Police v NJ HC Auckland CRI 2010-404-309
[2010] NZHC 2038
•22 September 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-309
NEW ZEALAND POLICE
v
NJ BORN ON 14 JUNE 1994
Hearing: 21 September 2010
Appearances: C M Ryan for the Crown
N W Benner for NJ Judgment: 22 September 2010
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 22 September 2010 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
N W Benner, PO Box 22106, Auckland 0740
POLICE V NJ HC AK CRI-2010-404-309 22 September 2010
[1] On 5 July 2010 Judge Fitzgerald in the Youth Court stated a case for the opinion of the High Court under s 78 of the Summary Proceedings Act 1957. The issues to which the case stated was directed have arisen in the context of an assessment by Judge Fitzgerald of the respondent NJ’s fitness to plead under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIPA).
[2] Judge Fitzgerald explained the background in the following way:
[1] At a disability hearing in the Auckland Youth Court on 5 July 2010, I found NJ to be mentally impaired and unfit to stand trial on charges of unlawfully getting into a motor vehicle and being a party to intentionally damaging the motor vehicle by fire on 24 February 2009. Reasons for doing so are set out in my judgment (“the decision”) which is under Tab B in the accompanying bundle.
[2] There was a dispute as to whether I should include in my reasons for finding NJ mentally impaired and unfit to stand trial, a finding that she is intellectually disabled in terms of s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (“the IDCCR Act”), in reliance on the clear evidence of the two health assessors that she is.
[3] The question as to the Court’s jurisdiction to make a finding as to intellectual disability at a disability hearing under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the CPMIP Act”) has arisen previously in the case of Police v RT which is referred to in the decision. Copies of my judgment in Police v RT, both at the disability hearing, and as to disposition, are under Tabs C and D respectively.
[4] As is apparent from all three judgments, counsel to assist the court in NJ’s case, and the Ministry of Health, RIDCA and their legal advisors in RT’s case, maintain the Court should not make a finding of intellectual disability at a disability hearing. They say a compulsory care co-ordinator should have a specialist assessor make that assessment under Part 3 of the IDCCR Act after a person has been found unfit to stand trial and inquiries are initiated under s 23 CPMIP Act.
[3] On that basis the questions stated by Judge Fitzgerald for the opinion of this
Court were:
a) When the Court makes findings as to mental impairment and unfitness to stand trial at a disability hearing, should it also make a finding as to intellectual disability if there is evidence from the health assessors about that?
b)If yes and the person is then assessed under Part 3 of the IDCCR Act pursuant to s 23(5) of the CPMIP Act, is it open to the compulsory care coordinator to have a specialist assessor reassess the person as to intellectual disability?
[4] Although Ms Ryan appeared officially before me on instructions from the Police, the Police adopted a neutral stance in the appeal except insofar that it was very properly submitted that what is required in this case is long-term therapeutic assistance for NJ. The question of how that goal is to be achieved is not of course before me in this appeal, although the answers to the two issues posed by Judge Fitzgerald necessarily may have some bearing upon its resolution.
[5] Notwithstanding the formal position adopted by the Police in the appeal, Ms Ryan’s very thorough and helpful written and oral submissions (for which I record my gratitude at the outset) also set out the competing positions of the Youth Court (Ms Benner agreeing that her submissions were an accurate reflection of the Court’s position) and the Ministry of Health on the two issues for determination. In this latter respect Ms Ryan advised that while she had suggested to the Ministry that it might wish separately to intervene in the appeal its preference was for her simply to convey its position to the Court.
Unfitness to plead and intellectual disability: relevant legislation
[6] As the terms of the case stated suggest, the two issues raised require consideration of a number of statutory provisions contained in not only the CPMIPA (under which fitness to plead is determined) but also the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCRA). These two Acts appear consecutively in the statute book (being numbers 115 and 116 of 2003 respectively) and were assented to on the same today. This appeal is concerned with one of the important ways in which they interact.
The CPMIPA
[7] Sections 9, 13(4), 14(1) and (2) govern the way in which a Court is to determine unfitness to plead. The key provisions are set out below.
9. Court must be satisfied of defendant's involvement in offence
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
13. Outcome of consideration of defendant's involvement
....
(4)If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14.
14 Determining if defendant unfit to stand trial
(1)If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b) find whether or not the defendant is unfit to stand trial; and
(c) record the finding made under paragraph (b).
[8] “Health assessor” is defined in s 4 as meaning:
(a) A practising psychiatrist who is registered as a medical practitioner; or
(b) A psychologist; or
(c) A specialist assessor under the Intellectual Disability (Compulsory
Care and Rehabilitation) Act 2003.
[9] What occurs once a determination of unfitness has been made is governed by s 23, which provides:
23 Inquiries about persons found unfit to stand trial or insane
(1)When a person is found unfit to stand trial or is acquitted on account of his or her insanity, the Court must order that inquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25.
...
(5)A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[10] In turn, ss 24 and 25 provide:
24 Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—
(a) consider all the circumstances of the case; and
(b)consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and
(c) make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court's decision.
(2)The orders referred to in subsection (1) are that the defendant be detained—
(a) in a hospital as a special patient under the Mental Health
(Compulsory Assessment and Treatment) Act 1992; or
(b) in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
...
25Alternative decisions in respect of defendant unfit to stand trial or insane
(1) If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—
...
(b) by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003;
...
(3)Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a) has an intellectual disability;
...
[11] Notwithstanding that the existence of “mental impairment” is a critical pre- requisite of a finding of unfitness to plead, that term is not itself defined in the CPMIPA. However in S v Police[1] it was held that an intellectual disability as defined in s 7 of the IDCCRA constitutes (a subset of) mental impairment under the CPMIPA. At [10] – [12] of that judgment MacKenzie J said:
[1] S v Police HC Palmerston North CRI-2005-454-47, 8 December 2005.
[10] ... The term “mental impairment” is not defined. A number of propositions which assist in interpreting that expression in the Act emerge clearly from the scheme of the Act:
(a) It is clear from the provisions of ss 24 and 25 of the Act that eligibility for some form of compulsory treatment under the Intellectual Disability (Compulsory Care and Rehabilitation) Act
2003 (“the ID (CCR) Act”) may constitute mental impairment. Thus, an intellectual disability within the meaning of s 7 of that Act may
constitute mental impairment.
(b) Mental impairment does not necessarily constitute unfitness to plead. That is clear from the two-step process required by ss 14(2) and 17(3) and (4) of the Act.
[11] As to the first proposition, that an intellectual disability as defined in the ID (CCR) Act may constitute mental impairment, two questions arise:
(a) Will an intellectual disability as defined necessarily constitute a mental impairment?
and
(b) May an intellectual disability which does not meet that definition also constitute a mental impairment?
[12] On the first question, I consider that the scheme of the legislation suggests that an intellectual disability under the ID (CCR) Act will ordinarily
constitute mental impairment under the Act. Practical considerations point to that conclusion. If an intellectual disability as defined may, or may not, constitute mental impairment, then health assessors, and the Courts, are faced with a very difficult task. If they consider, applying the quite specific tests in s 7 of the ID (CCR) Act, that a person has an intellectual disability, they must go on to consider, with no legislative guidance as to the appropriate test, whether that intellectual disability constitutes a mental impairment. I consider that, subject to the sound judicial admonition “never say never” or “never say always”, an intellectual disability, as defined, will constitute a mental impairment.
[13] On the second question, I consider that it does not follow that, because every intellectual disability as defined will constitute a mental impairment, a disability which does not meet that definition will not. The definition in s 7 of the ID (CCR) Act is quite prescriptive. There may be cases which fall outside that definition. Section 8 excludes some types of disorder from the definition. I would not exclude the possibility that an intellectual disability of the seriousness described in s 7, but which, because of s 8 or for some other reason does not fall within the definition in s 7, might also constitute a mental impairment.
[12] There has been no suggestion that MacKenzie J’s views are not correct and I
record my respectful concurrence with them.
[13] In summary, therefore, and as noted by Nicholson J in Trow v Police[2], the procedures under CPMIPA that govern the issue of unfitness to plead potentially involve five steps:
[2] Trow v Police HC Auckland CRI-2004-404-000208, 10 September 2004.
a) Determining the sufficiency of evidence as regards the actus reus of the offence under s 9;
b) Determining whether mental impairment exists in terms of s 14(1); c) Determining if the person is unfit to stand trial in terms of s 14(2); d) Ordering inquiries in terms of s 23; and
e) Determining the appropriate disposition and making the appropriate order in terms of ss 24 and 25.
The IDCCRA
[14] Section 3 of the IDCCRA states that the purposes of that Act are:
(a)To provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b)To recognise and safeguard the special rights of individuals subject to this Act; and
(c) To provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.
[15] The key concept of “intellectual disability” is defined in s 7 which is required to be read subject to 8. Those sections respectively provide:
7 Meaning of intellectual disability
(1)A person has an intellectual disability if the person has a permanent impairment that—
(a) results in significantly sub-average general intelligence; and
(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and
(c)became apparent during the developmental period of the person.
(2) Wherever practicable, a person's general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.
(3)For the purposes of subsection (1)(a), an assessment of a person's general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—
(a) as 70 or less; and
(b) with a confidence level of not less than 95%. (4) The skills referred to in subsection (1)(b) are—
(a) communication: (b) self-care:
(c) home living:
(d) social skills:
(e) use of community services: (f) self-direction:
(g) health and safety:
(h) reading, writing, and arithmetic: (i) leisure and work.
(5) For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.
(6) This section is subject to section 8.
8 Persons who do not have intellectual disability
(1)A person does not have an intellectual disability simply because the person -
(a) has a mental disorder; or
(b) has a personality disorder; or
(c) has an acquired brain injury; or
(d)does not feel shame or remorse about the harm that person causes to others.
(2) To avoid doubt, if—
(a) a person does not have an intellectual disability, the provisions of this Act relating to compulsory care cannot apply to the person, whether or not the person has any other disability:
(b)a person does have an intellectual disability, those provisions are not prevented from applying to the person simply because the person also has 1 or more of the characteristics described in subsection (1)(a) to (d).
[16] Specialist assessors (as defined in s 5) have specific functions under IDCCRA Part 4, relating to the assessment of inmates and special patients, and under s 77 which requires that the condition of every care recipient who is subject to a court order must be formally reviewed by a specialist assessor at certain specified times.
[17] In practice the Ministry of Health discharges its obligations under IDCCRA
by funding the Regional Intellectual Disability Care Agencies (RIDCAs). RIDCAs
are specialist needs assessment and service coordination agencies that provide for people with intellectual disability who have high and complex behavioural needs and who are subject to orders made pursuant to the Act. “Co-ordinators” (as defined in s 5 of the Act) are employed by the RIDCAs in different regions throughout New Zealand. Both the RIDCAs and the co-ordinators follow the guidelines, policies and procedures established by the Ministry of Health.
[18] Part 3 of the Act provides for the assessment of the care and rehabilitation needs of persons falling with specified categories. As can be seen from the terms of CPMIPA s 23(5) this is where the specific linkage with that Act occurs. Most relevantly, section 15 requires that the co-ordinator ensure that such assessment occurs in relation to:
(a)every person whose assessment is required by section 23(5) or section 35(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:
(b)every person who is a care recipient because of an order made under the Criminal Procedure (Mentally Impaired Persons) Act 2003, following—
(i) a finding that the person is unfit to stand trial; or
(ii) the acquittal of the person on the ground of insanity; or
(iii) the conviction of the person:
[19] Notably, Part 3 does not refer to, or confer any particular functions on, specialist assessors.
The problem
[20] As will be evident from the discussion above, where a Court has determined mental impairment on the basis of the evidence of two health assessors under s 14(1) and (then) unfitness to plead under s 14(2), s 23 requires the court to order inquiries to be made as to the most appropriate disposition of that person. And more specifically, in the case of a person with an intellectual disability, s 23(5) requires a needs assessment under Part 3 to be undertaken.
[21] Even though a Part 3 assessment is focused on determining the needs of persons who have already been determined as falling within the various categories set out in IDCCRA s 15, it appears that the Ministry of Health/RIDCA practice is to have the diagnosis of any person whose assessment is required as a result of the operation of s 23(5) of the CPMIPA reconsidered prior to that assessment by a specialist assessor.
[22] As I understand it the reason for this is that specialist assessors appointed under IDCCRA are regarded by the Ministry as best placed to determine the existence of intellectual disability. Ms Ryan advised that it is thought by the Ministry/RIDCA that health assessors who give evidence pursuant to s 14 may not have the specialisation required properly to assess intellectual disability. And it is perhaps self-evident that a formal diagnosis of intellectual disability has potentially significant resource implications under the Act in terms of the care that the State may be required to provide.
[23] What the Ministry’s practice means in practical terms, however, is that a Court may have determined unfitness to plead on the basis of evidence from two health assessors under s 14 as to the existence of intellectual disability, only to have that diagnosis contradicted by a specialist assessor at the Part 3 assessment stage.
[24] Such an outcome is not only for obvious reasons undesirable in the sense that it potentially calls into question the determination of unfitness to plead but also because it curtails the disposition options available to the Court. More particularly, once there is no diagnosis of intellectual disability the ss 24 and 25 disposition options involving care and treatment previously open to the Court disappear and it is likely to have no choice but simply to discharge the offender into the community.
[25] It is this element of potential duplication and contradiction that has given rise to the particular issues that were of concern to Judge Fitzgerald. In particular, in a previous similar case over which the Judge presided he was faced with having received advice from health assessors under s 14 that the person was suffering from an intellectual disability (and therefore necessarily unfit to stand trial) only to have
that opinion contradicted by the specialist assessor appointed as part of the Part 3 assessment: Police v RT.[3]
[3] Police v RT YC Auckland CRI-2009-204-398, 15 March 2010.
[26] Although the Ministry of Health’s position was presented to me as based not only on its practice but also on a proper interpretation of the relevant statutes, it is my view that, for the reasons I have already given, the statute (or more accurately the two statutes which plainly are to be read together) supports the Youth Court’s position. More particularly CPMIPA s 23(5) expressly contemplates that a finding of intellectual disability may be made at the s 14 stage and indeed such a diagnosis may be central to the finding of mental impairment. A finding of mental impairment must necessarily be supported by reasons; as Ms Ryan pointed out, a s 14 decision is reviewable. Accordingly (and leaving to one side those cases where mental disorder is in issue) it defies reality to suggest that a Court could make an impairment finding without squarely confronting and determining the existence (or not) of intellectual disability.
[27] Once that point is reached, the diagnostic involvement of a specialist assessor at the inquiry/Part 3 stage seems to me to be not only highly undesirable but also inconsistent with the statutory scheme. Part 3 assessments are predicated, in my view, on the person to whom the assessment relates falling within one of the specified categories which in turn presuppose a pre-existing determination of the person’s mental status. And as I have said a further and potentially conflicting diagnosis by a specialist assessor at the Part 3 stage has the capacity to undermine the s 14 process in what I consider to be an unacceptable, and possibly unlawful, way.
[28] I also record that I do not accept that the present difficulty is an example of procedural anomalies in the CPMIPA or as between that Act and the IDCCRA. Rather, it is a practical matter that should be capable of resolution in a practical way. More particularly, it seems to me that in a fitness to plead case where intellectual disability is the central issue steps can be taken at the s 14 stage to ensure that one or both of the health assessors selected is either a specialist assessor under the IDCCRA (as contemplated by the definition of “health assessor”) or someone considered by
RIDCA to have sufficient expertise in the intellectual disability area. In fact, Ms Ryan advised that the two health assessors who gave evidence in the present case are regarded as truly and relevantly expert, particularly in the area of intellectual disability arising from foetal alcohol syndrome, which is NJ’s diagnosis.
[29] I also accept Ms Ryan’s submission that both the Court and counsel engaged in a s 14 process have responsibilities to ensure that the evidence of the health assessors is properly tested. I commend in particular what Ms Ryan advised was her own practice of referring such evidence to RIDCA for review and comment. If agreement cannot be reached between the two assessors or the evidence received appears in some respect to be deficient, a further report (from a specialist assessor) could also be obtained.
[30] For the reasons I have given therefore I consider that the answers to the questions stated by Judge Fitzgerald must be “yes” and “no” respectively which, as I understand it, is essentially the Youth Court’s position. I record that those answers were also supported by Ms Benner who appeared as youth advocate both before
Judge Fitzgerald and before me.
Rebecca Ellis J
0
0
0