second opinion from a specialist assessor would normally
be obtained
       through RIDCA (the Regional Intellectual Disability Care Agency)
       tasked with the designation of specialist
assessors. Alternatively,
       given that hits case is now being heard through appeal, the order may
       be processed through
the disability directorate of the Ministry of
       Health.

       In addition you are seeking an expert opinion on the IDCCR Act
from
       a clinical perspective and on the issue of the criteria used by a
       specialist assessor for recommending continuing
compulsory care, the
       interaction of mental illness factors with intellectual disability, the
       process by which improvement
or change might be achieved or
       demonstrated given the relatively stable underlying nature of the
       intellectual disability
and the difficulties care recipients may
       practically experience in exiting from the system.
[5]     To understand the basis
of the application some background facts are
necessary.


[6]     Proceedings under the IDCCR Act 2003 relating to the appellant first arose in
2005 when she faced
a criminal charge in the District Court. An order making the
appellant a care recipient was made on 20 December 2005 pursuant to
s 34(1)(b)(ii)
of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for a period two
years from that date. A renewal was
granted in 2007 expiring in December 2008.


[7]     Judge Ellis heard a further application for an extension of the Compulsory
Care
Order in February 2009 and granted the application for a further twelve months.


[8]     The original order making the Community
Care Order was supported by
reports from Doctor Judson and Doctor Duncan that the appellant was unfit to stand
trial by reason of
her intellectual ability.


[9]     The application for the December 2008 extension was based on a review of
the appellant's situation
by Doctor Barry-Walsh. He concluded (pursuant to s 79 the
IDCCR Act 2003) that the appellant still needed to be cared for as a care
recipient.


[10]    The application for renewal was opposed and a full hearing conducted before
Judge Ellis in early 2009.     
Evidence was called, witnesses cross-examined and
submissions made by both the appellant in person and her counsel.


[11]    This
appeal alleges that the Judge erred:


        a)      in finding the continuation of the Compulsory Care Order was best to
    
           promote and protect the health and safety of the appellant and others;
                and


        b)      secondly,
that the Judge wrongly failed to take into account such an
                order would likely result in the indefinite detention
of the appellant.
[12]   To return to the proposed evidence of Doctor Duff. The first portion of the
proposed evidence is essentially
a review of the appellant's condition to see if she
still comes within the criteria for a Compulsory Care Order.


[13]   The appellant
was represented by counsel at the February 2009 hearing.
There had been ample opportunity during the previous twelve months to obtain
any
further assessment of the applicant's condition beyond that of Doctor Barry-Walsh,
her counsel thought that was appropriate.
There will be in the future be continuing
opportunities for an independent medical review of the applicant's condition. There
is
nothing in this proposed evidence to suggest that Doctor Barry-Walsh's opinion
was in any way wrong. Given those circumstances there
is, in my view, no special
reasons requiring a further specialist assessment of whether the appellant still meets
the Compulsory
Care Order criteria.


[14]   The second aspect of the proposed evidence seems to involve Doctor Duff
giving evidence about the IDCCR
Act 2003 from a clinical perspective. Essentially
it seems to involve Doctor Duff giving evidence given the "relative stable underlying
nature of the intellectual disability" that the difficulty compulsory care recipients
who are subject to an order through the same
route as the applicant may have
practical difficulty in ever being discharged from the Compulsory Care Order.


[15]   I cannot see
how this evidence can properly be called. In part, the evidence
seems to relate to the interpretation of the Act. That is of course
a judicial function
rather than a function in this case of an expert witness. Secondly, what must be kept
in mind is that whatever
the importance in a broader sense of this appeal is that this
is an appeal against a specific order made with respect to Ms Minhinnick.


[16]   The Appellate Court's function would be to ensure that the correct law was
identified, an accurate analysis of the facts
was undertaken and a proper implication
of that law to the particular facts of the case was also undertaken.


[17]   Given that
analysis I cannot see that the second portion of Doctor Duff's
proposed evidence would assist.
[18]    The application is, therefore,
refused.




                                                            __________________________
                                                                         Ronald
Young J

Solicitors:
A J Douglass, Barrister, PO Box 5494, Wellington, email: [e-mail]
D La Hood, Luke Cunningham
& Clere, PO Box 10 357, Wellington, email: [e-mail]