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Paul Harvey v J [2020] NZFC 5981

Published 19 September 2022

Application to extend order — compulsory care order — Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 3, 7, 11, 79, 85 & 104 — Protection of Personal and Property Rights Act 1988 — Mental Health (Compulsory Assessment and Treatment) Act 1992 — J v Attorney-General [2018] NZHC 1209 — RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641 — R v Peta CA 48/06, 28 February 2007. This was an application for an extension of the compulsory care order (CCO) of the subject person for three years — the longest period available. The subject person's mother, who was also his welfare guardian, opposed the application. The subject person had a long history of CCOs, one of which had been appealed to the High Court and was currently before the Court of Appeal along with a subsequent CCO. The outcome of the current application would also be subject to the same appeal. In deciding whether to grant an extension for a CCO, consideration had to be given to eligibility; community protection (risk assessment); the subject person's liberty interest; and the balance between community protection and liberty interest, having regard to the purposes and principles under ss 3 and 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act. Pursuant to s 7, a court must be satisfied on the balance of probabilities that the subject person has an intellectual disability. The High Court on appeal was satisfied that the subject person had an intellectual disability based on the evidence. In determining the subject person's risk, it was noted that he had been moved from one care facility to a second, as the first had been unable to provide him the care he required. He had absconded multiple times from the facility. Specialist reports concluded there had not been an improvement in the subject person's behaviour since moving. He was assessed as being a high risk of reoffending if released. The High Court had concluded in the balancing exercise that the community protection factor outweighed the subject person's liberty. The Judge in this application agreed that given the evidence of the subject person's regression, a further CCO was appropriate in the circumstances. The Judge made an extension order for a three year period. Judgment Date: 29 September 2020. * * * Note: names have been changed to comply with legal requirements. * * *