Guide to the Criminal Procedure (Mentally Impaired Persons) Act 2003

Part 1 Introduction

Our justice system has long recognised the need for special options and processes for mentally impaired people coming before the Court on criminal charges. These options and processes have been provided in Part VII of the Criminal Justice Act 1985.

modernise the law in line with legal and social changes:

Part VII of the Criminal Justice Act 1985 had become outdated in a number of respects. Along with changing social views on the mentally impaired, there was concern that procedures under the Act did not adequately address the needs of defendants and victims, or make the most efficient use of criminal justice resources. A number of practical problems with the Act were also experienced.

address a gap in the law which resulted in a lack of provision for the particular needs of people with an intellectual disability:

The definition of "mental disorder" in the Mental Health (Compulsory Assessment and Treatment) Act 1992 generally excludes people whose mental impairment is solely due to an intellectual disability. The link between that Act and Part VII of the Criminal Justice Act 1985, primarily created by the shared use of the term "mental disorder", meant that people with an intellectual disability were not adequately provided for in the options and processes available under the Criminal Justice Act 1985.

• change the threshold definition from "mental disorder" to "mental impairment" so that the unfitness to stand trial procedure is not limited to people with a mental disorder, and can include intellectual disability

• require the Court to be satisfied on the balance of probabilities that there is sufficient evidence the defendant caused the act or omission in question before a finding of unfitness to stand trial can be made

• introduce new rights of appeal (for example, the right for a defendant to appeal against a finding of fitness to stand trial)

• align maximum periods of detention with current parole eligibility rules

• provide appropriate disposition options for people with an intellectual disability.

• a new process where a finding that a defendant is not guilty by reason of insanity can be recorded with the agreement of the Judge and both prosecution and defence counsel, without the need for a jury trial or a defended hearing
• to provide appropriate disposition options for people with an intellectual disability.

• a new disposition option to allow the Court to order treatment or care while a prison sentence is served.

• reform of the provisions relating to the inquiries a Court must or may make about a mentally impaired defendant before a finding (for example, of unfitness to stand trial) or disposition order (for example, that a defendant be detained as a special patient) is made
• to make explicit provision for the revocation of an order for the detention of a mentally impaired defendant pending a hearing or trial.

The Ministry of Health has estimated there will be 50 to 100 people with an intellectual disability who are likely to be dealt with under the Criminal Procedure (Mentally Impaired Persons) Act 2003 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Part 2 Unfitness to stand trial

New threshold: "mental impairment"

Previous:

Under the Criminal Justice Act 1985, the threshold definition for unfitness to stand trial (previously called "under disability") was "mental disorder".

Changes to the definition of mental disorder made by the Mental Health (Compulsory Assessment and Treatment) Act 1992 meant that people with an intellectual disability were generally not considered to be mentally disordered. As a result, some people with an intellectual disability were forced to stand trial in cases where this was inappropriate.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 does not contain a definition of mental impairment. This allows for judicial interpretation of the term. The policy intent is to include both mental disorder and intellectual disability, as well as other mental impairments (for example, those caused by a degenerative condition or acquired brain injury).

 

• plead
• adequately understand the nature or purpose or possible consequences of the proceedings, or
• communicate adequately with counsel for the purpose of conducting a defence.

The crux of unfitness to stand trial is the defendant's fundamental inability, due to a mental impairment, to conduct a defence or to instruct counsel to do so. The three factors identified above are provided in the Act as examples of when a person will be found unfit to stand trial and are not prescriptive criteria.

Sufficient evidence required

Previous:

Under the Criminal Justice Act 1985, there was no requirement for the Court to be satisfied of a defendant's physical responsibility for an offence before a finding of unfitness to stand trial could be made.

It was possible to postpone consideration of unfitness to stand trial (for example, to allow for an assessment of the evidence against the defendant at a preliminary hearing). However, the potential remained for a defendant to be found unfit to stand trial and detained for up to seven years as a special patient, without an inquiry into the sufficiency of the evidence against them.

If the Court considers that the evidence is not sufficient, the defendant must be discharged. Otherwise, the Court must go on to consider whether the defendant is unfit to stand trial.

Guidance is provided in the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the process to be followed by the Court to conduct this inquiry. The process differs depending on whether the inquiry is required at a summary hearing, deposition, or at trial.

The standard of proof is the balance of probabilities, as no determination of criminal liability is required. This is a higher standard than that required for the prosecution to show a prima facie case.

Rights of appeal

Previous:

Under the Criminal Justice Act 1985, appeal rights were limited for both the prosecution and defence.

Only the defence (and not the prosecution) had the right to appeal against a finding of unfitness to stand trial. There was no right of appeal for the defence against a finding of fitness to stand trial (for example, where a defendant wished to access treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992).

• the evidence against the defendant is sufficient to establish they caused the act or omission in question, or
• the defendant is fit to stand trial.

The defendant's current right of appeal against a finding of unfitness to stand trial is retained.

• the evidence against the defendant is sufficient to establish they caused the act or omission in question
• the defendant is mentally impaired, or ° the defendant is unfit to stand trial.

Maximum period of detention

Previous:

Under the Criminal Justice Act 1985, the maximum period of detention as a special patient for a defendant found unfit to stand trial was seven years (where the defendant would have been liable to an indeterminate sentence of imprisonment if convicted) or half the maximum term of imprisonment in other cases.

The seven year maximum did not keep pace with changes to maximum parole eligibility periods under the Parole Act 2002.

• 10 years where the defendant would have been liable to life imprisonment if convicted, or
• half the maximum term of imprisonment in all other cases.

Change of status

• the defendant's condition had improved to the extent that they were no longer unfit to stand trial
• the defendant was still unfit to stand trial but no longer required detention as a special patient, or
• the maximum period of detention had expired.

Decisions about a change in status rested with the Attorney-General and/ or the Minister of Health.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 extends these provisions to cover defendants with an intellectual disability. Otherwise the provisions remain substantially unchanged.

Part 3 Insanity

Definition of "insanity"

No change:

Under the Criminal Justice Act 1985, the definition of "insanity" was provided by section 23 of the Crimes Act 1961.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 does not make any changes to this definition.

New procedure for recording finding of insanity

Previous:

Under the Criminal Justice Act 1985, a person could be found not guilty by reason of insanity only after a jury trial or a defended summary hearing before a judge.

A lengthy trial could be held even though the prosecution and defence were agreed on the appropriate verdict. This was costly and caused unnecessary additional stress to defendants, witnesses, and victims. There was also the potential for a perverse jury verdict, which would require an appeal.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 removes the need for a jury trial or defended hearing where:

• the defendant raises the defence of insanity and the prosecution agrees it is the only reasonable verdict, and
• there is expert evidence that satisfies the Judge the defendant was legally insane when the offence was committed.

If these two requirements are met, the Judge must record a finding of not guilty by reason of insanity.

Because agreement of both counsel is required, the process allows for either counsel to proceed to jury trial.

Although not required by the Act, it is suggested that such a finding would most appropriately be recorded in open Court, with both the prosecution and defendant indicating their agreement to that finding. The Court could then move on to consider the most appropriate disposition option.

Right of appeal

Under the Criminal Justice Act 1985, a defendant had the right to appeal against an acquittal on the grounds of insanity.

This right is retained in the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Duration of detention and change of status

Where a defendant was found not guilty by reason of insanity and detained as a special patient, the Criminal Justice Act 1985 made provision, in appropriate cases, for the defendant's status to be changed to a patient or for the defendant to be discharged. Decisions about a change in status or discharge rested with the Minister of Health.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 extends these provisions to cover defendants with an intellectual disability. Otherwise the provisions remain substantially unchanged.

Part 4 Disposition options: unfit to stand trial or insane

Options for defendants with an intellectual disability

Previous:

Under the Criminal Justice Act 1985, disposition options for defendants found unfit to stand trial or not guilty by reason of insanity were detention in a hospital (for example, a psychiatric unit) as a special patient or a patient, or immediate release.

The available disposition options for defendants found to be insane were often inappropriate for defendants with an intellectual disability. (No appropriate provision was made for defendants with an intellectual disability who may have been unfit to stand trial, as these defendants were excluded from the definition of unfitness to stand trial.)

The Criminal Procedure (Mentally Impaired Persons) Act 2003 retains the range of orders for defendants with a mental disorder. It also introduces parallel disposition options better suited to defendants with an intellectual disability.

Orders available under the Criminal Procedure (Mentally Impaired Persons) Act 2003 are:

• detention in a hospital as a special patient (for a defendant with a mental disorder) or in a secure facility as a special care recipient (for a defendant with an intellectual disability)
• treatment as a patient (for a defendant with a mental disorder). The Court must specify whether the order is to take effect as an inpatient order or a community treatment order
• care as a care recipient (for a defendant with an intellectual disability). The Court must direct whether the defendant is to be detained in a secure facility and specify the length of the order
• a decision not to make a disposition order where a defendant is liable to be detained under a sentence of imprisonment, or
• release into the community.

Process for making disposition order

Previous:

Under the Criminal Justice Act 1985, the process by which the Court was to make an order about disposition was not clearly specified. In addition, there was no requirement for the Court to undertake inquiries about the most appropriate disposition option before an order was made.

The ability for a Court to detain a defendant as a special patient without an assessment of the best treatment option was inappropriate and did not provide adequate protection against unnecessary detention.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 clarifies the process a Court should go through before making a disposition order.

The Court must first consider an order for detention as a special patient or as a special care recipient. No such order may be made unless the Court considers it necessary in the interests of the public, or any person or class of persons who may be affected by the Court's decision.

If not satisfied of the need for such an order, the Court may consider the alternative disposition options (for example, treatment as a patient or care as a care recipient).

Detail of orders

The detail on how orders made under sections 24 or 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 operate in practice is found in the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

These Acts set out such matters as:

• assessment procedures
• the rights of patients or care recipients
• the duties of providers
• review processes
• release from treatment or care.

Rights of appeal

Previous:

Under the Criminal Justice Act 1985, there was no right of appeal, for either the defence or the prosecution, against a disposition order.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 provides the defence and prosecution with a right of appeal against:

• an order that the defendant be detained as a special patient or special care recipient
• an 'alternative' order, for example, that the defendant be treated as a patient or cared for as a care recipient, or
• an order that the proceedings against a defendant found unfit to stand trial be stayed.

Part 5 Convicted offenders

Status quo: treatment or sentence

Previous:

Under the Criminal Justice Act 1985, a Court could either order detention as a patient or pass sentence, but could not do both.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 retains this either/ or option but extends it to offenders with an intellectual disability. The Court can order that the offender receive treatment as a patient (if mentally disordered) or care as a care recipient (if intellectually disabled), rather than be sentenced.

For patients, the Court must specify whether the order (regarded as a compulsory treatment order) is to take effect as a community treatment order or an inpatient order.

For care recipients, the Court must direct whether the order (regarded as a compulsory care order) requires the offender's detention in a secure facility and specify the term of the order.

New option: imprisonment with treatment or care

Previous:

Under the Criminal Justice Act 1985, the Court could not sentence an offender to imprisonment while also ordering their detention in a hospital to receive treatment for a mental disorder.

The need to choose between passing sentence or ordering treatment in a hospital often placed the Court in a difficult position. If a sentence of imprisonment was imposed upon an offender who also required treatment for an underlying mental illness, prison authorities were left to determine whether and how that treatment might be provided. If an order was made for treatment in a hospital, the Court could not determine whether the person was held in a secure unit or the length of their detention.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 allows the Court to sentence a convicted offender to a term of imprisonment while also ordering their detention in a hospital as a special patient (if mentally disordered) or in a secure facility as a special care recipient (if intellectually disabled).

The sentence continues to run regardless of whether the offender is in a hospital or secure facility, or has been transferred to prison.

If a convicted offender is still in a hospital or secure facility at the time their liability to be detained under the sentence of imprisonment ceases, they are reclassified as either a patient or care recipient. Civil release procedures then apply.

This new order provides the Court with an additional option and allows, for example:

• treatment of an offender with a mental disorder in a secure hospital to be followed by transfer to prison once their mental condition has been treated, or
• care and rehabilitation of an offender with an intellectual disability in a secure facility followed by transfer to prison, if appropriate.

Inquiries

Previous:

Before making an order for a convicted offender under Part VII of the Criminal Justice Act 1985, the Court had to be satisfied that:

• the offender had a mental disorder, and
• detention in a hospital was necessary in the offender's own interests or for the safety of the public.

The Court must now be satisfied, on the evidence of one or more health assessors, that the offender has a mental disorder or an intellectual disability and requires compulsory treatment or compulsory care, either:

• in the offender's interest, or
• for the safety of the public, or
• for the safety of a person or class of persons.

Part 6 Inquiries and assessments

Mandatory inquiries

Points at which inquiries are required

Similar to the Criminal Justice Act 1985, the Criminal Procedure (Mentally Impaired Persons) Act 2003 requires the Court to undertake inquiries at certain points in the criminal justice process when a defendant's mental impairment is in issue. This includes, for example:

• whether a defendant is mentally impaired (as part of a determination of unfitness to stand trial)
• whether a defendant is insane within the meaning of section 23 of the Crimes Act 1961( in accordance with the new procedure for recording a finding of insanity)
• whether a convicted offender has a mental impairment.

Health assessors to undertake inquiries

Previous:

Under the Criminal Justice Act 1985, medical evidence from psychiatrists was usually required when these inquiries were undertaken.

Psychiatric evidence is not always appropriate when assessing a defendant with an intellectual disability.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 requires inquiries to be undertaken by "health assessors", defined as:

• a psychiatrist (currently practising and registered as a medical practitioner), or
• a psychologist, or ° a specialist assessor appointed under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Inquiries about disposition options

Previous:

Under the Criminal Justice Act 1985, although the Court could choose to make inquiries about the most suitable method of dealing with a defendant found unfit to stand trial or insane, this was not a mandatory requirement.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 requires the Court to undertake inquiries in every case to determine the most suitable method of dealing with a defendant found unfit to stand trial or insane, or a convicted offender.

The Court must either:

• make it a condition of bail that the defendant go to a place approved by the Court for the inquiry, or
• remand the defendant to a hospital or secure facility.

These inquiries must be completed within 30 days of the order being made.

Discretionary inquiries: assessment reports

A number of matters relating to psychiatric reports have been updated in response to problems experienced under the Criminal Justice Act 1985, including their inadequate application to people with an intellectual disability.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 renames psychiatric reports as "assessment reports".

Assessment reports assess and report to the Court on the same issues as before, that is:

• whether a defendant is unfit to stand trial or insane
• the type and length of an appropriate sentence or order
• appropriate conditions of a sentence or order.

Health assessors to undertake inquiries

As with mandatory inquiries, the Criminal Procedure (Mentally Impaired Persons) Act 2003 allows for assessment reports to be provided by a wider range of health professionals - called "health assessors" (defined above).

Apart from its extension to people with an intellectual disability, the Criminal Procedure (Mentally Impaired Persons) Act 2003 makes no changes to the placement of a person while an assessment is carried out.

An assessment report can be prepared while a person is:

• on bail, or
• remanded to a hospital, secure facility or prison for up to 14 days (extended to 30 days with the consent of the person or their guardian).

Releasing reports to subsequent providers

Previous:

Under the Criminal Justice Act 1985, a psychiatric report could be issued to the treatment provider at the time of disposition, but there was no power to issue the report to a subsequent provider.

This created problems when people were moved. Subsequent providers required permission from the Court to access these reports. The extent to which this permission was granted varied across the country, which created potential for providers to be working on the basis of incomplete information.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 allows an assessment report to be made available to a subsequent provider of care or treatment who is accessing the report as part of their official duty.

Second opinion Previous:

Under the Criminal Justice Act 1985, there was no explicit provision for the Court to order a second opinion on a psychiatric report.

Consultation

Previous:

Under the Criminal Justice Act 1985, there was no requirement for anyone other than a psychiatrist to contribute to a psychiatric report.

Consultation was not required with people who might have useful input into gaining an understanding of the needs of the defendant. Such input can be especially important in cases where a mentally impaired person has difficulty communicating.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 requires the report writer to consult with the person's caregiver, welfare guardian, family, or whanau, unless directed otherwise by the Judge.

The new duty to consult with family members and caregivers brings the Criminal Procedure (Mentally Impaired Persons) Act 2003 into line with other legislation, such as the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Children, Young Persons, and Their Families Act 1989.

Part 7 Detention pending hearing or trial

Previous:

Under the Criminal Justice Act 1985, there was no explicit provision to allow the revocation of an order that a defendant be remanded in a hospital pending the hearing or trial.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 makes explicit provision for the revocation of an order that a defendant be remanded in a hospital or secure facility pending the hearing or trial. This allows, for example, the release on bail of a defendant who has been remanded in a hospital but is assessed as no longer requiring psychiatric treatment.