An autistic man who has been detained in near-isolation for 19 years remains living in noisy conditions at Auckland’s Mason Clinic despite his extreme sensitivity to loud sounds and a belief he should be moved.
In a judgment obtained by RNZ,Family Court Judge Penelope Ginnen criticised the “unsatisfactory” and “untenable” situation the man, named Jay, is in, stating the Ministry of Health’s inadequate funding hindered his quality of life.
“It is very unfortunate that this construction site is adding further distress to an already distressing situation for [Jay],” Judge Ginnen said in her September decision.
The man, who cannot be properly named for legal reasons, was locked up under New Zealand’s Intellectual Disability Compulsory Care Act in 2006.
His care order has been extended 11 times as experts have repeatedly assessed him as being too dangerous to release, and he has spent the past four years mostly in seclusion at the Mason Clinic.
The Supreme Court heard an appeal from Jay’s mother in August arguing his detention is unlawful. The court has yet to issue its decision.
In her judgment reviewing his detention, Judge Ginnen noted that due to his autism, Jay was acutely sensitive to sudden noises.
It was the loud banging of his neighbour’s doors that triggered Jay to break their windows with an axe in 2004, which ultimately led to him being made a compulsory care recipient under the Act.
Jay wants to live in a home with his mum, not in the secure health unit. Photo / Cole Eastham-Farrelly, RNZ
Due to his behaviour, Jay has lived in a specially modified wing of the Mason Clinic by himself. He has two rooms plus a bathroom and a lounge and is under the constant care of three staff.
But a construction site next door to his unit had caused Jay “distress and anxiety” and at least two trips to the hospital in 2024. The construction was not due to be completed until sometime this year.
‘Untenable situation’
Experts agreed Jay’s wellbeing had been “detrimentally impacted by his diminished environment”, Judge Ginnen said.
“Everyone has recognised for a long time that his quality of life would be greatly improved by his environment being expanded. He needs to visit his mother at home. He needs to experience his culture. He needs to exercise and have his medical needs met.”
His needs were not being met because of a lack of funding, resources and the constraints his physical environment presented, she said.
When RNZ first reported Jay’s case last year he had not been allowed to leave his unit or the facility because it did not have a van capable of transporting him safely.
He has since been allowed to spend some time in communal areas, had started cooking his own meals up to twice a week and been on some outings in a Mason Clinic van, though these had been limited due to a lack of staff and van availability, court documents showed.
Jay’s care manager had recommended the Ministry of Health’s Director-General consider a bespoke funding package which could see him living in a purpose-built home in the community with his mother, with 24/7 support.
That is what both Jay and his mother wanted, Judge Ginnen noted.
She said Jay’s case was “one of the most complex arising under the act”, but additional funding “is essential” to put into place the recommendations that experts had made for his care.
Getting a van that could transport him safely on outings should be a top priority.
“At this point, it is the financial constraints that are holding everyone back from giving [Jay] what he needs. He has been contained under the Act for over 18 years. It is essential that the plan is funded as a priority so that it can be implemented.
“[Jay]‘s current situation is untenable,” Judge Ginnen said.
Legal stoush over judgment
In November, the Health Ministry made an application to recall Judge Ginnen’s judgment, saying the court had been “misinformed” at the hearing.
It said there were 14 “notifiable incidents” that had occurred regarding Jay’s behaviour between May 11 and August 28 that had not been reported to the ministry by the Mason Clinic until weeks after they had occurred.
This included an attempted and actual assaults, threatening to assault his mother and an alleged attempted sexual assault of a visiting doctor, it said.
“[He] was recorded as having ‘quickly stood up from his chair with verbal and physical aggression trying to push his way to the doctors with a sexual assault intention’ though it is not immediately clear from this incident report what is meant by that description,” the ministry said in its memorandum.
RNZ understands there is not a criminal investigation into the alleged attempted sexual assault.
The ministry said the failure to include these incidents at the hearing may have led to Judge Ginnen misunderstanding the constraints and limitations around the care provided to Jay.
It also submitted that the care manager who had recommended a specialised funding package be considered for Jay had spoken out of turn, saying it already spends more than $1.1 million on his care annually.
“His case falls within the top 1% of resource and funding allocation to the country’s compulsory care recipients.”
Jay’s mother, who also cannot be named for legal reasons, was surprised to learn the amount spent on her son’s care at the Mason Clinic.
“That’s a lot of money. But what are they doing with that money? They are supposed to provide care and rehabilitation but we have not seen that.
“He’s locked up in his room most of the time and that is why he has bad behaviour, because they don’t understand him.”
Incidents questioned
Jay’s lawyer Andrew Finnie, and the lawyer acting for Jay’s mother Tony Ellis, disagreed a recall was needed, nor appropriate.
Ellis questioned the validity of the incident reports, which was also raised as an issue at the Supreme Court hearing.
It heard factual errors about Jay’s behaviour, even though acknowledged and corrected, were often repeated by assessing clinicians and used to keep him detained.
“To recall would likely require more evidence of the weight and admissibility of the incident reports, and the qualifications of the incident report writers, something ultimately to be determined by the Supreme Court,” Ellis submitted to the court.
A hearing to consider the recall has yet to be set.
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