|
National Secure Units (Regional Intellectual Disability Secure Services) In New Zealand: An SRV Perspective
by Colin Burgering
Introduction
My work involves advocating for people with intellectual disability when they come into contact with the criminal legal system usually as offenders, sometimes as complainants. I also work in civil court, with regard to guardianship. My advocacy also includes trying to get better support services for people with intellectual disability. The people I support are often seen, not in terms of their humanity, but in terms of the difficulty they pose to systems. SRV helps provide me with a highly relevant tool to critique service systems and understand societal attitudes. It also gives me a tool to evaluate my own actions and thoughts.
It has not been so long ago that we in New Zealand passed human rights legislation. Compulsory care legislation for people with intellectual disability will negate those rights. The new legislation will allow for the detention (perhaps indefinitely) of people with intellectual disability who commit crimes. Other legislation to follow will allow for the secure care (detention) of people with intellectual disability who are deemed 'dangerous' to self, others or property but who have not committed crimes.
I will briefly review the events and attitudes that have led to the reintroduction of institutional care for people with intellectual disability and outline the history of the treatment of people with intellectual disability in NZ. The paper will sketch events relating to the introduction of the legislation, The Intellectual Disability (Compulsory Care) Bill, which will legitimate the creation and powers of secure units.
Te Huia
Te Huia is the product of the attitudes of New Zealand Society as reflected by the press and the personal views and actions of those involved in providing services for people with intellectual disability. Such attitudes have ensured an environment in which 'compulsory care' (read detention) legislation can be enacted.
Te Huia National Secure Unit for people with intellectual disability has been created in line with compulsory care legislation. However, because the compulsory care legislation has yet to be passed the 1992 mental health legislation is used even though it had 'intellectual disability' deleted as grounds for being found 'mentally disordered'. Te Huia is a ten-bed unit with a staff-to-patient ratio of one-to-one. Some of the staff learned their skills in institutions in New Zealand that are now closed or are psychiatric nurses come from overseas. Those who have to live there are not allowed out alone or with visitors but must have staff accompaniment.
The patients have been drawn from around New Zealand and some are as much as six hundred kilometres from family. A total of four 'travel and accommodation' expenses paid visits are provided per year for family and other significant people. Though there are some programmes in place, one man I know goes to lessons twice a week, it appears that much of the time is spent watching television, and going for rides in the car or going for walks. There is a games room and people can sit outside the building but within a totally enclosed and stylish wire fence. Staff are always with them, except when they go to their own bedroom.
The bedroom appears to be where they can have privacy when they wish to, although one man I visit regularly and who prefers his own company much of the time is sometimes given the option of using an interview room, where he plays his music. The first time I intended to visit him I rang to get directions and was told by a staff nurse, "Just look for the hideous building, it's painted blue and purple."
Porirua Mental Hospital, where Te Huia is sited, used to be a large institution, mainly with small separated wards, sometimes known as villas, which is what Te Huia once was. Porirua Mental Hospital is run-down except for the new Forensic area, which is about two hundred metres further along the same road on which Te Huia is situated. There are numerous buildings in the park-like environment that look like they are no longer in use.
Even before the compulsory care legislation is passed it's effect in regard to intellectually disabled people has been immense. Those now in Te Huia have had their status further devalued from an already diminished place. Rejection by society has officially occurred through the criminal courts and they have been given further devalued roles. They have been removed from their friends and families. Physical contact is difficult due to distance. Another form of rejection, that of being juxtaposed to images that convey negative messages (Wolfensberger & Thomas, 1983), has occurred in relation to the siting of Te Huia. As already identified it is situated in the grounds of a mental hospital near to a cemetery and in a locale that is often described as a low social economic area.
History of attitudes towards people with Intellectual Disability in New Zealand
New Zealanders consider themselves progressive. There is however no evidence to suggest that New Zealand is progressive in the area of intellectual disability. Indeed the opposite may be implied by the reintroduction of institutionalised 'secure care' at Te Huia, and the foreshadowing of greater levels of incarceration with the passage of compulsory care legislation.
With Normalization and Deinstitutionalisation, imported from elsewhere, that wave of change came quite late to our shores and like all waves has receded. Social Role Valorization theory came in with them but in practice is neither generally understood nor practised. The compulsory care legislation, discussed later, does not mention SRV. I cannot recall noting any reference to SRV in any papers provided by the Ministry of Health during research I undertook there. Normalization, is mentioned quite frequently, however it tends to mean whatever the speaker wants it to mean at the time of speaking and is often viewed in non-specific terms with people assuming that they know what it means. Deinstitutionalisation has not closed the last institution, there are still some hundreds of people at one, by New Zealand standards, large institution and Te Huia is the first of a new group of small institutions.
In New Zealand, as in many parts of the western world in the late 1900's Social Darwinism inspired society's to treat people with intellectual disability, along with other socially devalued groups, in ways that SRV explains very well. New Zealand society was as zealous in this respect as any other state. Those who proposed the policies generally termed eugenics included ministers of the crown, highly ranked medical professionals, and civic leaders (Fleming, 1981).
This particular period of events seem to come to a close after 1928 when the Mental Defectives Amendment Bill, aimed at identifying people with intellectual disability as social defectives failed to become law and other more important events, such as the Great Depression, needed the urgent attention of government.
History of Compulsory Care Legislation for people with Intellectual Disability
In 1992 the 1969 Mental Health Act was replaced by the Mental Health (Compulsory Assessment and Treatment) Act. A significant change related to people with intellectual disability. Previously such people who were perceived to have acted either criminally or dangerously would have been found 'mentally disordered' on the grounds of intellectual disability alone, and put into secure institutional service. The new legislation removed those grounds so that being intellectually disabled alone no longer provided grounds for being 'mentally disordered'. The result was that when the legislated 6 monthly mental health reviews occurred people with intellectual disability solely were released, because they no longer fitted the criteria. Whether through oversight or planning, supports necessary to maintain them within a community setting were often not provided.
In 1993 a number were released, committed crimes or acted in ways that brought them to the attention of the police and news media. The result was something of a panic in government. In 1994 the government attempted to get an amendment to the 1992 act which would have simply reinstate intellectual disability as grounds for being found 'mentally disordered'. The attempt failed because service providers for the intellectually disabled among others opposed the idea of combining the mentally ill with the intellectually disabled.
Since 1994 successive governments have continued with preparations for what at this moment is called The Intellectual Disability (Compulsory Care) Bill. The Bill purports to be rehabilitative in nature, however the New Zealand Law Commission Report 30 published in 1994 identified that the primary purpose would be to give judges a disposition option. The word Rehabilitation only began to be linked with the Bill circa 2000 and is still under discussion. Under this legislation people with intellectual disability who commit crimes may be compelled to accept secure 'care'. Originally the Bill also included people (known as the 'civil population') who did not commit crimes but were considered 'dangerous' to themselves, others or property. Due to the government disclosing to the press that children with an intellectual disability considered dangerous would also be part of the 'civil population' a public outcry occurred which forced the deletion of that part of the Bill. This was a problem since most of the people who were likely to receive secure care do not commit crimes (Burgering, 1999). However, the government has since found a channel to provide for the secure care of the 'civil population' deemed dangerous or requiring secure care. This will be through the expansion of what once had been considered progressive legislation, The Protection of Personal and Property Rights Act 1988. As compulsory care legislation was foreshadowed by the New Zealand Law Commission's Report 30, so the New Zealand Law Commission Report 80, titled 'Protections some Disadvantaged People may need', foreshadows a change to the Protection of Personal and Property Rights Act 1988 by inserting a section allowing people with intellectual disability to be coerced into accepting offered service provision.
Media reflection of public attitudes
Before the change in mental health law people with intellectual disability who were deemed dangerous or criminal had been locked away, out of sight, invisible and therefore not likely to restimulate prejudice or rehabilitate past segregational programmes. However with the sudden release of intellectually disabled people from mental hospitals in 1993 prejudice resurfaced and was reflected and perhaps even driven by the press. Newspapers and magazines generally published very negative articles regarding intellectually disabled people, and, when articles had a positive slant they tended to be about the saintly people who were trying to help the unfortunates. The press also acted in a manner that would blur the distinctions between the mentally ill, the personality disordered and the intellectually disabled.
The headlines and stories below describe in graphic terms many of the points made in SRV literature. One major negative role that occurs commonly is that of an object of dread or menace particularly in a way generalised as a threat to the whole of society. In some stories the are perceived as sexual menaces, and in others as childlike and menacing, while in others they are objects of pity.
Headlines that ran concurrently with the progress on Compulsory Care legislation
Many of the stories that reported on mentally ill people or the increasing levels of violence in a general sense often added inappropriate little snippets about people with intellectual disability.
"Violence flares around country," was one such story. Other stories carried banner headlines sure to stimulate controversy and a 'what are we going to do' response.
- "Attacks by patients ignored-(agency) staff",
- "Community care blamed for (agency) violence",
- "Spotlight on (agency) violence",
- "Nurse tells of rape, plot to kill",
- "Law for dangerous handicapped sought",
- "Exclusive: Dangerous patients- a new solution",
- "Handicapped man remanded in Jail",
- "Fund cuts put caregivers at risk, says stab victim",
- "All messed up and nowhere to go",
- "Does someone have to die first?"
"Childlike man must stay in jail". This story included many of the ingredients of the stereotypical intellectually disabled person. For example, "the imprisonment of an intellectually handicapped man may prompt cabinet ministers to consider establishing a special institution to handle such cases". A judge stated that "there was a deplorable absence of suitable custodial institutions for the care of intellectually and socially disabled offenders". The defendant was described as having the mental level of a five-year-old child. The report mentioned that a residential service had been offered but the Court had turned it down because "unconditional supervision could not be guaranteed and it had been acknowledged that there were risks to the community if (he) stayed there". The article reported that the Minister of Justice believed the time was right to look "at something that is not the same environment as the prison but is secure, has an element of punishment but is more fitting with such a situation". (What's the difference?) An unnamed psychologist was reported to have said that the man was quite happy to serve a prison sentence as the guards looked after him.
"'Draconian' laws planned by (?)", was about a "potentially dangerous mental patient... at large in the community". The story also identified the problems associated with the new mental health legislation where numbers of people who were considered "very, very serious offenders" had been released because of the changed legislation. The article went on to state that "Éthe Government planned to put all three groups on the same footing in the legislation now being drafted". The three groups referred to were the mentally ill, the intellectually disabled and those with personality disorders.
In a widely read magazine:
We used to call them sociopaths: now we say they have "personality disorders." Some are intellectually handicapped as well, their low intelligence putting them even further beyond help or conscience ... eight were intellectually handicapped and dangerous.
The Mental Health Foundation, in another article, warned against hasty law change with regard to people with intellectual disability who have challenging behaviour and constitute a "risk to society".
"Man's 'cruel punishment' puts care trust in dock". The man was in prison because the service agency would not take him back. The Chief Executive Officer of the trust was quoted as saying "there are wider issues of care and protection that clearly come into play. We have got to protect the public as much as care for the individuals".
A 1996 story in a local West Auckland community paper included the headline "Dangerous man free". A 21-year-old man was described as 'Dangerous', yet the charge related to the theft of a bar of chocolate. His history was then raised in court to identify that he was once dangerous and could be so again.
"Court to rule on care for psychiatric patient", the story of a man with intellectual disability who 'absconded' from his service accommodation. "Caregivers found him as he was about to board a school bus". There was no legal right to hold him, yet two caregivers dragged him off the bus thereby fanning heated debate in the small community eventuating in a public meeting that decided it wanted to get rid of people with intellectual disability from the neighbourhood.
Numerous newspaper reports in 1998 that argued against the continued deinstitutionalisation of the mentally ill and intellectually disabled. Some articles proposed reinstitutionalising those who had been brought into the community. In January 1998 an article written by ex Prime-Minister Mike Moore argued that the policy of deinstitutionalisation had been reversed in Britain and should also be reversed in New Zealand. The column insisted that "the experiment has failed". A senior health manager added, "the Government was fully aware of public pressure to reverse its policy".
1999 started with a call, through a newspaper article, for a service that catered for people with intellectual disability who committed crimes. A series of articles in January 1999 ran headlines of "Brothel therapy for sick", with a sub-heading "State-funded caregivers are arranging prostitutes for sexually aggressive men". In this story professionals argued that not to provide a sexual outlet for the men "in our professional opinion... will place the person and others at risk". "Sexual healing at what price?" The sub-heading read "Some intellectually disabled men with sexual problems are being taken to sex workers by caregivers". Both of these reports concerned men who had previously resided at a Hospital. In the second article a staff person stated that "many of these men had access to sex when they were in (the hospital)- either with other patients or with staff".
"Outcry over proposals for Kimberley care centre". A Wellington newspaper reported that:
intellectually disabled pyromaniacs and sexual deviants will be freed into the community... tragedies are going to happen... Then there's the people with bizarre, socially unacceptable behaviour- some who get pleasure defecating in their hands and then flicking it at people. Many residents had problems with violence, either to themselves or other people.
The above items are those I found or were passed on to me and are not the result of any methodical search for articles over this period. They do underscore the images of deviancy as outlined in SRV literature. Another point the articles present is that which indicates the views of government. These views are reinforced by Information provided during my research at the Ministry of Health.
Compulsory care legislation, purpose, rationale
Concern for the legal protection of psychopaedic hospitals was raised prior to the enactment of the 1992 Mental Health Act, by medical superintendents of those hospitals and they admitted that they were 'treating' intellectually disabled people without legal authority. The treatment referred to includes numerous types of restraint and the use of psychotropic drugs.
In other disclosures at this time hospitals admitted to holding patients in locked wards and in coercing them to take those medications. The essence of the discussions prior to the passage of the Mental Health Act 1992 was the need for power to control the actions of intellectually disabled people. It should therefore come as no surprise that there has been one successful class action by nearly 100 former patients at one (now closed) hospital resulting in compensation of six and a half million dollars. A second class action regarding ex patients at Porirua Mental Hospital is in the early stages.
Another concern raised in discussion prior to passing the 1992 mental health legislation maintained that the common responses to 'challenging behaviours' in hospital would be illegal under human rights legislation and therefore a new act would be needed to counteract the unlawfulness.
Judges raised similar concerns when dealing with people with intellectual disability when they came before the court. The use of the term 'danger to the community', being used frequently by judges and psychiatrists. One judge referred to 'the deplorable absence of any suitable custodial institutions for the care of intellectually handicapped and socially deviant offenders'.
There were some 'experts' who advised the government on how to deal with the perceived problem who were well aware of the inherent dangers involved in trying to discover a new solution. One legal expert advised against reshaping the current mental health legislation to fit people with intellectual disability into it, saying that would, 'simply take us back to the bad old days when IH people were warehoused in the back wards of psychiatric hospitals'.
Another legal expert, in response to a question at a conference on compulsory care legislation, maintained that it could be used as a 'social dustbin' , a way to remove the unwanted intellectually disabled from society. In a 1996 paper "Intellectual Disability and the Law" a psychologist argued that the change in mental health law and political debate had focussed attention on intellectually disabled offenders. She confirmed that some people with intellectual disability who had been held in mental health or psychopaedic hospitals who were released after the 1992 Mental Health Act was passed had offended against the public. She stated:
The response to these events within the media and by some politicians raised spectres of some of the worst, negative stereotyped views of people with intellectual disabilities... (and)... the assumed 'risk' of people with intellectual disability in community settings remained a political football, kept in play by several tragic events involving people with mental illness (not intellectual disability).
In a report the Director of Mental Health Services at one particular Hospital, discussed the dangerous intellectually handicapped. He stated, "The staff at ... are committed to continue to provide asylum and safety for these people, ensuring that a catastrophe does not occur and the risk of imprisonment with the attendant damage to severely disabled people is averted". Previously management and staff at the hospital had spoken in terms of the dangerousness of the people in their care to a newspaper.
Ministry of Health papers did also show that people with intellectual disability who offend had a history of not being adequately cared for by existing services and that the public at large did not differentiate between mentally ill people and intellectual disability and had an exaggerated fear of mentally ill offenders. Other MOH papers identified research, which asserted that 'challenging behaviours' were caused by restrictive and unstimulating service provision, now being provided at Te Huia.
Protection of Personal & Property Rights Act 1988
Discussion occurred during the latter part of 1995 between MOH and Ministry of Justice staff on the possibility of using the Protection of Personal & Property Rights Act to control people with intellectual disability who offended criminally, or were deemed to be 'dangerous.' In that discussion it was agreed that the Act was designed to promote and protect the rights of people who were not able to manage their own affairs and was not to be used to control their activities. It then stated "the intent of the PPPR Act could become confused...(and)... has the potential to further stigmatise individuals with disabilities, by drawing a relationship between their disability and offending behaviour". The recently proposed legislative amendment to the PPPR Act will have the effect of further stigmatizing people with intellectual disability.
Conclusions
The purpose of the compulsory care legislation, which has already resulted in the return of certain people with intellectual disability to institutional care, must be seen as an attempt to turn the clock back to where unwanted people can be removed from society. If legislation follows NZLC Report 80, 'Protections some Disadvantaged People may Need' as the Intellectual Disability (Compulsory Care) Bill followed NZLC Report 30 then the effect will be to empower courts to remove people with intellectual disability who have not committed an offence but who are considered to be in need of secure care from the community and to place them into secure institutions, perhaps indefinitely.
Though there has been the widespread use of politically correct language and production by government of the ' New Zealand Disability Strategy' which in it's introduction states, "we live in a disabling society. The NZ Disability Strategy presents a plan for changing this", the actions of recent governments will be to effect the opposite result to those wistful ideals with regard to people with intellectual disability, not only those who come within the scope of the new legislation but for all people with intellectual disability as they will attract further stigma just by being intellectually disabled.
The compulsory care legislation and the amendment to the Protection of Personal and Property Rights Act, when passed will define some people with intellectual disability as:
- Not fit to live in the wider community
- Criminal
- Sexually deviant
- Needing permanent supervision
- Not needing family contact
- Not worthy of citizenship
- Not fully human
It will distantiate them from:
- Family
- Friends
- Their local community
- Normal human contact
- Opportunities for learning
In the absence of any other relevant reasoning any society that permits this, whether passively or actively, must be deemed to hold prejudice against this group of people and
is frightened of them. The language used in official and newspaper reports describes them in terms of their dangerousness to society. However we are not talking about an international terrorist organisation or a widespread and violent gang we are talking about a small group of people with intellectual disability.
There is no element of Social Role Valorization in the proposed legislation. Further the people charged with making the decisions within the framework of the compulsory care legislation, no matter their views or their attempts to minimise the harm done to these people, will only act to further stigmatize them.
References
Brookbanks, W. (1998). "People with Intellectual Disability and Offending," Presentation at F.I.R.S.T. International Conference. Dunedin NZ.
Burgering, C. (1999). PROJECT 17233: Intellectual Disability (Compulsory Care) Legislation. MA Thesis, Massey University.
Fleming, P. (1981). Eugenics in New Zealand 1900-1940. MA Thesis, Massey University.
Webb, O, (1996). Intellectual Disability and the Law. IHC, Wellington NZ.
Wolfensberger, W., & Thomas, S. (1983). PASSING (Program Analysis of Service Systems' Implementation of Normalization Goals): Normalization criteria and ratings manual. (2nd. Ed.). Toronto: National Institute on Mental Retardation.
Wolfensberger, W. (1998). A brief introduction to Social Role Valorization: A high-order concept for addressing the plight of societally devalued people, and for structuring human services (3rd ed.). Syracuse, NY: Training Institue for Human Service Planing, Leadership & Change Agentry (Syracuse University).
Submitted by
Colin Burgering
Email: cwmilbur@slingshot.co.nz
|
