The Supreme Court has found the wrong legal test has been used to lock up an autistic man for nearly 20 years, but he will not walk free just yet.
It has ordered the Family Court to urgently re-examine whether the man, only known as Jay, should remain detained, according to a decision released a year after the Supreme Court heard his case.
Four of the five Supreme Court Justices said the Family Court must relook at Jay’s right to liberty, weighing the seriousness of his original offence, his rehabilitation prospects and current risk.
The majority found he could have been moved into the community earlier, and a failure to do so had negatively affected him, but he cannot be released immediately without proper support.
The Family Court must now decide Jay’s future using the Supreme Court’s new guidance.
Human rights lawyer Tony Ellis, who represented Jay’s mother, described the ruling as a “significant win” and a “major step forward for disability rights”.
How Jay ended up in secure care
Jay, now in his 40s, has been detained in a secure facility under the Intellectual Disability Compulsory Care and Rehabilitation Act since 2006 after he broke four of his neighbours’ windows in 2004.
He has since been assessed by multiple experts as being too dangerous to release and his care order has been extended 11 times. Jay has spent the past five years almost entirely in seclusion at the Mason Clinic in Auckland.
A Family Court judge last year described his current living situation as “untenable” after he became so distressed by construction noise next door he stuffed paper into his ears, requiring doctors to remove it.
The man’s mother brought his case to the Supreme Court in August last year in a bid to get his compulsory care order quashed, claiming he was being arbitrarily detained and his human rights breached.
What the Supreme Court found
Chief Justice Helen Winkelmann and Justices Ellen France, Joe Williams and Forrest Miller found the Family Court’s approach to detaining Jay was incorrect, and concluded that a decision to detain someone under the Act be consistent with Bill of Rights Act and the UN Convention on the Rights of Persons with Disabilities.
Justice Stephen Kós disagreed, ruling he would have dismissed the appeal as Jay’s continued detention was justified to protect public safety under existing law.
“This is a tragic case. But granting the relief sought — J’s immediate release into the community — can only lead to further tragedy,” he wrote in the 131-page decision that outlines each judge’s conclusions.
Justices France and Miller said the court must set a new proportionality test weighting liberty against safety.
“Eventually the risk of harm will be outweighed where the initial offending is comparatively minor; the person has been a care recipient for an extended period; and/or where the prospects of progress in the immediate future are minimal.”
They said there was evidence there had been opportunities for Jay to be cared for in the community at an earlier point in time and that failure to release him from care has adversely affected him and contributed to the complexity of his current position.
However, they concluded it wasn’t for the Supreme Court to direct Jay to be released immediately, and further care orders may be required to allow the necessary steps to be taken before he could be released into the community.
Chief Justice Winkelmann said the nature and seriousness of Jay’s original offending ought to be a significant factor when assessing whether to detain him, saying previous tests applied by lower courts were discriminatory.
Justice Williams favoured a care-centred test focusing on dignity and quality of life and while he agreed the Family Court should look at Jay’s case again with fresh consideration, it was not guaranteed he would be released.
‘Significant win’
Lawyer Tony Ellis says the ruling is “very much a win”.
“It’s a significant win emphasising the rights of the disabled.
“This is a complex judgment that’s difficult even for lawyers to understand but it essentially says the Court of Appeal got it wrong and the Family Court has to urgently have a fresh look at Jay’s case.
“After eight years of trying to get him released, in my view, he’s now going to have to be released because four out of five judges take the view that his continued detention would be unlawful.
“Previously, the decision was you could lock somebody up for repeated periods. That was the law and now it’s no longer the law, that was the wrong approach.
“So anyone locked up on extended compulsory care orders will be entitled to have their decision revisited as a result of this case. That’s a major step forward and a really important decision under the UN Convention on the Rights of Persons with Disabilities.”
Jay’s mother was “pleased” with the outcome but still digesting the decision and its implications for her son, he said.
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