A.19 Intellectual Disability

Forms

Note:

• The forms for section 29 application are provided by Ministry of Health.
• As MOH are the authors for these forms, it must be noted that they do not reflect the law reform changes that have occurred for the Department of Corrections.
• MOH will alter these documents in due course.

Policy Standard

Intellectual disability care provided to prisoners must be reasonably equivalent to the standards of care available to the public.

Definition of Intellectual Disability

Intellectual disability is defined as a permanent impairment that:

• results in significant sub-average general intelligence as measured by standard psychometric tests generally used by clinicians (A person’s general intelligence is defined as significantly sub-average if it results in an intelligence quotient that is expressed as 70 or less and with a confidence level of not less than 95 percent), and
• results in significant deficits, as measured by tests generally used by clinicians, in at least two of the following skills:
  1. communication
  2. self-care
  3. home living
  4. social skills
  5. use of community services
  6. self-direction
  7. health and safety
  8. reading, writing, and arithmetic
  9. leisure and work, and
• became apparent during the developmental period of the person. (The developmental period of a person generally finishes when the person turns 18 years).

Performance Standard

1. All prisons will develop Service Level Agreements (SLA) with the Needs Assessment and Service Coordination Providers (NASC). The SLA must include as a minimum:
   • Prison screening and assessment process;
   • Prison liaison and referral procedures;
   • Documentation requirements;
   • Time requirements for responses;
   • Review period.
2. All applications must meet the requirements of section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
3. All applications must be in writing and set out the reasons for believing that the prisoner has an intellectual disability as defined by section 7 and 8 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
4. All arrangements for a prisoner requiring care and treatment to be admitted and detained in a Regional Intellectual Disability Secure Service (RIDSS) facility must meet the requirements of section 35 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
5. Intellectual disability needs will be addressed in the first instance by the Prison Health Services and referred to the Prison Medical Practitioner or Registered Clinical Psychologist for further assessment as appropriate.
   Note: At times it is possible that someone other than a prison health staff member (e.g. Psychologist, Social Worker, Sentence Planner, Corrections Officer) may identify a prisoner with intellectual disability needs. If this happens the prisoner must be referred to the prison health team.
6. The Prison Health Services must ensure that the Prison Medical Practitioner or Clinical Psychologist is notified promptly after health staff becomes aware that the prisoner’s intellectual health requires attention.
7. The Prison Medical Practitioner or Clinical Psychologist will provide a medical certificate (IDCCR 003 form) to accompany any applications within 3 days of examining the prisoner. The certificate must note the date of examination and any reasonable grounds for believing the prisoner has an intellectual disability.
8. A Regional Health Services Manager must take all practicable steps to maintain the physical and mental health of prisoners to a satisfactory standard.
9. It is the Regional Health Manager’s responsibility to notify the Prison Manager of the prisoner’s disability status and, if appropriate, commence the application under Section 29 of the (IDCC&R) Act. There must be reasonable grounds for believing that the prisoner has an intellectual disability that meets the IDCC&R Act. The Prison Medical Practitioner or Psychologist will provide a medical certificate, to accompany any application, within 3 days of examining the prisoner.
10. The Prison Medical Practitioner, Clinical Psychologist or nurse may make recommendations to any staff member in respect of the health needs of a prisoner, and in making decisions in respect of that prisoner all relevant recommendations must be considered.

Referral Process

1. The health service nurse refers the prisoner to the Prison Medical Practitioner or Registered Clinical Psychologist for possible Regional Intellectual Disability Care Agency (RIDCA) referral.
2. The Prison Medical Practitioner or Clinical Psychologist examines the prisoner and provides the 'Certificate Supporting an Application for Assessment-IDCCR 003' to prison health services staff if the prisoner meets the criteria for an intellectual disability.
3. The Regional Health Services Manager or designated delegate makes an application to the RIDCA in writing using the 'Referral to RIDCA' form -IDCCR 002 and 'Application for Assessment of Inmate or Former Special Patient'-IDCCR 004.
4. The Regional Health Manager or designated delegate must notify the Prison Manager of the prisoner's disability status.
5. The RIDCA will appoint a Compulsory Care Coordinator for the prisoner and arrange an assessment of the prisoner to take place within 7 days of receipt of the application.
6. Where the assessment is to take place at a RIDSS facility, the prisoner will be escorted for an assessment at the Prison Manager's discretion whilst remaining in the Chief Executive's custody.

Legal Custody

Information for Receiving Officers and Senior Management about the legal custody of a prisoner under the IDCC&R Act 2003.

1. Section 34 of the IDCC&R Act allows the prisoner to be taken from prison under the IDCC&R Act for the purpose of assessment.
2. The prisoner may not stay overnight at a RIDSS facility for assessment unless a notice has been given by a Compulsory Care Coordinator under section 35 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
3. The Compulsory Care Coordinator may give notice under section 35 to the Prison Manager that the prisoner must stay at the RIDSS during any 1 or more of the following periods:
   • while the assessment takes place
   • while a needs assessment is conducted
   • while an application to the Family Court for a compulsory care order is pending.
4. The Compulsory Care Coordinator will provide notice of the outcome of the assessment to the Regional Health Services Manager or delegate.
5. The Regional Health Services Manager or delegate must inform the Prison Manager of the outcome of the assessment.
6. Where the co-ordinator has given notice under section 35 of the IDCC&R Act that a prisoner must stay in a RIDSS facility, the prisoner ceases to be in the legal custody of the Chief Executive of Corrections. The Care Manager now becomes legally entrusted with the proposed care of the prisoner and the prisoner is in the care manager's legal custody for the periods specified in the notice.
7. Legal custody of the prisoner is only returned back to the Prison Manager under the Corrections Act 2004, if the prisoner does not have one of the following;
   • an intellectual disability (see section 38(3)(b) of the IDCC&R Act), or
   • if the Care Co-ordinator decides not to apply for a compulsory care order for the prisoner (see section 39(5) of the IDCC&R Act), or
   • a Judge rejects or directs the withdrawal of the application for compulsory care (see section 42 of the IDCC&R Act), or
   • when the prisoner ceases to be a care recipient (see section 71 of the IDCC&R Act), then
   • the co-ordinator must immediately inform the Prison Manager and ensure the prisoner is returned to the prison that referred them for assessment.
8. After the assessment has been completed and the application made by the co-ordinator for a compulsory care order has been approved by the Family Court Judge, then the prisoner is in the legal custody of the Care Manager and must go directly from the hearing to a RIDSS facility.
9. Importantly for sentence calculation / parole / release purposes, the person's sentence of imprisonment continues to run while the prisoner is in that secure facility, or is on authorised leave from that secure facility. The sentence ceases to run if he or she escapes from the secure facility and does not begin to run again until the person is retaken (section 69 of the IDCC&R Act).
10. When the release on parole of an offender detained in a secure facility is directed by the New Zealand Parole Board, or the offender reaches his or her statutory release date, the offender is no longer liable to be detained under that sentence and must be "released" from the prison. In practical terms this means that offender must have his or her "release" processed on IOMS on his or her statutory release day or on the nearest preceding day if the statutory release date is a non-release day even though that offender is not physically in the prison.
    Note: The offender detained in the secure facility and the Coordinator / Care Manager must be advised if this occurs.
11. It should also be noted that for the purposes of parole and release an offender detained in a Regional Intellectual Disability Secure Services facility must be treated in the same manner as if he or she were detained in a prison (Section 10(2) Parolle Act 2002).

Transfer Next of Kin notification

1. In the event of the transfer of a prisoner from a prison to a RIDSS, or a RIDSS to a prison, the Prison Manager must ensure that notice is given promptly to-
   1. The prisoner's next of kin or a person nominated by the prisoner and
   2. If the prisoner is a service prisoner, the prisoner's commanding officer.
2. If the prisoner asks the Prison Manager not to notify his or her next of kin, the Prison Manager must comply with the request.

VNR notification

Where VNR offenders are transferred to a RIDSS facility, the sending prison is to notify the Hospital VNR coordinator by telephone, email, or facsimile, of

• The prisoner’s VNR status;
• Victim contact details; and
• The date the transfer of VNR operational responsibility occurs.

The Hospital VNR coordinators will advise Corrections when VNR patients are to be returned to the prison.