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Court cracks down on delays in producing s 38 reports

17 Mar 2023

| Author: Anna Longdill

Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) s 38 – declaratory judgment on procedures relating to court-ordered mental health assessment reports  – time frames for the provision of s 38 reports – obligations on Te Whatu Ora – Health New Zealand – Waikato (HNZ Waikato) when receiving s 38 order addressed to an unnamed ‘health assessor’ – detention of defendant at inpatient facility (s 38(2)(c)) – consultation – role of court liaison forensic nurses – report requirements for a determination of fitness to stand trial  – responsibility for funding of s 38 reports

Maaka-Wanahi v Attorney-General  [2023] NZHC 187 (McQueen J)

Section 38 of the CPMIP Act empowers the court to order a report from a ‘health assessor’ in relation to a defendant’s mental health.  The demand for s 38 reports has increased whilst the capacity of forensic mental health services to provide them has decreased.

An acute problem has arisen in the Midland regions, where HNZ Waikato had advised the courts that reports may take longer than the timeframes directed. It was not able to provide reports in relation to all the s 38 orders it receives and it had no capacity to provide a report unless a forensic nurse had recommended one.

Kingi Du Val Maaka-Wanahi was a defendant before the Hawera District Court. He was screened by a forensic nurse who did not recommend a s 38 report.  The court later provided HNZ Waikato with a s 38 order addressed to an unnamed ‘health assessor’.  HNZ Waikato advised the court it had no capacity to prepare the report and noted that the forensic nurse did not recommend one. Counsel then commissioned a s 38 report from a private neuropsychologist which was provided more than five months after the original s 38 order.

Both Maaka-Wanahi and HNZ Waikato brought declaratory judgment proceedings to clarify the legal obligations under s 38. The NZLS, NZBA, and CBANZ appeared as intervenors.

Statutory interpretation – whether the time limits in s 38(2)(b) & (c) (14 days) and s 40 (30 days with consent) relate to detention for the purpose of assessment or the completion of s 38 reports – rights-consistent approach – s 38 not drafted clearly or simply – whether court orders issued to unnamed ‘health assessors’ are binding – definition of ‘health assessor’ – comparison to other statutory frameworks for provision of court reports – whether HNZ Waikato must comply with a s 38(2)(c) order for detention of a person in inpatient facility without prior consultation – whether orders which do not comply with s 38(2)(c)(ii) are void ab initio or voidable – role of forensic nurse under s 38 – whether one health assessor’s report will suffice for the court to find a person fit to stand trial – whether the Crown is responsible for funding both public and private s 38 reports.

Held: Court makes declarations (in summary): (1) s 38 does not impose a specific time frame within which reports must be provided.  The time frames in s 38(2)(b) & (c) and s 40 refer to periods of detention for the purpose of assessment and not the period within which a s 38 report must be completed. However, reports must be provided without undue delay or there may be a breach of a defendant’s rights under NZBORA; (2) HNZ Waikato is not a ‘health assessor’ and is not legally obliged to provide a report, or locate and commission a report, in response to a s 38 order addressed to an unnamed ‘health assessor’; (3) HNZ Waikato is legally obliged to comply with a s 38(2)(c) order for detention of a person in the inpatient facility, provided requirements in the section are satisfied.  A failure to comply with the s 38(2)(c)(ii) requirement does not make an order void ab initio, but constitutes a reviewable error upon which a court may conclude that such an order is void; (4) A judge may consider the opinion of a forensic nurse following a screening assessment in deciding whether to make a s 38 order. However, the CPMIP Act does not require such a screening assessment or a recommendation from a forensic nurse for the Court to make a s 38 order.

No declarations were made on the report requirements for fitness to stand trial (court rejected HNZ Waikato’s argument that only one report was required) or on the state funding of public and private s 38 reports (current position is that both are state funded, which the court considered appropriate, but issues of funding are matters for the executive).

NoteThe judgment emphasised the need for urgent attention to the underlying issues from the executive as a priority, observing that unsatisfactory outcomes as a result of delay may be unfortunately common, which is troubling for the efficiency and efficacy of the criminal justice system and bears upon fundamental human rights.

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