Photo: RNZ / Cole Eastham-Farrelly
The mother of an autistic and intellectually disabled man who has spent half his life locked away will argue in the Supreme Court that her son is arbitrarily detained and his human rights breached.
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 his detention was justified because multiple experts said he posed a very high risk to the public if released.
Human rights lawyers Tony Ellis and Graeme Edgler will represent the man's mother in court and claim his detention is arbitrary and his human rights have been breached under the the Bill of Rights Act.
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The appeal will also centre on whether the courts have struck the right balance between protecting the community and protecting a disabled person's rights.
The Human Rights Commission and the IHC have both been granted leave to make submissions to the Supreme Court as interveners to discuss the wider human rights and disability issues arising from the Act.
Jay was first detained in 2004 after he broke four of his neighbour's windows with an axe and was charged with wilful damage.
Mother of autistic man argues son is arbitrarily detained
The charge carries a maximum penalty of three months in prison or a $2000 fine, but due to his intellectual disabilities and 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.
His mother visited him every week but had never seen his bedroom or living areas as she was only allowed in a visiting room.
The woman, who cannot be named for legal reasons, told RNZ she felt her son was being unfairly punished because he was autistic.
"We would like to see [Jay] being released from the IDCCR Act and him being placed in a service that understands his needs."
She had been unable to be involved in her son's care since he was placed in secure care at the Mason Clinic four years ago, she said.
Care orders can be extended indefinitely
Between 100 to 120 people were estimated to be subject to compulsory care orders under the IDCCR Act at any given time.
A compulsory care order, which must be approved by the Family Court, was usually set for an initial period of up to three years and can be extended.
There was no limit to how many times an order could be extended: Jay's had been extended 11 times over the last 18 years, and his current extension runs until April 2026.
Expert health assessments had deemed Jay as posing a "high, or very high risk of committing acts of violence" if he was released into the community.
Since being in care, he had reportedly tried to steal and hide weapons, had made specific threats of harm to certain staff, and reportedly assaulted staff and damaged property at the facility.
However, his advocates said he was not receiving proper rehabilitative care and was not always looked after by staff with the right specialist training.
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, both of which had increased despite earlier promises to phase their use out.