The crime of being intellectually disabled

In 2016, the case of an autistic and intellectually disabled man kept in an institution for nearly 20 years horrified the country. 
Ashley Peacock was detained as a compulsory patient under the Mental Health Act. 
Deemed to be ‘high risk’, his parents spent years battling to have him released. 
Eventually he was freed from the cell-like room he was kept in for at least 23 hours a day, and now he’s living in his own house by a river on the Kapiti Coast. 
It turns out that Ashley’s case was not an isolated one.
Last week, the Supreme Court reserved its decision on the fate of a man known as ‘Jay’, whose mother says is being arbitrarily detained, and his human rights breached. 
Jay’s situation has spooky similarities to Peacock’s; with issues including the weighing up between the risk to the public and the human rights of the intellectually disabled; and the law that allows us to detain someone who’s been charged with no crime, indefinitely. 
RNZ investigative journalist Anusha Bradley has been covering Jay’s case. 
She tells The Detail that when she got a call tipping her off about the case she really couldn’t believe it.
“I thought ‘What?’ This guy’s been locked up for 20 years … and the first thing I thought of was, that’s what happened to Ashley Peacock, and I thought he was the last one. How is that still possible?” 
She tracked down Jay’s mother (J is just his initial, his name is suppressed) whose lawyer Tony Ellis has for the past eight years been asking courts to overturn an order to detain him under the Intellectual Disability Compulsory Care and Rehabilitation Act. 
There are about 100 people held under this Act at any one time, roughly 30 of them in secure hospital level care. About 10 percent of people held under the Act have been held for longer than 10 years. Jay is one of those. 
“But because it’s such a small population, it’s hard to get the actual figures because of privacy issues,” Bradley says. “So yes, there are people who this is their everyday experience.”
In the podcast she talks about how Jay got into this situation, and the factors keeping him there.
But this case “poses so many questions”, she says. 
“About how we treat disabled people; what value we place on their liberty. Cases like this are quite scary for the disability sector. I’ve spoken to advocates who are really worried about families with severely disabled or autistic children who might have quite severe behavioural issues. They’re worried about what might happen to them as they get older, if they come into contact with the law.”
IHC was at the Supreme Court hearing, and said there was a fear that in future the lawyers of these people would try to persuade the court their clients were not intellectually disabled, so they went to prison – with a finite term – rather than being detained under the Act. 
“Going to prison could be the worst thing for them but at least there would be an end date in sight.” 
Dane Dougan, who is the chief executive of Autism New Zealand, has been keeping track of this case but isn’t involved in it. But he has advocated for autistic people in similar circumstances to Jay. 
He tells The Detail New Zealand hasn’t got the balance right between protecting the community, versus the disabled person’s rights. 
“The balance must be struck. But it seems like the disabled person is too often sacrificed, and sometimes that’s due to a lack of understanding; fear; or sometimes a lack of resources. 
“Also sometimes an unwillingness to see the world from their perspective.” 
Dougan says the system is just not designed for the autistic community, which makes it really difficult to get the right outcome for them. 
If the Supreme Court rules against Jay’s release, Tony Ellis plans to take the case to the United Nations. Bradley says the UN has been telling New Zealand governments for years that the law under which Jay is held is not up to human rights standards and needs to be changed. 
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