Maaka-Wanahi v Attorney-General
[2023] NZHC 187
•14 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-215
[2023] NZHC 187
UNDER the Judicial Review Procedure Act 2016: Part 30 of the High Court Rules; the Declaratory Judgments Act 1908; and the Common Law IN THE MATTER
of an application for judicial review and/or for declaratory judgments
BETWEEN
KINGI DUVAL MAAKA-WANAHI
Applicant
AND
ATTORNEY-GENERAL
First Respondent
TE WHATU ORA – HEALTH NEW ZEALAND – WAIKATO
Second Respondent
CIV-2022-404-186 UNDER
the Declaratory Judgments Act 1908
IN THE MATTER OF
an application for declaratory judgments
BETWEEN
TE WHATA ORA – HEALTH NEW ZEALAND – WAIKATO
Plaintiff/Applicant
Hearing: 7 and 8 November 2022 Counsel:
M S Smith and D T Haradasa for Applicant
K Laurenson and I M McGlone for Attorney-General
P N White for Te Whatu Ora – Health New Zealand – Waikato K Beaton KC and Y Mortimer-Wang for New Zealand Law Society and New Zealand Bar Association
L A Andersen KC for New Zealand Criminal Bar Association
MAAKA-WANAHI v ATTORNEY-GENERAL [2023] NZHC 187 [14 February 2023]
Judgment: 14 February 2023
JUDGMENT OF McQUEEN J
Table of Contents
Para Nos
Introduction [1]
Context of the proceedings [4]
Overview [5]
The HNZ Waikato perspective [10]
The experience of Mr Maaka-Wanahi [24]
Mr Bourke’s general experience [30]
Evidence for the Attorney-General [36]
Position of intervenors [44]
The CPMIP Act [48]
Declarations sought by Mr Maaka-Wanahi [52]
Declarations sought by HNZ Waikato [54]
The issues [56]
In what timeframe must a report ordered pursuant to s 38 of the CPMIP Act be completed? [58]
Submissions [59]
Discussion [76]
Is HNZ Waikato legally obliged to comply with any s 38 order that it receives where the order is addressed to “the health assessor”? Is HNZ Waikato required to locate and commission a health assessor to complete a s 38 report when it receives a s 38 court order addressed to “the health
assessor”? [92]
Is HNZ Waikato legally obliged to comply with an order made pursuant to s 38(2)(c) of the CPMIP Act ordering the detention of a person in
Puawai’s inpatient facility when there has not been prior consultation
as to whether it can properly accommodate such a person? [101]
What is the role of a forensic nurse in the context of s 38 of the
CPMIP Act? [111]
Can fitness to stand trial be determined on the basis of a single report prepared by a health assessor? [116]
Is the Crown responsible for funding s 38 reports irrespective of whether they are provided through the public health system or a private
provider? [122]
Declarations [127]
Conclusion [131]
Costs [132]
Introduction
[1] Section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) is at the heart of these two proceedings. Section 38 provides a mechanism for obtaining assessment reports from a ‘health assessor’ in relation to a defendant’s mental health when a court considers that such a report is necessary for one of the specified purposes.1 The timely provision of such reports is an important part of ensuring that people with mental health issues are considered and treated appropriately in the criminal justice system.
[2] The applicants in these two proceedings bring different perspectives to the issues.2 Te Whatu Ora–Health New Zealand–Waikato (HNZ Waikato) is concerned about its obligations to provide s 38 reports when it receives s 38 orders from a court. It seeks declarations to clarify its legal position.3 Mr Maaka-Wanahi brings the perspective of a person who has faced criminal proceedings in which s 38 orders were made. He seeks declarations about the timing of the provision of s 38 reports and how they are to be funded. HNZ Waikato and Mr Maaka-Wanahi differ as to the correct interpretation of the CPMIP Act, and consequently seek (in part) conflicting declarations. The Attorney-General agrees with each of the applicants in part.
[3] The New Zealand Law Society (NZLS), New Zealand Bar Association (NZBA) and Criminal Bar Association New Zealand (CBA) all appeared as intervenors. The NZLS and NZBA made joint submissions while the CBA made separate submissions.
1 The term “health assessor” is defined in s 4 of the CPMIP Act as a practising psychiatrist who is registered as a medical practitioner or a psychologist or a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. For convenience in this judgment, I refer generally to orders and reports made under s 38 as s 38 reports and s 38 orders.
2 The proceedings were consolidated and the Attorney-General, on his application, joined as a party to CIV-2022-404-186, see Minute of Toogood J [Joinder of Attorney-General, consolidation and transfer of proceeding] dated 15 June 2022.
3 Since these proceedings were commenced, District Health Boards have been disestablished under the Pae Ora (Healthy Futures) Act 2022 and Te Whatu Ora Health New Zealand (Te Whatu Ora) has been established to provide for the public funding and provision of services in order to protect, promote, and improve the health of all New Zealanders. Consequently, the name of the applicant in CIV-2022-404-186 (and second respondent in CIV-2022-485-215) has changed to Te Whatu Ora—Health New Zealand—Waikato (HNZ Waikato). HNZ Waikato provides its forensic mental health services through an entity called Puawai: Midland Regional Forensic Psychiatric Services (Puawai). For convenience in this judgment, I refer only to HNZ Waikato and not the Waikato DHB, even though prior to the commencement of the Pae Ora (Healthy Futures) Act 2022 on 1 July 2022, the relevant entity was the Waikato DHB.
Context of the proceedings
[4] I set out a brief overview of the context of these proceedings and then outline additional relevant information provided in evidence filed by the parties.
Overview
[5] The courts have been accustomed to issuing s 38 orders directed to unspecified health assessors. Section 38 orders are generally sent to local forensic mental health services (FMHS), which are now part of Te Whatu Ora–Health New Zealand (Te Whatu Ora), but previously were part of District Health Boards (DHBs). Reports have historically been provided by FMHS, often within a short timeframe. Some s 38 orders incorporate an order to detain a person in prison, hospital, or secure facility, for assessment purposes. The reports are paid for by the court that receives the report, with funding of those costs provided by Te Tāhū o te Ture | Ministry of Justice (Ministry of Justice) an individual report basis. This has been standard practice for some decades.
[6] In the last five or so years, a shortage of psychiatrists and psychologists in New Zealand and world-wide has developed. The reduced availability of psychiatrists and psychologists in New Zealand has been exacerbated by the COVID-19 pandemic. There has also been an increase in awareness of the implications of mental health for defendants in the criminal justice system. The number of s 38 reports ordered by the courts has increased. The number of individuals declared unfit to stand trial has also increased.
[7] The shortage of psychiatrists and psychologists is acute for HNZ Waikato, whose FMHS has been and is struggling to provide s 38 reports due to staffing issues and its other demanding responsibilities for the provision of mental health services. HNZ Waikato has also sought to rely on a screening process carried out by forensic court liaison nurses (forensic nurses) in assessing whether a s 38 report should be ordered. As a result, HNZ Waikato has often advised the courts in its region that it is not able to provide reports in relation to all the s 38 orders it receives and that where it can do so, it may take longer than the 14 day timeframe often directed by the relevant Court.
[8] Concerns about delays in the provision of s 38 reports have been raised, including by defence counsel and judges. The issue of delays in the provision of s 38 reports together with resourcing challenges within FMHS is well-known to the Ministry of Justice and Manatū Hauora | Ministry of Health (Ministry of Health). The Ministry of Justice has prepared a draft memorandum of understanding (MoU) to formalise arrangements for the provision of s 38 reports, but further work on it has been paused pending resolution of these proceedings.4
[9] A local solution to the unavailability of or delay in the provision of s 38 reports from HNZ Waikato has been implemented in Tauranga (the Tauranga model). An approved panel of private psychiatrists and psychologists has been convened so that the courts may send s 38 orders to a named member of the panel, rather than always sending the orders to HNZ Waikato. It is apparent that the Tauranga model has had some success in improving the availability of s 38 reports.
The HNZ Waikato perspective
[10] Dr Dean is the Clinical Director of Forensic Mental Health Services at HNZ Waikato. He is also the Director of Area Mental Health Services for Forensic Psychiatry for the Waikato area. In his affidavit, made in support of HNZ Waikato’s application, he explains that the FMHS in the Midland region are provided through a service known as Puawai. That service is contributed to in terms of staffing by HNZ Waikato and a non-government organisation called Hauora Waikato. Dr Dean explains that the services provided by Puawai include a secure inpatient service of 50 beds based at the Henry Rongomau Bennett Centre in Hamilton and 23 open rehabilitation beds provided by Hauora Waikato.5
[11]Dr Dean states that in the Midland region, central health funding provides for
7.4 full-time equivalent (FTE) forensic psychiatrists, and one FTE psychologist in the community. He says that HNZ Waikato regularly deals with the courts in Hamilton,
4 The draft MoU in evidence contemplates the Ministry of Justice and the Department of Corrections being signatories, but it is apparent that the appropriate health entity signatories have not yet been confirmed.
5 Hauora Waikato is a community forensic service that includes services provided to the prisons and courts in the Midland region, and community mental health follow-up to community-based forensic service users in Hamilton.
Huntly, Morrinsville, Te Awamutu, Te Kūiti, Taumarunui, Thames, Waihi, Tauranga, Whakatāne, New Plymouth and Hāwera. Dr Dean explains that due to the nature of the patients Puawai has, Puawai has a close relationship with the courts and also prisons. He goes on to say that as far as he knows, there is no formal arrangement between the courts and any FMHS requiring the provision of s 38 reports when ordered by a court.
[12] Dr Dean explains that forensic nurses employed by HNZ Waikato attend court, provide judges with relevant information, and convey information back to Puawai. He says that forensic nurses have training and experience in mental health and are able to screen people for any indication that a formal mental health assessment is warranted.
[13] Dr Dean says that it is common knowledge and has been well publicised that the mental health service across New Zealand is under resourced and has been for some time. He explains that this has been exacerbated by the COVID-19 pandemic.
[14] Dr Dean is a member of the New Zealand Forensic Psychiatrists Advisory Group (NZFPAG) which provides advice to the Ministry of Health on practical issues associated with forensic psychiatry in New Zealand. He refers to a letter NZFPAG wrote to the Chief High Court Judge, the Chief District Court Judge and the Ministry of Justice dated 8 August 2021, explaining the pressure on forensic psychiatric services across the country. NZFPAG explained that there had been a significant increase in the ordering of reports to be completed by health assessors, pursuant to s 38 of the CPMIP Act, the Parole Act 2002, and the Sentencing Act 2002. NZFPAG noted that clinical resources within the five FMHS around New Zealand are increasingly under pressure.
[15] NZFPAG went on to say that anecdotal reviews of FMHS statistics indicate that mental health recommendations only occur for about 5-10 per cent of clients on whom a non-screened health assessor’s report is ordered, while mental health recommendations are made in 75-80 per cent of cases where screening occurs. Despite numerous requests for screening for all clients to take place, this has not occurred. NZFPAG noted that the overload of reports requested also means that multiple extensions of time are required for delivery of reports. It says that this is a poor use of
FMHS resources and also slows the pace of justice. NZFPAG set out a new approach to prioritising health assessors’ reports that all FMHS in New Zealand would be adopting. The new approach would include screening of all requests for reports by a forensic nurse.
[16] NZFPAG has also expressed its concerns about the Ministry of Justice’s position as recorded in the draft MoU. NZFPAG considers that the MoU fails to acknowledge the resource limitations experienced by FMHS or its position that finding report writers is properly the responsibility of the Ministry of Justice rather than a local FMHS.
[17] Dr Dean also wrote to judges and court managers in the Midland region on 26 November 2021 explaining the problem. His letter indicated that Puawai would provide what service it was able to but was “likely to increasingly require extensions to complete reports”. The letter also set out that Puawai had no capacity to provide reports unless the person has been screened by a forensic nurse and a recommendation made for a report. The letter went on to say that on occasion, even when a forensic nurse has recommended a report, Puawai may not be able to provide one and the courts “may need to find other providers”.
[18] Dr Dean says that from his perspective, the “exponential” increase in the number of orders for s 38 reports in the last few years is due to a number of factors including:
(a)an increased awareness of mental health issues being relevant to offending and the disposition of offenders;
(b)an increased number of people coming before the courts that are under the influence of drugs that disturb their mental health (which frequently resolves once they are no longer under the influence of drugs);
(c)offenders’ mental health presentation improving over the period they interact with the justice system such that up to four reports can be requested for a single person;
(d)orders being routinely sought by some defence lawyers without there being any true evidence of a relevant mental health condition to try and obtain a report that might benefit their client at sentencing; and
(e)in relation to fitness to stand trial, often a first report that finds no basis for a mental impairment is not accepted as definitive, and in those circumstances, a second report is sought.
[19] Dr Dean states that by February 2022 there were only 3.2 FTE forensic psychiatrists at HNZ Waikato. This has placed significant pressure on HNZ Waikato’s ability to complete any reports required by the courts in criminal cases. Dr Dean says its capacity is such that it can barely manage the patients in its 50-bed inpatient facility. In another affidavit filed by HNZ Waikato, Dr Rees Tapsell, Director of Clinical Services, Mental Health and Addiction Services at Waikato Hospital, advises that as at early September 2022, another psychiatrist had resigned from Puawai.
[20] Dr Dean’s affidavit refers to several examples of actual scenarios faced by HNZ Waikato when a court has ordered a s 38 report and various difficulties have ensued. Dr Dean says that often an order will only be received by HNZ Waikato four or five days after it is made, which means approximately a week is left to prepare a report if a court has set a 14 day timeframe, which is common. In at least one case, HNZ Waikato has been criticised by the courts for not providing a s 38 report in time. In another, the Police prosecutor similarly criticised HNZ Waikato.
[21] Dr Dean is also concerned about the lack of consultation with HNZ Waikato prior to a s 38(2)(c) order for detention of a person in a hospital or secure facility being made because this requires admitting a person into its inpatient service which is nearly always fully occupied. Dr Dean explains that running over capacity has been criticised by the Ombudsman as being contrary to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which New Zealand is a signatory.6 Dr Dean says he is routinely writing to the courts explaining that HNZ
6 Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment GA Res 39/46 (1984). Entered into force on 26 June 1987 and ratified by New Zealand on 10 December 1989.
Waikato cannot complete the s 38 reports as ordered and that HNZ Waikato does not consider the orders as binding on it.
[22] Dr Dean is concerned about the criticism of HNZ Waikato and considers that clarification of the legal position is necessary. He does not believe that s 38 reports in the Midland region need to be completed only by psychiatrists and psychologists employed by HNZ Waikato and says that private health assessors could be utilised. He notes the Tauranga model. The providers in the Tauranga model are private consultant psychiatrists who are willing to provide reports (although sometimes, as is common for consultant medical practitioners across New Zealand, they work in both the public and private health sectors). He says that while obtaining reports through the private sector is more expensive, at least the service is being provided. He suggests that accessing health assessors in their private capacity could provide a solution across New Zealand. Dr Dean also describes his discussions with the judiciary in Hamilton about resourcing issues and forensic nurse screening. He says that as a result there has been a reduction in the number of reports directed to HNZ Waikato.
[23] HNZ Waikato also filed evidence from Ms Schumacher, a registered nurse employed by HNZ Waikato as a forensic mental health nurse. In that capacity, Ms Schumacher regularly attends the New Plymouth and Hāwera District Courts. Ms Schumacher explains that in this role (and with a defendant’s consent) she is able to convey information to the presiding judge and counsel about what the FMHS might know about any defendant appearing in court. This includes whether there could be any mental illness of which a court should be aware. Ms Schumacher confirms that her role includes assisting with communications between the courts and Puawai.
The experience of Mr Maaka-Wanahi
[24] Mr Bourke has provided affidavits in support of Mr Maaka-Wanahi’s application. Mr Bourke is an experienced criminal barrister. At the time of filing his proceeding, Mr Maaka-Wanahi was awaiting trial on criminal charges in the District Court at Hāwera. Mr Bourke is also defence counsel for Mr Maaka-Wanahi in relation to those matters. The criminal charges have since been resolved and at the hearing
before me counsel advised that Mr Maaka-Wanahi was at that time on electronically monitored bail, pending sentencing.
[25] In January 2022, Mr Bourke was assigned by Legal Services to act for Mr Maaka-Wanahi. On meeting with Mr Maaka-Wanahi, Mr Bourke was concerned about Mr Maaka-Wanahi’s ability to comprehend conversations and the impact of this on his fitness to stand trial. Mr Bourke liaised with the local forensic nurse, Ms Schumacher, who met Mr Maaka-Wanahi on 20 January 2022. Ms Schumacher conducted an initial nursing screen with Mr Maaka-Wanahi via AVL as he was then in prison. On 31 January 2022, she completed a standard form memorandum to the District Court summarising her findings which stated, “I respectfully have no formal recommendation pertaining to a s 38 report, pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003”. She explained in her memorandum that at the time of her assessment, there appeared to be no evidence of formal thought disorder, although she noted that Mr Maaka-Wanahi said that his reading and writing was limited and that in the past he has had communication assistance in relation to court matters.7
[26] Mr Bourke then asked the District Court to direct that a Communications Assistant Report be prepared.8 That report raised issues around Mr Maaka-Wanahi’s functioning and actual level of comprehension. As a result, Mr Bourke filed a memorandum seeking that the District Court order a report pursuant to s 38(1)(a) of the CPMIP Act. On 7 March 2022, the District Court made an order under s 38(2)(b) of the CPMIP Act that a report be prepared for Mr Maaka-Wanahi. At that time Mr Maaka-Wanahi had been denied bail and was detained in custody in Whanganui Prison. The order was made on what appears to be a standard form and was addressed “To every Constable and Health Assessor and to the Manager/Director of the Institution at Whanganui Prison”.9
7 In her reply affidavit, Ms Schumacher says that she did not recommend Mr Maaka-Wanahi undergo a s 38 assessment procedure and “that recommendation was based on me having no suspicion upon assessing him of any relevant mental illness at the time that would suggest such a report was warranted”.
8 As contemplated by s 80 of the Evidence Act 2006.
9 The order provided for detention in prison for the purpose of the assessment for 15 days, despite the 14 day period prescribed in s 38(2)(b). It seems that Mr Maaka-Wanahi was already scheduled to appear in Court on 22 March and the issue of bail was to be revisited then.
[27] It is evident that the order was sent to HNZ Waikato, as on 14 March 2022, the District Court received a letter from Dr Dean which stated:
On reviewing the section 38(2)(b) CPMIPA order, it appears the forensic court liaison nurse assessed Mr Makaa-Wanahi [sic] and no recommendation was made by her for section 38 assessment. Due to the lack of health assessors at Waikato District Health Board, as previously advised to the court, the DHB is not in a position to prepare a psychiatric report due to the severely limited resource we have available and the other competing priorities for our services.
Please note the New Zealand Forensic Psychiatry Advisory Group (NZFPAG) letter (attached) and recent memo to the court. If a report is required the court will need to seek another provider.
[28]As a result, no report was prepared on Mr Maaka-Wanahi by HNZ Waikato.
[29] On the understanding that Mr Bourke would commission Dr Valerie McGinn10 to prepare a s 38 report in relation to Mr Maaka-Wanahi, the District Court made a further order under ss 38 (1) and 38(2)(a) of the CPMIP Act on 22 March 2022.11 While it was initially unclear whether funding for the report would have to be sought through legal aid, the Registrar subsequently confirmed that the District Court would pay the cost of Dr McGinn’s report. Due to her existing commitments, Dr McGinn was unable to meet with Mr Maaka-Wanahi until 20 June 2022. Dr McGinn provided her report on 15 August 2022. In her report, Dr McGinn did not recommend Mr Maaka-Wanahi be found unfit to stand trial. She recommended that the legal process proceed with certain accommodations and that his fitness to stand trial and the effectiveness of the accommodations be monitored by the Judge. Dr McGinn also commented that screening by the forensic nurse did not detect a particular neurodisability that Dr McGinn identified. She noted that the forensic nurse may not have been trained in relation to it.
Mr Bourke’s general experience
[30] Mr Bourke also provided evidence about his experience with s 38 orders generally. He records that since he moved to New Plymouth in 2016, there have been
10 Dr McGinn is a neuropsychologist and expert on foetal alcohol spectrum disorder (FASD), who agreed to provide a report in her private professional capacity.
11 On the same date, Mr Maaka-Wanahi was granted electronically monitored bail. This was subsequently revoked in April 2022 on account of a breach of the conditions associated with his bail.
ongoing issues with the timely provision of s 38 reports. Mr Bourke explains that in his experience, the District Court has always operated on the basis that, where the defendant is in custody and a s 38 report is ordered, the report should be completed within 14 days and no later than 30 days if an extension is granted. He states that where a defendant is not in custody, the completion of reports is not subject to a specific timeframe. Rather, reports are expected to be provided in a timely manner (like other court ordered reports, for example a Provision of Advice to Court sentencing report or an electronically monitored bail suitability report).
[31] Mr Bourke provided evidence illustrating that following the issuing of a s 38 order, a day or so before the report is due, a letter will often be received from the FMHS advising that the report has not been completed and seeking an extension of time. Mr Bourke says that despite the prevalence of this issue, it appears to be worsening rather than improving.
[32] Mr Bourke refers to a case in which he was defence counsel where delays in the completion of a s 38 report were such that a District Court Judge suggested to him that he consider seeking a stay of proceedings. Mr Bourke did not apply for a stay, but at sentencing successfully sought a discount in recognition of the unreasonable delay in breach of rights under the New Zealand Bill of Rights Act 1990 (NZBORA).12 In another case where Mr Bourke was defence counsel, he successfully applied for a stay of proceedings on the basis of an abuse of process, given the delay in the provision of s 38 reports.13
[33] Mr Bourke also gives evidence about the impact of delays in obtaining s 38 reports. He comments that those who are subject to a direction for a s 38 report often have underlying or already diagnosed mental health issues and that as a result, delay can be detrimental to fostering and maintaining a workable lawyer/client relationship. He says that as a matter of legal and ethical obligation, counsel cannot allow their clients to enter a plea once the issue of fitness has been triggered. The court must determine fitness and a plea can only be entered if and when fitness is found. Mr Bourke also points to delays in the receipt of a s 38 report prejudicing a defendant’s
12 R v Rewiti [2020] NZDC 4901.
13 Police v Manurirangi [2021] NZDC 24608.
ability to seek bail, as a court can be understandably cautious when dealing with a person known or suspected to have mental health issues, preferring to have the s 38 report available prior to making a decision on bail. Mr Bourke highlights that a delay in receiving a s 38 report inevitably also delays a defendant receiving any necessary treatment. He records that in his experience, privately funded psychiatric or psychological reports can cost between $5,000 and $10,000.
[34] Mr Bourke expresses concerns about the appropriateness of requiring a recommendation from a forensic nurse for a s 38 report, prior to an order being made pursuant to s 38.14 He also observes a growing reluctance on the part of counsel to raise issues of fitness to stand trial knowing the likely push back from a forensic nurse and then a likely refusal to provide a report by the FMHS.
[35] In 2021, Mr Bourke took on what he described as an “amicus” role to try and see if any improvements could be made regarding the provision of mental health services in the context of criminal proceedings. He wrote to several Ministers. This resulted in a meeting with the Hon Andrew Little, then Minister of Health, where the concerns of the local judiciary and bar were discussed. Mr Bourke was included in correspondence between the Minister and the Director-General of Health discussing the issues of delay and funding. Mr Bourke says that, as at July 2022, his observation, confirmed by colleagues at the bar, is that there are still delays in the provision of s 38 reports and confirms that on occasion HNZ Waikato is simply refusing to prepare such reports.
Evidence for the Attorney-General
[36] The Attorney-General has provided evidence from officials at both the Ministry of Health and the Ministry of Justice.
[37] Dr Crawshaw, Director of Mental Health and Addiction, Ministry of Health, gave evidence in relation to the funding of regional mental health services. He notes that since 1 July 2022, Te Whatu Ora has taken over this funding role but says he does
14 I do not set out Mr Bourke’s concerns in detail as at the hearing before me HNZ Waikato did not pursue a declaration based on such a requirement.
not understand there to have been significant changes to the type and amount of mental health funding. The Ministry of Health remains the chief steward of the health system, leading health across government, and has particular regulatory functions, including in mental health. He notes that while regional FMHS provide specialist forensic court reports, there was no specific requirement within the DHB Crown Funding Agreement to provide these reports.
[38] Dr Crawshaw notes that concerns have been expressed to him about the remand of a person to a hospital for the purposes of a s 38 report because FMHS inpatient services are at capacity. He says that FMHS have recommended that this step should only be taken with the involvement of the FMHS as they have the specialist expertise to not only assess the situation but to advise a court on an appropriate way forward.
[39] Dr Crawshaw expresses the view that the pressures on services to complete court reports is an issue not of funding, but of recruitment and retention of necessary experts who can function as health assessors. He says that traditionally, FMHS have relied on overseas recruitment but there is now greater competition for specialists from other countries. He explains that Te Whatu Ora, in partnership with Te Aka Whai Ora—Māori Health Authority, is embarking on a broad programme of work to grow the pipeline of health professionals into health services across Aotearoa New Zealand. In addition, the Mental Health and Addiction national commissioning team within Te Whatu Ora is focused on growing and upskilling the existing mental health and addiction workforce. He observes that this will take time, noting that it takes 12–13 years to become a fully qualified psychiatrist.
[40] Dr Crawshaw explains that the Ministry of Health does not keep information on the demand for forensic court reports as it does not fund the reports. However, he says that regional FMHS report an increase in demand over the last four to five years. He identifies a number of factors that seem to have influenced the increase in demand:
(a)Most reports are now completed by regional FMHS, whereas previously there was a mixture of public and privately completed reports.
(b)As a result of High Court judgments interpreting the relevant provisions, when a question of fitness is raised a court will automatically order two reports. In the past, one report would be completed and if that raised a question of fitness a second report was then ordered.
(c)If there is a disagreement between two report writers, this can result in a further report being ordered by a third independent writer rather than the matter proceeding to a hearing.
(d)There have been delays in court hearings, which result in repeat reports being required to resolve the question of fitness because a defendant’s mental health can change, or appear to change, over time.
(e)If the defendant declines an interview, rescheduling the interview places further strain on the system and compromises the timeliness of completing the report.
(f)In practice, the threshold for raising questions of fitness has lowered. The judiciary and lawyers have become more aware and alert to issues regarding mental illness and questions of fitness.
(g)The practice of forensic nurses screening whether reports are required varies across the courts, according to regional FMHS.
[41] Dr Crawshaw states that the Ministry of Justice has relied on custom and practice in referring requests for reports to regional FMHS. He says there has been no formal MoU around the capacity to provide reports or to meet timeframes, nor has the more recent increased demand been negotiated between the Ministry of Justice and regional FMHS. Despite this, Dr Crawshaw says that regional FMHS have endeavoured to provide the reports, recognising that there is an access to justice issue if reports are not timely, which disproportionally affects Māori.
[42] Dr Crawshaw says that the Ministry of Health has had no direct involvement in either the funding or provision of court reports. He explains that the five regional FMHS have regular meetings as the NZFPAG. The Ministry of Health attends these meetings so as to assist with services such as future planning and service provision. He says there have been meetings between the Ministry of Health, the Ministry of Justice and NZFPAG to facilitate solutions to the increased demand for forensic court reports. Dr Crawshaw says that while the FMHS think they can meet the demand for sentencing reports pursuant to s 88 of the Sentencing Act 2002 (essentially for consideration of preventive detention), in his view, the real pressure point is the large volume of court ordered reports in the District Court. He says he has facilitated meetings with the Executive District Court Judge where there was general agreement on the magnitude and nature of the challenge.
[43] Ms Shannon, Group Manager, Courts and Tribunals Regional Service Delivery at the Ministry of Justice, gave evidence that in 2021, the Ministry of Justice began to liaise with FMHS, the Ministry of Health and the Department of Corrections to address delays in the provision of s 38 reports. Ms Shannon says that the core issue is a lack of capacity in the health sector to respond to the volume of reports the courts are ordering. She explains that the Ministry of Justice does not record how many reports are ordered, although it is investigating improvement of its record keeping. Ms Shannon describes the Tauranga model as an interim measure which is a backup for when the local FMHS cannot provide a report.15 She notes that the Tauranga model is not underpinned by any formal procurement or contractual arrangements.
Position of intervenors
[44] It is convenient here to briefly note the position of the intervenors. Where appropriate, I also refer to their submissions in the discussion of the issues.
[45] The NZLS and NZBA expressly take no formal position as to the declarations sought by HNZ Waikato and Mr Maaka-Wanahi. In their joint submissions, the NZLS and NZBA addressed the obligations of counsel acting for defendants who may have
15 HNZ Waikato does not accept that it is the primary provider of reports in Tauranga and that the panel of providers are simply a backup.
mental health issues which may be assessed in a s 38 report, and a rights-consistent approach to s 38.
[46] The NZLS and NZBA submit that the increased demand for s 38 reports and the lack of resources to meet that demand has reached a crisis point. They contend that fundamental human rights, access to justice and the rule of law are at stake. They consider that to the extent the underlying issues cannot be addressed by this Court, there is an urgent need for reform. They say also that interim measures need to be put into place to ensure continuing availability of s 38 reports.
[47] The CBA also emphasises the connection between timely provision of s 38 reports and fair trial and other rights. It supports a broader implementation of the Tauranga model for provision of s 38 reports.
The CPMIP Act
[48]Section 3 of the CPMIP Act sets out the Act’s purpose:
Purpose
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a) provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b) provide that a defendant found unfit to stand trial for an offence must be the subject of an inquiry to determine whether the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c) provide for a number of related matters.
[49]Section 38 of the CPMIP Act provides:
Power of court to require assessment report
(1)When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:
(a) whether the person is unfit to stand trial:
(b) whether the person is insane within the meaning of section 23 of the Crimes Act 1961:
(c) the type and length of sentence that might be imposed on the person:
(d) the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.
(2)If a court orders that an assessment report on a person be prepared under subsection (1), the court may—
(a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the assessment; or
(b) order that the person be detained in a prison for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit; or
(c) order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—
(i)a remand to a prison for that purpose would be inappropriate for any reason; and
(ii)a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.
(3)No order may be made under subsection (2)(b) or (c) in respect of a person if—
(a)the person is bailable as of right; or
(b)the person would have been released on bail but for the need for an assessment report.
(4)If the court makes an order under subsection (2)(c) for a person’s detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappropriate to order the detention of the person in a prison for that assessment.
(5)Subsection (1)— has effect despite other enactments; but is subject, in the case of a defendant who is under 20 years, to sections 171 to 175 of the Criminal Procedure Act 2011 and to section 15 of the Bail Act 2000.
[50]Section 40 provides:
Period of detention may be extended
(1)The period for which a person may be detained under an order made under section 38(2)(b) or (c) may, from time to time, be extended with the consent of the person or the person’s guardian, but the total period of detention under the order may not exceed 30 days.
(2)It is not necessary for a person subject to detention to be present when the period of detention is extended under subsection (1), as long as the person is represented by counsel.
[51]The term “unfit to stand trial” is defined in s 4 to mean:
in relation to a defendant,—
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable—
(i) to plead:
(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii) to communicate adequately with counsel for the purposes of conducting a defence.
Declarations sought by Mr Maaka-Wanahi
[52] Mr Maaka-Wanahi has made an application for judicial review and/or declarations pursuant to the Declaratory Judgments Act 1908. Mr Maaka-Wanahi emphasises the purposes for which a s 38 report can be made as set out in s 38(1) but notes also the broader positive role s 38 reports can play, for example, in assisting to identify whether a defendant’s statements may be unreliable or improperly obtained, in assisting effective communication between counsel and a defendant, and in assisting plea discussions with the prosecutor. He submits that s 38 reports are publicly funded in recognition of the important role they play in the criminal justice system.
[53] Against that background, his statement of claim seeks the following declarations:
(a)absent consent from a defendant or their guardian, reports ordered pursuant to s 38(2)(b) and (c) of the CPMIP Act must be completed within 14 days of the Court’s direction;
(b)where such consent is given, reports ordered pursuant to s 38(2)(b) and
(c) of the CPMIP Act must be completed within 30 days of the Court’s direction;
(c)to treat the time to complete a s 38 report as not starting to run until a forensic nurse has screened and recommended a s 38 assessment is ultra vires the CPMIP Act and unlawful;
(d)for a health assessor to refuse to comply with a direction to complete a s 38 report on the basis that the defendant has not been screened by a forensic nurse and recommended by them to be subject to a s 38 report, is ultra vires the CPMIP Act and unlawful; and
(e)the State is responsible for all costs incurred by Mr Maaka-Wanahi in obtaining a private sector s 38 report from Dr McGinn because of the inability to provide a publicly funded s 38 report to him within the statutory timeframes under the CPMIP Act.
Declarations sought by HNZ Waikato
[54] HNZ Waikato submits that its purpose is to provide health services, not justice services. It contends that the courts and lawyers do not have visibility of the day-to- day resource constrained environment in which s 38 orders are made. HNZ Waikato says that Te Whatu Ora is responsible for a much larger pool of mentally unwell people than those who come before the courts. HNZ Waikato emphasises the large geographical area for which it provides forensic services. It says that while in a perfect world, Te Whatu Ora would have sufficient resources to provide all necessary services to its population and still have sufficient capacity to assist the justice sector, this is simply not the reality. HNZ Waikato submits that despite advice having been given to the Ministry of Justice and key parts of the justice sector that it could not continue to
support the courts in the way that it had previously, it has not received any substantial response to its concerns until it filed its proceeding.
[55]In its amended statement of claim, HNZ Waikato seeks declarations that:
(a)orders from a court under s 38 of the CPMIP Act addressed to the “health assessor” are not binding on HNZ Waikato in any way;
(b)HNZ Waikato is not required to locate and commission a person who meets the definition of a health assessor under the CPMIP Act in order to provide a s 38 report when an order is addressed to “the health assessor”;
(c)an order made under s 38(2)(c) of the CPMIP Act ordering the detention of a person in Puawai’s inpatient facility when there has not been prior consultation with Puawai representatives to ensure that a patient can be accommodated in a designated bedroom is voidable and HNZ Waikato is not obligated to comply with it;
(d)if a forensic nurse has determined that a s 38 report is not warranted, that the s 38 CPMIP Act process is not triggered and does not need to be completed for a person to be determined as fit to stand trial;16 and
(e)if a person meeting the definition of a health assessor has determined that a person is fit to stand trial, that further reports are not required before a court can find that person fit to stand trial.
The issues
[56] There are some overlaps between the issues raised in the declarations sought by each of Mr Maaka-Wanahi and HNZ Waikato. I consider that the following questions arise for consideration in these proceedings:
16 During the hearing, counsel for HNZ Waikato clarified he was not pursuing a declaration in this form. Rather, he emphasised that a judge had the ability to take into account the views of a forensic nurse, when available, in their decision whether or not to make an order requiring a health assessor to complete a report.
(a)In what timeframe must a report ordered pursuant to s 38 of the CPMIP Act be completed?
(b)Is HNZ Waikato legally obliged to comply with any s 38 order that it receives where the order is addressed to “the health assessor”? Is HNZ Waikato required to locate and commission a health assessor to complete a s 38 report when it receives a s 38 court order addressed to “the health assessor”?
(c)Is HNZ Waikato legally obliged to comply with an order made pursuant to s 38(2)(c) of the CPMIP Act ordering the detention of a person in Puawai’s inpatient facility when there has not been prior consultation as to whether it can properly accommodate such a person?
(d)What is the role of a forensic nurse in the context of s 38 of the CPMIP Act?
(e)Can fitness to stand trial be determined on the basis of a single report prepared by a health assessor?
(f)Is the Crown responsible for funding s 38 reports irrespective of whether they are provided through the public health system or a private provider?
[57] I turn now to consider each of the issues and then revisit the declarations sought.
In what timeframe must a report ordered pursuant to s 38 of the CPMIP Act be completed?
[58] Given the significance of this issue, I set out in some detail the submissions made by the parties and intervenors.
Submissions
[59] Mr Maaka-Wanahi submits that his proceeding concerns an important aspect of the principle of a fair trial, namely fitness to stand trial, being a defendant’s ability to understand and participate in a criminal trial. He accepts that the relevant provisions of the CPMIP Act are not drafted clearly or precisely but says when interpreted from their text and in light of their purpose and context, the statute requires a s 38(2)(b) or (c) report to be completed within 14 days (or up to 30 days, if an extension is granted pursuant to s 40).17
[60] Mr Maaka-Wanahi contends that the alternative outcomes (that the timeframe for a s 38 report is unlimited or that a reasonable timeframe is required) will lead to further delays in criminal proceedings as well as reducing the urgency within which the important issue of delays in the provision of s 38 reports is addressed in practice. He says that criminal procedure timeframes are aimed at securing substantive progress and subpt 5 of the CPMIP Act (and indeed the Act more generally) envisages the timely progression of matters for mentally ill defendants.
[61] Mr Maaka-Wanahi notes that it is clear from s 38(1) that an order for a s 38 report will only be made in respect of a person who is in custody, referring to the Court of Appeal’s expansive interpretation of what “in custody” means in Togia v Police, where the Court held that it includes persons on bail who appear in court as a condition of bail, as persons present in court answering bail are “in the custody” of the Court.18
[62] Mr Maaka-Wanahi submits that given s 38(3)(b) makes it clear that a person cannot be detained in prison, hospital or a secure facility solely for the purpose of a s 38 assessment report, persons subject to a s 38(2)(b) or (c) order are persons who, independently of s 38 issues, have been or will be denied bail and ordered to be
17 Legislation Act 2019, s 10(1). Mr Maaka-Wanahi also submits in the alternative that a s 38 report must be completed within a reasonable time.
18 Togia v Police [2012] NZCA 544, [2013] 2 NZLR 478 at [17].
remanded in custody. He submits that the decision to detain a person in custody must be made pursuant to the Bail Act 2000, not the CPMIP Act.19 Therefore, he says, the references in the CPMIP Act to 14 days or 30 days cannot be a reference to the period for which a person may be remanded in custody. Rather, they must refer to the period in which s 38 reports must be provided.
[63] Mr Maaka-Wanahi argues that this is reinforced by the fact that a person is not automatically released from custody once the 14 or 30 day period expires or if the report is sent to the Court inside of the 14 or 30 day period.20 Put in another way, he submits that the chapeau text in s 38(1) presupposes that a s 38 order will only be made in respect of a person who is in custody, which assumes that when a court is considering whether to order a s 38(2)(b) or (c) report, a decision has already been made as to whether to detain the person in custody pursuant to the Bail Act 2000. Again, he submits, this must mean that the references to 14 or 30 days do not refer to the period for which a court may detain the defendant in custody and must be a reference to the time limit for the provision of the reports.
[64] Mr Maaka-Wanahi contends also that this interpretation accords with broader purpose and policy reasons. He raises three points in this regard.
[65] First, that every person charged with an offence has the right to be tried without undue delay pursuant to s 25(b) of NZBORA.21 Absent express wording to the contrary, it is presumed that Parliament intended to legislate consistently with fundamental rights.22 When a s 38 report is ordered, the defendant’s case cannot be progressed until the report is available to the court. Mr Maaka-Wanahi argues that it would be surprising if Parliament had intended not to specify the timeframe in which
19 Mr Maaka-Wanahi accepts that the codification of the law relating to bail in the Bail Act has not ousted the inherent jurisdiction of the High Court in bail matters (see Zaoui v Attorney-General [2005] 1 NZLR 577 at [30]–[31] (SC)) but submits that the detention or bail of a person before or during a trial and while awaiting sentencing or determination of an appeal (situations in which s 38 reports can be ordered) are all areas regulated by the Bail Act, and therefore the inherent jurisdiction of the High Court is unavailable.
20 McMichael v Police [2022] NZHC 1920 at [15]; and Rickard v Police [2021] NZHC 1033 at [30]– [33].
21 See Police v Burrows [2020] NZHC 1755 at [77] and [78]; citing R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
22 New Zealand Bill of Rights Act 1990, s 6; and Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [48] per Winkelmann CJ.
s 38 reports are to be provided, in contrast to the general approach to the law of criminal procedure, which contains many statutory deadlines and timeframes. He says that an interpretation of s 38 as not providing a timeframe for the provision of a report poses a real risk of undue delay, contrary to s 25(b) of NZBORA, and is of particular concern where vulnerable persons are concerned. Mr Maaka-Wanahi submits that the Supreme Court decision in Fitzgerald governs the correct approach to a rights- consistent interpretation of s 38.23 In particular, he relies on Fitzgerald to submit that s 6 of NZBORA mandates a proactive approach and that casting s 38(2)(b) and (c) as unambiguous or plain on their face is not the end of the enquiry.24
[66] Mr Maaka-Wanahi also highlights the likely disproportionate impact on Māori given the evidence that Māori are overrepresented amongst those found unfit to stand trial.25 He submits that the Crown and HNZ Waikato must consider the principles under Te Tiriti o Waitangi | Treaty of Waitangi (the Treaty) and notes that s 6 of the Pae Ora (Healthy Futures) Act 2022 sets out how the Act provides for the Crown’s intention to give effect to the principles of the Treaty.
[67] Second, Mr Maaka-Wanahi makes a point of efficacy. He says that a strict and short timeframe is more likely to capture the mental state of the subject for the purpose for which the report is sought. He submits that if a person is examined within 14 days, but the report not written for some time, the report would not provide an accurate assessment of the defendant’s then present state of mind, with the consequence that a further report may need to be sought, with consequent delay to the criminal proceeding.
[68] Third, Mr Maaka-Wanahi relies on settled practice as a useful touchstone for interpretation, although accepting that it is not determinative.26 He notes that the
23 Fitzgerald, above n 22, at [61] per Winkelmann CJ and [209] per O’Regan and Arnold JJ. See also Professor Jason Varuhas “The principles of legality in Aotearoa New Zealand” 17 Paper prepared for the New Zealand Law Society Continuing Legal Education Human Rights Intensive, 4 October 2022, Wellington, at 37.
24 Fitzgerald, above n 22, at [56]–[57] per Winkelmann CJ; See also Varuhas, above n 23, at 43–44.
25 See Te Tāhū o te Ture Ministry of Justice “People found unfit to stand trial or not guilty by reason of insanity—Table 3: Number and percentage of people found unfit to stand trial, by gender, ethnicity and age group, 2012/2013 – 2021/2022” (accessed 17 January 2023) Data tables | New
Zealand Ministry of Justice.
26 See Diggory Bailey “Settled Practice in Statutory Interpretation” (2022) 81 CLJ 28 at 29 and 46.
existing understanding seems to be that the CPMIP Act provides for a 14 day deadline for the provision of s 38 reports unless an extension is permitted pursuant to s 40. If HNZ Waikato considers there is no statutory deadline for the provision of reports, Mr Maaka-Wanahi submits, then there would be no need for it to seek extensions from the court to complete reports. He also submits that while HNZ Waikato and the Attorney-General may dispute the soundness of this interpretation in terms of the realities of resourcing and funding constraints, a failure by the Crown to provide adequate resourcing is not a reason to interpret the law contrary to its text, context and purpose.
[69] Mr Maaka-Wanahi refers to two District Court decisions that have said that reports ordered under s 38 must be completed within 14 days.27 As noted, in Police v Manurirangi, Mr Bourke as defence counsel successfully applied for a stay of proceedings on the ground that the time limits set out under the CPMIP Act had been breached.28 In the other, R v Reweti, a discount on sentence was allowed due to the unacceptable delay in provision of the s 38 reports.29 Both decisions appear to simply assume that the time limits in ss 38(2) and 40 relate to the provision of reports during the period of detention. Mr Maaka-Wanahi submits that this approach is consistent with the common expectation in the District Court, as described by Mr Bourke, that the timeframes relate to the completion of reports.
[70] The Attorney-General submits that there is no statutory timeframe for the completion of a s 38 report and that the 14 and 30 day periods referred to in ss 38 and 40 relate to the timeframe for which a person may be detained for the purpose of obtaining a s 38 report, that is, for assessment. The Attorney-General says that s 38(2)(b) is unambiguous and is linked solely to detention for the purpose of assessment. He emphasises that:
27 Police v Manurirangi, above n 13 (where the Court also recognised the power to extend the timeframe under s 40 of the CPMIP Act); and R v Reweti, above n 12. These cases are discussed by Mr Bourke in his affidavit.
28 Above n 13. I note also that Dr Dean gave evidence stating that the decision in Manurirangi incorrectly records that Ms Schumacher ‘appeared’ for HNZ Waikato in that case and made submissions. Ms Schumacher’s evidence was that she attended the Court to observe the hearing for educational purposes and that she did no more than observe the hearing. HNZ Waikato did file a memorandum of counsel indicating it would not appear at the hearing and would abide the decision of the Court. It seems likely that the arguments noted by the Judge as having been made for HNZ Waikato were in fact made by the prosecutor.
29 Above n 12.
If the assessment is completed and the person released, [section] 38 does not stipulate how long an assessor can take to complete the written report. The Attorney submits this interpretation is consistent with a defendant’s rights: once an assessor has met with a defendant there is no need for the defendant to remain detained in a mental health facility while the assessor takes the time needed to draft the report, they can then either be detained in prison in the ordinary way, or if there has been a change to the risk they present, the Bail Act 2000 may allow for bail.
[71] The Attorney-General submits that s 38(3) ensures that defendants are not detained under s 38 when they would otherwise be bailed. He says that s 38 provides for a person to be detained for the purpose of an assessment, but s 38(3) ensures this is only where that defendant would also have been detained under the provisions of the Bail Act. He submits that Parliament did not intend to set a timeframe on the provision of reports, as shown by other time sensitive provisions in the CPMIP Act, such as s 23(4).30 He also notes that if the CPMIP Act does impose a time limit, then the Act does not provide for what the consequences of late reports are.
[72] The Attorney-General accepts that delays in the criminal justice system are undesirable and may engage NZBORA rights. The Attorney-General also submits that application of s 38 permits a rights-consistent outcome to be achieved, as it cannot be said that the right to be tried without undue delay will necessarily be breached as a result of the timeframe within which a s 38 report is provided—that will be a question to be determined in any particular case.31 In written submissions, the Attorney-General focused on an analysis based on the factors set out in Hansen v R, arguing that it was only necessary to consider the first step (to ascertain Parliament’s intended meaning), as the meaning Parliament intended was to limit detention for the purpose of assessment to 14 days and this was also a rights-consistent approach.32 In response to Mr Maaka-Wanahi’s reliance on Fitzgerald, he submitted that a rights-consistent approach to s 38 was possible without having to adopt a Fitzgerald analysis. He said the right to be tried without undue delay, for example, sits alongside s 38. He also accepted that if that right was infringed, there might be consequences.
30 Section 23(4) states: the inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
31 R v B [1996] 1 NZLR 385 (CA) at 387.
32 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [89]–[92].
[73] HNZ Waikato submits that, contrary to Mr Maaka-Wanahi’s submissions, there is no such thing as a “s 38(2)(b) or (c) report”. Rather, those subsections specify the ability to detain for the purpose of facilitating a report under s 38(1), which does not specify any timeframe within which a report must be provided. HNZ Waikato also distinguishes between the time when an assessment occurs and when a report might be produced. It notes that is what occurred in Mr Maaka-Wanahi’s case, where the s 38 order directed to Dr McGinn was made on 22 March 2022, Dr McGinn’s assessment took place on 20 June 2022 and her report was provided on 10 August 2022. HNZ Waikato submits that this chronology demonstrates the reality of timeframes for obtaining s 38 reports from a health assessor, even where the health assessor is providing a report in their private professional capacity. HNZ Waikato also refers to the requirement in s 39(2) of the CPMIP Act that a health assessor consult with other persons in the subject’s family or whānau, noting that this can occur outside of any detention of a defendant for the purpose of an assessment.
[74] NZLS and NZBA submit that a rights-consistent interpretation of s 38 is required. They say that the right to a fair trial is fundamental (including that a defendant is fit to stand trial) and that where an evidential basis exists to seek a s 38 report, a refusal to order a report or a failure to comply with an order to provide a report will likely breach those rights. They submit that delays in the provision of s 38 reports may likewise breach a defendant’s right to be tried without undue delay. They say that this Court should recognise that. NZLS and NZBA also express concern over the timeframes proposed by the NZFPAG for the provision of reports (for example, three months for the completion of reports on fitness and insanity and six months for the completion of reports relating to sentencing), submitting that they are unreasonably long and will likely result in undue delays in practice.33
33 They refer to High Court statistics that show a national average of 444 days as the waiting time for criminal trials: Ngā Kōti o Aotearoa | Courts of New Zealand “High Court – criminal trials – waiting time for scheduled hearings as at 30 June 2021” (30 June 2021) Ngā Kōti o Aotearoa | Courts of New Zealand (Accessed 10 February 2023) High Court - criminal trials – waiting time
for scheduled hearings as at 30 June 2021 – Courts of New Zealand (courtsofnz.govt.nz).They submit that a three month delay for a fitness assessment will often have a compounding effect in other pre-trial and trial hearing days being pushed out far into the future and raise concerns about the arbitrary detention of defendants.
[75] The CBA submits that the effective and just operation of the criminal justice system requires timely and expert advice as to the existence and extent of psychiatric conditions in defendants at various stages in proceedings. The CBA’s written submissions adopted the analysis offered by Mr Maaka-Wanahi that reports ordered under s 38(2)(b) and (c) must be completed in 14 days (or with consent, 30 days) but in oral submissions, counsel for the CBA emphasised his view that s 38(2) has been misunderstood and that its point is to ensure that a defendant is back before the Court within the timeframe of 14 or 30 days rather than constituting a timeframe for completion of a report. The CBA emphasised the interplay between timely provision of s 38 reports and fair trial requirements as well as the rights to be treated with dignity and not to be discriminated against.34
Discussion
[76] For the following reasons, I consider that I am unable to make the declaration sought by Mr Maaka-Wanahi. I consider that the time limits referred to in ss 38(2) and 40 relate to detention for the purpose of assessment, rather than the completion of reports. I consider that this is clear upon the terms of ss 38 and 40 and that this is a rights-consistent interpretation.
[77] The issue has previously come before the High Court in McMichael v Police, in the context of an appeal against a refusal to grant an application under s 147 of the Criminal Procedure Act 2011.35 This Court concluded that the 30-day timeframe was a mandatory timeframe on detention rather than completion of a report.36 However, Cull J went on to observe that:37
34 New Zealand Bill of Rights Act 1990, ss 9 and 25(3); and Convention on the Rights of Persons with Disabilities GA Res A/RES/61/106 (2006), arts 5 and 13. Entered into force on 3 May 2008 and ratified by New Zealand on 25 September 2008.
35 McMichael v Police, above n 20. There do not appear to be any relevant decisions of the Court of Appeal or Supreme Court. There is no discussion about the timeframes referred to in ss 38 and 40 in Vicki Ammundsen A Practical Guide to Capacity (Wolters Kluwer, Auckland, 2022). Nor is there any discussion in Hall’s Sentencing although it might be inferred from [CPMPA38.3] that the author regards the timeframe in s 38 as referring to a maximum period of detention. The position is the same for Garrow and Turkington’s Criminal Law in New Zealand at [CPMIP38.4], and Adams on Criminal Law at [CM38.05]. In Warren Brookbanks and Jeremy Skipworth, Psychiatry and the Law (Lexis Nexis, Wellington, 2007) at [7.3.2] the authors make the statement “A remand period of two weeks is typically given to complete most reports; however, for complicated reports extended periods of time may be necessary”.
36 McMichael v Police, above n 20.
37 At [19].
…it is unacceptable … that time limits under the CPMIP Act become meaningless and the necessity for timely s 38 reports is undermined. Individual liberty and arbitrary detention are at the forefront of such considerations.
[78] The main issue the Court was dealing with was whether Mr McMichael should have been released at the expiry of the 30-day period and the implications of that for his application pursuant to s 147. It does not appear that rights under NZBORA were raised. I accept Mr Maaka-Wanahi’s submission that this decision is of limited assistance in the present circumstances given that, understandably, the Court did not provide any detailed reasoning for its conclusion that the timeframe related to detention rather than the completion of a report. Further, in two separate bail appeals, this Court has referred to s 38 reports not being provided within the 30 day period of detention contemplated by the CPMIP Act, but again, without any detailed discussion of the relevant provisions, as the primary issue before the Court related to the granting of bail after time limits in the CPMIP Act had passed.38 Accordingly, the present proceedings appear to be the first in which this issue has been squarely before the Court.
[79] Section 38 is not drafted clearly or simply. Nonetheless, I consider I am able to interpret it as follows. Section 38(1) empowers a court to order an assessment report for one or more of the specified purposes in relation to a defendant held in custody. No timeframe for the provision of the report is set. Section 38(2) permits a court to make further orders when a report is ordered pursuant to s 38(1). Section 38(2)(a) allows a court to make it a condition of bail that the defendant go to a place approved by the court for the assessment. Again, no timeframe for the provision of a report is mentioned. Section 38(2)(b) and (c) contemplate the defendant’s detention for up to 14 days “for the purpose of the assessment”.
[80] I am not persuaded by Mr Maaka-Wanahi’s argument that the use of “assessment” in s 38(2) should be understood as shorthand for “assessment report” as used in the chapeau text. Rather it seems to me that “assessment” has been used
38 McMichael v Police [2022] NZHC 1190 at [15]; and McMichael v Police [2022] NZHC 2554 at [16]. Both judges also expressed their concern about the delays in the provision of s 38 reports. See also P v Police [2023] NZHC 106; Adams v Police [2019] NZHC 3070; and Rickard v Police [2021] NZHC 1033.
deliberately to emphasise that the detention of a person is to facilitate the assessment taking place. This recognises that once a person has been assessed, there is no need for a defendant to continue to be detained “for the purpose of assessment” while a report is drafted and provided to the court. It also recognises that detention for the purposes of assessment is not a matter that is addressed by the Bail Act, which, subject to exception, provides that defendants are bailable as of right unless there is ‘just cause for continued detention’.39 Following the completion of the assessment or at the latest, the expiry of the time-limited period of detention, a person detained pursuant to s 38 may be remanded in custody in the normal fashion, or released on bail.40
[81] The effect of s 38(3) is that a person cannot be detained for the purpose of assessment when they would otherwise be bailed on the terms of the Bail Act. I agree with the Attorney-General that this is a rights-consistent measure. This is supported by the power in s 38(2)(a) to “make it a condition of a grant of bail that the person go to a place approved by the Court for the purpose of the assessment”. Therefore, in deciding whether to detain a person for the purposes of assessment, a court must have regard to the provisions of the Bail Act and ensure that any order for detention is consistent with those provisions.
[82]To my mind, this interpretation of s 38 is supported by two other matters.
[83] First is the approach to timeframes in other sections of the CPMIP Act. Notably, s 38 does not contain a requirement as in s 23(4) that a report “must be completed as quickly as practicable and, in any event, within 30 days”. Section 23 addresses inquiries that must be made following findings that either a person is unfit to stand trial or is acquitted on account of insanity. In such circumstances, it is appropriate that inquiries as to the most suitable method of dealing with a person progress as soon as practicable, because at that stage, the person is no longer subject to criminal proceedings. Section 35(3) contains a similar time provision in relation to persons who have been convicted, but in respect of which a court directs inquiries to determine what is the most suitable method of dealing with such a person. Those
39 Bail Act 2000, s 7(5).
40 See also the powers of transfer under s 42 of the CPMIP Act.
inquiries must be completed as quickly as practicable and, in any event, within 30 days.
[84] Accordingly, I conclude that Parliament was cognisant of setting timeframes in the Act but chose not to do so in relation to the provision of a report under s 38. This does not seem to me to support the reading in of such a timeframe into s 38.41
[85] That s 38(2) is directed to detention for the purpose of assessment and not the provision of a report is also supported by the previous legislation. The predecessor to s 38, s 121 of the Criminal Justice Act 1985, likewise did not contain an explicit time requirement for the provision of a report. Section 121(2)(b) of the Criminal Justice Act 1985 provided:
…
(b)Where a psychiatrist or (where no such specialist is available) another medical practitioner has certified or given evidence to the effect that a psychiatric report or a further such report cannot practicably be prepared unless the defendant is in custody,–
(i) Make an order committing the defendant to a penal institution for the purpose of psychiatric examination for such period not exceeding 14 days as the court thinks fit; or
(ii) In any case where remand to a penal institution is inappropriate for any reason, make an order for the defendant's detention and psychiatric examination in a psychiatric hospital at which adequate facilities for the psychiatric examination are available, for such period not exceeding 14 days as the court thinks fit.
[86] Further, s 121(5) of the Criminal Justice Act 1985 provided that the period of detention specified in s 121(2)(b) could be extended with the consent of the defendant, to a further limit of one month. Those sections were clearly directed to the detention of a defendant for the purpose of assessment, where necessary. They were not significantly changed by the passage of the CPMIP Act. I note also that when the CPMIP Act was amended in 2011, as a part of a suite of criminal procedure reforms (including the enactment of the Criminal Procedure Act 2011), it was not amended so as to include a time limit in the provision of s 38 reports. The purpose of those reforms
41 I am not persuaded that Mr Maaka-Wanahi’s interpretation of the discussion in the Select Committee report supports his preferred interpretation: Criminal Justice Amendment Bill (No 7) 2001 (328-2) (select committee report) at 7.
more generally was to increase the efficiency of the criminal justice system, while also protecting and upholding fair trial rights.42 That would appear to have been an appropriate time and purpose for which to include an explicit time limit for the provision of s 38 reports, were that the intention. Such a time limit was not included. HNZ Waikato has referred to the parliamentary process adopted in relation to the enactment of the CPMIP Act, notably, the absence of a select committee process which would have allowed input from the health sector. While that may be the case, I do not consider that the absence of that process affects any interpretation of the law as enacted by Parliament.
[87] The second matter is that Mr Maaka-Wanahi, together with the intervenors, drew attention to the need for an interpretation of the relevant provisions to accord with human rights considerations, especially given the Supreme Court’s decision in Fitzgerald.43 In my view, and as submitted by the Attorney-General, a rights-consistent approach to timeframes for the provision of s 38 reports is possible without concluding that the 14 day and 30 day timeframes refer to the time in which reports are to be completed. I emphasise that I do not reach this conclusion in reliance on the resourcing constraints that currently exist in relation to the availability of health assessors. I accept the submissions of Mr Maaka-Wanahi and the NZLS and NZBA that this should not determine the proper interpretation of the law.
[88] Rather, while agreeing that it is important that s 38 reports are provided without undue delay, I am unwilling to conclude in the abstract what an appropriate or reasonable timeframe might be. I do not consider that a court can make such a determination other than in specific circumstances, and no specific circumstances are raised before me.44 The applicants in these proceedings did not seek any declaration on what amounts to a reasonable time for the provision of a s 38 report, and undue delay was not a matter advanced by Mr Maaka-Wanahi in his criminal proceeding.45
42 (4 October 2011) 676 NZPD 21637.
43 Fitzgerald, above n 22.
44 Graham v District Court at Blenheim [2007] NZAR 32 (HC).
45 I note that it remains possible that Mr Maaka-Wanahi will argue that undue delay in the provision of his s 38 report is relevant to his sentence.
[89] Section 38 reports are a point of intersection in the criminal justice system. For the system to produce satisfactory outcomes, multiple participants have been, and are, required to play their part. The evidence presented to the Court in these proceedings, and the manner in which s 38 reports are discussed in some judgments, illustrates that unsatisfactory outcomes as a result of delay may be unfortunately common. This appears to be due to three factors:
(a)the lack of available health assessors within various FMHS, notably HNZ Waikato;
(b)an absence of an established process for accessing health assessors in their private professional capacity (other than, to an extent, in Tauranga); and
(c)the apparent lack of progress in advancing a solution since the concerns have been raised.
[90] This is troubling for the efficiency and efficacy of the criminal justice system, and as submitted by the parties and intervenors, bears upon fundamental human rights.
[91] I acknowledge Mr Maaka-Wanahi’s concern that my conclusion on this issue may not incentivise prompt attention to the underlying problems that exist, but it would not be appropriate for me to decide that timeframes for s 38 reports exist simply for that purpose. Nonetheless, the need for urgent attention to the underlying issues is plain.
Is HNZ Waikato legally obliged to comply with any s 38 order that it receives where the order is addressed to “the health assessor”? Is HNZ Waikato required to locate and commission a health assessor to complete a s 38 report when it receives a s 38 court order addressed to “the health assessor”?
[92] HNZ Waikato is understandably concerned to clarify its obligations in relation to s 38 orders addressed to an unnamed health assessor.46 The Attorney-General, HNZ
46 HNZ Waikato refers to submissions made by a Police prosecutor in one case before the District Court that raised the prospect of the Court using the provisions of the Contempt of Court Act 2019 to enforce a court order. The Police submission was essentially that the failure of HNZ Waikato to provide the s 38 report was illegal and remedies were available to the court to deal with that failure.
Waikato and the CBA submit that court orders addressed to unnamed health assessors are not binding on any individual or Te Whatu Ora (and therefore by extension, HNZ Waikato). Rather, they say that court orders are a direction to the health assessor who does ultimately agree to do the report. HNZ Waikato submits that there is no relationship between the Ministry of Justice and Te Whatu Ora which would place a legal obligation on HNZ Waikato to produce reports. It also says that HNZ Waikato itself does not meet the statutory definition of ‘health assessor’. HNZ Waikato also emphasises that the statutory objectives and functions of Te Whatu Ora as set out in Pae Ora (Healthy Futures) Act 2022 (and those previously of the Waikato DHB under the New Zealand Public Health and Disability Act 2000) do not include any specific objective or function to provide services to the justice sector.47
[93] Mr Maaka-Wanahi noted the longstanding practice of the courts generating a s 38 order and forwarding it to the local FMHS, sometimes via the forensic nurse. Ms Shannon in her affidavit confirms that this practice existed prior to the introduction of the CPMIP Act in 2003, in relation to analogous reports sought under the Criminal Justice Act 1985. Mr Maaka-Wanahi’s concern is that any change to this practice is likely to lead to uncertainty and disputes, with the risk to defendants in criminal proceedings that further delays will ensue.
[94] I find the submissions for HNZ Waikato, the Attorney-General and the CBA persuasive. I cannot see how a s 38 order addressed to “the health assessor” can be understood as binding on HNZ Waikato. Such an order is not ordering any identifiable person to provide a report and, in any event, HNZ Waikato could not be that person as it is not itself capable of being a health assessor as defined by the Act. I agree with the characterisation of ss 38 and 40 as “provisions that empower the Court to a certain extent rather than speaking to the mental health services or the executive generally”.48
[95] I have found it helpful to consider other statutory frameworks relating to the provision of reports to the courts. Sections 30E and 30F of the Bail Act 2000 provide
47 See Pae Ora (Healthy Futures) Act 2022, ss 7, 13 and 14. HNZ Waikato notes specifically s 7(2) of the Act which states that “when performing a function or exercising a power or duty under this Act, the Minister, the Ministry, and each health entity must be guided by the health sector principles – as far as reasonably practicable, having regard to all the circumstances, including any resource constraints …”.
48 New Zealand Police v Tuiketei [2022] NZDC 5673 at [12(a)].
a clear indication of responsibility in respect of the authorisation of persons to act as ‘EM assessors’, who are persons responsible for the production of court ordered reports in the context of decisions as to electronically-monitored bail.49 Similarly in the context of the Sentencing Act 2022, ‘probation officers’ are the persons that prepare various court ordered reports. Probation officers are the responsibility of the Chief Executive of the Department of Corrections, pursuant to s 24 of the Corrections Act 2004, and are required to carry out particular functions as directed by the Chief Executive. Section 25(1)(e) specifically provides that one of the functions of probation officers is to provide all the reports and information that a court, the New Zealand Parole Board, or a prison manager may require under any enactment. The CPMIP Act does not contain a mechanism of accountability by which a particular agency or role can be considered to be responsible for the provision of a court ordered report that is addressed to an unnamed health assessor.
[96] It is also noteworthy that there is no formal arrangement in relation to the provision of s 38 reports between the courts or the Ministry of Justice and HNZ Waikato or Te Whatu Ora (nor was there any arrangement with the Waikato DHB). Rather, as HNZ Waikato fairly characterises it, there is a fee for service model in operation. The evidence from Ms Shannon for the Ministry of Justice confirms it is funded to pay the costs of s 38 reports. If HNZ Waikato provides a s 38 report, the Ministry of Justice, via the relevant Court, will pay for it. While Ms Shannon has also given evidence about the limitations on the parliamentary appropriation directed to court ordered reports, such matters are squarely for the Executive to deal with.
[97] I conclude that a s 38 order addressed to “the health assessor” and received by HNZ Waikato does not impose any legal obligation on HNZ Waikato to complete the s 38 report ordered.
[98] The second aspect of this issue is whether there is any legal obligation on HNZ Waikato to locate and commission a health assessor who is able to complete the report ordered. Once again, HNZ Waikato and the Attorney-General are in agreement that that no such obligation exists. Having concluded that a s 38 order addressed to “the
49 See also Bail Act 2000, ss 30H and 30I.
health assessor” does not impose any legal obligation on HNZ Waikato to complete the s 38 report ordered, I find that there cannot be an obligation on HNZ Waikato to find a health assessor who can complete the report.
[99] Connected to these issues is the apparent disagreement as to who is to identify an appropriate health assessor for the purpose of completing a s 38 order, and how to do so. The Ministry of Justice considers that Te Whatu Ora is best placed to identify health assessors to complete reports. There is no evidence from Te Whatu Ora as such but HNZ Waikato considers that it is the Ministry of Justice’s responsibility to convene a panel of health assessors to resolve issues of delay. The NZFPAG considers that identifying a health assessor should not be the responsibility of regional or local FMHS. Mr Maaka-Wanahi considers that the responsibility should not fall to defence counsel, and by implication to defendants themselves. The CBA emphasised the importance to the good functioning of the system that a specific health assessor is named in the s 38 order. It also submits that the Tauranga model, where a defence counsel approaches a health assessor for the panel, ensures their availability and then seeks an order from the court, is a practical solution.
[100] Practical arrangements in relation to the identification of available health assessors are a matter for the Executive. The relative roles of the agencies and individuals involved cannot be determined by this Court, other than providing a view of the correct interpretation of the CPMIP Act.
Is HNZ Waikato legally obliged to comply with an order made pursuant to s 38(2)(c) of the CPMIP Act ordering the detention of a person in Puawai’s inpatient facility when there has not been prior consultation as to whether it can properly accommodate such a person?
[101] HNZ Waikato is concerned about the courts ordering the detention of a person in Puawai’s inpatient facility without prior consultation, as Puawai is nearly always
fully occupied and has been criticised by the Ombudsman for not properly accommodating patients.50 HNZ Waikato may need to move an existing patient from Puawai in order to accommodate the person subject to the court order. HNZ Waikato seeks a declaration that it is not required to comply with orders made pursuant to s 38(2)(c) if there has not been prior consultation with Puawai and there is no space to properly accommodate the person, and that such orders are voidable.
[102]Section 38(2)(c) provides that if a court makes a s 38 order it may:
…order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—
(i)remand to a prison for that purpose would be inappropriate for any reason; and
(ii)a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.
[103] HNZ Waikato says that Puawai’s facility is treated by the courts as being like a Corrections facility (so that it is Puawai’s responsibility to accommodate whoever is sent to it), and that the declaratory relief it seeks will assist the courts to refrain from taking such an approach. HNZ Waikato submits that the courts have made orders for detention under s 38(2)(c) without the opinion of a health assessor, as required in s 38(2)(c)(ii). It also submits that, as shown in the case of Mr Maaka-Wanahi, the courts are making orders pursuant to s 38(2)(c) without properly considering whether detention for an assessment is actually required.51
[104] The Attorney-General submits that there is no statutory requirement to consult with a hospital or secure inpatient facility on whether it has space available. He notes
50 On the basis that having the facility over capacity breaches the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (See above n 6) to which New Zealand is a signatory. If Puawai is forced over capacity as a result of a court order requiring Puawai to take a patient, HNZ Waikato says that this may also breach the rights of the other patients at Puawai. Mr Maaka-Wanahi acknowledges the validity of the concern raised by HNZ Waikato and points to the requirements to treat existing patients humanely and in a way that is not degrading, as required by ss 9 and 23(5) of NZBORA.
51 Mr Maaka-Wanahi was already in prison and HNZ Waikato says therefore no order for detention was required. It also criticises the order for requiring an assessment for all four s 38(1) matters despite defence counsel only raising fitness as an issue and for permitting detention for 15 days, contrary to s 38(2)(b).
there is no alternative secure inpatient mental health service, other than to use the service in another region. The only other alternative is detention in prison, where far less mental health care is available.
[105] It may be that the requirement that a health assessor express the opinion that such detention would be desirable reflects an assumption that an inpatient mental health service would have advance knowledge about the recommendation that a person be detained because the health assessor is associated with that service. It is apparent from the evidence in these proceedings that this will not always be the situation. HNZ Waikato points out that if the health assessor has no association with HNZ Waikato, the terms of the section may be met but Puawai would still be unaware of the order until it is received. HNZ Waikato suggests this is a breach of natural justice.
[106] In my view, s 38(2)(c) places no obligation on a court to consult with a service such as Puawai prior to the making of such an order (although I acknowledge that practically speaking such liaison may be helpful, potentially through forensic nurses).52 If an order is made that conforms with s 38(2)(c), HNZ Waikato is required to comply with it. The same analysis cannot be applied as in respect of the issue regarding orders addressed to unnamed health assessors, as a direction for detention in an identified facility is an order that is capable of being enforced. Even if such an order is voidable, an allegedly unlawful decision is treated as valid until set aside by court of competent jurisdiction.53
[107] HNZ Waikato suggested that a practical response to the difficulties Puawai faces may be the development of a practice note issued by the courts. There may be benefit in enhancing effective communication between the courts and inpatient mental health services and I accept that developing a practice note may be one approach. However, it is simply the reality that courts can be called upon to make orders to securely detain mentally unwell defendants and that they have the power to do so.
52 Mr Maaka-Wanahi notes in contrast the requirement for consent from a hospital or facility that is required under s 44(3) of the CPMIP Act.
53 See for example Air New Zealand Ltd v Wellington International Airport Ltd [2009] 3 NZLR 713 (CA) at [84]; and Martin v Ryan [1990] 2 NZLR 209 (HC).
[108] A separate question arises if a court orders a person’s detention under s 38(2)(c) without the required opinion from a health assessor. The exercise of the Court’s discretion is contingent on a health assessor expressing the opinion that such detention would be desirable. In my view, a court is unable to make such an order in the absence of that opinion.
[109] The Attorney-General submits that the making of an order absent the required expression of opinion by a health assessor does not make that order void ab initio, but rather constitutes a reviewable error which may be the basis of a voiding of the order by a court.54 As noted earlier, an allegedly unlawful decision is treated as valid until set aside by a court of competent jurisdiction. However, HNZ Waikato submits that such an order would be so irregular that it should be treated as void, relying on the Court of Appeal’s statement in AJ Burr Ltd v Blenheim Borough Council that:55
Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is valid until set aside.
[110] HNZ Waikato does not seek a specific declaration about orders made pursuant to s 38(2)(c) where no opinion from a health assessor has been obtained so I am not required to decide whether to make such a declaration. It is preferable in my view that a challenge to any order made without the required expression of opinion from a health assessor is made in the specific factual context in which it has occurred. I decline to make a declaration in the terms sought, relating to the status of an order under s 38(2)(c) where no prior consultation with Puawai has occurred.
What is the role of a forensic nurse in the context of s 38 of the CPMIP Act?
[111] All parties (and the intervenors) accept that the presence of a forensic nurse in the courtroom is useful.56 Their knowledge and experience can be of great benefit to
54 Philip A Joseph Constitutional and Administrative Law (5th edition, Thomson Reuters, Wellington, 2021) at [22.10.1].
55 AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at [36].
56 Ms Shannon states in her affidavit that forensic nurses are funded by the Ministry of Health and have been present in courts since the 1980s. She quotes from the Practice Guidelines for Forensic Mental Health Court Liaison Nurses (2019) which records that the impetus for the establishment of these positions arose out of the recommendations in the Mason Report (Kenneth Mason, Allison Ryan, and Henry Bennett Report of the Committee of Inquiry into Procedures used in Certain Psychiatric Hospitals in Relation to Admission, Discharge or Release on Leave of Certain Classes of Patients (Wellington, 1988). Mason Report.pdf (moh.govt.nz)
all participants in a criminal proceeding. Nonetheless, there is no specific reference to forensic nurses in the CPMIP Act. Their (now longstanding) role in the courtroom has therefore developed as a matter of practice rather than a matter of law.
[112] As noted earlier, during the hearing HNZ Waikato clarified its position on the declaration it initially sought (that where a forensic nurse has concluded that a s 38 report is unwarranted, the s 38 process is not triggered, and no report is required to be completed for a person to be determined as fit to stand trial). As I understand the position now, HNZ Waikato is contending that information from a forensic nurse, including a conclusion that a s 38 report is not warranted, is relevant information a judge may take into account in the context of making their decision whether or not to order a s 38 report.
[113] This must be the correct legal position. It will be a matter for a judge in a particular case to decide whether any information given to them is relevant to their decision to make a s 38 order. For the avoidance of doubt, and as submitted by Mr Maaka-Wanahi, the Attorney-General and the CBA, I do not accept that screening by a forensic nurse is required before a s 38 order may be made by a court, nor that a conclusion by a forensic nurse that a s 38 report is not required is determinative of whether a court may make a s 38 order. Neither of these positions is supported by the CPMIP Act and there is no basis on which I could properly read them into the statute. A brief screening interview by a forensic nurse cannot substitute for an assessment undertaken by a psychiatrist or psychologist, which is specifically contemplated by the CPMIP Act. The CPMIP Act requires the decision to order a s 38 report to be made by a judge. While HNZ Waikato is correct to say that the Court of Appeal in R v McKay did not consider the role of a forensic nurse, in my view the Court’s approach remains relevant. The Court said:57
… the accused, his or her counsel, or the Crown raises a question as to the accused’s fitness to stand trial. In the normal course of events, whenever there is an application or request, the statutory process should thereafter be followed. Rarely, a judge may think that the application is sufficiently lacking in apparent merit that some further enquiry is appropriate before engaging the statutory process. In such cases, the judge must make such enquiries as seem appropriate in the circumstances, always bearing in mind that one should be cautious before refusing to respond to such a request.
57 R v McKay [2009] NZCA 378 at [34] and [39].
And went on to say also:
It is a low standard we have set, which is very dependent on the integrity and good judgement of counsel.
[114] To the extent that HNZ Waikato was advancing its initial position based on a view that defence counsel sometimes seek s 38 reports for illegitimate reasons, I note that this was rejected by counsel for Mr Maaka-Wanahi, the Attorney-General and the intervenors. Given the change of position by HNZ Waikato at the hearing, I do not need to consider this point in detail. I nonetheless record that there is no substantive evidence before me that defence counsel are inappropriately seeking s 38 reports and accordingly I do not accept that this is the case.
[115] Mr Maaka-Wanahi also seeks two further declarations that pertain to the role of a forensic nurse. The first is that to treat the time to complete a s 38 report as not starting to run until a forensic nurse has screened and recommended a s 38 assessment is ultra vires the CPMIP Act and unlawful. The second is that for a health assessor to refuse to comply with a direction to complete a s 38 report on the basis that the defendant has not been screened by a forensic nurse and recommended by them to be subject to a s 38 report is ultra vires the CPMIP Act and unlawful. These declarations seem to me closely connected to Mr Maaka-Wanahi’s view that s 38 reports must be provided within 14 days (or 30 days) and his preference that HNZ Waikato is legally obliged to comply with a s 38 order addressed to an unnamed health assessor, which I have not accepted. In light of my conclusions on these issues, I decline to make these declarations.
Can fitness to stand trial be determined on the basis of a single report prepared by a health assessor?
[116] HNZ Waikato seeks a declaration that if one health assessor has determined a person is fit to stand trial, further reports are not required before a court can find that person fit to stand trial. HNZ Waikato accepts that if one report finds unfitness, a second report is required under s 8A of the CPMIP Act before a finding of unfitness can be made by a court but submits that where the first report finds a person fit to stand trial there is no requirement under the Act to require a second report.
[117] HNZ Waikato points out that as a matter of fact, in some situations only one report from a health assessor is obtained. This is the case for Mr Maaka-Wanahi, where only the report from Dr McGinn has been obtained pursuant to s 38 and it is likely to be of use in the context of Mr Maaka-Wanahi’s sentencing.
[118] While HNZ Waikato is correct to say that two reports are not always obtained, I do not agree with its submission that fitness can be determined by a court on the basis of only one report. It seems to me that HNZ Waikato is conflating the receipt of only one report with the process prescribed under s 8A. So, for example in Mr Maaka- Wanahi’s case, once Dr McGinn’s report was obtained, no further steps were taken to establish that he was unfit to stand trial. This does not amount to a finding by the District Court under s 8A that Mr Maaka-Wanahi was fit to stand trial.
[119] Section 8A(1) provides that “the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired”. It is only then that the court may go on to determine firstly that the defendant is mentally impaired, before secondly giving the parties the opportunity to be heard and present evidence on the issue of whether the defendant is unfit to stand trial and then make the appropriate finding. For a court to make a finding that a defendant is unfit to stand trial on the basis of a single report prepared by a health assessor would be contrary to the plain words of s 8A(1). As the Attorney-General submits, s 8A makes no distinction between the process relating to a finding of fitness and unfitness. The requirement for evidence from two health assessors recognises that fitness to stand trial is a complex matter upon which two practitioners could (and often do) reasonably come to different views.
[120] I also accept Mr Maaka-Wanahi’s submission that this declaration sought by HNZ Waikato appears to assume that it is the health assessor that ultimately determines whether a defendant is fit to stand trial. That is not the case. The question of fitness to stand trial is a legal question that is determined by the court. The declaration sought would have the potential to unduly fetter the court’s decision making in respect of fitness.
[121]For these reasons, I decline to make the declaration sought.
Is the Crown responsible for funding s 38 reports irrespective of whether they are provided through the public health system or a private provider?
[122] The final issue raised relates to whether the Crown must provide funding for court ordered s 38 reports obtained from a health assessor in their private professional capacity when the local FMHS does not provide a report. Mr Maaka-Wanahi seeks a declaration that the Crown is responsible for all costs incurred by Mr Maaka-Wanahi in obtaining a private sector s 38 report from Dr McGinn because of the inability to provide a publicly funded s 38 report to him within the statutory timeframes under the CPMIP Act.
[123] Mr Maaka-Wanahi has already been the subject of a s 38 report which has been provided by Dr McGinn in her private professional capacity and paid for by the Ministry of Justice. To this extent, the declaration sought is overtaken by events in his case. He nevertheless continues to seek the declaration in case he needs a further report and also so that the law is clarified for other defendants with mental impairments who would benefit from receiving a s 38 report. Mr Maaka-Wanahi emphasises that that a s 38 report is a court ordered report regardless of whether it is provided through the public health system or the private health system, and the Crown should therefore be responsible for all costs incurred in obtaining a private s 38 report, where the Crown is unable to provide a publicly funded s 38 report. He further submits that if additional panels of private providers are established (as under the Tauranga model), clarifying that all court ordered reports will be funded is particularly important to ensure that a defendant should not be subject to a financial burden (whether directly or as a result of repayment obligations under the legal aid regime) as a result of resourcing or capacity issues within the public health system.
[124] The Attorney-General accepts that court ordered reports are and should be publicly funded by the Ministry of Justice, regardless of whether they are obtained publicly or privately.58 The evidence for the Attorney-General is that when a s 38 report is received by the court, the invoice is approved by the Registrar for payment out of the relevant Crown appropriation. Ms Shannon notes that she cannot determine,
58 Counsel for the Attorney-General distinguished such reports from those sought privately by a defendant which would be legally privileged and may not be disclosed to the Court or prosecution, which would be at the defendant’s cost or may be a charge on legal aid.
given the passage of time, when and how this process was established but does refer to a 1998 Courts Circular which appears to establish a payment system at that time where the then Capital Coast DHB provided a central vetting process for all DHBs, with invoices then being submitted to the court for payment.
[125] Section 38(1) makes it clear that the reports are obtained to assist the court and thus in my view is appropriate that the justice system bears the cost of the production of the reports, as occurs in many other circumstances where the courts are entitled or required under statute to obtain reports to assist judicial decision making. The contribution of such reports to the effective delivery of justice cannot be underestimated.
[126] Thus, the current position is that whether such reports are provided through a state funded agency (such as HNZ Waikato) or through a private provider, state funding is provided. However, the administrative regime for payment for court ordered reports and any issues about the funding available through a parliamentary appropriation directed to the courts, are matters for the Executive and not this Court. In light of this, and the fact that Mr Maaka-Wanahi no longer needs the declaration sought to ensure Dr McGinn’s report is paid for by the Ministry of Justice, I decline to make the declaration sought by Mr Maaka-Wanahi.
Declarations
[127] It is well-established that the Court’s jurisdiction to give declaratory judgments is not to give advisory opinions and any orders made will only be binding on the parties.59 Mr Maaka-Wanahi and the intervenors have nonetheless urged me to consider the practical effect my decision will have on defendants generally and the lawyers representing them. I acknowledge also that my conclusions about HNZ Waikato’s legal obligations will also be relevant to other entities operating as part of Te Whatu Ora. I accept that the parties have sought clarification from the Court, and that participants in the criminal justice system will benefit from the proposed
59 Simpson v Whakatane District Court (2006) NZAR 247 (HC), at [42]; citing Gouriet v Union of Post Office Workers [1978] AC 435.
clarification. I am satisfied that the making of some of the declarations sought in these circumstances has utility for the parties.
[128]I make the following declarations:
(a)Section 38 does not impose a specific time frame within which s 38 reports must be provided following the making of a s 38 order. The 14 day period referred to in s 38(2)(b) and (c) refers to the period of detention for the purpose of an assessment and not the period within which a report must be completed. The 30 day timeframe referred to in s 40 refers to the period of detention permitted with the consent of the defendant or their guardian and not the period within which a s 38 report must be completed. However, such reports must be provided without undue delay or there may be a breach of a defendant’s rights under NZBORA.
(b)HNZ Waikato does not meet the requirements of the definition of ‘health assessor’ in the CPMIP Act. HNZ Waikato is not legally obliged to provide a s 38 report when it receives a s 38 order addressed to an unnamed “health assessor”. Nor is it obliged to locate and commission a health assessor to complete a s 38.
(c)HNZ Waikato is legally obliged to comply with an order made under s 38(2)(c) ordering the detention of a person in Puawai’s inpatient facility, provided the requirements in that section have been satisfied. A failure to comply with the requirement in s 38(2)(c)(ii) does not make an order under s 38(2)(c) void ab initio, but constitutes a reviewable error, which is a basis upon which a court may conclude that such an order is void.
(d)In deciding whether to make a s 38 order, a judge may consider the opinion of a forensic nurse following their completion of a screening assessment. However, the CPMIP Act does not require that such a screening assessment take place nor that a forensic nurse recommend a
s 38 report in order for the Court to exercise its power to make a s 38 order.
[129] For the reasons set out above, I do not make the declaration sought by HNZ Waikato that if a health assessor has determined that a person is fit to stand trial that further reports are not required before a court can find the person fit to stand trial. Also for the reasons set out above, I do not make the declarations sought by Mr Maaka- Wanahi in relation to:
(a)the time to complete a s 38 report as not starting to run until a forensic nurse has screened and recommended a s 38 assessment;
(b)a health assessor refusing to comply with a s 38 order without both screening by and a recommendation from a forensic nurse; and
(c)the funding of Dr McGinn’s report by the Ministry of Justice.
[130] I do not make the direction sought by the CBA that the Tauranga model should be adopted nationwide. I am not inclined to make an order sought in submissions by an intervenor and in any event do not consider that such an order is appropriately made by this Court (as I understood counsel for the CBA to concede at the hearing before me). Nonetheless, I acknowledge the evidence that the Tauranga model has resulted in additional access to health assessors to whom s 38 orders may be addressed and from whom reports may be available in a timelier manner than through the public health system.
Conclusion
[131] As will be clear from this judgment, there is a need for the prompt identification and implementation of solutions to the currently unsatisfactory situation in which significant delays are being experienced in the provision of s 38 reports. The short point is that the system has operated historically in reliance on a cooperative approach between the courts and local FMHS but increases in demand for s 38 reports and decreases in capacity within FMHS over recent years have exposed the lack of a clear legal and practical framework for the provision of s 38 reports when ordered by the
courts. Continuing failures to provide s 38 reports in a timely manner risk affecting the fundamental rights of the individuals concerned. This is a matter that requires attention from the Executive as a priority.
Costs
[132] HNZ Waikato and Mr Maaka-Wanahi have each had some success in these proceedings. The issues under consideration are of public significance and interest. I note that Mr Maaka-Wanahi is legally aided, and that therefore a costs award cannot be made against him except in exceptional circumstances.60 I also record that this Court has already determined that the intervenors will neither seek nor be subject to a costs order.
[133] If the parties are unable to agree as to costs, memoranda may be filed in the usual way.
McQueen J
Solicitors:
Bourke Law, New Plymouth for Mr Maaka-Wanahi Crown Law, Wellington for the Attorney-General
Legal Services, Te Whata Ora – Health New Zealand – Waikato, Hamilton for HNZ Waikato Tompkins Wake for New Zealand Law Society and New Zealand Bar Association
Adams Law, Tauranga for New Zealand Criminal Bar Association
60 Legal Services Act 2011, s 45(2).
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