Rights for Victims of Insane Offenders Bill

Members, we come now to Part 2, and this is—

💬 Hon Members: Madam Chair.

CHAIRPERSON (Hon Jacqui Dean): Ha, ha! I did have some words to say, but Emily Henderson also has.

Madam Chair, this is just a red-letter day for those people whose names end with “son” rather than “sen”.

All right, we’ve come now to Part 2. I had a few more things to say about Part 1, but I’m pretty sure that because of the way we’ve had to structure this omnibus bill, we can still discuss them. Isn’t that fun?

The start of Part 2 is really about how we grappled with the Mental Health (Compulsory Assessment and Treatment) Act 1992, which is the same year I started work in vulnerable witnesses—oh, my God, I’m old. Anyway, this, of course, comes to the issue that we’ve already alluded to, which is that this bill has two significances, other than my overarching obsession with the rights of victims. The first one, of course, is that placing of the victim at the changing of a verdict, which we’ve already discussed in some detail, and I was very pleased to see that I was being joined in my nerdy-ness on this side of the Chamber.

But the second part of it is about that difficult process of finding an equivalence for the rights of victims of ordinary offenders—non-insane offenders—as opposed to insane persons, who we went on to deem offenders. I would like Ms Upston to talk to that, because it was a very difficult operation. These systems—the mental health system and the criminal law system and the penal system—are not used to talking to each other; in fact, they operate almost oblivious to the other.

One of the real privileges, I think, of this process was having the Director of Mental Health before us again and again, and he was extraordinarily kind to a bunch of enthusiasts who did not understand the system as we needed to. But he also did us the courtesy of taking our endeavour seriously and of walking us through the balance between the rights and needs of the insane person, who is a patient and who is a sick person in need of protection and treatment, and making sure that in our zeal to ensure the inclusion of the victim, we did not overstep into the rights of the insane person, and that was not easy, particularly when the system has no real compatibility, and, frankly, I didn’t think the mental health system really had much interest in the legal system, which, of course, came as a shock to a lawyer.

When we had that discussion, there were those three different Acts that we needed to marry up in order to create our equivalence, and I would like you to talk us through what they were and why they were. But also, I’d like you to talk through your thoughts about why it was important that we actually grapple with that and intrude on the treatment of patients and try to include this new element in the work of clinicians.

It was interesting watching them grapple with that, because I remember that, at one point, and it was Ginny Andersen talking about this earlier today who reminded me of this, they talked about how they had never really had the opportunity to learn some of the things that victims could tell them which were, in fact, relevant to treatment—for example, the letting out of the person and the leave provisions, which go across two different Acts for the different stages of the leave. I think Ms Upston would do the community a service if she spent a little bit of time on how it works, and maybe that is where I should stop. I feel that it would do the community a service if Ms Upston would take us through how the process of leave works and how we sought to integrate the victim into that notification process, because it was extremely complicated.

Thank you, Madam Chair, for the opportunity to speak to this part of the bill, which I also think raises some really complex issues about rights balancing that we certainly heard a lot of in some of the written submissions, including from some rather significant entities. I do think that it’s important that we consider again whether we struck the right balance in the space of victim submissions but also the privacy issues that were raised by a number of organisations.

I think there’s a tendency to see particular areas of the law as discrete and each contained in their own boxes, and what this bill highlighted for me was, really, that we were dealing with a complex overlap between the mental health system and the justice system. For me, as a West Auckland MP, over the last few months I’ve been out to see probations, who had also talked to me about the significant overlap they see fairly regularly in terms of the justice and mental health and wellbeing space. So it’s certainly an area that I think we need to become more practised and well versed in in terms of how we respond appropriately, really, across both.

Just going back to the specific tensions that were identified in the submissions we had before us, the first one was really about whether or not it was appropriate for a victim, their family, a member of the public, for their submission, their statement in terms of how the Act had impacted them, to influence a decision about release, whether that was short-term release or longer-term release. I think we did hear that from several of the submitters. So what we were really balancing was the need to be heard, the very valid concern of safety concerns, but also a question about what a decision maker in a health context should take into account as they were making this decision. We heard that, again, from a number of submitters.

The other big argument that was made was about the privacy space. So, once a decision had been made, what information should be provided to victims and their families? In this space, we heard from the Privacy Commissioner, who I believe raised some very valid concerns about privacy rights that we ought to protect. I know the Privacy Commissioner also had concerns about the information on health certificates and precisely what information was shareable and what information wasn’t. I think the point that the Privacy Commissioner was trying to make was that we ought to be distinguishing between things that attach to safety and things that really did attach to, you know, very private health information of the individual concerned. I do know that this is a balance, because what we heard from victims on the other side was that what they wanted to know is that the health system was adequately caring for and supporting those people in its care, that some sort of change was happening as they were there. They really wanted to know that progress was being made.

I do think there’s a big question about whether the balance is right, and these are very nuanced things in terms of what the influence should be going in but also what the scope of information is that comes out from those decision makers. I’m very aware, of course, that from a number of the submitters, from victims themselves, we heard about that sense of fear of just looking across the street and suddenly being struck by the accused. Interestingly, there’s some international literature that also suggests that often the accused don’t want to be in that scenario either. So, really, it’s finding the balance that protects them both, and for this clause in particular it may be that the same outcome best suits both the victims of the family as well as the accused. Thank you.

Again, I think the Labour members who were on the select committee and were so diligent in working with me on it in some ways are answering the issues they’re raising, because that is exactly one of the points.

I just want to step back a bit, though, in terms of, again, the intent behind this bill, which is, of course, an omnibus bill. And this part is the mental health compulsory assessment and treatment amendments. So when Graeme Moyle came into my electorate office in 2010, his first concern was that a special patient, the special patient that had killed his brother, was out in the community having unsupervised visits. So his primary concern was actually public safety and that an unsupervised visit by a special patient could lead to harm in the community. So then if you think about—one of the other significant policy intents is equivalence between the justice system and the health system. And if you are a victim in the justice system, you have the opportunity to present to the parole board. Although, as we worked through this, we clearly identified significant differences in terms of why that was not appropriate in the mental health system, and the bill was vastly improved in the select committee from where it started. So I want to acknowledge the select committee’s effort in that. What was important is that victims wanted to be able to be heard, and they also wanted to be notified. So those are the two key parts of the policy behind the changes that appear in here.

Obviously, the release of a special patient—there is a significant process, which Dr Crawshaw, who is the Director of Mental Health, outlined, and the process that he goes through in making recommendations to the Minister of Health. So we did a lot of work to strike the balance of ensuring that there was not any inappropriate influence and that the Director of Mental Health and the mental health team are clearly specialists with a wide range of skills that they bring to the table in that decision, and the victim’s voice was a component. The point that the member Vanushi Walters finished on was actually for some special patients it would be equally traumatising and damaging to their recovery to be confronted in the community with their victim. So we traversed the very necessary balance of the victim and the special patient. Again, I want to thank the select committee for taking the time to make sure that we had unanimous support and that the report that we brought back to this House was unanimously agreed, because we recognise this is a complex but very important issue to get right.

Thank you very much, Madam Chair. Look, in terms of Part 2 of the bill, the Rights for Victims of Insane Offenders Bill, which specifically makes amendments to the Mental Health (Compulsory Assessment and Treatment) Act, there’s one area that I just would like to cover. I think there’s been a really good discussion already, but there’s one part that I think deserves being highlighted, and the member may wish to comment on this as well. What was fascinating for the committee to see was when, as mentioned, Dr Crawshaw, the Director-General of Mental Health, actually described the process. And sometimes, from the health perspective, it was seen as making decisions “with a bit of a black box”—was the term he used to describe that. So I would like to think that, through some of these changes, we’re actually making the system far more transparent and providing health professionals with more, I guess, real information from different sources to be able to make those decisions or make those recommendations to the Minister with a bit of a real-world flavour to it as well.

So I think that, in terms of what’s been said already to support that, it strikes that balance of making sure that health professionals are still acting within the best interests of the mental health patient—to make sure that their therapy and their journey back into wellness is being supported as appropriately as possible—but, at the same time, if there’s pertinent information provided by the victim or the family, that it’s being taken into account when that recommendation is being made to the Minister in terms of what to do. I think it was really interesting to see that there is a lot of effort that goes into those decisions, and I think that, for those submitters that were watching and listening and understanding some of that information, it is not a simple decision being made when someone is being released back into the community, and how that is done. There were some instances given by the Director-General of Health that quite specifically said that it would not be in the best interests of the patient if it was just a trip to the dairy or maybe a trip every second week—like, in the initial stages of someone being supported back into the community, that it’s not within the best interests of the patient for that information to be provided to the victim of the offence every single step of the way.

So that balance of making sure that the appropriate level of information is made available—I think, and the member may wish to comment, that this has made a considerable improvement to decision-making processes that has really managed to straddle both the criminal justice process and also the reintroduction of someone back into the community and that whole rehabilitative process of the mental health system. And let’s remember that New Zealand’s history in terms of mental health, of the way that we have treated mental health patients in the past, is a shocking and abysmal history of how people have, essentially, been incarcerated for what is a health issue. So to be able to make such improvements to our system that still guarantees victims and their families that ability to feel that their views have been taken into account whilst still providing the patient the ability to build back their life is there. So, I guess, that was just my view—that that was a really special point in the bill for me—and I invite further comment in that space.

I move, That the question be now put.

Thank you very much, Madam Chair. Thank you. I appreciate very much the opportunity to take part in this committee stage of this bill, the Rights for Victims of Insane Offenders Bill. Unlike some of my colleagues, I wasn’t on the select committee that looked into this bill, but I did approach looking at this bill with a great degree of interest. So I do have some questions, and I apologise—I don’t have the expertise that some of my colleagues have, or, obviously, the member whose name the bill is in, Louise Upston, has in this area. So I would be quite interested to hear the answers to some of these questions—and also to just commend the Justice Committee for their work on this area. It seems to me that there’s been a lot of collaboration, which has been apparent since the second reading. I was in the House for the second reading, and I commend the member and the select committee for working together to create this bill.

The areas of the bill that I wanted to draw to the member’s attention are mainly in four areas. The first area, as someone who previously practised law and studied law, was the removal of the mens rea component of the offence. When I studied law, it was very much a necessary component to have that particular element of it, and it’s very novel and different to have this bill put forward without that component necessary as part of the conclusion of finding and the ultimate determination in this particular area. So that’s one thing that I found particularly interesting, but I do understand why the member has proposed that.

I was very moved by the way that the member has spoken about her constituent and how she came to put this bill forward. I think it’s in many ways the way that we should bring members’ bills—you see, myself being a backbencher MP—as non-ministerial members of Parliament: to listen to the concerns of our constituents and then bring these forward. I do think that she has spoken about the victims of the crimes that have been committed, and their families, in a very respectful and appropriate way, and so I think that’s really added to the quality of this debate—and also by other committee members who have spoken to this too. So I just wanted to commend the member for that. And so I do understand the reason that we have moved away from that element of mens rea.

The second element that I would be interested in is the role of the Minister is unusual—as someone who hasn’t been involved in the deliberations—and it might have seemed quite usual and it is probably a very good way of solving some very immediate issues under this Act. So the role of the Minister of Justice in, essentially, approving leave—that is a very novel element of criminal law that I had not often been familiar with. I hadn’t practised criminal law very much at all—a very short amount of time as a very, very junior lawyer. So that is one element of the bill, and specifically within this part that we discussing, and a part to which I wanted to bring to the attention of the member.

The third part, which is discussed in detail in this particular section in Part 2, was the interrelationship between the criminal law and our health system. Now, this is something that as a student of law you might not often consider to be particularly apparent, but it is clear from the experience of people that it is absolutely necessary that the criminal law, especially when dealing with insane offenders, interrelates and works properly and seamlessly with the health system. And so I commend the member for putting forward a system which looks at these two very important elements of our society and brings them together, and I wanted to give her the opportunity to explain how that works.

The last thing I had is really a genuine question, which—I hadn’t read all the submissions and been present at the select committee to hear a lot of the comments, but one thing I would be interested in and I haven’t actually heard it mentioned by any of my other colleagues yet either, is: has she heard from any families of insane offenders of their view of this particular bill? Because it became apparent to me in reading it that it might be that they too would appreciate this change, in terms of the clarity of the decision that ends up being put forward. So I just wondered if she had heard from any of the families of insane offenders—obviously, for them, a very difficult position to be in. And it is appropriate that we have clarity in our law. So I just wanted to ask her if she had heard that and if she could share that with the House. Thank you.

Thank you, Madam Chair. I just want to quickly address a couple of the matters raised by the member who has just resumed her seat, Camilla Belich. The first thing is just to actually correct—it is the Minister of Health who grants the leave to the special patients, not the Minister of Justice.

The other thing is, from the public’s perspective, they just expect that the systems of Government work together, and they’re quite shocked when they don’t. So we have to move more into the world of the New Zealanders who access Government services and support, as opposed to living in the world of the system for the system’s sake. That is exactly what’s happening with this bill. It is from the world of the victim and the world of the special patient, and the collective efforts of the Justice Committee and the officials who nutted out things in the background have meant this is a piece of legislation that is for the New Zealanders who this bill should serve, as opposed to the systems themselves.

I move, That the question be now put.

Motion agreed to.

The question is that the Hon Louise Upston’s amendments to Part 2 set out on Supplementary Order Paper 98 be agreed to.

Amendments agreed to.

Part 2, as amended, agreed to.

Part 3 Amendments to Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and Schedule 3