30 Oct 2017

Intellectually disabled men lose court case

6:31 pm on 30 October 2017

Three intellectually disabled men who claimed they had been mistreated while held in health board care have lost their High Court bids for compensation.

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Photo: 123RF

They were suing a number of entities, including the Waitemata and Capital and Coast health boards, the Attorney-General and the Mental Health Review Tribunal.

One of them had been detained since 1999, another since 2002 and the third was held between 2001 and 2014.

During that time they were held and treated in medium secure forensic hospital units, rather than being dealt with by the criminal justice system.

They each sought a lump sum of up to $300,000, plus an additional $25,000 for every year they had been detained.

Their lawyer Tony Ellis told the High Court the men had been put on a shelf and forgotten about.

He also claimed they had been subject to unnecessary restraints, unnecessary medication and unreasonable solitary confinement.

There was also a suggestion they had been exposed to medical experimentation.

However the Crown said the men had been treated with the 'utmost respect and dignity', there had been no medical malpractice and psychiatrists often consulted with them.

In a decision released today the High Court has ruled there was no evidence that restraint and seclusion were used in circumstances other than where the men presented an immediate risk of harm to themselves or other patients or staff.

It said "there was no evidence to suggest that such measures were used unlawfully or in a demeaning or degrading way".

The Court also noted that both Waitemata and Capital and Coast health boards were committed to minimising the use of restraint and seclusion in future.

"And in fact, as staff had come, over time, to better understand the [men's] disabilities and how best to prevent and respond to their challenging behaviour, restraint and seclusion had become less and less necessary."

The court said each of the men was ordered to be held as a special patient or under the mental health compulsory treatment regime, after being found unfit to plead in respect of moderately serious violent offending.

She ruled that legally, clinical reviews of the men had to be conducted every six months and the outcome of those reviews could be legally challenged.

The Court accepted sexual assault allegations by one of the men; but it held that over 15 years later there was insufficient evidence to fairly determine whether that meant the health board concerned had breached the protective duty it owed to him.

Justice Ellis also ruled the regime under which the men were held did not discriminate against them on the grounds of their intellectual disability.

She said their detention was not based on a criminal conviction and was not a punishment.

"The basis for it was the risk [they] posed to themselves and others. For those reasons, it was not apt to compare them with 'ordinary prisoners'."

"And even if such a comparison was appropriate, the operation of the relevant legislation resulted in them receiving better treatment than prisoners, not worse."

Because of the men's disabilities, special arrangements were made for them to receive the Court's judgment, including the provision of clinical support.

Justice Ellis also wrote to each of the men in simple terms, about the case.

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