Offenders in need of a mental health assessment are being detained for longer than the law allows due to significant delays in the process. Photo / NZME
Offenders in need of a mental health assessment are being detained for longer than the law allows due to significant delays in the process. Photo / NZME
Criminal charges are being dismissed, stress on victims is compounding, and offenders are being locked up for longer than the law allows - all due to "significant" and "unlawful" delays in court-ordered psychiatric reports.
The hold-up is due to a national shortage of forensic psychiatrists and psychologists and an increase in demand for the reports, which determine if a person is mentally fit to stand trial or was insane at the time of their offending.
The delays have been ongoing for a number of years, predating Covid, which has only exacerbated the issue.
Consequently, tension is mounting between the courts and the country's forensic mental health services (FMHS), which provide the reports, and some of society's most vulnerable are suffering.
It's prompted at least one district court judge to take action. After reports filed in a Taranaki case exceeded the statutory time limit by more than 50 per cent, Judge Tony Greig stayed the prosecution, dismissing the defendant's charges.
"The courts routinely place the care of the mentally unwell into the hands of mental health professionals. How can the courts do that in the knowledge that those same mental health professionals will not abide by the law, the law that is there to protect the most vulnerable?" he stated in the stay decision.
Health Minister Andrew Little is also aware of the delays and described it as an unacceptable state of affairs.
But Director-General of Health Ashley Bloomfield has assured work was under way to resolve the issue.
Ministry of Justice (MoJ) figures reveal there were 8734 cases with one or more reports ordered under section 38 of the Criminal Procedure (Mentally Impaired Person) Act 2003, in the country's district and high courts from January 2017 to March this year.
The majority of the cases were in the district courts, with Auckland's having the highest of 1033, followed by Manukau's 929. Contrastingly, Kaikoura recorded just two while Taihape had three.
Under the Act, the reports, purchased through Vote Justice funding, have to be provided within 14 days, or 30 days with a court-granted extension. But lawyers say that statutory timeframe is routinely being breached.
The MoJ said it could not provide data on how many breaches had occurred, or how many stays of proceedings had been granted as a result. That level of detail was not recorded in its Case Management System, it said.
Auckland Crown solicitor Brian Dickey said there are months-long delays in the turnaround of some reports.
"I know we've been trying to get some reports from certain psychiatrists. And that's just been inordinately delayed because of problems with access to the patients and with workflows."
Crown prosecutor Brian Dickey. Photo / Michael Craig
He said more reports were being ordered now compared with 10 or even five years ago.
The increase stemmed from a greater awareness of mental health issues, and a rise in the use of methamphetamine and the drug's contributory impact to psychosis, Dickey believed.
"We know that meth use is now far more prevalent than it was not so many years ago and it's prevalent in a community which suffers from underlying mental health issues and exacerbates those issues."
Dickey said resourcing for forensic psychiatrists was a problem and the resulting delays in reports were not only affecting defendants, whose cases are drawn out and detainment prolonged.
"[Victims] find it hard to understand. It's very hard to explain to a victim why a case won't proceed because the person that killed their loved one ... lacks the mental capacity to conduct the defence.
"They're not interested in that often."
Independent victims advocate Ruth Money. Photo / Dean Purcell
"I just don't think the [courts] realise they've actually got, literally, people's lives in their own hands."
Money said the provision of reports was in "absolute dire straits pre-Covid" and that the pandemic, with its ongoing lockdowns and restrictions, had exacerbated the issue.
"We already know that [mental health] is a huge issue and will continue to be a huge issue for years. What are they doing to future-proof this process? Where is the extra resource coming from? Where is the future planning coming from, that means that these defendants and these victims don't have to face these ridiculous delays?"
RESOURCING PROBLEMS
Forensic psychiatrist Dr Justin Barry-Walsh acknowledged there was a resourcing issue within the services.
He said demand was simply outstripping the ability of the country's five FMHSs, run by their respective district health boards (DHBs), to provide the reports.
"If we had more report writers and more report writer time available to us, then clearly, we'd be better able to meet the demand."
Forensic psychiatrist Dr Justin Barry-Walsh. Photo / Mark Mitchell
Barry-Walsh, who runs a private practice in addition to working for Capital and Coast DHB, said on average it took six hours to complete a report, which included the assessment, examining medical and court documents, and the writing.
Defendants were almost always remanded into custody during the process.
The Act's stipulated time limit for a report is simply too short, Barry-Walsh, who also chairs The Royal Australian New Zealand College of Psychiatrists Faculty of Forensic Psychiatry Committee, said.
"I think it is awful to think that people might find themselves remanded in custody because there are delays in the completion of reports. And I think that is a genuine and significant impingement on someone's human rights," he said.
"But, frankly, two weeks is a very short turnaround period to provide reports. I mean, most of us are booked up further than that. And so, I think there was always going to be a problem."
When the FMHS was first established in the 1990s, as a result of the Mason Inquiry, they were relative to the population they served and well-resourced, he said.
But after the Act was introduced in 2003, demand for reports was on the rise. And with the requirement of two reports to assess someone's mental fitness, the workload continued to grow, Barry-Walsh said.
He said there was only a small pool of people in New Zealand who train in the subspecialty of forensic psychiatry, and numbers fluctuated.
"We could certainly do with more."
Defence lawyer Nathan Bourke. Photo / Supplied
Taranaki lawyer Nathan Bourke is aware of the services' staffing issues but says the "significant" delays have been ongoing for more than five years.
He has long voiced his concern and frustration over the issue, having penned numerous letters to the FMHS, the courts and the country's health and justice leaders about the breaches.
"I think we all agree that routinely they're always late. Virtually 100 per cent of the time, in this region at least, they're not done on time. Particularly the custody ones, I can almost say with certainty are never done within 14 days."
Bourke said the Waikato District Health Board, which provides reports to Taranaki's courts, had begun declining to provide them unless counsel agreed to an extension.
"It's just outrageous."
The delay in the provision of the mental health reports is impacting the administration of justice. Photo / NZME
Director of Waikato's FMHS Dr Peter Dean said he was unable to comment on the issue as the DHB was currently taking legal action with respect to the Section 38 assessments.
Open Justice understands the DHB is seeking clarity around who is legally responsible for the provision of the reports.
A Waitematā DHB spokeswoman said the district has seen a doubling in court reports needed over the past five years.
"The court reporting backlog is not a Covid-19-related phenomenon, or a result of more people being charged with criminal offences and appearing in court, [and] instead is a consequence of policy and practice change from within the Justice System.
"We are currently working with the Ministry of Health and the Ministry of Justice to manage demand."
CHARGES DISMISSED
In the meantime, delays have led to defendants receiving discounted sentences, and to charges being dismissed, Bourke said.
Last year, he successfully argued for the above-mentioned stay of proceedings after his client was kept in custody for longer than the Act allows while awaiting two reports.
Judge Tony Greig ruled the delay had disadvantaged the man, who had been "sick and imprisoned for a longer time than was necessary".
The Act's time limits in which the reports were to be provided are clear - "no ifs, no buts", Judge Greig said in his decision.
While sympathetic to the "well-meaning, hardworking mental health professionals", he said the "deliberate actions" of the service to depart from the prescribed time limits were "unlawful".
The stay's decision referenced the Southern Regional Forensic Psychiatric Service, on behalf of the New Zealand Forensic Psychiatric Advisory Group, writing to the Chief Justice and the Chief District Court Judge advising that due to the significant increase in ordering of the reports, FMHS "will aim to complete these as close to the statutory time frame or next court date although this will depend on clinical services demands".
Judge Greig said the timeframe mandated by the Act has now become a "desirable target which the service does not feel obliged to adhere to".
"It is an interesting position where an arm of the executive, a DHB, advises the Chief Justice that the executive will not be adhering to the law," he said.
"It leaves a District Court judge in a difficult position. Not to push back is to acquiesce to lawbreaking."
Judge John Walker, Acting Chief District Court Judge, said unnecessary delay is an impediment to accessing justice.
In March 2020, the Auckland District Court began sittings for Criminal Procedure (Mentally Impaired Person) Act 2003 proceedings.
The fortnightly sittings deal with cases that have been referred after preliminary assessment and Judge Walker said the streamlined approach has reduced the time it takes for these cases to move through the system.
It is being considered for other courts, but this is a long-term solution, Judge Walker said.
"When there are delays in the provision of health assessor reports, these are addressed by judges on a case-by-case basis," he said.
"The Judiciary and the New Zealand Forensic Psychiatry Advisory Group (NZFPAG) are currently engaged in discussions regarding health assessor reports, and how those reports are then provided within the statutory timeframes."
Presently, Health Minister Andrew Little has concerns about the ability of forensic mental health services to meet the needs of the justice system.
He was "acutely aware" of the delays, and provided Open Justice with correspondence he and Director-General of Health Ashley Bloomfield have had on the matter.
Health Minister Andrew Little. Photo / Mark Mitchell
In a letter to Bloomfield, dated December 22, 2021, Little said the delays are having an impact on the administration of justice.
For reference, he enclosed Judge Greig's stay of proceedings decision and highlighted for Bloomfield a number of its paragraphs.
"Obviously, none of this is an acceptable state of affairs, especially now that courts have been willing to stay proceedings on the grounds of non-compliance with statutory timeframes, thus affecting the administration of justice. Equally, obviously, we have an extensive programme of work to improve mental health services following the Government's investment in Budget 2019," Little said in the letter.
"However, I cannot help but be concerned about the ability of forensic mental health services to meet the needs of the justice system."
Little requested that the MoH review the current capacity of FMHS and, in conjunction with the MoJ, assess what demands they may have to meet in the short, medium and long terms.
On January 27, Bloomfield responded, telling Little the MoH had gone on to review the capacity of the FMHS, run by Canterbury, Waikato, Waitematā, Southern, and Capital and Coast DHBs.
He said all, except for Waikato, were able to meet their statutory requirements to provide the reports.
However, all FMHSs had a shortage of skilled mental health workers, he acknowledged.
"We are aware of increasing demands for these reports without the workforce growth to match."
Bloomfield said the MoH was working with the MoJ to standardise how court reports are commissioned.
"We are also working with regional FMHS to agree processes for completing reports, and to identify issues early on to avoid delays."
He said guidance and expectations had been provided to DHB chief executives around statutory requirements.
Director-General of Health Dr Ashley Bloomfield. Photo / Mark Mitchell
But still, the issues continue.
In mid-March, Bourke received a letter from Waikato DHB refusing to prepare a report due to limited resources.
"That leaves me frantically ringing around the various Court Service Managers trying to work out who is going to arrange a report ... It's all very untidy.
"We're in a situation where the court has said a report is required but the agency who writes the reports has said 'we are too busy'."
Independent Auckland-based forensic psychiatrist Dr Ian Goodwin said the issue could not be immediately resolved.
"The backlog is very large. So, it's going to take some time, I think, for the courts and report writers to work through it, unfortunately.
"We probably should all sit down - the judiciary, forensics, and the Crown - sit down and try and sort out exactly what we're going to do about this backlog because I don't think it's going to go away quickly. And if we get any further periods of restrictions, it will just make it worse."
A homeless and mentally unwell offender was locked up for longer than the law allows while suffering delays in accessing the treatment he desperately needed.
The delay was because the Waikato District Health Board's forensic mental health service failed to provide the court with two psychiatric reports relating to the Taranaki man within the legal timeframe.
In March 2021, the man was arrested on a charge of theft. He resisted and spat in the face of a constable.
When he later appeared in court for the theft, the spit attack and a slew of other charges, his mental health was highlighted and a judge remanded him into custody and ordered two assessment reports.
Only days before the reports were due, as per the statutory timeframe of 14 days, the Waikato DHB filed a letter requesting an extension "due to the large number of reports currently being ordered".
Despite the man not giving his consent, as the Act says is required, an extension was granted.
But the 30-day time limit came - and then went - and still the reports had not been provided. And still the man was locked up, with no diagnosis and no treatment.
The first report was filed 39 days after they were ordered and that same day defence lawyer Nathan Bourke applied for a stay of proceedings due to the time limit being breached.
The second report came 48 days after they were ordered.
Shortly after, the man, who was still in custody, appeared in court before Judge Tony Greig to plead guilty to the charge of theft.
With the information the reports were able to provide on his mental impairment now before the court, Judge Greig convicted him on the charge and, instead of passing sentence, ordered that he be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The man was remanded at large on five remaining charges – all of which the stay of proceedings application related to.
In his decision, released in November last year, Judge Greig ruled the lateness of the reports had disadvantaged the man.
The delay meant he was unable to get the court's treatment orders as quickly as he otherwise should have, Judge Greig said.
There "can be only one remedy", he said, granting the stay and ending the prosecution of the five charges, two of which involved victims.
A victim of sexual assault has been waiting more than six months for her attacker to be sentenced.
The woman, who has automatic name suppression, said the delays have had a huge impact on her own mental health.
The sentencing hearing was delayed twice due to Covid, and then again for a third time because mental health assessments – ordered by the court for the defendant - could not be completed during the Delta lockdown.
"When it got delayed the first time I was like 'oh well I can understand', but the second and third times it was so disheartening and felt like I was being ripped to pieces.
"I haven't been able to sleep, I haven't been able to eat. I've been in the worst state I have ever been in and I'm finding this harder to deal with than the initial assault, because it's so dragged out."
