The care manager’s dilemma: balancing human rights with risk management under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

Abstract

In New Zealand, the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 provides diversion for persons with an intellectual disability who have been charged with, or convicted of, a criminal offence. This unique Act moves the responsibility for such ‘care recipients’ from the criminal justice system to a disability sector that values a social model of disability and philosophies of autonomy, choice and normalisation. This research identified dilemmas faced by care managers legally responsible for care recipients. Care managers experienced: tension between imperatives of risk management, rehabilitation and human rights; role ambiguity between ‘custodian’ or ‘therapist’; philosophical incongruity within their services; and ethical dilemmas over decisions to lengthen care orders. The changing care recipient population has intensified these dilemmas: services must now adapt to the needs of young, street-wise people with alcohol and drug problems and histories of criminal behaviour. The article makes recommendations about how these dilemmas can be addressed.

Keywords:

• intellectual disability
• learning disorder
• learning disability
• criminal justice
• offender
• diversion
• social model of disability
• normalisation

Acknowledgements

The authors gratefully acknowledge the contribution of study participants and funding from the Strategy to Advance Research Fund. This research was carried out at the Centre for Mental Health Research, Faculty of Medical and Health Sciences, University of Auckland.

Notes

1. Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, No. 116. http://www.legislation.govt.nz/act/public/2003/0116/latest/DLM224578.html.

2. The term ‘offender' is used in this paper for ease of understanding. In practice, the majority of people on care orders have been accused of, but not found guilty of, a crime.

3. Public or charitable institutions could draw on the bond money to pay for maintenance or support of the new immigrant within five years of arrival (The Imbecile Passengers Act 1882, S6).

4. Despite public criticism, the Aitken Report of 1953 advocated for the segregation of children with intellectual disability in large, specialist institutions (Millen 1999).

5. De-institutionalisation refers to the movement of people from institutions to community-based care (Milner 2008, 2).

6. The IDCCRA works in tandem with the Criminal Procedure (Mentally Impaired Persons) Act 2003, No. 115. http://www.legislation.govt.nz/act/public/2003/0115/latest/whole.html?search=ts_act_Medicines+Act+1981_resel#dlm223818.

7. For an overview, see Duff and Sakdalan (2007).

8. Structural component of service delivery to Maori and the philosophical development of kaupapa Maori within these services (International Research Institute for Maori and Indigenous Education 2000).

9. The care coordinator is a person appointed by the Director-General of Health to act as an administrator of the IDCCRA system (Ministry of Health 2004, 5).

10. A specialist assessor is designated by the Director-General of Health to provide assessments of intellectual disability, need for compulsory care, and the level of care required to manage risk (Ministry of Health 2004, 6).

11. The Act describes a care manager as a ‘health and disability professional'.

12. Existing community services provide all the supervised care and some secure care. Most secure care is provided in hospital settings associated with forensic mental health services.

13. Although a little over 50% of assessments under the IDCCRA are for people younger than 20 years, the majority of people under care orders are over 20 years of age (Ministry of Health, personal communication, 15 August 2011).

14. A training programme for care managers was available for two years but is no longer offered.