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You are here: Cabinet PapersReview of the Interface between Mental Health and Alcohol and Other Drug Services and the Criminal Justice System, Paper Three: The Courts Setting

Paper 25: Review of the Interface between Mental Health and Alcohol and Other Drug Services and the Criminal Justice System, Paper Three: The Courts Setting

PURPOSE

  1. The purpose of this paper is to provide Cabinet with a discussion on the issues that arise when offenders appear in Court with mental health and/or alcohol problems.
  1. It outlines three proposals that will improve the way in which the mental health and AOD needs of people within the Courts setting are met, largely by supporting Judges in making more effective sentencing decisions that may assist offenders address their AOD problems and ultimately reduce their re-offending.
  1. Finally, the paper invites the Committee to note the recommendations relating to the Courts setting contained in Cabinet Paper One: Overview.

EXECUTIVE SUMMARY

  1. This is the third of five papers proposing initiatives that aim to:
  • enhance the social functioning and mental health of offenders
  • assist in reducing their rate of AOD addiction and AOD related harm
  • assist in reducing their re-offending.
  1. The review of the interface between mental health and AOD services and the criminal justice system revealed a number of issues with Courts' capacity to respond appropriately to offenders with mental health and/or AOD problems. These include:
  • a lack of specialist AOD clinical advice for Judges in the majority of District Courts throughout New Zealand
  • a lack of knowledge by Judges of AOD treatment programmes and services to refer offenders
  • variable quality of Court-ordered specialist AOD assessments and reports.
  1. We consider that having AOD clinicians working in District Courts would provide Judges with information that would enable them to better identify offenders with AOD problems, and impose sentences/sentence conditions that may help offenders address their AOD problems, and ultimately reduce their re-offending. The establishment and subsequent review of a pilot is proposed.
  1. We also propose that judicial monitoring, particularly as it relates to AOD treatment, should be evaluated three years after the enactment of the Criminal Justice Reform Bill. Judicial monitoring is a new process outlined in the Bill. It will be available as a special condition to the new sentences of intensive supervision and home detention.
  1. Finally, we recommend that the Ministries of Justice (lead) and Health examine mental health courts in the United States and other overseas Court diversion programmes for offenders with mental health problems, to see if these mechanisms could be beneficial in the New Zealand context.

BACKGROUND

  1. The background to the interface review is detailed in Cabinet Paper One: Overview.

The Courts Setting

Alcohol and Other Drugs

  1. Currently it appears that only five out of the 63 District Courts in New Zealand have direct access to an AOD clinician to undertake Court-based screening of offenders for AOD problems. Yet available data demonstrates that AOD is often a feature of offending.
  1. For example, in 2005, 6% (10,920) of all convictions (187,641) were for drug offences (i.e. drug use, possession or dealing). However, other offences are committed under the influence of AOD (e.g. driving under the influence, domestic violence); and many acquisitive offences (such as fraud and theft) are committed to finance drug use.
  1. Convictions for disorderly behaviour have almost doubled over the decade - 7,459 in 2005 compared with 4,612 in 1996. The Ministry of Justice[1] has noted that it is likely the majority of these offences were committed under the influence of AOD.

Mental Health

  1. As part of District Health Boards' (DHBs') regional forensic psychiatry service, psychiatric nurses are assigned to District Courts throughout New Zealand. A Forensic Court Liaison Nurse's main role is to advise the Court on whether a report is required under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to determine:
  • whether a person is unfit to stand trial
  • whether a person is insane within the meaning of section 23 of the Crimes Act 1961
  • the type and length of sentence that might be imposed on the person
  • 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.
  1. The Forensic Court Liaison Nurse assesses defendants at the request of the Judge, Police, or lawyers. Forensic Court Liaison Nurses also undertake a range of liaison work between agencies (e.g. the Community Probation Service, Mental Health Service case managers, Police, and Intellectual Disability Services).
  1. A census conducted by the Ministry of Health between 10 October and 10 November 2005, revealed there were 1,061 forensic court liaison service users throughout New Zealand during this period.[2] Compared to the estimated monthly Court convictions (15,052), the Forensic Court Liaison Service appears to coming into contact with around 7% of convicted offenders.[3]

ISSUES

Alcohol and Other Drugs

Screening for Alcohol and other Drug Issues

  1. Many commentators, including Judges and Police, believe that drugs and alcohol play a significant role in criminal offending, and that up to 80% of offenders who appear in Court have an AOD problem. It is important that Judges are aware of potential AOD issues when offenders appear in Court, so that they can order a full AOD assessment for the person and, depending on the outcome of the assessment, incorporate AOD treatment into an offender's sentence.
  1. The nature of some offending can indicate that an offender may have AOD problems, for example, committing drug related offences (such as drink-driving, or possession of, or dealing in, controlled drugs) or committing offences under the influence of alcohol or drugs, as indicated in the summary of facts to the case. However, if an offender commits offences to finance an addiction, his or her AOD problems may not be obvious to the Court. It can be very difficult for Judges to ascertain whether an offender needs an AOD assessment, without having an AOD clinician in Court screening offenders for possible problems.

AOD Assessments

  1. Judges currently can request an AOD assessment where specialist services are available. In such cases the AOD specialist will prepare a report and provide it to the Judge directly for his or her consideration. Currently, there is no single framework that governs the purchase and supply of Court ordered AOD reports, and assessments are undertaken by a number of different service providers throughout New Zealand. The result is substantial variation in:
  • cost (some DHBs charge a set fee per report, while others do not charge)
  • the type of AOD assessment undertaken (general, specialist, biochemical or medical)
  • timeframes for assessing offenders and delivering reports to Judges
  • layout of, and information contained in, the reports
  • availability of the reports for use by Corrections to inform development of individual health and sentence plans.
  1. Judges have expressed concern about the varying quality of AOD reports, their timeliness, and the qualifications or training of the health practitioner undertaking AOD assessments and writing the reports. These issues may affect the usefulness of the reports to the Judges.
  1. In response to these issues, the Ministry of Justice is currently developing a purchasing framework for the provision of AOD assessments and reports. The proposed framework includes:
  • An agreed set of national minimum standards for the delivery of AOD reports, including qualifications of providers and a clear brief being provided to providers for each referral.
  • National procedures for the management of the provision of AOD reports, including quality assurance processes, triennial review of providers and the effective management of costs relating to this service.
  • A complaints process that includes the Judiciary where the case is still underway; and the professional body of the provider, or their employer, where the case has concluded.
  1. An advisory group has been established to inform the development of this work and includes representatives from Justice, Corrections, a District Health Board and the Judiciary. Consultation has been undertaken with the Ministry of Health and the Alcohol Advisory Council. A new framework will be in place by December 2007.

Sentence Conditions

  1. Under section 50 of the Sentencing Act 2002, Judges may impose special conditions related to an offender's sentence of supervision if:
  • there is a significant risk of further offending by the offender; and
  • standard conditions alone would not adequately reduce that risk; and
  • the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
  1. Under section 93[4] of the Sentencing Act, Judges may impose special conditions on release of an offender who is serving a sentence of between 12 months and 24 months imprisonment, if the special condition is designed to:
  • reduce the risk of reoffending by the offender;
  • facilitate or promote the rehabilitation or reintegration of the offender; or
  • provide for the reasonable concerns of victims of the offender.
  1. A special condition can direct an offender to attend an AOD treatment programme upon conditional release into the community. Ordering treatment as part of a sentence means that the treatment is monitored by Probation Officers, and non-compliance can be detected quickly if the service providers report it to the Probation Officer.
  1. The ability of Judges to incorporate such requirements into an offender's sentence is contingent on there being appropriate and accessible community services available. This is an issue in New Zealand because although a range of appropriate treatment programmes exist, they are often not accessible to court-referred offenders due to waiting times for treatment. For example, Odyssey House in Auckland and Christchurch, and Moana House in Dunedin will take offenders on home detention, released from prison on conditions, and on parole. However, both have substantial waiting lists and the demand for services currently exceeds bed numbers. Most DHB Community Alcohol and Drug Service (CADS) programmes also have waiting times of several weeks.[5]

Criminal Justice Reform Bill

  1. The Criminal Justice Reform Bill establishes three new sentences, home detention in its own right, community detention, and intensive supervision. The addition of these community-based sentences are designed to provide a greater range of sentencing options to Judges to enable them to better match the sentence to the offending. It is likely that some offenders who would have been sentenced to short custodial sentences will, in future, receive community-based sentences as an alternative. Sentences of home detention and intensive supervision may include requirements for AOD assessment and treatment. These may place additional pressure on some AOD services.

Judicial Monitoring of Offenders' AOD Treatment

  1. Overseas initiatives have emerged that target offenders with AOD needs in the Court setting. In the United States in the 1980s, many criminal courts were strained by increased caseloads due to a rise in drug-related offences. Typically, these offenders cycled in and out of the criminal justice system without receiving any treatment. "Drug courts" emerged to deal with drug dependent offenders as a response to this trend. These courts provide a means for more intensive supervision and engage offenders in court-enforced treatment. One of the most beneficial aspects of drug courts is the judicial supervision of offenders.
  1. As part of its consideration of the Effective Interventions proposals in July 2006, Cabinet agreed that judicial supervision of offenders sentenced to AOD treatment would provide Judges with the confidence to divert AOD dependent offenders into treatment programmes as an alternative to, or as a means to minimise, a sentence of imprisonment [POL (06) 177 refers].
  1. On 22 November 2006, the Cabinet Policy Committee agreed that any expansion of judicial monitoring (the preferred expression to judicial supervision) as it relates to AOD treatment should be considered further as part of this interface review [POL (06) 26/6 refers].
  1. A judicial monitoring process is included in the Criminal Justice Reform Bill. It will be available as a special condition of the new sentences of intensive supervision and home detention. Judges will be kept informed of an offender's compliance and progress on a sentence by Probation Officers every three months. If the Judge thinks it is desirable, the offender may also be ordered to attend Court for a review of his or her sentence. Judicial monitoring is aimed at cases where the decision to impose either a community-based option or a sentence of imprisonment is finely balanced. It is largely about ensuring offenders comply with sentences, which may include AOD treatment.
  1. Some Judges consider that monitoring an offender's progress through their sentence (judicial case management) can deliver positive outcomes. The concept, however, needs to be balanced against the administrative complexity associated with scheduling the appearances of the offender before the same Judge. Further consideration of the process of judicial monitoring identified the following issues:
  • Sentencing on the basis of a health need will result in different sentences for similar offenders with similar culpability. This means that offenders who are convicted of similar offences with similar levels of culpability, but with different health needs may find themselves sentenced to treatment for different periods of time.
  • Sometimes treatment may take longer (or not as long) than initially thought, or may need to be changed. The sentence would need to accommodate these changes in the timing or nature of treatment in response to the offenders' health requirements. Allowance may have to be made for relapses which are a common feature of people with addictions.
  • While some health providers do not consider that the agreement of the offender is necessary for effective treatment, the offender's attitude should be part of the assessment. Some treatment options are too expensive to be provided to recalcitrant offenders opposed to being treated.
  • Health providers may not accommodate certain offenders or limit the number of offenders on their programmes. Judges will need to be aware of what type of offending different providers will not accommodate.
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  • Consideration may have to be given to the victim's view of the appropriateness of treatment as a sentence. Defendants have to be seen to be accountable for their offending.

Mental Health

  1. Many overseas commentators believe that large numbers of people with mental illness are being treated by default in the criminal and juvenile justice systems rather than more appropriately and effectively in the mental health system. This is referred to as the 'criminalisation' of people with mental illness.
  1. While there is no clear consensus as to why individuals with mental illness are over-represented in the criminal justice system, factors cited include clinical risks and systemic factors such as:
  • co-occurring substance use disorders
  • treatment non-adherence
  • social disadvantage and homelessness
  • deinstitutionalisation
  • lack of adequate community support systems for the mentally ill
  • fragmentation of services
  • the role of the Police
  • societal attitudes towards offenders with mental health problems.
  1. As highlighted in the National Study of Psychiatric Morbidity in New Zealand (1999) 50% of adults have a diagnosable mental health disorder in our prisons. This suggests that New Zealand is facing an over-representation of persons with mental illnesses in prison. It is likely that many people processed through the Courts have underlying mental health illnesses that are not identified.
  1. Diverting people with mental illness away from the criminal justice system and towards more appropriate community-based mental health treatment is a predominant approach overseas to preventing the unnecessary arrest and incarceration of people with serious mental illness.

PROPOSALS

AOD Clinicians in District Courts

  1. We consider having AOD clinicians working in District Courts nationwide would enable Judges to better identify offenders with AOD problems and impose sentences/sentence conditions (such as judicial monitoring) that may help offenders address their AOD problems. Evidence suggests that treating offenders' AOD problems can help reduce re-offending rates, and ultimately reduce prison musters. The establishment and subsequent review of pilot(s) is proposed, so that the benefit of such a role can be assessed against specific criteria.
  1. A few District Courts in association with their local DHB have established in-Court AOD assessment services. For example, in February 2006, an addiction assessment service was launched in the Tauranga District Court, and is currently being evaluated. The aims of the service are to:
  • increase the identification of offenders with addiction related problems who appear before the Court
  • promote greater efficiencies for the Courts and AOD treatment services (in terms of reduced referral times, and reduced remand times)
  • improve relationships between the Courts and local addiction treatment services.
  1. We propose that a new initiative involving AOD clinicians up to two Courts be established in addition to the Tauranga pilot, so that the service can be tested in major metropolitan centres. The initiative should be piloted over three years and reviewed over the six months following the first year. The review would assess the benefits of the scheme against specific criteria, for example, whether the role:
  • improved the ability of Judges to incorporate appropriate AOD treatment into an offender's sentence
  • increased the identification of offenders with AOD problems.
  1. It is intended that the initiative(s) would be led by the Ministry of Health. A review report should be referred to the Ministers of Health and Justice six months after the initial twelve month period.
Judicial Monitoring of Offenders' AOD Treatment
  1. We propose that judicial monitoring be evaluated three years after the Criminal Justice Reform Bill has been enacted to establish the extent to which Judges are making use of judicial monitoring. For example, it needs to identify when they are using it (i.e. is it being applied to those situations where the decision to impose a community-based option over a sentence of imprisonment is finely balanced) and, if it is not being used, the possible reasons for that. This evaluation would be funded and undertaken by the Ministry of Justice.
Investigation of Overseas Court Diversion Schemes
  1. We support the examination of overseas court diversion programmes for offenders with mental health problems, and mental health courts to see if these mechanisms, or aspects of them, could be beneficial in the New Zealand context.
  1. Most of the overseas diversion programmes share three characteristics. They involve: (1) the screening and evaluation of individuals to determine the presence of mental illness; (2) negotiation for treatment as an alternative to prosecution or as a condition of release; and (3) linking the person with mental health treatment. Treatment, in other words, is mandated by the court.
  1. Mental health courts have emerged in recent years as a court-based post-arrest diversion approach in the United States. They are aimed at directing people with mental health problems who may have committed a minor, non-violent offence, away from the criminal justice system and into treatment.
  1. We propose that the Ministries of Justice (lead) and Health undertake an examination into overseas Court diversion programmes for offenders with mental health problems, and mental health courts to see if these mechanisms could be beneficial in the New Zealand context. As the ambit of the examination may need to include the current Police Adult Diversion Scheme, the New Zealand Police will be consulted on this project. If agreed, the Ministries of Justice and Health will report back by 31 December 2007.
Population Group Considerations
  1. As part of the review, we have examined the needs of Māori, Pacific peoples, youth and women with mental health and/or AOD issues in the criminal justice system. Cabinet Paper Five: Population Groups examines the needs of special population groups across the criminal justice system. However, as the proposals in this paper cover all persons in the Court setting they apply to all the above population groups except youth, whose cases are mainly heard in the Youth and Family Courts.

Consultation

  1. The following agencies have been consulted on this paper: Department of Corrections, New Zealand Police, Treasury, Department of Prime Minister and Cabinet, Ministry of Social Development, Te Puni Kōkiri, Ministry of Pacific Island Affairs, and the Ministry of Women's Affairs and. In addition, the Judiciary, the Law Commission, and DHB representatives have been informed.

Financial Implications

  1. The funding for investigating overseas Court diversion programmes for offenders with mental health problems and mental health courts will be met from Vote: Justice and Vote: Health baselines.
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  1. We estimate the cost of the Court AOD pilots would be as follows:
Item 2007/08 2008/09 Vote

Personnel costs for up to two full time AOD clinician (including DHB administration and support costs)

s9(2)(j)

s9(2)(j)

Health

Review

s9(2)(j)

s9(2)(j)

Health

Legislative Implications

  1. This Cabinet paper has no legislative implications.

Regulatory Impact and Business Compliance Cost Statement

  1. A regulatory impact and business compliance cost statement is not necessary.

Human Rights Implications

  1. There are no human rights implications associated with these proposals.

Gender Implications

  1. The proposals will be of greater advantage to males as they compromise around 80% of people who are prosecuted through the Courts. However, female offenders who have AOD addiction needs will also benefit.

Disability Perspective

  1. The proposals will benefit people with disabilities who also have mental health and/or AOD problems.

Publicity

  1. Cabinet decisions will by supported by a communications strategy.

Recommendation

  1. We recommend that the Committee:
  1. note that the recommendations that relate to this paper are contained in Paper One: Overview.
Hon Pete Hodgson
Minister of Health 		Hon Mark Burton
Minister of Justice

Footnotes

1 Ministry of Justice (2005) Young People and Alcohol: Some Statistics to 2003 and 2004 on Possible Effects of Lowering the Purchase Age, p. 31.

2 Census of Forensic Mental Health Services 2005. Wellington: Ministry of Health. 2007.

3 This section does not contain information on Southland.

4 The Criminal Justice Reform Bill proposes to amend section 93 to provide that if a sentencing Judge chooses to impose conditions on a short term sentence it must be for a minimum of six months.

5 Paper Four: the Corrections Setting' includes several proposals that will increase service availability for offenders, subject to workforce constraints.