“Just because they have an intellectual disability...”

1. “Just because they have an intellectual disability...” A guide to the ID(CC&R) Act 2003 for offenders with an intellectual disability. Gary Wyatt Compulsory Care Coordinator NIDCA Reintegration Puzzle Conference 2013

2. We all have them – acronyms!!!! ID(CC&R) • Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 CPMIP • Criminal Procedure (Mentally Impaired Persons) Act 2003 NIDCA • National Intellectual Disability Care Agency RIDSAS • Regional Intellectual Disability Supported Accommodation Service RIDSS • Regional Intellectual Disability Secure Service Reintegration Puzzle Conference 2013

3. We all have them – acronyms!!!! Care Recipient • Care Recipient is a person under a Compulsory Care Order (Can be Special, Secure or Supervised) Civil Client • A person residing in RID’s services on a voluntary basis or through any type of legal mandate (MH, PPPR) NASC • Needs Assessment and Service Coordination agencies ID Eligibility • A required that the person has an intellectual disability to receive services from NIDCA Section 29 • The formal process used by Corrections to refer a prisoner to NIDCA Reintegration Puzzle Conference 2013

4. NIDCA regions • Whangarei and Auckland (Northern) • Cambridge (Midlands) • Wellington (Central and National Office) • Christchurch and Dunedin (Southern) Reintegration Puzzle Conference 2013

5. Service Framework • The Ministry of Health developed a new service framework for care recipients (under the ID(CC&R) Act), and to support the “civil clients”. • This comprises of: • National Intellectual Disability Care Agencies (which employ the Care Co-ordinators) • Regional/National Intellectual Disability Secure Services • Regional Intellectual Disability Supported Accommodation Services (which employ the Care Managers) • Sexual Offender Treatment Programmes (SAFE, SOTP) • Consult Liaison Teams Reintegration Puzzle Conference 2013

6. Client Numbers Reintegration Puzzle Conference 2013

7. The numbers in perspective ID Offender Population = 0.84% (356) Intellectual Disability (ID) Population = 1% (42,600) NZ Population = 4.26m Reintegration Puzzle Conference 2013

8. Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 • What is it? • When did it come into effect? • Why? • Who does it cover? Reintegration Puzzle Conference 2013

9. A brief history of the ID(CC&R) Act 2003 • Historically people with an intellectual disability who offended were managed under the mental health system until the Mental Health (Compulsory Assessment and Treatment) Act, 1992 created an unintended legal gap, which resulted in people being subject to criminal justice dispositions (or not being charged for criminal offences). • The enactment of the Criminal Procedure (Mentally Impaired Persons) Act, 2003, and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (ID(CC&R) Act), closed the legal gap. Reintegration Puzzle Conference 2013

10. A brief history of the ID(CC&R) Act 2003 • During the policy development phase for the new legislation, a number of contentious issues emerged: • Whether to include a civil commitment component for people who had not offended (or been charged) but whose behaviour was regarded as posing a significant danger to others, or themselves [legal provision was ultimately rejected by parliament, but money was allocated to enhance intensive services] • Whether to also include people with personality disorder, ASD, or brain injury [decided to restrict the Act to Intellectual Disability] Reintegration Puzzle Conference 2013

11. A brief history of the ID(CC&R) Act 2003 This issue has re-emerged with the with the latest UN Convention Independent monitoring report. Recommendation 15: • Rec 15 - That the Ministry of Justice and the Ministry of Health review arrangements for the provision of appropriate detention facilities, where needed, for people with an intellectual/learning disability who have not committed a criminal offence. Reintegration Puzzle Conference 2013

12. A brief history of the ID(CC&R) Act 2003 • And whether or not to include children and young persons (under 17 years), or rely on the care and protection or youth justice provisions in the Children, Young Persons and their Families Act 1989. [decided to only include children or young persons charged with very serious offences, such as murder/manslaughter, and whose cases would be heard in the District or High Court] • However more and more Youth are being referred by Criminal Courts for assessments and placement under the ID(CC&R) Act Reintegration Puzzle Conference 2013

13. Case Example “T” • Referred to NIDCA for a section 29 transfer • Placed into a secure facility. • Once parolled, remained within services at his own choice for 6 years, under no compulsion. • Took on a “client representative” role within organisation to speak on behalf of clients. • Recently offended after he had chosen to exit NIDCA services in late 2012. Reintegration Puzzle Conference 2013

14. Intellectual Disability Is a Permanent impairment that… • Results in significantly sub-average intelligence (FSIQ 70 or below [indicative]); and • Results in significant deficits in at least two areas of adaptive functioning; and • Became apparent during developmental period <18yrs • Defined in the act (Section 7 ID[CC&R]) Reintegration Puzzle Conference 2013

15. Referrals to NIDCA • Referrals by appropriate agencies or pathways to the ID(CC&R) Act 2003 • CPMIP Act dispositions through Criminal Court (94% of referrals) • MH Transfers for Former Special Patients (1%) • Section 29 ID(CC&R) Act referrals from Dept of Corrections (5%) • Referrals from NASC agencies for the person to be a civil client with NIDCA. Reintegration Puzzle Conference 2013

16. ID(CC&R) Act 2003 The Act establishes statutory roles: • Compulsory Care Co-ordinators (are responsible for the operational administration of the Act); • Specialist Assessors (are responsible for assessments to determine eligibility, risk and rehabilitation needs); • District Inspectors (lawyers appointed under the MH (CAT) Act)1992 to safeguard the rights of people subject to an order) Reintegration Puzzle Conference 2013

17. ID(CC&R) Act 2003 • Roles are statutory appointed by Director General of Health • Care Coordinator role • Specialist Assessor (Health Assessor) • Determination or Confirmation of ID • Determine the Need for Compulsory Care • Determine the Level of risk and therefore care required • Consults with Caregivers, Family/Whanau, Welfare Guardians • Initial assessments and ongoing six monthly reviews • Submit written report to Compulsory Care Coordinator Reintegration Puzzle Conference 2013

18. Case Example “C” • Referred to NIDCA for a section 29 transfer • As at end of sentence, as well as other factors, deemed not an appropriate referral. • Due to having no family support and a low FSIQ, determined that he should be accepted as a civil client. • Has ESO in place • Doing very well living in services. Has part time work, shares house with 1 other person. • Minimized risk of re-offending Reintegration Puzzle Conference 2013

19. Rehabilitation defined With the inclusion of the word rehabilitation in the title it was expected that a clear definition would be provided: • “Rehabilitation, I notice, is not defined either in the bill itself or in the Supplementary Order Paper. I would have thought that with its inclusion in the title it should, perhaps, have been defined. That would have made a good deal of sense. It should have been defined so that we know exactly what it is. (Heather Roy, Act Party,2003).” Reintegration Puzzle Conference 2013

20. Rehabilitation defined... Following a recent court of appeal case, rehabilitation is taken to mean, “Improvement of the character, skills and behaviour of an offender through training, counselling, education etc. in order to aid reintegration into society. (VM vs Central RIDCA)” Reintegration Puzzle Conference 2013

21. Rehabilitation defined... Recent research conducted indicates the need for greater clarity around the implementation of rehabilitation. Particular points are: • Care managers experience a tension between managing risk and providing good rehabilitative outcomes (Kate Prebble, 2009) • Rehabilitation needs to be more clearly articulated and understood in the context of care and rehabilitation plans – to provide good outcomes (Liz O’Callaghan, 2012) • Human rights and dignity need to feature at the centre of the rehabilitative process ( Amanda Smith, 2013) Reintegration Puzzle Conference 2013

22. Risk versus rehabilitation • Risk management is a necessary part of a framework that is about managing criminal offenders. • The need for containment needs to be balanced with appropriate freedoms to facilitate rehabilitation. • Recognition of both the need for clarity regarding rehabilitation and the need for appropriate risk management has led to the roll out of the RNR Risk assessment tool for Specialist Assessors. • Soon we will be commencing an review of our model of care. • We want to make sure we are implementing effective rehabilitation that provide the best life for care recipients following release. Reintegration Puzzle Conference 2013

23. Rehabilitation... “it doesn’t sit comfortably with me that we might have people, you know have this as a very serious consequence or outcome to offending and say that we’re providing care and rehabilitation when actually all we’re doing is providing containment and we’re not actually addressing because for some of those people they’d be better off going to prison and getting out after two years and carrying on with their lives because you know the reality is that they get trapped in a cycle where they have very little power to change...(professional,2010)” Reintegration Puzzle Conference 2013

24. How effective is criminogenic rehabilitation in mainstream corrections? • Some programmes decrease recidivism. • Some increase recidivism. • Many prisoners do not want anything to do with them. • And they still get out at the end of the sentence. • Should the rules be different if you have an ID? Reintegration Puzzle Conference 2013

25. Care Recipients The ID(CC&R) Act creates two categories of care recipients: • Special care recipients who must always receive care and rehabilitation in a secure facility, and • Care recipients who can, depending on their individual circumstances, either receive care and rehabilitation in a secure facility, or a supervised setting. The ID(CC&R) requires the Family Court to review the appropriateness of care and rehabilitation plans. Reintegration Puzzle Conference 2013

26. ID(CC&R) Act 2003 This Act provides for two different levels of “care” • Secure Care (Hospital or Community) • Supervised Care Levels of care provision are guided by the care and rehabilitation plan, Needs Assessment and Specialist Assessors report (inc risk assessment) • Length of Orders Reintegration Puzzle Conference 2013

27. Referrals from Corrections • The Department of Corrections can make applications for prisoners, who they believe may have an intellectual disability, to be transferred to the ID(CC&R) Act • This is a legislated pathway under section 29 of the Act. • It has very strict timeframes and procedures • Requires a good level of communication from all parties Reintegration Puzzle Conference 2013

28. Referrals from Corrections • Notification to NIDCA of intend to refer. • Pre-assessment • A Health Assessor appointed by NIDCA must assess whether the person meets the criteria for section 7 of the ID(CC&R) Act. Reintegration Puzzle Conference 2013

29. Referrals from Corrections • Most referrals are often triggered by a psychologist, medical team member, PCO or by a recommendation from the Parole Board. • The first stop should always be a call to your local NIDCA to discuss the process and possible options. Reintegration Puzzle Conference 2013

30. Referrals from Corrections • The pre-referral assessment helps deal with the 7 day assessment timeframe. • If ID eligibility has been established. • If ID is not established or the referral is not appropriate. Reintegration Puzzle Conference 2013

31. Referrals from Corrections • To assist with the various assessments during the section 29 applications, the Care Coordinator can apply to have the prisoner transferred to a hospital secure facility for the assessments to take place. Reintegration Puzzle Conference 2013

32. Needs Assessment All persons coming into NIDCA require a Needs Assessment to be developed. This assessment should include input from; • Care recipient • Welfare guardian • Parents/guardian – if care recipient is a young person • Principal care giver • Family/whanau • Partner or significant other person • Support person • Lawyer • Advocate • Anyone else that the person wishes to be involved in the assessment Reintegration Puzzle Conference 2013

33. Referrals from Corrections • Decisions under section 39 of the act. • Applications to the Family Court • If the Care Coordinator decides that an application under the ID(CC&R) Act for a compulsory care order is appropriate, the prisoner may be detained in the same hospital facility until the outcome of the application is heard by the Family Court Reintegration Puzzle Conference 2013

34. Referrals from Corrections • Due to the primary focus of the act being “rehabilitation”, a referral for rehabilitation under the act should occur at opportune times for the prisoner • Too early in a sentence = means the person may have to return to prison if not paroled at the end of the rehab programme • Too late into a sentence = presents with concerns about continued detainment and lack of time to do rehab programme. Also sees prisoners not wanting to do the programme as they could be released sooner if they stay in prison. Reintegration Puzzle Conference 2013

35. Referrals from Corrections • Section 29 transfers to ID(CC&R) should not be seen as a way on continued detention if the person is at the end of their sentence. • A proactive approach should occur around section 29 transfers so that the rehabilitative focus of the act can be utilised to assist the prisoner when seeking parole. Reintegration Puzzle Conference 2013

36. Referrals from Corrections • Over the years we have had inappropriate referrals under section 29 when ongoing detainment is sought at the end of a sentence. • Just because the person has an ID, does not mean that ID(CC&R) should be used to further detain the person. • Transfer should occur when the person still has a period of sentence remaining as an alternative option to prison and the ability to have offending behaviours addressed by programmes specifically designed for people with an ID Reintegration Puzzle Conference 2013

37. Options under NIDCA and ID(CC&R) • Access to Sexual Offender treatment programmes for people with ID • Vocational supports • Residential Care • Counselling (Relationship, Anger Management, Drug and Alcohol) • Supported Employment • Referrals to mainstream disability support services Reintegration Puzzle Conference 2013

38. Case Example “K” • Referred to NIDCA for a section 29 transfer • Once order had been made under ID(CC&R), he believed that his sentence had ceased, despite assurances it was still active. • Assaulted staff at secure facility, took on “top dog” role, failed to do programmes, assisted in an escape. • ID(CC&R) order was cancelled and he returned to prison to serve remainder of sentence. Reintegration Puzzle Conference 2013

39. References and links • Te Korowai Whariki www.tekorowaiwhariki.org.nz and click on “Intellectual Disability Services” • Local NIDCA Office • Guidelines ID(CC&R) www.moh.govt.nz/ID(CC&R) • Statutes www.legislation.govt.nz • Acknowledgments: • Amanda Smith, Lester Mundell, Anthony Duncan, Rachel Daysh Reintegration Puzzle Conference 2013