The Supreme Court says the man's mother can appeal an earlier decision by the Court of Appeal. Photo: RNZ / Angus Dreaver
The mother of an autistic and intellectually disabled man who has spent half his life locked away has been granted leave to take her son's case to the Supreme Court.
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's 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 say he poses a very high risk to the public if released.
In a judgment published on Friday, the Supreme Court said leave to appeal that decision was granted.
Her lawyer, human rights lawyer Tony Ellis, would need to address whether there had been breaches of Jay's rights under the Bill of Rights Act, and what the consequences of those breaches have been, the court said.
Man's detention 'arbitrary' - lawyer
Ellis, who has been fighting to get Jay's compulsory care order overturned for the last eight years, has already argued that Jay's detention is arbitrary and breaches human rights.
Jay was first detained in 2004 after he broke four of his neighbour's windows with an axe and was charged with willful damage.
The charge carries a maximum penalty of three months in prison or a $2000 fine, but due to his intellectual disabilities and his 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 visits him every week but has never seen his bedroom or living areas as she is only allowed in a visiting room.
Ellis on Friday told RNZ the granting of leave will provide an opportunity to argue "whether the law has moved on", and would be welcomed in the disability sector.
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 has been extended 11 times over the last 18 years, and his current extension runs until April 2026.
Expert health assessments have 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.
His mother told RNZ that his behaviour while in care was because of the environment and how her son was treated.
"They did this to him."
Use of seclusion should urgently stop - Ombudsman
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.
Chief Ombudsman Peter Boshier told RNZ last month that the use of restraints in New Zealand was "unacceptable and contrary to international human rights standards".
"I expect the Mason Clinic to urgently look at stopping this practice," he said in a statement.
