Paul Harvey v Jimmy Banner [2016] NZFC 2619

Published 08 July 2016

Variation of compulsory care order — legal uncertainty — Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 7, 8(2), 86. An application was sought and granted for the variation of a compulsory care order under s 86 of the Act. The Judge determined in light of expert reports and the progress made by the patient that it was appropriate for the 6 months remaining of the patient’s compulsory care order be varied to a supervised care order rather than secure care order. This was in line with the aims of community participation and the patient’s return to living with whānau. A particular legal uncertainty was also touched upon by the Judge, who sought additional submissions from counsel. That issue was whether in light of s 8(2) which states that the compulsory care provisions of the Act cannot apply to a person who does not have an intellectual disability, it is required for an applicant and supporting experts to satisfy the definition of “intellectual disability” in s 7 as to the patient before providing recommendations to the Court. **Note: names have been changed to comply with legal requirements.