AW v Minister of Health

[2024] NZHC 2279

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-713

[2024] NZHC 2279

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

AW

Applicant

AND

THE MINISTER OF HEALTH

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:	14 May 2024
Appearances:	D A Ewen KC and B H Woodhouse for Applicant A Powell and K K C Efondo for Respondents
Judgment:	14 August 2024

JUDGMENT OF McHERRON J

Table of Contents

What is this case about?[1]

Background[2]

AW’s circumstances[10]

First review of AW’s special patient status — 2017-2018[17]

Second review of AW’s special patient status — 2020[22]

Third review of AW’s special patient status — 2022-2023[26]

Summary of AW’s claim as pleaded[30]

Relevant legislation[33]

Bill of Rights Act[33]

The CP(MIP) Act and the MH(CAT) Act[34]

Special Patient Review Processes[36]

Responsible clinician review[36]

The interaction between s 77 of the MH(CAT) Act and s 33 of the CP(MIP) Act[42]

AW v THE MINISTER OF HEALTH [2024] NZHC 2279 [14 August 2024]

Special patient review panels[49]

Submissions on behalf of AW[53]

Rights AW says are engaged[58]

Application of s 25 of the Bill of Rights Act — is special patient review part of the

determination of a criminal charge?[59]

Textual indication that s 33 CP(MIP) Act review is part of the determination of the charge[65] Comparative assessment: application of international human rights instruments[66] AW invokes Fitzgerald v R in support of giving s 33 CP(MIP) Act a rights consistent meaning [76] My assessment[78]

Legislative history confirms the Minister’s role is central to the purpose of s 33 of the

CP(MIP) Act[78]

Te Aka Matua o te Ture | Law Commission recommends establishing Special Patient Review

Tribunal[87]

Implementation of Law Commission recommendations[96]

Section 25(a) of the Bill of Rights Act is engaged[100] Judicial review allows consideration of arbitrariness of detention of a special patient[118] Compliance with natural justice obligations may be difficult for the Minister to achieve[124] Is s 33(3) of the CP(MIP) Act inconsistent with protected rights?[126]

Is an interpretation of s 33 of the CP(MIP) Act available that is consistent with protected

rights?[135]

A case by case assessment of lawfulness of special patient duration decisions is required[143]

Conclusion[152]

Result[156]

What is this case about?

[1]                 Can the Minister of Health determine that an order for detention as a special patient should continue, even if the Mental Health Review Tribunal has recommended the patient no longer needs to be detained? That is the issue for the Court’s consideration in this application for judicial review.

Background

[2]                 In March 2014, AW was found not guilty of arson by reason of insanity. Following his acquittal, the District Court ordered that AW be detained in a hospital as a special patient.

[3]                 A special patient order is indefinite. The order made in respect of AW will continue to remain in force until the Minister of Health directs that AW’s detention is no longer necessary to safeguard his own interests and the safety of the public or the safety of a person or class of person.1

[4]                 Three times since 2018, the Mental Health Review Tribunal (the Tribunal) has certified that AW’s continued detention as a special patient is no longer necessary. However, in each case, the Minister declined to follow the Tribunal’s recommendation.

[5]                 On 10 November 2023, AW sued the Minister of Health and the Attorney- General. AW challenges the Minister’s decisions to decline to change his status, despite the Tribunal’s recommendations to the contrary.

[6]                 On 18 March 2024, by consent, Isac J set aside the most recent decision of the Associate Minister of Health, made on 6 April 2023, declining to change AW’s status as a special patient.2 Isac J directed the Minister of Health to reconsider that decision. However, at the hearing on 14 May 2024, Crown Counsel advised the Court that the process for reconsideration has not yet commenced. A further clinical review of AW was yet to occur.

[7]In the meantime, there are two unresolved aspects of AW’s proceeding:

(a)First, an application to set aside the first of the Minister’s determinations declining to change AW’s status, made on 5 December 2018. AW seeks a declaration that, from 5 December 2018, his detention as a special patient was not required and was arbitrary.3

1      Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CP(MIP) Act), ss 33(3)–(4).

2      AW v Minister of Health [2024] NZHC 583.

3      AW also sought such further or other relief as the Court deems fit, including an inquiry as to compensation.

(b)Second, an application for declarations of inconsistency under the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) in respect of s 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CP(MIP) Act) which governs the duration of the special patient order.

[8]                 This judgment deals with the first of these remaining applications (in [7](a) above). This application was heard separately on 14 May 2024. It relates to the first and second grounds of review as pleaded in the first amended statement of claim. It is based on AW’s interpretation of s 33 of CP(MIP) Act, in line with the Bill of Rights Act. Under that interpretation, AW claims that the Minister was required to direct, in accordance with the relevant determinations of the Tribunal, that AW’s condition no longer requires his continued detention as a special patient.

[9]                 The remaining application, for declarations of inconsistency (see [7](b) above), is to be argued at a subsequent hearing yet to be scheduled.

AW’s circumstances

[10]             AW was diagnosed with schizophrenia following presentations to mental health services from 2006. His illness has resulted in psychotic states, during which he has damaged furniture in his flat, punched and kicked others, and wrapped duct tape over his own mouth. He has also had presentations to mental health services while psychotic in which he showed “self-mutilation” and “self-neglect”. AW has had relapses associated with cannabis and alcohol use and non-compliance with medication.

[11]             AW was charged with arson in 2013. It was alleged that, on 13 March 2013, he lit fires in his bedroom at his father’s house. He then left the building knowing that a boarder was still in the house. This occurred while AW was acutely psychotic, following a period of non-compliance with his treatment. He had tried to seek help from mental health services for several months before the offending, including on the day it occurred. An independent psychiatric opinion for the Tribunal stated that AW had a “constellation of symptoms including delusions, hallucinations, disorganised

behaviour and abnormal emotional control” consistent with a diagnosis of schizophrenia.

[12]             On 25 March 2014, the District Court at Wellington made AW a special patient, after he was found not guilty of arson by reason of insanity. The Court’s order was made under s 24(2)(a) of the CP(MIP) Act, which provides:

24 Detention of defendant found unfit to stand trial or insane as special patient or special care recipient

(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—

(a)      consider all the circumstances of the case; and

(b)      consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

(c)      make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.

(2)The orders referred to in subsection (1) are that the defendant be detained—

(a)      in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(b)      in  a  secure  facility  as   a   special   care   recipient   under   the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(3)Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.

[13]             Since 2014, AW has been housed in various facilities in the Rātonga-Rua-O- Porirua Mental Health Campus, which is situated near the Kenepuru Community Hospital. These facilities include the Purehurehu and Rangipapa forensic units, the Tāwhirimātea step-down unit, and the Tāne Mahuta unit (which is an open unit).

[14]             Since March 2022, AW has been on leave from the hospital, living in a semi- independent sleepout at his mother’s home.4 However, AW still remains subject to a special patient order requiring him to be detained in a hospital. Any leave to be absent from the hospital remains subject to revocation.

[15]             AW has applied three times (in 2017, 2020 and 2022) for review of his legal status as a special patient. On each occasion, his application has been declined.

[16]             Doctor Gordon Lehany, a forensic psychiatrist, reviewed the Tribunal opinions and decisions, and the Ministerial notes and opinion, and provided an affidavit in support of AW, in which he stated:

It appears accepted by the treating clinicians, second opinion psychiatrists and [the Tribunal], that the primary risk now for [AW] … is that of a relapse into psychosis. Risk factors acknowledged as increasing the likelihood of his becoming psychotic include non-compliance with medication and use of cannabis in particular, but also abuse of alcohol. Mitigation is noted to be, compliance with medication, limited use of substances, stable accommodation, secure relationships, and stable meaningful work. It is noted that [AW] could remain under the Mental Health Act without special patient status, and it was concluded by the [Tribunal] that the use of a compulsory treatment order under s 29 of the Mental Health Act would provide “the clinical team the legal framework to ensure that [AW] receives the appropriate treatment in the most appropriate clinical setting. In other words, s 29 would be sufficient to ensure compulsory treatment would allow oversight to prevent or detect relapse, and care could be provided if necessary in the case of relapse. The Tribunal also noted that “the more likely scenario is that any future psychotic relapse would occur over a time period of months”.

First review of AW’s special patient status — 2017-2018

[17]AW first applied for review of his special patient status on 15 August 2017.

[18]             An ad-hoc internal review body known as a Special Patient Review Panel (SPRP) reviewed AW on 14 February 2018. On 14 February 2018, the SPRP recommended no change to AW’s status.

4      Initially, AW was given overnight leave in the community under s 52 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act). Since August 2023, AW’s leave of absence from hospital has been granted by the Minister under s 50A of the MH(CAT) Act.

[19]             AW then sought review of his status by the Tribunal. On 20 March 2018, the Tribunal expressed its opinion that AW could optimally be managed as an ordinary patient subject to a compulsory treatment order and that the special patient order was no longer required. The Convener of the Tribunal signed a certificate that AW’s condition no longer required, either in his own interest or for the safety of the public, that he should be subject to the order of detention as a special patient.5 The Convenor forwarded this certificate to the Minister of Health.6

[20]             Despite the Tribunal’s recommendation and certificate, an SPRP reviewed AW again on 22 August 2018 and recommended no change to his status from special patient to that of a patient detained under a compulsory treatment order. Following the SPRP review, the Director of Mental Health recommended to the Minister that AW’s status remain unchanged.

[21]             On or around 5 December 2018, the Minister declined to change AW’s legal status from special patient to that of a patient subject to a treatment order.

Second review of AW’s special patient status — 2020

[22]             An SPRP next reviewed AW on 25 February 2020. The SPRP recommended no change to AW’s status.

[23]               AW sought a further review of his status by the Tribunal. On 23 April 2020, the Tribunal again expressed its opinion that, while AW required continued treatment as a patient under a compulsory treatment order, the special patient order was no longer required. The convenor of the Tribunal issued a certificate to that effect, which was forwarded to the Minister of Health.

[24]             The Director of Mental Health sought the Minister’s decision in relation to the application for change of legal status. The Director advised the Minister that he did not support a change of status for AW.

5      MH(CAT) Act, s 80(5)(a).

6      Section 80(5)(c).

[25]             On or around 27 August 2020, the Associate Minister of Health declined to change AW’s status from special patient to compulsory inpatient.

Third review of AW’s special patient status — 2022-2023

[26]             On 9 September 2022, AW sought a further review of his special patient status. He again applied to the Tribunal which, on 30 November 2022, expressed its opinion for the third time that continuation of AW’s special patient order, while expedient, was no longer required. The convener of the Tribunal forwarded a certificate to that effect to the Minister of Health on 30 November 2022.

[27]             On this occasion, the Director of Mental Health, Dr John Crawshaw, advised the Minister that he supported the change in AW’s status from special patient to a patient under a compulsory treatment order. In supporting the determination that the special patient order was no longer required, Dr Crawshaw stated that if the Minister approved a change of status, AW would become subject to a community treatment order. Dr Crawshaw’s advice to the Minister of Health states:

AW has progressed on his rehabilitation journey. His mental state is settled and in the context of his current management plan his risk is assessed as low. He is living successfully in the community on maximal short leave. While the service has argued that he should still be on his special patient classification, the Tribunal has concluded that this is no longer required. This is the third occasion they have made that decision. After weighing up the respective arguments I have supported the view of the Tribunal. I therefore recommend a change of legal status.

[28]             Despite the recommendations of the Tribunal and the Director, on or around 6 April 2023, the then Associate Minister of Health, Hon Barbara Edmonds, declined to change AW’s status under s 33(3) of the CP(MIP) Act.

[29]             As discussed above, it is this decision by the Associate Minister of Health that has been set aside, by consent, and is to be reconsidered.7

7      The reasons the Associate Minister of Health’s decision was set aside by consent are set out in

AW v Minister of Health, above n 2, at [10].

Summary of AW’s claim as pleaded

[30]             As mentioned, in this judgment I determine AW’s first two causes of action. In summary, AW alleges that the Minister of Health was bound to endorse, follow and implement the decisions of the Tribunal that his condition does not require continued detention under the special patient order.

[31]AW pleads that:

(a)According to ss 22, 25(a) and 27 of the Bill of Rights Act, a decision relating to AW’s continued detention under a special patient order needs to be made by an independent and impartial tribunal.

(b)The Minister of Health, the Director of Mental Health and SPRPs do not constitute an independent and impartial tribunal (this is admitted by the Attorney-General).

(c)The Minister was bound to follow the Tribunal’s determination that AW did not require continued detention under the special patient order.

[32]             AW submits that, pursuant to s 6 of the Bill of Rights Act, an interpretation of s 33(3) of the CP(MIP) Act requiring the Minister to decide consistently with a Tribunal certificate that detention is no longer necessary is consistent with relevant rights contained in the Bill of Rights Act and must be preferred to any other meaning.

Relevant legislation

Bill of Rights Act

[33]             The following provisions of the Bill of Rights Act are said to be relevant in the present case:

4Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), —

(a)      hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b)      decline to apply any provision of the enactment —

by reason only that the provision is inconsistent with any provisions of this Bill of Rights.

5Justified limitations

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limited prescribed by law as can demonstrably justified in a free and democratic society.

6Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meeting that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

…

22     Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

…

25     Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a)      the right to a fair and public hearing by an independent and impartial court:

(b)      the right to be tried without undue delay:

(c)      the right to be presumed innocent until proved guilty according to law:

(d)      the right not to be compelled to be a witness or to confess guilt:

(e)      the right to be present at the trial and to present a defence:

(f)      the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:

(g)      the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

(h)      the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:

(i)      the right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

…

27     Right to justice

(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings between individuals.

The CP(MIP) Act and the MH(CAT) Act

[34] Section 24 of the CP(MIP) Act is the entry point into special patient status. That section is set out above at [12]. After an order is made, regular clinical reviews are required in respect of special patients detained under s 24(2)(a) of the CP(MIP) Act (such as AW), under s 77 of the Mental Health (Compulsory Assessment and Treatment Act 1992 (MH(CAT) Act), which provides:

77     Clinical reviews of certain special patients

(1)The responsible clinician shall conduct a formal review of the condition of every special patient who is detained in a hospital pursuant to an order of a court made under section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003—

(a)      not later than 3 months after the date of the order; and

(b)      thereafter at intervals of not longer than 6 months.

(2)The provisions of subsections (2), (4), and (8) to (12) of section 76 shall apply in respect of every review under this section as if it were a review under that section.

(3)In the case of a special patient who was ordered to be detained following a finding of unfitness to stand trial, the following provisions shall apply to any review of that patient’s condition under this section:

(a)      at the conclusion of the review, the responsible clinician shall record his or her findings in a certificate of clinical review in the prescribed form, stating—

(i)that in his or her opinion the patient is no longer unfit to stand trial; or

(ii)that in his or her opinion the patient is still unfit to stand trial but it is no longer necessary that the patient should be subject to the order of detention as a special patient; or

(iii)that in his or her opinion the patient is still unfit to stand trial and should continue to be subject to the order of detention as a special patient:

(b)      in every case, the responsible clinician shall send a copy of the certificate of clinical review to—

(i)[Repealed]

(ii)the Director; and

(iii)each of the persons specified in section 76(7)(b):

(c)      in any case where the responsible clinician is of the opinion that the patient is no longer unfit to stand trial, or that the patient is still unfit to stand trial but it is no longer necessary that the patient should be subject to the order of detention as a special patient, that clinician shall also send a copy of the certificate of clinical  review  to  the  Attorney-General   for   the   purposes of section 31 of the Criminal Procedure (Mentally Impaired Persons) Act 2003:

(d)      despite section 31 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, on receiving a copy of the certificate of clinical review under paragraph (c), the Attorney-General may, instead of exercising and performing the powers and duties under that section, apply to the Review Tribunal for a review of the patient’s condition.

(4)In the case of a special patient who was ordered to be detained following acquittal on account of insanity, the following provisions shall apply to any review of that patient’s condition under this section:

(a)      at the conclusion of the review, the responsible clinician shall record his or her findings in a certificate of clinical review, stating whether or not, in his or her opinion, the patient’s condition still requires, either in the patient’s own interest or for the safety of the public, that he or she should be subject to the order of detention as a special patient:

(b)      in every case, the responsible clinician shall send a copy of the certificate of clinical review to—

(i)[Repealed]

(ii)the Director; and

(iii)each of the persons specified in section 76(7)(b):

(c)      in any case where the responsible clinician is of the opinion that the patient’s condition no longer requires, either in the patient’s

own interest or for the safety of the public, that he or she should be subject to the order of detention as a special patient, that clinician shall also send a copy of the certificate of clinical review to the Minister of Health for the purposes of section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003:

(d)      despite section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, on receiving a copy of the certificate of clinical review under paragraph (c), the Minister of Health may, instead of exercising and performing the powers and duties under that section, apply to the Review Tribunal for a review of the patient’s condition.

[35]             The provisions that govern discharge from a special patient order and which are the central provisions engaged in the present case are ss 33 and 33A of the CP(MIP) Act, which provide:

33 Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity

(1)This section applies to a defendant who has been acquitted on account of his or her insanity and who is detained as a special patient or a special care   recipient   in   accordance    with    an    order    under section   24 (the defendant).

(2)The order under which the defendant is detained continues in force until—

(a)      a direction is given under this section that the defendant is to be held as a patient or as a care recipient; or

(b)      the defendant is discharged in accordance with a direction given under this section.

(3)If, at any time while the order continues in force, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant’s continued detention under the order is no longer necessary to safeguard the interests specified in subsection (4), the Minister of Health must—

(a)      consider whether, in the Minister’s opinion, the defendant’s continued detention is no longer necessary to safeguard those interests; and

(b)      if, in the Minister’s opinion, that detention is no longer necessary to safeguard those interests, direct—

(i)that the defendant be held as a patient or, as the case requires, as a care recipient; or

(ii)that the defendant be discharged.

(4)The interests referred to in subsection (3) are—

(a)      the defendant’s own interests; and

(b)      the safety of the public or the safety of a person or class of person

(4A) In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director  of  Mental  Health  made  under section 33A.

(5)A direction under this section—

(a)      that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the provisions of that Act apply accordingly:

(b)      that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and the provisions of that Act apply accordingly.

…

33A Report by Director of Mental Health on defendant’s continued detention

The Director of Mental Health may report to the Minister of Health about the continued detention under section 24 of a defendant described in section 31(1) or 33(1).

Special Patient Review Processes

Responsible clinician review

[36]             A responsible clinician is required to conduct a formal review of the condition of every special patient who is detained by an order under s 24(2)(a) of the CP(MIP) Act, no later than three months after the date of the order and thereafter at intervals of no longer than six months.8 The purpose of this review is for the responsible clinician to provide an opinion on whether the special patient’s status should be changed. The responsible clinician expresses in a certificate of clinical review their opinion whether or not the patient’s condition still requires, either in the patient’s own interests or for the safety of the public, that the patient should be subject to the order of detention as a special patient.9

8      MH(CAT) Act, s 77(1).

9      Section 77(4)(a).

[37]If the responsible clinician certifies:

(a)that continued detention under the special patient order is no longer necessary, the Minister must make a decision under s 33(3) of the CP(MIP) Act;

(b)that a special patient’s status should not change, the Minister is not required to make a decision under s 33(3). However, the patient then has a right to apply to have their special patient status reviewed by the Tribunal.10

[38]             When a certificate of clinician review is provided to the Ministry, it is usually accompanied by a letter from the Director of Area Mental Health Services in support of the responsible clinician’s view, a second opinion review by a forensic psychiatrist of the special patient’s circumstances, and the most recent SPRP report. These documents provide the starting point for the briefing to the Minister.

[39]             An application to the Tribunal for a review of a special patient’s condition may be made by any person to whom the responsible clinician’s certificate was sent,11 or by the Minister (instead of exercising and performing powers and duties under s 33(3) of the CP(MIP) Act).12

[40]             The purpose of the Tribunal review is to produce an opinion on whether the special patient should still be subject to the order of detention as a special patient. Following its review, the Tribunal sends a certificate recording its findings and expressing whether in its opinion the patient’s condition still requires, either in the patient’s own interests or for the safety of the public, that the patient be subject to the order of detention as a special patient.13

10     Section 80(1).

11     Section 80(1). The responsible clinician is required to send the certificate to the Director of Mental Health and each of the persons specified in s 76(7)(b).

12     Section 77(4)(d).

13     The Tribunal must send the certificate to each of the persons listed in s 77(10).

[41]             If, in the Tribunal’s view, the patient’s status should change, this triggers a requirement for the Minister to make a decision under s 33(3) of the CP(MIP) Act.14 At that point, the Director of Mental Health prepares a further briefing to the Minister. This briefing is designed to capture a range of views from different entities and persons including the patient’s responsible clinician, the relevant Director of Area Mental Health Services, the relevant SPRP, and the Tribunal.

The interaction between s 77 of the MH(CAT) Act and s 33 of the CP(MIP) Act

[42]             If a responsible clinician certifies under s 77(4)(c) of the MH(CAT) Act that a patient’s condition no longer requires detention as a special patient, then the Minister may discharge special patient status in favour of one of the following options:15

(a)that the defendant be held as a patient under the MH(CAT) Act;

(b)that the defendant be held as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (ID(CCR) Act);

(c)that the defendant be discharged.

[43]             It is noteworthy that the label applying to the person who is subject to detention as a special patient differs in each Act. In the MH(CAT) Act, the person is referred to as a “patient” or a “special patient”. However, in the CP(MIP) Act, the person continues to be referred to as “the defendant”, even after their acquittal on account of insanity.

[44]             Section 77(4)(d) of the MH(CAT) Act provides that “instead of exercising and performing the powers and duties” under s 33 of the CP(MIP) Act, the Minister may apply to the Tribunal for review of the patient’s condition. AW submits that it is a mandatory requirement at this point for the Minister to refer the matter to the Tribunal, if the Minister is considering departing from the responsible clinician’s recommendation. While I do not have to determine this question in the present

14     Section 80(5)(c).

15     CP(MIP) Act, s 33(3)(b)(i) and (ii).

decision, I observe that there is no express indication that it is mandatory for the Minister to refer the matter to the Tribunal under s 77(4)(d). Rather, just as it appears to be open to the Minister under s 33(3)(b) of the CP(MIP) Act to discharge a defendant’s special patient status on the basis of a responsible clinician opinion without referring the matter to the Tribunal, a Minister could, in theory, decide not to discharge special patient status, contrary to the recommendation of the responsible clinician, without referring the matter to the Tribunal. However, referral to the Tribunal in this situation seems likely to reduce the risk of challenge to the Minister’s decision.

[45]             In each of the reviews of AW at issue in the present proceeding, the matter was referred to the Tribunal. That explains AW’s focus on the Minister’s response to each Tribunal decision.

[46]             If a special patient’s responsible clinician or the Tribunal certifies that the patient’s status should change, then the Minister must make a decision under s 33(3) of the CP(MIP) Act. Under s 33(3), the Minister must consider whether to change or discharge a person’s special patient status when a certificate, indicating a view that the patient’s continued detention is no longer necessary, is given either by:

(a)the patient’s responsible clinician;16 or

(b)the Tribunal.17

[47]             When deciding whether to change the status of or discharge a special patient, the Minister is required to consider if, in the Minister’s opinion, the defendant’s continued detention is no longer necessary to safeguard:18

(a)their own interests; and

(b)the safety of the public or the safety of a person or class of persons.

16     MH(CAT) Act, s 77(4)(c).

17     Section 80(5)(c).

18     CP(MIP) Act, ss 33(3) and (4).

[48]             If, in the Minister’s opinion, the special patient does not need to be detained to safeguard those interests, the Minister is required to make a direction either to change the special patient’s status (to a patient under a compulsory treatment order or a care recipient under the ID(CCR) Act) or to discharge the status.

Special patient review panels

[49]             SPRPs are used by the Director of Mental Health and the Minister of Health as source of advice and recommendations relating to individual special patients. SPRPs are not judicial tribunals and their existence is not provided for in legislation. However, the respondents’ position is that the Minister of Health may take the recommendations of an SPRP into account when making a decision under s 33(3) of the CP(MIP) Act.

[50]             According to the Director of Mental Health, SPRPs have been a feature of forensic mental health services in New Zealand since recommendations of the Committee of Inquiry into procedures used in certain psychiatric hospitals in relation to admission, discharge, or release on leave in certain classes of patients. SPRPs are regularly engaged by forensic services to review the clinical progress of special patients and make recommendations for their treatment and rehabilitation. Each panel comprises representatives from a multi-disciplinary team that works with the special patient, but the panel may also include an external member. SPRPs are not legal entities and do not replace the role of the responsible clinician, the Tribunal, the Director of Mental Health or the Minister in relation to special patients. Their sole purpose, according to the Director, is to provide a mechanism for a multi-disciplinary peer review of decisions about special patients.

[51]             The Director deposes that each special patient should be reviewed by an SPRP every six to 12 months depending on their progress and mental state. The process involves a meeting between the patient and the panel to discuss progress since the patient’s last review. Following the review, the SPRP creates a report recording its comments and recommendations for the patient’s treatment and management plan, including recommendations about change of status. Once completed, the report is then

provided to the responsible clinician, the Director of Mental Health and to the Ministry of Health.

[52]             The Director deposes that he includes the views of the most recent review by the SPRP in any briefing to the Minister on a special patient.

Submissions on behalf of AW

[53]             Counsel for AW, Mr Ewen KC and Ms Woodhouse, submitted that the vesting of decisions on AW’s continued detention in the executive branch of government is inappropriate. Introducing his oral submissions, Mr Ewen submitted that it is unusual that a Minister is empowered to overrule the decision of a duly constituted, independent, impartial tribunal. It is inconsistent with fundamental notions of the rule of law. The trend of the law is to remove political considerations (or the appearance of political considerations) from such decision-making. For example, Mr Ewen referred to the Parole Board which once had a recommendatory role only.19 Now, individual parole decisions are independent of executive control.20

[54]             Each of the impugned decisions of the Minister of Health concerning AW followed a Tribunal decision recommending he should no longer be detained as a special patient. AW contends that after the Tribunal concludes that a patient’s condition no longer requires them to be subject to a special patient order,21 the Minister must reach the same view as the Tribunal.22

[55]             Therefore, AW contends that each time the Tribunal determined he should no longer be subject to the special patient order, the Minister was obliged to follow the opinion of the Tribunal. AW says it follows that the Minister was required to discharge him from the special patient order in one of the ways specified in s 33(3)(b) of the CP(MIP) Act.

19 Criminal Justice Act 1954, s 33. Decisions on granting parole to those who served a minimum period of imprisonment rested with the Governor-General in Council, or from 1960 onwards, the Governor-General acting on the recommendation of the Minister of Justice: Criminal Justice Act 1954, s 34(2), amended on 27 October 1960 by the Criminal Justice Amendment Act 1960, s 9.

20     Parole Act 2002.

21     MH(CAT) Act, s 80(5).

22     Under s 33(3) of the CP(MIP) Act.

[56]             Interpreted in this way Mr Ewen submitted that s 33 is not inconsistent with the Bill of Rights Act. It is only if the Minister can overrule the Tribunal’s decision that a Bill of Rights Act inconsistency arises.

[57]             In oral argument, Mr Ewen acknowledged that the Minister could depart from the Tribunal’s opinion if the Minister was satisfied that the Tribunal had not considered AW’s own interests and the safety of the public or the safety of a person or class of person. If, however, the Tribunal has already considered those interests then, on AW’s view, the Minister is bound by the findings of the Tribunal, even though the Minister may disagree with them.

Rights AW says are engaged

[58]             AW bases his case on the following three rights protected under the Bill of Rights Act:

(a)section 22, in particular the right not to be arbitrarily detained;

(b)section 25(a) which provides that everyone who is charged with an offence has, in relation to the determination of the charge, the right to a fair and public hearing by an independent and impartial court; and

(c)section 27, namely that the principles of natural justice require that a periodic and determinative review of the continued necessity of the special patient order be conducted by an independent and impartial judicial tribunal.

Application of s 25 of the Bill of Rights Act — is special patient review part of the determination of a criminal charge?

[59]             Section 25 of the Bill of Rights Act, in particular the right, protected in para (a) to a fair and public hearing by an independent and impartial Court, was the central focus of AW’s argument.

[60]             According to AW’s submission, the Bill of Rights Act and the International Covenant on Civil and Political Rights (ICCPR)23 require any decision on continued detention under a special patient order to be made by an independent and impartial tribunal.24 The respondents admit that insofar as the Minister received and acted on the views, reports, or advice from the various Directors or the SPRPs, in considering reviews of AW’s status, this could not constitute a review by an independent and impartial tribunal.

[61]             AW contends that the Minister’s decision under s 33 of the CP(MIP) Act declining to change AW’s special patient status is a decision made in relation to the determination of the charge of arson. A decision in relation to the determination of a charge is a threshold question which engages s 25(a) of the Bill of Rights Act.

[62]AW refers to:

(a)Taueki v Police, a pre-trial bail decision, in which Kós J held the expression “in relation to the determination of the charge” was not to be read restrictively to the trial phase but “extends to assuring a defendant of a fair hearing at any stage of the process”.25

(b)Anderson v R, in which the Court of Appeal considered the expression “proceedings that relate to or follow the determination of the charge” in s 296 of the Criminal Procedure Act 2011. The Court concluded that a decision as to whether a trial is to be by a judge alone or by jury is one closely linked to determination of the charge.26

23     International Covenant on Civil and Political Rights GA Res 2200A (XXI) (1966).

24     Either directly under s 25(a) of the Bill of Rights Act or indirectly through the natural justice requirements of s 27.

25     Taueki v Police [2015] NZHC 1062 at [20].

26     Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [56].

[63]             The Bill of Rights Act must be interpreted generously.27 Section 25 affords protection in the sphere of criminal procedure. Given these factors, AW submits that s 25 should be interpreted to encompass “that which has a close connection with the results of the criminal justice process, such as the continuation of detention in whatever form.”

[64]             AW also notes that the Court of Appeal has found s 25 to be engaged in relation to the extended supervision order regime created under amendments to the Parole Act 2002, in Belcher v Chief Executive, Department of Corrections.28

Textual indication that s 33 CP(MIP) Act review is part of the determination of the charge

[65]             AW submits there are several indications in the text of the statute itself that the Minister’s decision under s 33 is a criminal justice decision. These include that s 33 refers to a “defendant” in respect of a decision relating to special patient status. By contrast, in the MH(CAT) Act, the Tribunal process describes the same person as a “patient” in relation to reviews of their status. Moreover, AW submits the name of the CP(MIP) Act shows a linkage with criminal procedure of which the determination of charges is an essential part. It is also relevant that, following an amendment in 2022, victims of the defendant have a right of input into the decision on continued special patient status.29

Comparative assessment: application of international human rights instruments

[66]             AW’s counsel drew from the following Commonwealth case law and decisions of international human rights bodies to support his central argument that decisions relating to the duration of a special patient order must be made by an independent, impartial judicial body.

27     Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 (CA) at 440, citing Minister of Home Affairs v Fisher [1980] AC 319 at 328-329.

28     Belcher v Chief Executive, Department of Corrections [2007] 1 NZLR 507 (CA) at [49].

29     Rights for Victims of Insane Offenders Act 2021, amending the CP(MIP) Act.

[67]             Counsel for AW submit that the body considering the continued validity of detention of a special patient must have the characteristics of a court (even if not formally constituted as such) and must be independent of the executive. It must have the ability to order release, not merely recommend or suggest release should be considered. Rather, the judicial body must have the final, uncontradictable say on the question. This was a matter on which the United Nations Human Rights Committee opined in A v Australia, holding that Australian legislation requiring the detention of all illegal entrants until they were either deported or granted a  permit  violated article 9.1 of the ICCPR to the extent that it excluded the possibility of periodic judicial review of detentions. The Human Rights Committee also considered the legislation violated article 9.4 of the ICCPR because the court review available to A was limited to a formal assessment of whether he was a “designated person” within the terms of the legislation rather than a power to order release if the detention was not compatible with the ICCPR.30

[68]             AW submits that, according to A v Australia, a court or tribunal must have the ability to order release of a special patient, not merely recommend it or suggest it should be considered. Rather, the judicial body must have the final uncontradictable say.

[69]             AW also refers to another Human Rights Committee decision, van Alphen v Netherlands, in which the Committee confirmed that “arbitrariness” must be interpreted more broadly than “against the law” to include elements of inappropriateness, injustice and lack of predictability, importing notions of reasonableness and necessity in all the circumstances.31

[70]             AW’s submissions cite three European Court of Human Rights decisions concerning article 5(4) of the European Convention (right to take proceedings determining lawfulness of detention by a court and have release ordered if detention is unlawful).32

30 A v Australia (1997) 4 BHRC 210 at [9.5]

31 Van Alphen v Netherlands [1990-1992] 3 NZBORR 326 at [5.8].

32 Weeks v United Kingdom application (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, Benjamin & Wilson v United Kingdom application 28212/95, 26 September 2002.

[71]             The first of these decisions, Weeks v United Kingdom, was a challenge to the ongoing validity of indefinite detention. The European Court held the Parole Board’s inability to make a binding determination on release did not  comply  with  the  article 5(4) guarantee. The ability to seek judicial review of the Board’s recommendation did not cure the problem either.33

[72]             The second decision, Thynne, Wilson and Gunnell v United Kingdom, involved a challenge to the Home Secretary’s power to determine release from an indeterminate sentence.34 The European Court held this power contravened article 5(4) because it was not carried out by a judicial body.

[73]             AW’s counsel observe that these challenges related to the lawfulness of detention after the penal aspect of the sentence had been served, when continued detention could only be justified on grounds of public safety. They note that, in respect of the legislative scheme concerning special patients, there is no penal phase of the detention. Rather, the scheme is premised almost entirely on grounds of public safety. It follows, in their submission, that the corresponding obligation in New Zealand to justify the detention on safety grounds arises immediately when the special patient order is made.

[74]             Third, in Benjamin & Wilson v United Kingdom, the European Court considered the position of sentenced prisoners who had been transferred to hospital following expiry of their sentence tariff period.35 Their cases were reviewed by the Mental Health Review Tribunal, but it was the Home Secretary who made the final decision. As a matter of policy, the Home Secretary accepted the recommendations of the Tribunal, but the Court nevertheless held the inability of the Tribunal to order release violated article 5(4).

33     Weeks v United Kingdom, above n 32, at [68]–[69].

34     Thynne, Wilson and Gunnell v United Kingdom, above n 32, [76].

35     Benjamin & Wilson v United Kingdom, above n 32, at [33], [37].

[75]             In R (Anderson) v Secretary of State for the Home Department, the House of Lords made a declaration of incompatibility under s 4 of the Human Rights Act 1998 in respect of s 29 of the Crime (Sentences) Act 1997.36 Pursuant to that section, the Secretary of State was given the power to determine the appropriate tariff a prisoner had to serve to satisfy the requirements of retribution and deterrence before any question of release on licence could be considered. The House of Lords concluded that the Home Secretary should play no part in fixing the tariff of a convicted murderer because article 6(1) of the European Convention on Human Rights requires effective separation between the courts and the executive, including that judicial functions may only be discharged by the courts. However, s 29 of the Crime (Sentences) Act 1997 could not be read and given effect to under s 3(1) of the Human Rights Act in a way that was compatible with the Convention. That was because it deliberately conferred decision-making power relating to the length of imprisonment and release of prisoners serving mandatory life sentences to the Secretary of State. Accordingly, a declaration of incompatibility was the only available remedy.

AW invokes Fitzgerald v R in support of giving s 33 CP(MIP) Act a rights consistent meaning

[76]             Setting these various international human rights determinations as a backdrop, AW then invokes Fitzgerald v R.37 AW  seeks to render s 33 compliant with the Bill of Rights Act, by means of statutory interpretation. AW submits the Court should apply s 6 of the Bill of Rights Act to prefer an interpretation of s 33(3) that would have the effect of restricting the Minister from making a decision under that provision if it would be contrary to the certificate given by the Tribunal.

[77]             Mr Ewen did not invite me to consider any specific textual rendering of s 33(3) following from this interpretive approach. However, in broad terms his submissions were that s 33(3) must be interpreted to prevent the Minister from reaching a different opinion to the Tribunal if it had certified that detention under a special patient order was no longer necessary.

36     R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 Cr App R 32.

37     Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.

My assessment

Legislative history confirms the Minister’s role is central to the purpose of s 33 of the CP(MIP) Act

[78]             The Criminal Lunatics Act 1800 (UK) created the special verdict of insanity. It was enacted following James Hadfield’s attempted assassination of King George III by firing a pistol at the King as he entered the royal box at Drury Lane Theatre.38 That Act provided that if a person charged with treason, murder, or felony (but not misdemeanours) was acquitted on account of insanity, the court must order them kept in “strict custody” until “his Majesty’s Pleasure shall be known”. This meant that an insanity acquittee would be confined in a jail or asylum until the Secretary of State signed a warrant for their release. In practice, this amounted to a life sentence.39

[79]             Since the enactment of New Zealand’s earliest mental health legislation, the detention status of a person acquitted on account of insanity has consistently been subject to non-clinical, ministerial control.

[80]             The Criminal Lunatics Act 1800 (UK) became the law in New Zealand, so far as applicable to New Zealand’s circumstances.40 It was replaced by the Lunatics Act 1868, which extended the law to include misdemeanours and provided for safe custody of the insane acquittee during the pleasure of the Colonial Secretary.41

[81]             The Lunatics Act 1882 then provided that where a person had been detained for safe custody after acquittal on a charge of an indictable offence on the ground of lunacy “the Colonial Secretary may, upon receiving a certificate from two medical practitioners that such person is of sound mind or is harmless, and may be discharged without danger to himself or others, discharge such person by warrant in writing.”42

38 Criminal Lunatics Act 1800 (UK) 39 and 40 Geo 3, c 94. See Richard Moran “The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800)” 19 Law & Society Review 3 (1985). Moran concludes his article at 517 by suggesting that “the trial of James Hadfield marked the abolition of the insanity defense, not its origin, since in most jurisdictions a successful defense of insanity now leads to automatic confinement for an indefinite period of time.”

39 At 513.

40     English Laws Act 1858.

41     Lunatics Act 1868, s 9.

42     Lunatics Act 1882, s 11(3).

However, if the offence with which the person was charged was punishable by death or penal servitude for life then the discharge decision was for the Governor.43

[82]             After New Zealand became a Dominion in 1907, the holders of these discharge powers became the Minister of Internal Affairs and the Governor in Council respectively.44

[83]             Under the Mental Defectives Act 1911 the discharge decision for persons acquitted on account of insanity in respect of charges not punishable by death or life imprisonment was transferred to the Minister of Justice.45

[84]             In 1969, the Criminal Justice Act 1954 was amended to provide that the Minister of Health could direct a special patient who had been charged with offences other than those punishable by death or imprisonment for life or for a term of 14 years to be held as a committed patient or discharged. Before doing so, the Minister needed to be satisfied, on the recommendation of two medical practitioners, that the person’s mental condition no longer required, either in their own interest or for the safety of the public, that they should be subject to the order.46

[85]             Since 1985, responsibility for discharging a special patient order where the patient has been acquitted on account of insanity has resided with the Minister of Health in respect of all offences.47

[86]             In 2003, provisions relating to entry and exit from special patient status were transferred from the Criminal Justice Act 1985 into a standalone Act, the CP(MIP) Act. In the committee of the Whole House stage of the Bill that would implement that change,48 the then Minister of Justice, Hon Phil Goff said:49

It is now appropriate to remove Part 7 from an Act with criminal justice in its title to avoid the misleading impression that those whose mental state makes them non-culpable are subject to criminal sanctions.

43     Section 11(4).

44     Crimes Act 1908, s 441.

45     Mental Defectives Act 1911, s 36.

46     Criminal Justice Amendment Act 1969, inserting s 39I into the Criminal Justice Act 1954.

47     Criminal Justice Act 1985, s 117.

48     Criminal Justice Amendment Bill (No 7) (382-2).

49     (21 October 2003) 612 NZPD 9511 at 9512, 9527 and 9545.

This is not about criminal justice because this is about people who are deemed to be not responsible for their acts in a criminal sense.

“Criminal Justice” as a title for this Bill was no longer appropriate because the thrust of this Bill was that a person who was found … to be insane, was, therefore, not criminally culpable.

Te Aka Matua o te Ture | Law Commission recommends establishing Special Patient Review Tribunal

[87]             There have long been concerns that the scope of ministerial power to determine whether or not a person remains under special patient status is too broad.50

[88]             In 2010, Te Aka Matua o te Ture | The Law Commission reviewed the present decision-making processes in respect of persons acquitted on account of insanity, including in respect of discharge under s 33(3)(b)(ii) of the CP(MIP) Act.

[89]             The Law Commission observed the defence of insanity can be regarded as unprincipled because it tends to mix up the defendant-focused question of criminal responsibility with a second and different question: who needs to be detained for the protection of the public (because of the likelihood that their disorder, which in turn produces criminal behaviour, will recur).51

[90]             The Law Commission expressed concerns about ministerial involvement in discharge decisions and about the duration of detention of special patients. The Commission recommended that the legislation should be amended to remove Ministerial involvement from decision-making under s 33 of the CP(MIP) Act. 52

50 See for example Warren J Brookbanks The Review and Discharge of Special Patients citing the report of the Legal Information Service/Mental Health Foundation Taskforce on Revision of Mental Health Legislation towards Mental Health Law Reform (1983) at 143, suggesting that the maximum time during which a person may legally be held as a special patient should be proportionate to the seriousness of the offence with which they were charged.

51 At p 5.

52 Law Commission Mental Impairment Decision-making and the Insanity Defence NZLC R120, 2010, at [R3], p 73.

[91]             The Commission considered that, regardless of the best intentions of those involved in the process, a degree of politicisation is inevitable when Ministers are involved in decision-making and that certain times and certain factors will tend to make Ministers more risk averse.53

[92]             The Law Commission recorded that, clinically speaking, there are real doubts about whether patient and community safety requires “quite such prolonged detention as that generally experienced by special patients”.54

[93]             The Law Commission also identified procedural concerns with the current Ministerial decision-making process. These concerns relate to the fact that decisions are made on the papers. By contrast with an open Tribunal hearing, there may be no meaningful opportunity for the special patient to have input into the decision-making. Moreover, the Minister of Health is not obliged to give reasons for their decision, and if reasons are given they will be brief.

[94]             The Commission noted that it is an important principle of natural justice for interested persons, including the patient, to know how and why decisions are made. Further, the Commission noted that there is no right of appeal against the Minister’s decision, although it would be open to judicial review.55

[95]             The Law Commission recommended establishing a Special Patients Review Tribunal which would have final decision-making power in respect of changes to the status of special patients.

Implementation of Law Commission recommendations

[96]             In 2023, the then Minister of Justice, Hon Ginny Andersen, agreed that proposed new mental health legislation would require establishment of a Special

53     At [10.3].

54     At [10.6].

55     At [10.8].

Patient Review Tribunal to shift decisions about leave and change of legal status for special patients from Ministers to an "appropriately independent body”.56

[97]             The Court has not been informed as to whether these proposals will be progressed by the current government. Nor do I intend to offer any gratuitous assessment of the merit of the proposed changes, except that they would seem to address AW’s concerns about the legislation, as expressed in his counsel’s submissions in the present case.

[98]             However, the legislative history and proposals for change as briefly summarised above reinforce that the current scheme clearly and intentionally provides that the Minister has a final decision-making role in relation to removal of special patient status (subject to any supervision of the exercise of that role by the Court).

[99]             It would not be open to this Court on an application for judicial review to implement these law reform proposals, regardless of how well thought out they may well be. That is a matter for Parliament to assess and, if it chooses, implement in due course.

Section 25(a) of the Bill of Rights Act is engaged

[100]         It is common ground that ss 22 and 27 of the Bill of Rights are engaged in respect of decisions on continuation of special patient status. However, the applicability of s 25 of the Bill of Rights Act is disputed.

[101]         The respondents’ position is that s 25 of the Bill of Rights Act is not engaged, and there cannot be any inconsistency with that right. They argue that the “criminal process can subsist for as long as it takes for the charge to be determined”, and that an “acquittal constitutes the final determination of the charge”.57

56 Ministry of Health | Ministry of Justice Transforming mental health law: decisions about special patient leave and change of legal status (proactively released document, key advice — briefing to the Minister of Health and Minister of Justice, 10 August 2023).

57   Unless the acquittal by reason of insanity is appealed.  For that purpose the acquittal is treated as if it were a conviction: CP(MIP) Act, s 21.

[102]         The respondents further submit that the location of the Minister’s power regarding continuing special patient status in the CP(MIP) Act “offers only a tenuous connection to the criminal process” and that, primarily, the detention and any review and determination of status occurs “under a civil regime…outside the scope of s 25”.

[103]         I do not accept the respondents’ submissions in relation to s 25. Rather, I prefer AW’s submission that the scope of the qualifier in the right, “in relation to the determination of the charge” can be understood as applicable to the Minister’s decision to continue special patient status in respect of AW.

[104]         To recap, Mr Ewen referred me to three supporting authorities for this approach:

(a)First, the authorities of Taueki v Police and Anderson v R;58

(b)Second, the “generous interpretation” required to be given to s 25;59

(c)Third, application of Belcher v Chief Executive of the Department of Corrections, where factors were developed to assess whether s 25 was engaged.

[105]         Taueki v Police (which concerned bail) and Anderson v R (selection of judge alone or jury trial) both relate to pre-trial steps. They show that procedural steps are seen as part of the determination of the charge even if they relate to preliminary matters rather than the core business of the trial itself.

[106]         The Bill of Rights Act “is intended to be woven into the fabric of New Zealand law”.60 It is to be given a generous interpretation, to give individuals the full measure of the enacted rights and freedoms.61

58     Taueki v Police, above n 25; Anderson v R, above n 26.

59     Fitzgerald v R, above n 37 at [41] per Winkelmann CJ.

60     R v Goodwin [1993] 2 NZLR 153 (CA) at 156 per Cooke P.

61 Fitzgerald v R, above n 37 at [41] per Winkelmann CJ, citing Minister of Home Affairs v Fisher [1980] AC 319 (PC) at 328 per Lord Wilberforce, cited with approval in R v Mist [2005] NZSC 77, [2006] 3 NZLR 145 at [45] per Elias CJ and Keith J; and Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 268 per Cooke P.

[107]         The respondents’ argument that an acquittal constitutes the final “determination” of the charge is, of course, correct in a literal sense. But the respondents’ submission that nothing that follows the determination of the charge can be, in terms of s 25, related to the determination, lacks the generosity of approach required in applying the Bill of Rights Act.

[108]         An acquittal by reason of insanity is different from an outright acquittal on normal criminal law principles. While criminal intent may have been found to be lacking,62 a special patient order acknowledges there may be an ongoing risk of offending because of a mental order or disability which requires ongoing detention to protect the public, despite legal innocence.63

[109]         Moreover, the respondents’ literal interpretation is at odds with cases in which the criminal process rights have already been held to extend to phases beyond trial, including sentencing and appeals on extended supervision orders (ESOs).64

[110]         In Belcher v Chief Executive, Department of Corrections, the Court of Appeal considered whether the provisions of the Parole Act 2022 relating to extended supervision orders (ESOs) were unjustifiably inconsistent with the Bill of Rights Act. As part of this assessment, the Court considered whether the imposition of an ESO amounted to a penalty or a punishment, such that ss 25 and 26 (which concerns retroactive penalties and double jeopardy) were engaged.

[111]         The Court listed several factors, described by Mr Ewen as “procedural and substantive indicia of the ESO regime” in supporting a conclusion that ss 25 and 26 were engaged.65 Not all of these factors are reproduced in the table below relating to the s 33 inquiry. However, in my view, several of the following indicia support a

62 Crimes Act 1961, s 23.

63 Law Commission Mental Impairment Decision-making and the Insanity Defence above n 52 at [1.18].

64 McDonnell v Chief Executive, Department of Corrections (2009) 9 HRNZ 770 (CA) at [39]-[40]; Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [21.8.4].

65 Belcher v Chief Executive, Department of Corrections above n 28 at [47].

conclusion that the making or continuation of a special patient order is a decision in relation to the determination of a charge:66

ESO	Special patient order (acquittal)
The triggering event is a criminal conviction	AW’s special patient status was triggered by an acquittal on account of insanity. The act was proven, but AW was found not criminally responsible.
The individual is referred to as ‘the offender’ throughout the ESO legislation.	The individual is referred to as ‘the defendant’ in s 33, and throughout the CP(MIP) Act.
Eligibility for an ESO depends on an application either before sentence expiry date or while the offender is still subject to release conditions	Special patient eligibility is determined following acquittal.
An application for an ESO is made to the sentencing court.	A determination of special patient status is made by a court.
Victims are to be notified of hearings and may make submissions	A victim must be notified of and given an opportunity to submit on a proposed change of status (ss 33B and 33C) and this is a mandatory consideration for the Director’s report (s 33C(5)). Victims are to be notified of the outcome also (s 33E).67

[112]         I note also that the requirement for the Minister to consider the “safety of the public” in a decision under s 33 of the CP(MIP) Act mirrors the consideration of the safety of the community in making an ESO.68

[113]The Court concluded in Belcher that:69

…the imposition through the criminal justice system of significant restrictions (including detention) on offenders in response to criminal behaviour amounts to punishment and thus engages ss 25 and 26 of NZBORA. We see this approach as more properly representative of our legal tradition.

66  In Chisnall v Attorney-General [2021] 2 NZLR 484 (CA), in which the Court of Appeal considered an amended ESO regime, these factors were listed in full and found still to have applicability when defining whether a legislative provision constituted a penalty, despite legislative and judicial progress since 2006. Chisnall is under appeal to the Supreme Court and awaiting determination.

67 These rights for victim participation have been in force since 13 December 2022, the date of commencement of the Rights for Victims of Insane Offenders Act 2021.

68 Parole Act 2002, s 107I.

69 Belcher v Chief Executive, Department of Corrections, above n 28, at [49].

[114]         In Chisnall v Attorney-General, the Court of Appeal rejected an argument that in Belcher too much emphasis was placed on “criminal procedural elements” and more weight should have been given to the “purpose and substance of the [ESO regime]” to find it was not a penalty for the purposes of ss 25 and 26 of the Bill of Rights Act.70

[115]         In summary, these factors support the existence of an ongoing linkage between decisions relating to continuation of special patient status and the determination of the charge that brought the defendant into the criminal justice system in the first place. The determination as to the continuation of AW’s special patient status is a determination relating to his original arson charge.

[116]         Accordingly, I reject the respondents’ submission that s 25(a) of the Bill of Rights Act does not apply in respect of decisions concerning the continuation of special patient status. In my view, s 25(a) of the Bill of Rights Act applies in respect of AW despite his acquittal. The criminal process did not end with his acquittal. Persons detained under the MH(CAT) Act as special patients continue to be dealt with as part of the criminal process despite those patients entering that status through an acquittal by reason of insanity.

[117]         The respondents accept that the prevention of arbitrary detention must involve the supervisory jurisdiction of this Court or an independent tribunal. This supervisory function is partly served by judicial review or the writ of habeas corpus. However, the language of the MH(CAT) and CP(MIP) Acts also offers protection against arbitrariness within the various statutory review processes themselves, including that undertaken by the Minister. As AW accepts, consideration of the ongoing need for special status is carried out by an independent and impartial tribunal under the MH(CAT) Act. However, the spectre of arbitrariness potentially arises upon the overlay of the Minister’s involvement under s 33(3) of the CP(MIP) Act. It is that ministerial overlay that AW seeks to constrain.

70     Chisnall v Attorney-General, above n 66, at [122].

Judicial review allows consideration of arbitrariness of detention of a special patient

[118]         In S v Attorney-General the Court held that detention as a special patient is unlikely to be arbitrary in circumstances where the following four standards are met:71

(a)the detention was authorised by statute and/or the courts;

(b)there is a thorough and mandatory system for regularly reviewing the need for the continued detention;

(c)the detention has in fact been regularly and systematically reviewed;

(d)the person detained can challenge the outcomes of those reviews which they have exercised.

[119]         I respectfully agree with the applicability of these standards. But, consistent with AW’s submissions, I would go a step further and say that establishing the four standards outlined in S v Attorney-General will not always insulate the Minister from a challenge to a s 33 decision by way of judicial review on the grounds of arbitrariness.

[120]         As the respondents acknowledge, the writ of habeas corpus or judicial review allow the Court to determine itself as a matter of law whether a decision of the Minister under s 33 has caused the detention to become arbitrary, contrary to s 22 of the Bill of Rights Act.

[121]         I can envisage the possibility of a successful challenge to a decision to maintain special patient status even if the four factors outlined in S v Attorney-General are established.

[122]         In my view, a Minister who decides not to discharge a special patient despite a Tribunal recommendation to the contrary, may face a challenge by way of judicial review on grounds including:

71     S v Attorney-General [2017] NZHC 2629 at [723].

(a)arbitrariness;

(b)taking into account irrelevant considerations;

(c)improper purpose;

(d)breach of natural justice.

[123]         Any of these factors, and perhaps others, could amount to a basis for overturning the Minister’s decision on judicial review.

Compliance with natural justice obligations may be difficult for the Minister to achieve

[124]         The respondents concede that s 27 of the Bill of Rights Act applies to the extent that the Minister must make a decision in a way that meets the demands of natural justice. But, my impression is that, by institutional design, relative to the open and transparent Tribunal process, the Minister’s process in any particular case (at least as I understand it from the material the parties put before the Court) may risk lacking sufficient transparency, impartiality and independence to satisfy the natural justice obligation in s 27.

[125]         In the Tribunal, there exists an effective mechanism to determine whether detention as a special patient is still clinically justified under the statutory criteria of the defendant’s own interests and the safety of the public. The review mechanisms provided in the MH(CAT) Act are sufficient to prevent an arbitrary detention of a special patient. However, it is of concern that the s 33(3) Ministerial overlay risks inconsistency with ss 22 and 27 of the Bill of Rights Act.

Is s 33(3) of the CP(MIP) Act inconsistent with protected rights?

[126]         It is common ground that the plain meaning of a statutory provision may be interpreted in such a way as to avoid a collision with guaranteed human rights, international covenants or treaties, or fundamental common law values, either through:

(a)the principle of legality;72 or

(b)through the interpretive direction in s 6 of the Bill of Rights Act.73

[127]         The rationale for adopting this interpretive approach is that, absent abundant clarity in expression, Parliament cannot be presumed to have intended to enact laws colliding with rights or values.

[128]         It is acknowledged that s 33(3) of the CP(MIP) Act does not expressly provide that the Minister is bound by a Tribunal’s decision under s 80 of the MH(CAT) Act that a special patient should be discharged from that status.

[129]         These references to the decision being driven by “the Minister’s opinion” indicate that Parliament did not require the Minister merely to rubber stamp the Tribunal’s decision.

[130]         However, despite the lack of support for AW’s position from the words of s 33, read literally, AW argues that the Minister’s decision-making power under s 33 CP(MIP) Act is “significantly trammelled” by Bill of Rights Act considerations once the Tribunal has made a determination that a special patient order should be lifted.

[131]         Under this approach, if the Tribunal considers a special patient should be discharged, then the Minister would be required to discharge the patient in accordance with the views of the Tribunal.74

[132]         If a patient has been acquitted on the ground of insanity and is detained as a special patient under s 24(2)(a) of the CP(MIP) Act, then it might be said that the purpose for detention is principally for the protection of public safety. Similarly, on review of a special patient order the primary issue is public safety: whether the patient’s condition still requires, in the patient’s own interest or for reasons of public safety, that they continue to be detained as a special patient.

72 D(SC31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213.

73 Fitzgerald v R, above n 37.

74 With the possible qualification, accepted by Mr Ewen in oral argument, of the Minister being satisfied that the Tribunal had failed to consider both the defendant’s own interests and the safety of the public or the safety of a person or a class of person.

[133]         However, a special patient order is an imposition of detention through state and statutory power. It involves placing someone into a system which imposes significant restrictions in response to a person’s conduct that has brought them into the criminal justice system. The Law Commission’s conclusion that special patient orders are often in place for longer than is necessary to address safety considerations gives cause for concern. It suggests that even if a special patient order is not intended to be a punishment at the outset, it can become so if a person is not discharged from special patient status at the appropriate time in accordance with their risk.

[134]         Accordingly, for the purposes of determining this aspect of the proceeding, I will assume that AW is correct in arguing that s 33 is prima facie inconsistent with  ss 22, 25(a) and 27 of the Bill of Rights Act. I adopt this assumption without prejudice to the next stage of the proceeding, in which AW seeks a declaration of unjustified inconsistency of s 33(3) with relevant Bill of Rights Act rights.

Is an interpretation of s 33 of the CP(MIP) Act available that is consistent with protected rights?

[135]         I will now turn to consider whether an interpretation of s 33 of the CP(MIP) Act is available that is consistent with protected rights.

[136]In doing so I recognise that s 6 of the Bill of Rights Act is a:75

…powerful interpretive obligation that complements and strengthens the use of common law purposive interpretation techniques together with the principle of legality. But meanings reached by way of s 6 must still be arrived at through a process of interpretation. Where the language of a provision is clear enough to exclude the possibility of a right-consistent meaning, s 4 requires the courts to give effect to the rights inconsistent meaning.

[137]         In Fitzgerald v R, the majority of the Supreme Court began by identifying a statutory purpose of the relevant legislation which excluded the application of the three strikes regime to Mr Fitzgerald.76 In approaching the matter in this way, the majority were able to construe the legislation in such a way that avoided a result that was unintended by the legislature.

75     Fitzgerald v R, above n 37, at [73] per Winkelmann CJ.

76     Fitzgerald v R, above n 37, at [186], [204], [248].

[138]         No such alternative statutory purpose is apparent from s 33 of the CP(MIP) Act and the overall scheme to suggest that Parliament intended anyone other than the Minister to make the final decision on continuation of special patient status, even if the Tribunal has certified otherwise. By contrast, the purpose of legislative history and context, as summarised earlier in this judgment, clearly shows that the discharge from special patient status of an individual who has been acquitted on the grounds of insanity has always been a matter upon which the Minister (or equivalent office- holder) has had a substantive decision-making role.

[139]         Sections 33(3)(a) and (b) of the CP(MIP) Act refer to “the Minister’s opinion”. This language indicates that the Minister is required to turn their own mind to the question. The language indicates an evaluative exercise of power by the Minister. It is not the language that I would expect Parliament to use if the Minister was bound to make a particular decision, once certain defined prerequisites were met (such as that the Tribunal had recommended the patient should be discharged). Such language is used elsewhere in the CP(MIP) Act, for example in s 31(4). That section provides that the Attorney-General must direct that a defendant, who has been found unfit to stand trial and who is detained as a special patient or special care recipient, be held as a patient or a care recipient if certain pre-conditions are satisfied.77 This is a significant contextual indication that, in enacting the CP(MIP) Act, Parliament was careful to spell out and contrast when decision-makers had hard duties and when their decision- making was required to be more evaluative.

[140]         I also accept it is important and desirable that s 33 be interpreted in line with international human rights instruments, as interpreted in decisions of the Human Rights Committee,78 European Court of Human Rights79 and the United Kingdom,80 but only so far as s 33’s wording permits me to do so. An international text may not be used to contradict or avoid applying the terms of the domestic legislation.81 The

77     M (SC 82/2020) v Attorney-General [2021] NZSC 118, [2021] 1 NZLR 70 at [17].

78     A v Australia (1997) 4 BHRC 210 and van Alphen v Netherlands No 305/1988, 23 July 1990 (recorded in 1990–1992 3 NZBORR 326).

79     See above at n 32 and Stafford v United Kingdom (2002) 35 EHRR 1121 (Heard in the European Grand Chamber).

80     R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 Cr App R 32.

81     Helu v Immigration and Protection Tribunal [2016] 1 NZLR 298 (SC) at [143].

conclusions in those decisions are persuasive,82 but they are not relevant to the question I must answer at this stage.83 I have established there can be no tenable reading of s 33 that limits the Minister’s decision-making role; comparative case law does not displace this conclusion.

[141]         While acknowledging the validity of AW’s concerns about arbitrariness at the ministerial stage, I do not accept that s 6 of the Bill of Rights Act permits the Court to remove or constrain the Minister’s powers in the way that AW seeks. Any meaning given to an enactment under s 6 of the Bill of Rights Act needs to be “tenable” and “reasonably possible”. Section 6 cannot be used as a “concealed legislative tool”.84

[142]         Accordingly, I reject AW’s broad argument that s 33(3) must be read subject to a proviso that, where the certificate is given by the Tribunal, the Minister must direct the defendant to be held as a patient or discharged. This would effectively require the Minister to close their mind, not have regard to the Director’s report if it was to contrary effect, and rubber stamp the Tribunal’s certificate. In my view this is not a tenable interpretation of s 33(3).

A case by case assessment of lawfulness of special patient duration decisions is required

[143]         I accept AW’s desire to ensure human rights standards are upheld and adherence to the rule of law is maintained. However, I also accept the respondents’ submission that the appropriate way of achieving this is to assess through the mechanism of judicial review on a case by case basis whether the Minister’s exercise of power under s 33 is lawful. To go further, as AW wants me to do, would involve me attempting to legislate when, as has been acknowledged, that is a matter for Parliament.85 It would require the Court to strain the legislation to the point that it is

82   In R v Goodwin (No 2) [1993] 2 NZLR 390 (CA) at 393 the Court of Appeal notes that the views of the Human Rights Committee in van Alphen v The Netherlands were of considerable persuasive authority.

83    They may well be useful in determining AW’s fifth and sixth grounds of appeal, to be considered at a later date.

84 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [91] and [156].

85 See Senior Courts Act 2016, s 3(2): “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”

no longer giving effect to Parliament’s intention but is instead subverting that intention and substituting its own policy views.86

[144]         Section 4 of the Bill of Rights Act “precludes the court from reading the legislative text in a way which nullifies it or is so inconsistent with the statutory purpose is to do violence to its scheme”.87 I acknowledge that before s 4 is reached, Parliament’s intention to legislate inconsistently with the guaranteed rights must be unmistakably clear. But having regard to the text, purpose and context of s 33 of the CP(MIP) Act, I am unable to interpret that provision in a way that removes the role of the Minister entirely or subjugates the Minister’s role beneath that of the Tribunal, as AW’s argument would necessarily entail.

[145]         There are compelling suggestions that as a matter of policy and human rights, it would be preferable that the Minister did not have a substantive role in determining the ongoing necessity of special patient status, especially after medical advice has been given to the contrary and the Tribunal has determined otherwise.

[146]         However, these policy discussions and preliminary decisions are ones in respect of which (as the Law Commission recognises) Parliament itself must have a determinative role in concluding whether to remove the Minister’s involvement entirely from decision-making in these cases.

[147]         Accordingly, both as a matter of statutory interpretation and for reasons of comity, I accept the respondents’ submission that the Court would be overstepping its role by applying s 6 of the Bill of Rights Act in a way which removed the Minister from any substantive decision-making role under s 33 of the CP(MIP) Act. The Court would be improperly legislating if it were to give s 33 such a meaning. This approach would remove the Minister from having any practical role. In my view, this is an amendment that only Parliament can bring into effect.

86     Students for Climate Solutions Incorporated v Minister of Energy and Resources [2024] NZCA 152 at [38] (per French J for herself and Gilbert J).

87     Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [36].

[148]         AW’s approach also fails to give adequate recognition to s 4 of the Bill of Rights Act. I consider that the language of the provision is clear enough to exclude the possibility of a meaning of s 33 that removes the Minister entirely from any distinct decision-making power following a certificate of the Tribunal recommending discharge from special patient status. In that situation, s 4 of the Bill of Rights Act requires the courts to give effect to a rights-inconsistent meaning.88

[149]         AW’s alternative formulation that the Minister could depart from the decision of the Tribunal if satisfied that the Tribunal had not considered the defendant’s own interests and the safety of the public or the safety of a person or class of person, is likely to be the assessment carried out by a court on an application for judicial review or habeas corpus anyway. These are the only grounds on which a Minister would be entitled to require the continued detention of a person as a special patient.89 The respondents have acknowledged that the Minister’s power must be exercised in accordance with ss 22 and 27 of the Bill of Rights Act. They acknowledge that the Court can scrutinise and correct any exercise of the Minister’s power that results from an unjustified breach of those rights. As each exercise of the Minister’s power will be case specific, including any decision to depart from the views of the Tribunal, it is not appropriate for the Court to lay down a generalised limitation of the Minister’s exercise of decision-making power under s 33.

[150]         Rather, a case by case assessment of individual decisions is the only way in which the Court can properly evaluate the lawfulness of the Minister’s exercise of that power. That is what has occurred in the present case, culminating in Isac J’s decision.90 What has resulted from such evaluation, namely that the Minister’s most recent decision to continue special patient status has been set aside, shows the adequacy of judicial review as a mechanism to scrutinise the exercise of a power that Parliament has conferred.

88     Fitzgerald v R, above n 37, at [73].

89     CP(MIP) Act 2003, s 33(4).

90     AW v Minister for Health, above n 2.

[151]         Comprehensive evidence of the process and substance of the Minister’s first two decisions was not before the Court. No alternative basis for setting aside the Minister’s 2018 decision was pleaded or argued. The focus of all counsel has been squarely on the proper approach to decision-making under, and interpretation of, s 33 of the CP(MIP) Act, on a generalised basis, relying on s 6 of the Bill of Rights Act.

Conclusion

[152]         Accordingly, as a result of my assessment that AW’s preferred reading of s 33 is unavailable, I cannot make an order on any other grounds that the Minister’s determination of 5 December 2018 be quashed, nor declare that the detention was otherwise not required or arbitrary.

[153]         The Minister was entitled to exercise their decision-making power in accordance with s 33 as enacted. Specific and comprehensive evidence relating to the Minister’s 2018 decision (of the type provided to Isac J in respect of the Minister’s 2023 decision) would need to have been supplied to the Court and addressed in argument in respect of an application for judicial review of the 2018 decision. Relatedly, no grounds have been established for a writ of habeas corpus to be issued in respect of that decision.

[154]         The aspect of AW’s proceeding in which he is seeking a declaration of inconsistency in respect of the provisions in the CP(MIP) Act governing the duration of the special patient order remains to be heard. In the present judgment, I am not required to determine whether the legislation is inconsistent with protected rights in the Bill of Rights Act, in particular ss 22, 25 and 27. I have not made any findings in relation to whether or not AW has established any inconsistency with rights protected under the Bill of Rights Act. Consideration of that aspect of AW’s claim must await the final stage of this proceeding which has yet to be heard and determined.

[155]         However, I conclude that the Court is unable to set aside the Minister’s determination of 5 December 2018 by way of a generalised interpretive mandate, applying s 6 of the Bill of Rights Act. I am therefore unable to conclude that from that date AW’s detention under a special patient order was not required and was arbitrary.

Result

[156]         Accordingly, the first and second causes of action in AW’s claim must fail and are dismissed.

[157]         My preliminary view is that costs in this matter should lie as they fall. However, if there is any issue as to costs, counsel may file memoranda within 14 days of the date of this decision (of no more than five pages in length) and I will determine any such application on the papers.

[158]         I also request the parties to file memoranda (or preferably a joint memorandum):

(a)with their suggested timetable to bring the remaining aspects of the proceeding to a hearing; and

(b)including the respondents’ report on the progress of the Minister’s reconsideration of their decision, as ordered by consent by Isac J.

McHerron J

Solicitors:

Ord Legal, Wellington for Applicant Crown Law, Wellington for Respondents