The Waitemata District Health Board has sought extraordinary action to keep a mental health patient accused of murder permanently under its monitoring as the time limit for his detention will soon lapse.
In 2005, Martin Robert Lyall fatally stabbed 65-year-old Kevan Newman in central Henderson.
He was charged with murder but later deemed mentally unfit to stand trial and remanded to forensic psychiatric facility the Mason Clinic as a special patient. It meant the only person who could authorise his release was the national director of mental health.
However, special patient orders have a limit of 10 years and Lyall's is set to expire in December.
If Lyall's mental health status changes before then - he has one more review in that time - he could be put before the courts to face the murder charge.
If not, and a more likely scenario given his status has not changed in a decade, the Attorney-General must direct that he be held as an ordinary mental health patient under a compulsory treatment order.
The Herald can reveal that the Waitemata DHB has asked for much tighter, continued control over the alleged murderer.
It has asked the director of mental health to seek a restricted patient order (RPO) through the courts which would keep Lyall under its care indefinitely.
According to the Mental Health Act, restricted patient status may be imposed on an inpatient - which Lyall is, though he lives part-time in the community - who presents "special difficulties because of the danger he or she poses to others".
The recommendation came soon after Newman's son Dean raised concerns about the monitoring of Lyall after December if his status did not change and there was no option of a trial.
Mason Clinic clinical director Dr Jeremy Skipworth acknowledged the Newman family's position.
"WDHB is not unsympathetic to Mr Newman's concerns and made a ... recommendation to the national director of mental health some weeks ago that he ... seek a restriction order from the court regarding Mr Lyall," he said.
"Changing Mr Lyall's status from special to restricted patient is the only mechanism available by law to retain a similar level of clinical and administrative oversight to that which he receives currently as a special patient.
"The director is the only official who can apply to the court for such an order. WDHB recommended that the director consider this option and the Ministry of Health has indicated it will take advice on whether this is feasible ... But it is the opinion of our expert clinicians that it is appropriate in Mr Lyall's case."
Skipworth said eight other people were currently subject to RPOs.
Criminal law and psychiatry expert Professor Warren Brookbanks of AUT said RPOs were "very rare" in New Zealand. "Only a handful have been issued since they first became an ... option with the enactment of the Mental Health (Compulsory Assessment & Treatment) Act 1992.
"The legal threshold for making a restriction order is tough. The orders are indeterminate."
The process for revoking an order was just as stringent.
The director of mental health or a mental health review tribunal would have to determine that Lyall was fit to be released from compulsory status - meaning he was no longer mentally disordered.
Then, only the Minister of Health, after consultation with the Attorney-General, can decide that the restriction order is no longer necessary.
"Such an order means that any decisions in terms of long-term leave and discharge from that status are to be taken at ministerial level," Brookbanks explained.
"A restricted patient cannot be discharged by clinical decision-makers while the restriction remains in place. This would suggest in Mr Lyall's case that his mental health status is considered by clinicians to present such a high risk of a particularly difficult nature that other people would be in danger if he were not subject to a restriction order."
Dean Newman was pleased to hear action was being sought to contain Lyall after the special patient order lapsed.
"This is a good thing ... it's logical," he said.
The Herald understands that if the restriction order is sought, the Newman family would be asked for input during the court process.
Skipworth said it was "highly likely" the court would also seek an additional expert opinion on Lyall.
Martin Robert Lyall
• In 2005 Martin Robert Lyall fatally stabbed 65-year-old Kevan Newman in central Henderson. He also stabbed fishing shop owner Bob Norcross and assaulted a police officer attempting to arrest him. He was eventually shot during a stand-off with armed police.
• He was charged with murder, attempted murder, wounding with intent and aggravated assault but was ruled mentally unfit to stand trial and remanded to the Mason Clinic, a forensic psychiatric facility, as a special patient.
• In May 2013, Lyall was approved for unescorted ground leave. In May last year the Herald revealed that the alleged murderer was living in Henderson at a house run by a mental health service, returning to the clinic once a week. Outside a daily curfew, he is unsupervised.
• Lyall's victims, for various reasons, were not notified of his release. Norcross found out when he saw Lyall at his local supermarket.
• The case led to a national review and immediate changes to the victim notification process to prevent similar situations in the future.
What is a special patient?
Most often, people who have, in court, been found unfit to stand trial or found not guilty by reason of insanity are made a special patient under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Sentenced offenders can also be detained as special patients, as can prisoners who require treatment for a mental disorder in a forensic facility. A special patient order has a maximum allowable period of detention of 10 years.
What is a restricted patient?
This may be imposed on an inpatient who 'presents special difficulties because of the danger he or she poses to others' following an application by the director of mental health to the court. Such patients have previously been detained as special patients. Restricted patients will be managed by a Regional Forensic Psychiatry Service.
Who can change a special or restricted patient's status?
Only the national director of mental health or the Minister of Mental Health.