Ongoing issues with offenders' mental health reports boil over into High Court

A hearing date is yet to be set down for the matter. Photo / NZME

Ongoing issues around the provision of court-ordered psychiatric reports for offenders have given rise to two High Court proceedings.

The Waikato District Health Board, whose understaffed forensic mental health service (FMHS) is struggling to deliver the mental health assessment reports within the legal timeframe, has made a statement of claim under the Declaratory Judgments Act 1908 seeking that it is not answerable to the courts' orders for the reports.

Meanwhile, a Taranaki man is suing the Attorney-General under the Judicial Procedure Act 2016 and the Declaratory Judgments Act 1908 after Waikato's FMHS refused to comply with a judge's order, made in March this year, to provide the 20-year-old with a psychiatric report.

A follow-up order was made later that month by Judge Tony Greig to the FMHS to provide a report on the defendant but that was also ignored.

The man, who is represented by Taranaki lawyer Nathan Bourke, together with two Wellington-based lawyers, is arguing the Attorney-General is responsible for ensuring statutory requirements in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) are complied with.

He is seeking a number of declarations, including that without consent for an extension reports must be completed within 14 days of the court's direction, and that it is unlawful for a health assessor to refuse an order to provide a report on the basis the defendant has not been screened by a forensic court liaison nurse.

He is also asking that the Crown bear the costs of the private sector report he had to seek after the FMHS did not provide the court-ordered, publicly-funded report.

The matter will be called in the Judge's Chambers on June 13 in the High Court at Wellington. As the proceeding is active, Bourke was unable to comment.

The two cases punctuate a growing tension between the Waikato FMHS and the courts, which stems from significant resourcing issues within the service and the impact that is having on its ability to meet judges' orders for mental health assessments.

Waikato's FMHS provides reports to the district and high courts in Waikato, Taranaki, Lakes, and Bay of Plenty.

But following the departure of six of its forensic psychiatrists in the past two years, and a national shortage of those trained in the subspeciality, the FMHS is overstretched and reports are routinely delayed or refused.

The psychiatric reports inform the court on whether a person is mentally fit to stand trial or was insane at the time of the alleged offending and are ordered under section 38 of the CPMIP Act.

The Act states that they have to be provided within 14 days, or 30 days with a court-granted extension. Defendants are almost always remanded into custody during the process.

The Waikato DHB has previously come under fire from a Taranaki judge who granted a stay of proceeding, dismissing a defendant's charges, in a case that saw the FMHS exceed that timeframe by more than 50 per cent.

In an email seen by Open Justice, Director of Waikato's FMHS Dr Peter Dean recently wrote to the Royal Australian New Zealand College of Psychiatrists Faculty of Forensic Psychiatry highlighting the service's dire position, and imploring the body for help.

Dean said the service had "lost" six of its psychiatrists, with three at very short notice, and there was no immediate prospect of the vacancies being filled.

As a result of the staffing difficulties, the FMHS has had to focus its services on the clinical care of mentally disordered offenders in prison, in the inpatient service, and in the community.

A hearing date is yet to be set down for the matter. Photo / NZME

"Our psychiatrists are consequently experiencing high workloads and pressures on their time. Due to our prioritising of services and our reduced health assessor capacity, we are unable to meet the demands of court report writing," he said in the email.

"Despite our attempts to highlight this to the courts we cover, we continue to have a high demand for court reports, with an unrealistic expectation from the court for us to complete this turnaround in a timely manner."

Dean said the service had sought support from the country's other four FMHS, run by Canterbury, Waitematā, Southern, and Capital and Coast DHBs, but the workload was at capacity nationwide.

"This has resulted in us returning court orders to the court, which has caused tensions in our relationship with the judges, some of whom are sympathetic and others who feel we are compelled to comply regardless."

Dean asked the faculty for assistance in making a call for psychiatrists with New Zealand registration and knowledge of legislation that could help provide the section 38 reports, stating it could be arranged for interviews of the offenders to take place via audio-visual link.

He informed the faculty of the DHB's High Court application for declaratory relief, describing it as an "extraordinary step".

Court documents obtained by Open Justice revealed a number of orders sought by the DHB in its proceeding.

Those included that orders from a court under the Act and addressed to "the Health Assessor" are not binding on Waikato DHB in any way, that the DHB is not required to locate and commission an alternative health assessor, and that if a forensic court liaison nurse has determined a report is unwarranted then the process should not be triggered.

The court documents stated the FMHS is funded for 7.4 full-time equivalents of forensic psychiatrists but currently only has 3.4.

A hearing date for the matter, which will be heard in the High Court at Auckland, has not yet been set down.

Because the proceeding is active, Waikato DHB was unable to comment only to say it had made the decision to head to court to get some "necessary clarification" on the law.

In a response to questions about the departure of its FMHS staff, the DHB's executive director hospital and community services Christine Lowry said individuals had left to undertake further training or for family reasons.

"The global pandemic has created challenges with the recruitment and retention of specialised medical staff across many health specialities," she said.

"Work is ongoing to ensure the facilitation of quality healthcare across the DHB however, as with all industries which rely on a significant level of international recruitment, working within the Covid-19 travel and border restrictions can be challenging."