New legislation for Compulsory Care introduced
New legislation for Compulsory Care introduced
This fact sheet outlines the new legislation on compulsory care for people with an intellectual disability whose behaviour poses a serious risk of danger to the health or safety of themselves or others, or who have committed an imprisonable offence.
Who is affected by the legislation?
The Bill covers a small group of around 200 people.
It applies both to those who are charged with, and/or convicted of, an imprisonable offence (the offender group), and to those who have not offended but whose behaviour poses a serious risk of danger to the health or safety of themselves or others (the non-offender group).
People who have a mental disorder or an acquired brain injury will continue to be covered by the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act 1992). Children and young persons up to the age of 17 years will still be covered by the Children Young Persons and Their Families Act 1989, but a few may also be subject to this legislation, in specified circumstances.
Key definitions in the Bill
Intellectually disability — Is defined in the Bill as permanent impairment that results in significantly sub-average general intelligence (usually an IQ of less than 70), together with significant deficits in two of the following skills: communication; self care; home living; social skills; use of community services; self direction; health and safety; reading, writing and arithmetic; leisure and work.
In need of compulsory care — A person must behave in a way that poses a serious danger to his or her health or safety or to the health or safety of others. The person’s behaviour must be such that it cannot be effectively managed without the provisions in the Bill.
What does the legislation do?
The new legislation enables the courts to make a compulsory care order for people assessed as having an intellectual disability and who are a danger to themselves or others. The compulsory care order will be for a set period of time. It will provide for the person’s disability support needs as well as protecting the person, and others, from the risk of harm.
For those in the non-offender group, the Bill is an intervention of last resort when there is no other alternative to meet the person’s care and safety needs or to protect others.
The process for entering compulsory care balances the rights of others to protection of their safety with the rights of the individual not to be detained or have their liberty restricted without good reason.
Why the legislation is necessary
Currently, there is no legislation that provides the courts with appropriate care options for people with an intellectual disability who are charged with, or convicted of, an imprisonable offence. Members of this group are often inappropriately sent to prison or to a mental health service.
For a person with an intellectual disability whose behaviour poses a serious risk of danger to themselves or others, this Bill provides for an assessment and a specified time of compulsory care for safety reasons. It also enables a long term, preventative management plan to be established for addressing the behaviour that poses a serious risk of danger.
The Government considered several options and decided this group has unique needs for care, and requires stand-alone legislation.
Compulsory Care is only one solution
Compulsory care is not the only answer for people with an intellectual disability who are charged with an offence. Courts still have the options of a community-based sentence, a prison sentence or a fine.
For people with intellectual disability who have not offended, good management and positive programmes will, in many cases, be sufficient to manage challenging behaviour. A compulsory care order will only be applied for if the person cannot be diverted to appropriate alternative services. Alternatives may include different living arrangements or more support for the family or caregivers.
How the legislation works
Application: Anyone over 18 years of age may apply to the compulsory care co-ordinator for an assessment. The application must be supported by a certificate from a registered medical practitioner or a registered psychologist stating the reasons for believing that the person has an intellectual disability and is in need of compulsory care.
If the person is an offender, the courts can order an assessment of the defendant. If they have already been convicted, the prison authorities can request an assessment of an inmate.
Assessment: A person will be assessed by a specialist assessor to see whether they have an intellectual disability and whether they pose a serious risk of danger to themselves or others. If they meet these criteria, and their care and safety needs cannot be met any other way, then an application will be made for a compulsory care order.
Care order issued: Two types of orders can be made — either a Compulsory Care Order (CCO) or a Special Care Order (SCO).
- CCOs can be made for up to 3 years. The term of an order can be extended following a review by the Family Court, if the person is still regarded as in need of compulsory care.
- SCOs will be used only when there are
particular requirements for restrictions, and checks are in
place. Under the Criminal Justice Amendment Bill (No 7),
SCOs will only be imposed where the court is satisfied that
such an order is necessary and in the public interest.
A person coming through the criminal courts may be placed under a CCO or a SCO, but a person who is a non-offender can only be placed under a CCO.
Care plan developed: The compulsory care co-ordinator is responsible for the development of a care package. The care package will cover the person’s accommodation, the day services they will attend, supervision and security requirements. Wherever possible, persons on a CCO will be placed in the community and near their families and whanau.
Review of care order: Six-monthly clinical reviews will be undertaken to see whether the person’s care plan is working and whether the person needs to remain under the care order. There will be one review of a care order by the Family Court at six months. The High Court also has jurisdiction to inquire into the circumstances of a care recipient. The compulsory care co-ordinator may request a review at any time.
Release from care order: A person is released from a CCO at the expiry of that order unless the order is renewed. The Court may also release a person from a CCO before the expiry of that order. SCOs may be for an indefinite period in certain circumstances. Only a High Court Judge, the Attorney-General, or the Minister of Health may release a person from a SCO before the expiry of that order.
Rights and safeguards
This Bill sets out the limits which can be imposed by the courts on people with an intellectual disability who meet the criteria for compulsory care. In addition, the Bill ensures that: the legal sanctions are options of last resort; the courts focus on the least restrictive intervention; regular, independent assessments and reports to the court are undertaken; the legal and administrative responsibilities of key personnel are set out; and affected people have access to legal advice. District Inspectors will be responsible for checking that the person’s legal rights are respected while under care.
Key players under the legislation
Compulsory Care Co-ordinators process applications, arrange for assessments and ensure care packages are developed, as well as recommending changes to CCOs and SCOs. They will be approved by the Director-General of Health and contracted by the Health Funding Authority.
Specialist Assessors will conduct assessments to determine if there is a need for compulsory care.
Compulsory Care Managers will implement
the person’s management plan and are responsible for ongoing
support and monitoring of the person’s care.
District Inspectors will perform a parallel function to their role under the Mental Health Act 1992.
How you can have a say
The Parliamentary Select Committee process gives you
the opportunity to influence the legislation either with a
short submission on some point or a full submission on the
shape and detail of the legislation.
Invitations for you or your group to make a submission, will usually be advertised in the public notices section of your daily newspaper. Submissions are normally received in written form, and can be reinforced with an oral presentation. In the past, Select Committees have also accepted verbal submissions.
For further information
If you would like to know more about the new compulsory care legislation, please write to the Ministry of Health at PO Box 5013 Wellington or visit the Ministry of Health’s website http://www.moh.govt.nz