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Not a job for Ministers, says Law Commission

Not a job for Ministers, says Law Commission

Decisions about the on-going detention and status of „special patients committed indefinitely to compulsory care by the criminal courts should be made by a specialist tribunal rather than the Minister of Health.

This is one of the key recommendations contained in the Law Commissions latest report Mental Impairment Decision-Making and the Insanity Defence (NZLC R120, December 2010), published and tabled in Parliament today.

The recommendation relates to those cases where criminal charges end in an acquittal by reason of insanity, or a finding of unfitness to stand trial.

A judge then decides under section 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 whether to indefinitely commit the mentally-impaired person, in the interests of public safety.

Depending on whether they are mentally disordered, or intellectually disabled, a person committed under section 24 usually then become a „special patient or „special care recipient.

Currently the Minister of Health is responsible for deciding when such 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.

Instead, the Law Commission says that a new „Special Patients Review Tribunal should be established. It would be chaired by a judge, and would sit in panels of three to five experts, dealing with discharge, reclassification, and long leave decisions.

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“It is not appropriate for this to be a job for Ministers,” said the Commissioner responsible for the project, Warren Young.

“These decisions need to be managed expertly and independently. This is as desirable for Ministers, as it is for the patients. For everybodys benefit, our proposal would remove the risk or perception of politicisation around what are sometimes quite controversial decisions.”

The Commission considered recommending that decisions be made by the existing Mental Health Review Tribunal, which already 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.

The Commission concluded that a Tribunal, capable of managing both types of cases, was required, chaired by a judge. The number of hearings each year would be small (around 50 a year). A Tribunal, in the Commissions 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 considered the insanity defence in section 23 of the Crimes Act 1961, concluding that it should not be reformed.

“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,” said Dr Young.

“The current defence, despite the problems with the way in which it is framed, is working well in practice. The people we consulted by and large did not want it to be overhauled. Even simply updating the old-fashioned language (to refer, for example, to „mental impairment rather than „insanity, „intellectual disability rather than „natural imbecility, and „mental disorder rather than „disease of the mind) would create undesirable uncertainty.”

Insanity defences overseas are generally based on similar rules as those currently existing 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.

The full report can be found at


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