Report calls for tribunal on mentally ill offenders

File photo / APN

Decisions about detention and status of mentally ill offenders should be made by specialists not politicians, the Law Commission says in a new report.

A key recommendation of The Mental Impairment Decision-Making and the Insanity Defence report is to set up a new specialist tribunal to make decisions for offenders where criminal charges end in an acquittal by reason of insanity, or a finding of unfitness to stand trial. Currently the Health Minister makes those decisions.

For those found insane or unfit to stand trial, a judge decides whether they need to be indefinitely committed and depending on whether they are mentally disordered, or intellectually disabled, they are usually classified either as a special patient or special care recipient.

Then the Health Minister decides when the patients may be discharged from compulsory care, or reclassified as a civil patient, or permitted long leave of more than seven days. Sometimes, the Attorney-General is also involved.

A special patients review tribunal would be a better system, Law Commissioner Warren Young said.

"It is not appropriate for this to be a job for ministers. These decisions need to be managed expertly and independently.

"This is as desirable for ministers as it is for the patients. For everybody's benefit, our proposal would remove the risk or perception of politicisation around what are sometimes quite controversial decisions."

The report recommended the tribunal be chaired by a judge, and have three to five experts sitting on panels to decide discharge, reclassification, and long leave. The commission looked at the possibility of giving the work to the existing Mental Health Review Tribunal, which reviews the status of civilly-committed mentally disordered patients.

"But there was concern about bringing intellectually disabled people under the mental health framework, and implicitly labelling them as disordered. These people have quite different needs."

A tribunal capable of looking after both types of cases was preferable.

Only about 50 hearings would be needed a year.

"A tribunal, in the commission's opinion, was the most robust, and relatively low cost, solution to address the issues. This is what happens in most other jurisdictions."

The commission also looked at the insanity defence in the Crimes Act 1961 but decided it should remain.

"Section 23 is quite an old-fashioned sounding defence, based on legal rules developed in 1843. But when we looked at all of the reform options, none of them were better than the status quo," Dr Young said.

Insanity defences overseas were generally based on similar rules as in New Zealand. Literature reviewed by the Law Commission suggested that when reform of those rules has been attempted overseas, it has generally made no difference to outcomes.

Associate Health Minister Jonathan Coleman said he would consider the recommendations.

- NZPA