Access by Various artists


Patients X, Y and Z

by Hilary Stace

The Wellington High Court is at the bottom of Molesworth Street, directly across from Parliament and the Beehive. Sometimes there are bored reporters and camera people waiting outside for some "infamous" person (or someone on their behalf) to emerge so they can report the verdict and reactions in time for the 6 o’clock news.

I have walked past the Court thousands of times but I have never been inside the sliding glass doors. Until now.

Inside the first set of glass doors is a noticeboard with a typed list of the cases on each day. There are nine court rooms in the Wellington High Court. Courtroom 1 is where most jury trials happen and a security check is required before entering that room. A couple of weeks ago you could walk into the building and visit any of the other court rooms unchecked. But last week the security post was shifted to just inside the second set of glass doors so it is now unavoidable for anyone visiting any courtroom.

It could be coincidence, but the shift might have been because there is a court case on currently about the incarceration of disabled people in our mental health system.

Perhaps someone thinks that those wanting to come and listen to proceedings, such as survivors of psychiatric treatment or historic abuse, may be dangerous? I have heard of a couple of people threatened with trespass for merely trying to come into the building. One angry person went back the next day and sorted it out with the security guard, but a woman tearfully told me she has been permanently trespassed, she says, just for wanting to watch the proceedings.

The case being heard currently in Courtroom 6 downstairs is the one we are interested in. To get there you walk past rows of photos of former and current judges and some historic interpretation of the court site. I remember it – years ago ‒ as the site of the Tivoli theatre where I once cried in a movie called Freckles about a man with one hand. There was a cake shop there later, called the Artcraft, which had big jars of homemade biscuits. In the 1980s there was a building on the site which housed the Dictionary of New Zealand Biography where I worked for a while. Professor Bill Oliver’s pipe smoke wafted along the corridor and the fierce Miria Simpson taught us to spell and pronounce iwi names correctly.

Downstairs in the High Court building you eventually find the correct court room, pull open the metal (not wooden) door of the courtroom and find a few rows of public seats. The room is basically an enclosed box, like a large classroom. No natural light, no decoration, no gesture towards biculturalism. Here the arcane and privileged world of the law is in action. No one is obviously wearing a wig but they wear these intricately pleated black gowns with little pockets on the back which are a remnant from the era when clients inserted coins, like in slot machines, to get some more work out of the lawyer.

The judge in this case is a young woman. Confusingly, the human rights lawyer has the same surname. Other lawyers represent the defendant organisations. They all have numerous volumes of paper in front of them as well as computer screens.

It is a slow process as they all find a particular cited reference on screen and paper. One day about 10 people spent 45 minutes trying to get a video to work. It was an interview with one of the anonymous complainants so pretty important. Then they gave up and went to lunch.

They seem to have a lot of breaks – understandable for the intensity of the topic and the airless fluorescent-lit room. Much of it is very slow and waffly. When the judge signals a break she stands up and everyone has to stand until she has left the room. Then all the lawyers stop being adversarial and become part of the same legal tribe again. When she comes back a registrar announces the entrance of the "Queen’s judge" and everyone has to stand again.

So what is the case and why is it so significant to disability rights? This is its name: “X” & ORS v ATTORNEY GENERAL & ORS (ORS here means ‘others’ and nothing to do with special education ORS), and it is about multiple claims relating to the treatment of patients in psychiatric care.

This case is not about Ashley Peacock, although he gets regularly mentioned. This is about some disabled adults in psychiatric care, and human rights lawyer Tony Ellis is taking the case on their behalf. The claimants are three men with intellectual disability/autism and assorted "co-morbidities" (other health conditions possibly caused by the stress of their situation?) referred to as patients X, Y and Z. They were made special patients under the 1992 Mental Health Act after supposed violence (meltdowns?). The Act has a particular legal diagnosis called "mental disorder" which seems a catch-all for assorted negative behaviour and heath conditions.

One man has been in care for 17 years, one for 14 and the other was released after 13 years. They are suing Waitemata and Capital Coast DHB and assorted other government agencies and each claimant is seeking $100,000 plus $25,000 for each year they were incarcerated.

The court is hearing stories of seclusion, restraints, violence and abuse including fractures, lack of access to proper facilities and the denial of personal possessions. The units they live in have powerful or pretty Māori names. It is the face of modern institutionalisation, but all those giving evidence seem to have the best of intentions for the people in their care.

There is a lot of discussion about the Mental Health Act and the Intellectual Disability Compulsory Care & Rehabilitation Act, which is a more recent innovation for people with intellectual disability who have been charged with offenses but deemed not suitable for the normal legal system.

Either way, people appear to be able to be locked up indefinitely. Exit processes seem mysterious. Sometimes the UN Convention on the Rights of Persons with Disabilities gets a mention. Sometimes they don’t get the details or the language right, which is frustrating for those of us watching for whom this work and policy is very familiar.

Ashley is a patient under the Mental Health Act who has committed no offence, so much in the evidence presented in this court is relevant to him too. This morning, for example, there were discussions about informed consent for medication, and what is meant by seclusion. Auckland human rights group Justice Action has been collecting evidence for many years and persuaded Tony Ellis to take on the case. Whatever happens they are developing useful case law.

So if you are in Wellington and have some spare time, go and watch our legal system in action. It would be good to show the Judge that we care about these complex issues and those members of our disability community who can’t advocate for themselves. It’s scheduled to continue for another two weeks or so. Check the website for details as they don’t sit every day. It is nice and warm there. But don’t argue with the security guards. 

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