High Court rules on ongoing issues around mental health reports for offenders

Ongoing issues around the provision of court-ordered psychiatric reports for offenders have been heard in the High Court. Photo / Stock Image 123rf

Amid ongoing and widespread concerns about delays in the provision of court-ordered psychiatric reports for offenders, a health service believed to be responsible for providing the reports has been told that legally it is not obliged to do so.

The timeframe in which it was understood the reports should be made available has also opened up.

Justice Helen McQueen’s judgment was issued yesterday, providing some clarification on the long-running issue.

There were two applicants in the High Court case, each bringing different perspectives to the concerns regarding the reports, ordered under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and each seeking declarations as to the correct interpretation of the Act.

Te Whatu Ora Health New Zealand – Waikato (HNZ Waikato), whose understaffed forensic mental health service (FMHS) has been struggling to meet the increasing demand for mental health assessments within the expected timeframe, asked the judge to declare that it was not answerable to the court’s orders for the reports.

The second applicant, a Taranaki man who faced criminal proceedings in which a section 38 order was made but rejected by HNZ Waikato, sought declarations about the timing of the provision of the reports and how they are to be funded.

Psychiatric reports tell the court if a person is mentally fit to stand trial, was insane at the time of the alleged offending, and the type and length of sentence that may be imposed.

Justice Helen McQueen heard the case. Photo / Supplied

The Act has widely been understood to state they have to be provided within 14 days, or 30 days with a court-granted extension.

The man told the High Court that the delay in the production of his report was unacceptable and that it reflected systemic problems of administration. He had been left with no choice but to seek a private report, causing undue delay in his case, he submitted.

HNZ Waikato, which provides reports to the district and high courts in Waikato, Taranaki, Lakes and Bay of Plenty, argued court-ordered reports addressed to “the Health Assessor”, as they commonly are, were not binding on Te Whatu Ora, and nor did it have to commission someone else to provide them.

Following last year’s hearing on the matter, in which the Criminal Bar Association, New Zealand Law Society and New Zealand Bar Association also made submissions, Justice McQueen has found the Act did not impose a specific time frame within which reports must be provided.

She said the 14-day time period, or 30 days with an extension, referred to the term of detention for the purpose of an assessment and not the period within which a report must be completed.

However, the judge added the reports must be provided without “undue delay” or there may be a breach of a defendant’s rights. She did not comment on what may constitute an undue delay.

“Such a determination can only be made in specific circumstances where they are before the Court,” she said.

Justice McQueen also concluded that HNZ Waikato did not have to comply with court orders that do not name assessors, and did not have to find assessors and commission them to write reports.

But practical issues around finding an assessor would have to be resolved elsewhere, as that was not a matter for the High Court, she said.

In considering HNZ Waikato’s obligations when an order was made for the detention of a defendant, the judge declared the health service has to provide accommodation in its inpatient facility to that person, even without prior consultation.

She stated that her judgments about HNZ Waikato’s legal obligations would also be relevant to other entities operating as part of Te Whatu Ora.

Justice McQueen further declared that two reports must be provided when a person’s fitness to stand trial is being determined; and that a judge did not have to follow the recommendation of a forensic nurse following their screening of a defendant and could order a report without the defendant first being seen by the nurse.

“The helpful and important role of forensic nurses has developed as a matter of policy, not as a matter of law,” she said.

Justice McQueen also agreed the Crown was responsible for funding a section 38 report irrespective of whether it was provided publicly or privately.

In concluding her decision, the judge said the “significant” delays in the provision of the reports were “unsatisfactory”.

There was a need for the “prompt identification and implementation” of solutions, she said.

Justice McQueen explained the system had operated historically in reliance on a cooperative approach between the courts and local FMHS, but increases in demand for the reports and decreases in capacity within FMHS have exposed the lack of a clear legal and practical framework for the provision of the reports.

“Continuing failures to provide s 38 reports in a timely manner risk affecting the fundamental rights of the individuals concerned. This is a matter that requires attention from the Executive as a priority.”

Director of Waikato’s FMHS Dr Peter Dean said the decision was bittersweet.

“It has made my job easier as our response to the court and managing the resource we have is much better defined,” he said.

“We can focus on clinical care of mentally disordered offenders as a priority.”

However, it highlighted the lack of resources in health in general and mental health in particular, Dean said.

“It is very sad that we have had to take this action and are unable to fulfill a role that we have expertise in when we clearly have added value to the process of justice.”

Dean said despite the decision, the FMHS would continue to do court reports when it has the capacity to do so.

Counsel for the man has both been contacted for comment.