Issues with the provision of court-ordered psychiatric reports heard in the High Court

Ongoing issues around the provision of court-ordered psychiatric reports for offenders have given rise to two High Court proceedings. Photo / Stock Image 123rf

When a young man with foetal alcohol spectrum disorder and a “sad history of deprivation” came before the court on criminal charges, a judge ordered a mental-health report amid concerns for his fitness to stand trial.

But the forensic psychiatric service believed to be responsible for providing those reports rejected the court’s order and left the man with no choice but to seek a private report, causing undue delay in his case.

Now, the 21-year-old from Taranaki, who is still awaiting trial in the Hāwera District Court for the alleged offending, has taken action in the High Court against the Attorney-General on the basis that he is responsible for ensuring that statutory requirements in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) are complied with.

The unemployed man says the delay in the production of his report, ordered under section 38 of the Act, was unacceptable and that it reflected systemic problems of administration.

He now seeks a judicial review and declaratory orders in relation to the matter, which has plagued the criminal justice system for a number of years.

His case began before Justice Helen McQueen in the High Court at Wellington yesterday and was heard alongside a case brought by Te Whatu Ora Waikato, formerly Waikato District Health Board, which is seeking declarations that it is not answerable to court orders for the reports.

The cases punctuate a growing tension between the Waikato Forensic Mental Health Service (FMHS) and the courts, which stems from staffing issues within the service and the impact that is having on its ability to meet the increasing demand for mental health assessments.

It was the Waikato service, which provides reports to the district and high courts in Waikato, Taranaki, Lakes and Bay of Plenty, that declined the court’s order for a mental health report for the young man.

After the departure of six forensic psychiatrists in the past two years, and a national shortage of those trained in the subspeciality, the service is overstretched and reports have been routinely delayed or refused.

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.

The Act says they have to be provided within 14 days, or 30 days with a court-granted extension - though there has been some confusion in the case law as to the time limits for the completion of the reports.

Defendant pursues declarations

The man’s lawyers, Taranaki’s Nathan Bourke and Wellington’s Matthew Smith and Taz Haradasa, told the court the legal action was about an important aspect of the bedrock principle of a fair trial, being a person’s fitness to stand trial. It was also about the guarantee of trial without undue delay, they said.

Proceedings began in the High Court at Wellington on Monday. Photo / NZME

Their submissions noted that as well as its legislated purpose, a timely report helped highlight and explain a defendant’s limitations, and what accommodations counsel needs to make to communicate with them.

Reports can also guide the prosecution around resolution, recognise mitigating features and assist counsel to provide options and recommendations about future treatment for their client.

Against that background, the man wants the court to declare that without consent for an extension, reports must be completed within 14 days of the court ordering one or within 30 days with consent.

But the Attorney-General argues that the CPMIP Act’s reference to 14 days relates only to the period for which a person can be detained for a Section 38 assessment, while the man’s lawyers say the 14 days refers to the time in which the report has to be completed.

The reference to an extension also refers to the deadline for the completion of reports, they submitted.

The man also wants the court to declare that a health assessor cannot refuse a report on the basis there is no screening report by a forensic court liaison nurse recommending a section 38 report.

In his case, a forensic nurse had assessed him and said a psychiatric report was not needed. As a result, Waikato’s FMHS declined to provide him with one. The judge then ordered another screening, which was ignored.

He was ultimately found fit to stand trial by a neuropsychologist from the private sector, paid for by the District Court, but it was recommended the legal process continued with specific accommodations set out by the doctor.

Taranaki lawyer Nathan Bourke is representing a man who claims a judicial review and declaratory orders. Photo / Supplied

In support of that declaration, the man’s lawyers submitted that while forensic nurses are skilled professionals, they do not have the expertise to say that fitness to stand trial is not an issue.

“Over-reliance on the forensic nurse as a ‘gatekeeper’ of s 38 reports can lead to dangerous outcomes, such as where a defendant who is unfit to stand trial is nevertheless convicted and sentenced.”

Health board seeks declaratory relief

Conversely, Te Whatu Ora Waikato has also sought a number of declarations including that if a forensic court liaison nurse has determined a report is unwarranted, then the section 38 CPMIP Act process will not be triggered and an assessment will not be ordered.

But the Attorney-General’s submissions said the Act plainly makes it the judge’s decision to order a report.

“A forensic nurse’s view is one a judge may take into account, but cannot be determinative. That would fetter the judge’s decision and transfer responsibility for the order to the nurse.”

The health board also sought declaratory orders that court-ordered reports addressed to “the Health Assessor”, as they commonly are, were not binding on Te Whatu Ora, and nor did the board have to commission someone else to provide the report.

“An order to ‘the Health Assessor’ is not an order to Te Whatu Ora,” it said.

“Te Whatu Ora [and the health board before it] is separate from the Crown and therefore cannot be bound to a non-specific order based on any wider Crown obligation that might exist to serve the interests of justice.”

The Attorney-General submitted that while Te Whatu Ora might usefully complete section 38 reports, it cannot be compelled to do so.

But the lawyers for the man submitted it was a longstanding practice that the court registry forwards a section 38 order to the local DHB.

However, what ultimately mattered, they stated, was that a qualifying health assessor, whomever that may be, has to prepare the report and that it can only be prepared by a qualifying health assessor - defined in the Act as a psychiatrist, psychologist or a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Justice Helen McQueen heard the case. Photo / Supplied

Other declarations sought by Te Whatu Ora Waikato included that an order for the detention of a person in its inpatient facility is voidable if a court has not first consulted with its representatives to ensure a patient can be accommodated.

However, the Attorney-General said the only alternative for detention is a prison, with far more limited mental health care available.

A “potentially dangerous or at-risk defendant” could be left in limbo if the facility chose not to act on a court order, and so on that basis, those orders were not voidable, the Attorney submitted.

The Criminal Bar Association, New Zealand Law Society and New Zealand Bar Association were all granted leave to intervene and have each provided submissions for consideration in the cases.

The matter concluded on Tuesday and Justice McQueen has reserved her decision.