Detained autistic man’s case can go to Supreme Court

The mother of an autistic and intellectually disabled man who has spent half his life locked away has been granted leave to take her son’s case to the Supreme Court.

The man, Jay*, whose real name is suppressed, has been detained under the Intellectual Disability Compulsory Care and Rehabilitation Act for 18 years because he is considered too dangerous to release.

The Court of Appeal last year called the man’s offending minor but ruled that his detention was justified because multiple experts say he poses a very high risk to the public if released.

In a judgment published yesterday, the Supreme Court said leave to appeal that decision was granted.

Jay’s mother’s lawyer, human rights lawyer Tony Ellis, would need to address whether there had been breaches of Jay’s rights under the Bill of Rights Act, and what the consequences of those breaches had been, the court said.

Ellis, who has been fighting for eight years to get Jay’s compulsory care order overturned, has already argued that Jay’s detention is arbitrary and breaches human rights.

Jay was first detained in 2004 after he broke four of his neighbour’s windows with an axe and was charged with willful damage. Due to his intellectual disabilities and his autism, he was found unfit to stand trial. Instead, he was made a “care recipient” under the act in 2006, and ordered to live in a secure care facility.

Experts have repeatedly assessed him as being too dangerous to release, and Jay has been held in care ever since, including the past four years spent entirely in seclusion at the Mason Clinic in Auckland.

Ellis told RNZ the granting of leave would provide an opportunity to argue “whether the law has moved on”, and would be welcomed in the disability sector.

Between 100 to 120 people are estimated to be subject to compulsory care orders under the act at any given time.

A compulsory care order, which must be approved by the Family Court, is usually set for an initial period of up to three years, and can be extended.

There is no limit to how many times an order could be extended. Jay’s has been extended 11 times over the last 18 years, and his current extension runs until April 2026.

A 2021 Ombudsman inspection of the Mason Clinic found it was not always suitable for people with autism. The report also criticised the unit’s continued use of restraints and seclusion.