Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

It provides services for people under compulsory care orders, and people with an intellectual disability who require intensive services.

Background to the Act

The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCC&R Act) links to the Criminal Procedure (Mentally Impaired Persons) Act (CPMIPA), 2003, which gives the court powers to order individuals with mental impairment who have been charged with or convicted of an imprisonable offence to accept compulsory care and rehabilitation under the Act, or in the case of people with a mental illness, under the Mental Health (Compulsory Assessment and Treatment) Act, 1992, (the MH (CAT) Act.

Both Acts came into force on 1 September 2004. The IDCC&R Act allows the court to make a compulsory care order for up to three years, which can be renewed by the Family Court if the care recipient’s behaviour still poses significant risk, and will direct whether the care recipient requires secure or supervised levels of care.

The Act also allows for the transfer of people from prison or mental health services where they meet the criteria for intellectual disability under the Act.

The framework for administering the Act has been adapted from the MH (CAT) Act.

Disability Support Services, part of the National Health Board, funds a number of services to support the administration of the Act and provides services for people under compulsory care orders, and people with an intellectual disability who require intensive services (the 'civil population').

Regional Intellectual Disability Care Agency (RIDCA)

A RIDCA is a specialist service for people with an intellectual disability who:

are defined under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 as a proposed care recipient, a care recipient, or a special care recipient, or have an intellectual disability and whose behaviour may pose serious risk of physical harm to themselves or others and for whom at least one of the following conditions applies: they are unable to get mainstream community services, they have symptoms of a psychiatric disorder, or substance use disorder or they have previously broken the law but are not currently subject to the criminal justice system.

Referrals to RIDCA can be made from NASC organisations.

• RIDCA service specification

Regional Intellectual Disability Supported Accommodation Service (RIDSAS)

A RIDSAS provides community assessment beds, residential and day activities. These services are regionally based in the five main centres Auckland, Hamilton, Wellington, Christchurch and Dunedin.

Referrals to these services are made by RIDCA.

• RIDSAS service specification

National and Regional Intellectual Disability Secure Services (NIDSS/RIDSS)

RIDSS provide hospital level secure services and assessment beds. These services are supported by multi disciplinary teams specialising in intellectual disability. NIDSS offer forensic level hospital secure services and operate in Auckland and Wellington.

Referrals to these units are made by RIDCA and RIDSS.

• RIDSS service specification

As well as these services:

• A 10 bed hospital based secure facility and two 4 bed medium secure cottages have been established in Wellington and a further 10 bed secure facility has been established in Auckland. Additional hospital based beds are purchased from the Waikato, Canterbury and Otago District Health Boards.
• Specialist Assessors (psychologists and psychiatrists) have been appointed to provide assessments and reviews to the courts, and District Inspectors (lawyers) appointed to provide independent monitoring of the Act, and to uphold the rights of compulsory care recipients.
• An annual budget of $83 million has been allocated in 2009/10 for IDCC&R services and to support "civil" clients who are not under court orders but who require intensive services. Actual expenditure will depend on client volumes.

Experience to date

• Volumes are higher than estimated, but there was no historical information available to inform predictions.
• Approximately 150 people across NZ are currently under an IDCC&R Act order or subject to an order under the MHCAT Act (but have an intellectual disability and are receiving IDCC&R Act services), and a further 140 people are currently in the 'civil population'. A number of people have been sucessfully rehabilitated and are now receiving high and complex or mainstrean disability services. A small group who have behaviours considered to pose continuing risk to themselves or others have had their orders renewed by the Family Court.
• The CPMIP Act which permits courts to divert offenders with an intellectual disability to the IDCC&R regime is complex legislation and the Judiciary, Police, Lawyers and Health Assessors sometimes have difficulty in interpreting the Act or understanding the procedures required.
• The Department of Corrections has identified a number of people who they believe may have an intellectual disability who may qualify for transfer under the Act, or who have been released and would require assessment if they reoffend. In many cases people are not eligible because their intellectual functioning falls outside the definition contained in the IDCC&R Act, or they have an acquired brain injury, or personality disorder.
• Community RIDSAS providers, whose main focus has been on community support and independence, face challenges when contracted to provide forensic services requiring compulsion and restraint.The
• Resource Management Act, Occupational Safety and Health legislation, public sector unions, workforce development gaps, and a lack of clinical expertise within community services represent current challenges (most of which are replicated in other western jurisdictions)

The future

The development of the U.N Convention on the Rights of Disabled People means that jurisdictions, which rely on mental health or criminal justice legislation may well face legal challenges by people with an intellectual disability of discrimination or breaches of rights. There are several cases under appeal which will form the basis of case law on matters such as what is the appropriate clinical and legal test to guide decisions in the Family Court to renew an order.

Guidelines

• Guidelines for the Role and Function of Care Managers
• Guidelines for the Role and Function of Specialist Assessors
• A Guide to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
• Guidelines for the Role and Function of Compulsory Care Co-ordinators
• Guidelines for Cultural Assessment - Māori

Other publications

• You Have Rights – A Ministry of Health publication that assists in explaining compulsory care

Summary of the Act

The IDCCR Act and its companion Act the CP (MIP) Act, will allow the courts to make a compulsory care order for people with an intellectual disability who are charged with, or convicted of an imprisonable offence. A compulsory care order can be made for up to 3 years duration, and may be extended by the Family Court if it considers that a care recipient’s behaviour continues to pose serious danger.

There are three ways people can become subject to the Act:

1. an order made in the course of criminal proceedings;
2. by transfer from prison;
3. by transfer from the Mental Health (CAT) Act for special patients; or former special patients.

The Act provides for two different levels of care:

1. Secure Care (hospital level or community based) or
2. Supervised Care.

The Act contains statutory powers to require care recipients to comply with their care order and to seclude, restrain and medicate under certain limited and defined circumstances. These are balanced by specific safeguards and rights.The Act establishes four new statutory roles:

1. Care Co-ordinators (who are responsible for the operational administration of the Act;
2. Care Managers (who are responsible for oversight of the care and rehabilitation plan);
3. Specialist Assessors (who are responsible for assessments to determine eligibility and care and rehabilitation needs); and
4. Medical Consultants (who provide a second opinion on medication required to manage a care recipient’s condition).

The Act also provides for the designation of District Inspectors (lawyers appointed under the MH (CAT) Act) to safeguard the rights of people subject to an order