10 hours ago
Health NZ criticised by Family Court Judge for legal appeal ‘distraction'
Photo:
RNZ / Angus Dreaver
A judge has chastised government agencies for wasting public money and the court's time trying to recall her judgement criticising the living conditions of an autistic man held at Auckland's Mason Clinic.
The man, who has been detained in near-isolation for 19 years, lives in noisy conditions despite his extreme sensitivity to loud sounds and a belief he should be moved.
The man, who cannot be named for legal reasons, last year became so distressed by construction noise next door he twice
stuffed paper into his ears
, requiring doctors to remove it.
In a September judgement, Family Court Judge Penelope Matalavea (formerly Ginnen) criticised the man's "untenable" situation, stating the Health Ministry's inadequate funding hindered his quality of life.
The man has been detained under the Intellectual Disability Compulsory Care and Rehabilitation Act since 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 five years mostly in seclusion
at the Mason Clinic.
The Supreme Court heard an appeal from the man's mother in August arguing his detention is unlawful. Ten months on, the court has yet to issue its decision.
Auckland's Mason Clinic, where the man at the centre of the legal argument is held.
Photo:
RNZ / Cole Eastham-Farrelly
In November, the ministry and Health New Zealand made an application to recall Judge Matalavea's September decision, saying the court had been "misinformed".
It said there had been 14 "notifiable incidents" that had occurred regarding the man's behaviour that had not been reported to the ministry by the Mason Clinic until weeks after they had occurred.
The ministry said the failure to include these incidents at the hearing may have led to Judge Matalavea misunderstanding the constraints and limitations around the care provided to the man.
In a decision released today, Judge Matalavea called the recall application a "distraction" and questioned the amount of public resource being put into it.
"I noted public funds are constrained, and it is all public funds that would be applied to the two-day hearing. Everybody, from me as the Judge, to the litigants and the lawyers and the district inspector is publicly funded."
In May, the ministry proposed an alternative, seeking permission to withdraw its recall application and instead file affidavits with the court to ensure its evidence sat on the file.
In her decision, Judge Matalavea supported that idea, giving the ministry leave to file the evidence, though she conceded such action was unlikely to have any impact because her decision had already been issued.
"This is an unorthodox approach, but a pragmatic resolution to a complex situation."
Given the complexity of the case and the fact that all parties were publicly-funded, Judge Matalavea gave no order for costs.
Human rights lawyer Tony Ellis, who was counsel for the man's mother, told RNZ he would be appealing the no costs ruling.
"I'm not publicly funded, I've been doing this work for eight years for free."
Ellis said he had told the court several times that he received no fee at all.
He was also disappointed that while this legal stoush had been going on, there had been no change in the man's living situation.
"And ten months after the Supreme Court hearing we are still waiting for the decision. It's not a very satisfactory result for the man or his mother," Ellis said.
