A legal expert says it was not possible for the Lynn Mall terrorist to be detained using the Mental Health Act because he had refused a psychological assessment.
"It would be difficult to apply the provisions of the Mental Health Act as it requires a certificate from a health practitioner to be presented with the application and the recipient has the right to refuse to undergo any medical treatment under the Bill of Rights," said lawyer Alden Ho, of Crimson Legal.
"A further difficulty is how the Act construes the definition of 'mental disorder' which excludes a person's political, religious or cultural beliefs."
Former counter-terrorism advisor Paul Buchanan yesterday questioned why the legislation was not used to detain the terrorist.
A psychiatrist, who did not want to be named, said it was not possible to legally make someone undergo a personality assessment.
"If the prison team from the Mason Clinic saw him and offered him an assessment and he refused, nothing could be done," he said.
Ahamed Aathil Mohamed Samsudeen, a Sri Lankan national, was released from prison and all legal avenues were explored to keep him detained, Prime Minister Jacinda Ardern told a news conference yesterday afternoon.
In May 2021 she sought advice on whether prevention orders could be used and whether the man had been psychologically assessed.
"I was later advised that prevention orders could not be used and that he had refused psychological assessment," Ardern said.
The 32-year-old born in Sri Lanka came to New Zealand in October 2011 and was granted refugee status two years later.
Immigration officials had sought to revoke his refugee status in 2018, but he appealed and a final decision had yet to be made on whether he could be deported.
His uncertain immigration status was also the reason why the terrorist could not be identified until 11pm Saturday night, when this was lifted by a High Court judge, as anyone claiming refugee status cannot be identified by law.
Buchanan argued yesterday that the Mental Health Act could be used to commit the man to an institution in order to undergo psychiatric examination, where he could be held indefinitely until psychiatrists determined that he did not pose a threat to society.
The terrorist was 22 when he arrived in NZ in 2011 and it was not known he held extreme views. He came to the police's attention in 2016 after he made concerning posts on Facebook.
The Mental Health Foundation also said in a statement on Sunday that terrorist ideologies are not symptoms of any mental illness.
"The man who committed Friday's attacks experienced mental illness and he experienced a lot of trauma. However, he did not meet the criteria to be involuntarily assessed under the Mental Health Act, and he did not meet the criteria to be sectioned under the Act, so it seems his beliefs were separate to any mental distress he may have experienced," it said.
"He was a person who had extreme, ideological beliefs, who also happened to experience mental illness. Both things can be true."
The foundation said the Mental Health Act was not meant to be used as "a stopgap to plug holes in criminal law".
"It should only ever be used to provide help to people who desperately need mental healthcare," it said.
"It should never – ever – be used punitively. Mental health support is not a punishment. It's a human right. Think, really carefully, about what you're saying when you imply otherwise."
Samsudeen's family said in a statement that they were shaken by what happened.
"We are so shaken by what has happened and we do not know what to do. We hope these words will help bring some peace to your beautiful country. We are ready to help you all in the healing process no matter what it is needed from us," they wrote.
"We hope to find out with you all, what happened in Aathil's case and what we all could have done to prevent this. We are heartbroken by this terrible event."
He said Samsudeen had been suffering from mental health issues.
"We saw his mental health got worse and worse during the last 10 years or so. He spent a lot of his time in prison and was always struggling with some court cases," he said.
The family asked for privacy as they grieved and processed what had happened.
Samsudeen's mother, Ismail Fareeda, blamed neighbours in New Zealand she said were from Syria and Iraq for radicalising her son in an interview with the Hiru TV network from her home in Colombo.
According to her, Samsudeen was injured in a fall in 2016 and the neighbours who nursed him seized the opportunity to influence him.
She said he started posting radical views on social media after meeting the neighbours, whom she did not name.
According to a social media post, many of Samsudeen's friends had unfriended him on Facebook after he started posting extremist materials.