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National Intellectual Disability Care Agency v EM [2018] NZFC 6595

Published 15 April 2019

Extension of compulsory care order — RIDCA v VM [2012] 1 NZLR 641, [2011] NZCA 659 — Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 5(1) & 85. EM had been living as a secure care recipient for 12 years, and had a history of committing assaults. Since 2006 his compulsory care order had been extended three times, each for a period of three years. The most recent review of EM's care noted he had made enough progress to transition to life in the community. This transition would have to be carefully managed and EM would need a team of people to support him. Therefore the applicant in this case sought an 18-month extension of the compulsory care order. EM opposed the application, seeking a 12-month extension instead. The Court noted that the Intellectual Disability (Compulsory Care and Rehabilitation) Act doesn't specify criteria to be considered when deciding whether to extend compulsory care orders. The Court of Appeal in RIDCA v VM held that courts must balance the safety of the community, and the care recipient, against the right to liberty of the care recipient. The Court of Appeal also found that factors such as the nature of the original offending, the history of rehabilitation efforts, and the length of time the person had been subject to a compulsory care order are relevant. The applicant noted that several steps were required to help EM transition to life in the community. Given the length of time EM had been in secure care, the process shouldn't be rushed. The Court found that EM had been significantly impaired from a young age. He had made major progress since the last time his compulsory care order was extended, in 2015, but he still needed a high level of support. Without adequate support, EM posed a potential danger to himself and to the community. It was held that an 18-moth extension of the compulsory care order was necessary. Judgment Date: 31 August 2018. * * * Note: names have been changed to comply with legal requirements. * * *