Specialist Assessors’ Integration of Human Rights Perspectives within their Assessment of People Subject to New Zealand’s Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003: An Interpretive Descriptive Study

McFadden, Amanda
Diesfeld, Kate
Brookbanks, Warren
Mirfin-Veitch, Brigit
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Doctor of Health Science
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Auckland University of Technology

In New Zealand, the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (provides a novel diversionary pathway, in the form of compulsory care orders, for people with intellectual disability who offend. A person subject to compulsory care is called a care recipient. Specialist assessors are clinical psychologists and psychiatrists who perform forensic assessments under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and its companion legislation the Criminal Procedure (Mentally Impaired Persons) Act 2003. This doctoral research provides valuable insights into how 15 specialist assessors understand, interpret, and integrate human rights within their practice. How specialist assessors express and give effect to care recipients’ liberty interests is also explored. Finally, the thesis probed the tensions or dilemmas that arise as specialist assessors contemplate human rights perspectives.

This research is undertaken in the context of international debates about psychologists’ and psychiatrists’ obligations to promote human rights in diverse practice contexts. New Zealand’s ratification of the United Nations Convention for the Rights of Persons with Disabilities in 2006, and subsequent definition of care recipients’ liberty interest by the Court of Appeal in 2011, changed the human rights landscape within which the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 operates. The challenges that specialist assessors face in promoting human rights was, therefore, ripe for exploration.

Through the methodology of interpretive description, using reflexive thematic analysis, the findings show that specialist assessors most often derive their understanding of care recipients’ human rights from ethical principles or values. Rarely was their understanding drawn from international instruments like the United Nations Convention for the Rights of Persons with Disabilities. Three distinct perspectives regarding the integration of human rights into specialist assessor practice were revealed. These were located along the spectrum of “comfortable acceptance”, “uncomfortable engagement”, and “aware but not engaged”. Themes of specialist assessor unease or uncertainty were prevalent. Uncertainty coalesced around the requirements of human rights law and the role it should play within specialist assessor practice. specialist assessors’ unease was expressed as concerns about overstepping the boundaries of practice, the influence they could exert over decisions about liberty, and observations of varied practices. The study found that these factors were moderating how the specialist assessors integrated human rights perspectives.

Embedded in the data were specialist assessors’ critical observations about the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 framework. Three different perspectives emerged. These were “external scrutiny”, “specialist assessor self-scrutiny”, and “critique of the Act”. The multilayered critique provided by the specialist assessors added an unanticipated complexity to the analysis process that afforded a rich contextual analysis. It illustrated how specialist assessors were lifting their gaze to critically examine the surrounding socio-political climate and the associated human rights implications of their work. The specialist assessors raised important questions about the sufficiency of rights protections within the legislation. The findings indicate that the CRPD has low visibility within the IDCCRA framework relative to other areas of the disability sector.

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