The Ministry of Health has defended its treatment of an intellectually disabled man who has been imprisoned for 45 years.
The man's lawyer, Tony Ellis, has described the treatment as a disgrace and is taking the case to the United Nations.
The 58-year-old was first detained in 1969 for a serious sex offence against a young boy. Subsequent serious sexual offences saw him sentenced to two terms of preventive detention.
Auckland-based disability advocate Colin Burgering has been involved with the man's case for eight years, He says if the man was sentenced today, he ought to be covered by the Intellectual Disability (Compulsory Care and Rehabilitation) Act, which allows people to be housed a secure unit in the community, but the ministry is blocking such moves.
"The Ministry of Health has a policy that people who are on indefinite detention are not eligible for that Act, so really he has nowhere to go - even now."
The Ministry said today that diagnosed with an intellectual disability prior to 2003 are eligible for treatment under the Act, providing they engage in rehabilitation and are deemed to be at low risk of offending. However, it does not cover those on preventive detention.
The Ministry says it also runs five regional facilities which provide secure care for those with intellectual disabilities. It provides lawyers who are responsible for safeguarding the rights of people held under the Act.
Prison not the right place - lawyer
The 58-year-old man was first detained on sex offences when he was 13. His lawyer, Tony Ellis, said he could not be named because of an extreme intellectual disability, but that he had been in psychiatric institutions or prisons since 1969, bar one year of freedom in the 1990s.
A report prepared by Mr Ellis said the prisoner had an IQ of 55, and there were not enough places available to treat him. His low IQ meant he could not be held responsible for his actions and should be under medical management rather than in prison.
"We have a duty at law to make sure that people with mental abnormalities will be treated in specialised institutions under medical management, as opposed to a prison system. At the moment, we appear to be treating our prison system, the prison service, as a dumping ground for the State's obligations. It's detention on the cheap."
The report prepared for Mr Ellis said the man's treatment breached two UN conventions New Zealand had undertaken to implement.
Mr Ellis has lodged an objection with the United Nations Working Group on Arbitrary Detention.
"They can say this man is arbitrarily detained and if they say that, when we get into a domestic court, we're one rung up the ladder for his release in New Zealand."
Mr Ellis expected a response from the UN within six months.
Auckland University criminal law professor Warren Brookbanks said the system could not cope with the far larger numbers of inmates with mental impairments than was ever expected.
"Arbitrary detention is detention which is capricious or unprincipled and there may be an argument that some people, the nature of their disability is such that they tend to be institutionalised for periods of time which are excessive relative to what they've actually done, relative to the seriousness of their offending," he said.