Procedure Standard
- Transfers from prisons to psychiatric hospitals are conducted in accordance with relevant legislation.
Forms
- Section 45 - Application for Assessment Form
- Section 11 - Notice requiring patient to undergo a 5 day further period of assessment and treatment
- Section 13 - Notice requiring patient to undergo a 14 day further period of assessment and treatment
Note:
- Forms associated with this system are Ministry of Health forms required by the Mental Health (Compulsory Assessment and Treatment) Act 1992.
- Copies of the section 45 form can be obtained by contacting the local Regional Forensic Psychiatric Service.
Procedure
Standards Application for Compulsory Assessment- Section 45
- If the Prison Manager or delegated officer has reasonable grounds to believe that a prisoner may be mentally disordered, he or she may apply to the Director of Area Mental Health Services for an assessment of the prisoner. (Section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH Act)). If the Prison Manager is not available to sign the application form, the application should be signed by the delegated officer (APM or MCS).
- If the prisoner is not currently subject to an assessment or compulsory treatment order then the assessment examination can commence. If the prisoner is already the subject of an assessment process, or is already subject to a compulsory treatment order, then they remain subject to that order or process (S45(3) MH Act).
- In order to facilitate an application for assessment the Director of Area Mental Health Services must receive an application form that complies with the following:
- It is accompanied by a certificate issued by a medical practitioner that states a date of examination within the 3 days immediately before the date of the application;
- It states that the Prison Manager or delegated officer is over the age of 18;
- It states that the Prison Manager or delegated officer has personally seen the prisoner within the 3 days immediately before the date of application;
- It states the association the Prison Manager or delegated officer has with the prisoner; and
- It states the grounds for believing the prisoner is suffering from a mental disorder. (S8A MH Act).
- The accompanying Medical Practitioner's certificate must show that the Medical Practitioner has examined the prisoner within the 3 days immediately before the date of application, and has reasonable grounds for believing that the person may be suffering from a mental disorder.
In particular the certificate must state:
- that the Medical Practitioner has examined the person;
- the date of the examination;
- that the Medical Practitioner considers there are reasonable grounds for believing that the prisoner may be suffering from a mental disorder;
- full particulars of the reasons for that opinion, and explain in what way the prisoner's condition may come within the statutory definition of mental disorder; and
- that the Medical Practitioner is not related to the prisoner or the Prison Manager or authorised officer making the application. (S8B MH Act).
The Preliminary Assessment
- The preliminary assessment examination to determine if the prisoner is mentally disordered shall take place in the prison within 48 hours of the receipt of the application, or if that is not practicable, in a hospital within 72 hours. (S45(4)(a) MH Act).
- Where an assessment examination is to be conducted in a hospital, the prisoner may be removed by or under the direction of the Prison Manager or delegated officer to the hospital for the purposes of the assessment examination, and then be taken back to the prison. (S45(4)(b) MH Act).
- Where the prisoner is taken to a hospital for the preliminary assessment examination the prisoner shall not be detained overnight at the hospital unless a notice under section 11 of the MH Act has been issued as detailed at paragraph 8 below. (S45(4)(c)(i) MH Act).
First Period of Assessment and Treatment
- When a prisoner is examined in prison or in hospital and a Medical Practitioner issues a certificate of preliminary assessment that there are reasonable grounds for believing the patient is mentally disordered and it is desirable that the patient undergo further assessment and treatment, the Medical Practitioner must also issue a written notice to the prisoner under section 11 MH Act directing that the prisoner be admitted to and detained in a specified hospital for the purposes of assessment and treatment throughout the first period of 5 days. This notice is sufficient authority for the removal of the prisoner to hospital or for the prisoner to remain in hospital for the first period of assessment and treatment of 5 days. (S45 (4) (d) MH Act).
Custody during Assessment and Treatment
- When a prisoner is removed from a prison to a hospital for the purpose of an assessment, unless or until a section 11 MH Act notice directing that the prisoner be admitted to and detained in a specified hospital is given by a Medical Practitioner, the prisoner remains in the legal custody of the Chief Executive of the Department of Corrections. Only when such a notice is given is the prisoner deemed to have ceased to be in the legal custody of the Chief Executive. (S45(4)(c)(ii)(4)(e) MH Act).
Second Period of Assessment and Treatment
- If, after the first period of assessment and treatment of 5 days, there remain reasonable grounds for believing that the prisoner is mentally disordered and it is desirable that the prisoner undergo further assessment and treatment, the clinician issuing the certificate of further assessment must give the prisoner written notice of the requirement for a second period of assessment and treatment for 14 days. The clinician must also issue a written notice to the prisoner under section 13 MH Act directing that the prisoner be admitted to and detained in a specified hospital during the second period of assessment and treatment. (S45(4)(f) MH Act).
Certificate of Final Assessment
- Within this further period of assessment of 14 days a certificate of final assessment will be issued, that will either say the prisoner is fit for release from the hospital or that they must remain at the hospital because they are not fit to be released from compulsory status. If the responsible clinician is of the opinion that the patient is not fit to be released from compulsory status, the clinician may apply to the court for a compulsory treatment order. (s14 (1) MH Act).
Compulsory Treatment Order
- A compulsory treatment order must be made within the 14 day further assessment and treatment period unless a Judge extends the period by one month. If a compulsory treatment order is not made within the extended time frame then the prisoner is released from compulsory status and will return to the prison.
Hearings and Trials Not Effected
- Neither the making of an application for assessment, nor the making of a compulsory treatment order in respect of a person detained prevents the bringing of that person to a trial or hearing or operates to delay the hearing or trial. (s45 (5) MH Act).
Special Leave From Hospital
- The Director of Area Mental Health Services may, after consultation with the Prison Manager, exercise powers to grant a prisoner a leave of absence (of no more than 7 days) from the hospital. (s 50(2)(a) MH Act).
- Prisoners awaiting or during the course of a trial or hearing before any court or while awaiting sentence by any court, or pending the determination of any appeal to any court against conviction, cannot be granted a leave of absence from the hospital. (s50 (2) (a) MH Act).
Release Back to the Chief Executive
- When the Director of Area Mental Health Services considers a prisoner who has undergone treatment is fit to be released back into the Chief Executive's custody, they shall notify the Chief Executive (or his delegate). The Chief Executive shall arrange for the prisoner to be returned to prison within 7 days of the date of the direction, unless a further application is sooner made for another assessment. (s47(3) MH Act).
Voluntary Transfer to a Hospital for Care and Treatment
Note: This is a different process from the compulsory assessment and treatment process under section 45.
- If it appears to the Chief Executive that a prisoner, whether or not he or she is mentally disordered, would benefit from psychiatric care and treatment available only in a hospital, the Chief Executive may, with the prisoner's consent, make arrangements with the Director of Mental Health for the person to be admitted to and detained in that hospital (s46 MH Act).
- A prisoner remains in the legal custody of the Chief Executive while at a hospital for care and treatment under section 46 of the MH Act.
Effect of Time in Hospital on Sentence
- The sentence of a prisoner that is being assessed or treated continues to run while the person is in hospital or on special patient leave. (s48(2)(a) MH Act).
- The sentence of a prisoner who is being assessed or treated ceases to run if he or she escapes from a hospital, or fails to return on the expiry or cancellation of leave. The sentence resumes once the prisoner is retaken. (s48(2)(b) MH Act).
Parole and Release
- For the purposes of parole and release a prisoner detained in hospital must be treated in the same manner as if he or she were detained in a prison. (Section10 (2) Parole Act 2002).
- When the release on parole of a prisoner detained in hospital is directed by the New Zealand Parole Board or the prisoner reaches their statutory release date they are no longer liable to be detained under that sentence and must be "released" from the prison. In practical terms this means they must have their "release" processed on IOMS on their statutory release day (or on the nearest preceding day if the statutory release date is a non-release day) even though they are not physically in the prison.
- The Board may, when directing the release on parole of an offender who is detained in, or on leave from, a hospital, vary any standard release conditions, or waive the obligation to comply with any or all of them. The prisoner's release conditions do not take effect until the prisoner is actually released from the hospital. However, for the purpose of determining when the release conditions are discharged, time starts to run from the date of which the offender would have been released if he or she had been detained in a prison. (Section 30 Parole Act 2002)
- If at the time of their "release" from prison, a prisoner is under a compulsory treatment or assessment order initiated under section 45 of the MH Act, they remain subject to that order and must remain at the hospital under that order. If the prisoner was held because they were in need of care and protection under section 46 of the MH Act then they become a voluntary patient and can leave the hospital if they chose to do so.
Mental Health Protocol between the Ministry of Health and the Department of Corrections
- A protocol agreement has been negotiated between the Department and the Ministry of Health’s Mental Health Directorate.
- The protocol sets out the relationship between the two agencies in relation to the management of unwell prisoners with acute mental health disorders, formalising the practice that has emerged in response to the shortage of forensic mental health service secure facilities.
- The arrangements set out in the protocol apply ONLY where there is a shortage of secure mental health beds.
- Where beds are available, prison managers are expected to fully comply with the provisions of the Mental Health Act.
- Where beds are not available, the protocol will be followed and Prison Managers and Regional Health Service Managers are to ensure that it is clearly documented on the prisoners custodial and health files that the prisoner is being retained in prison on request of the regional forensic mental health service due to the bed shortage.
See Related Links to access the Protocol between the Ministry of Health and the Department of Corrections.
