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The Insanity Defence Conflict and Reform in New Zealand

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The introduction of a novel procedure for determining insanity by agreement in the absence of a trial, introduced in 2003, today accounts for the vast majority of successful insanity pleas in New Zealand, eliminating the distress and conflict of experts often associated with insanity trials. Warren Brookbanks discusses.

Image courtesy of interviewee. June 25, 2024

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This video discusses the historical and legal framework of the insanity defense, particularly focusing on its origins in English common law and its evolution through notable cases. The defense has deep roots, with early notions of mental impairment in criminal law dating back to the 13th century. Key historical cases, such as those of James Hadfield and Daniel McNaughton, shaped the standards known as the McNaughton rules, which define legal insanity based on the understanding of the nature and moral wrongness of an act.

This video critiques the current state of the insanity defense, highlighting its limitations and criticisms, such as its failure to align with contemporary psychiatric understandings of mental disorders and the stigma it carries. It describes the specific legal standards in New Zealand based on the McNaughton rules, particularly around assessing the defendant’s capacity to understand the nature and quality of their actions or to recognize their moral wrongness.

The discussion extends to practical challenges in cases involving methamphetamine-induced psychosis, where offenders often present complex psychological issues that complicate the application of the insanity defense. It suggests that existing legal frameworks may inadequately account for the nuances of mental impairments related to substance abuse, leading to varied legal outcomes based on differing professional opinions.

Finally, the text touches upon international human rights considerations, particularly in relation to the Convention on the Rights of Persons with Disabilities (CRPD). It notes that while current New Zealand law does not prioritize international treaties over local statutes, there may be future reforms necessary to align the insanity defense with the CRPD's emphasis on equal rights for persons with disabilities.

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The defense of insanity does have very ancient origins in

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the common law of England.

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And of course, it has great symbolic significance

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because it declares that the rules of the criminal law

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are directed to rational persons who possess the capacity

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to understand and to comply with those rules,

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which they presumed to know.

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Um, some form of excuse on the grounds of mental impairment

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goes way back, at least to the writings

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of re dereon in the 13th century.

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And more recently, other early tests for lack

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of criminal capacity aimed to assess, for example,

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whether an offender could account or number 20 pence.

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And, and the more recent, test

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in the 18th century was whether

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or not the lack of capacity, was

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representative of a wild beast.

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The so-called Wild Beast Test,

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but the more recent history of insanity focuses on two cases

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in the early 19th century.

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In 18 hundreds,

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the year 1800 James Hadfield was acquitted on the

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grounds of insanity.

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Uh, and in the wake of his trial, the difficult question of

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what to do with people who were insane at the time

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of the crime, was at the time the crime was committed,

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that issue was settled.

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The, with the passing of the Criminal Lunatics Act of 1800,

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the nominated procedure was the passing

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of a special verdict of not guilty by reason

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of insanity, which allowed for indefinite detention

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until his Majesty's pleasure was known.

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Uh, Mr. Hadfield was held in Bethlehem Hospital

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for 41 years, I believe, until he died

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in 1841.

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And that was just two years

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before the celebrated case of Daniel McNorton,

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which is still the most important landmark case

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in the, development of the insanity defense.

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Now, Mr. McNorton had shot

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and killed, Edward Drummond,

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who was the private secretary for the then Prime Minister

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of England, sir Robert Peele, whom Mr.

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Drummond, mistook to be the Prime Minister,

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sorry, who, McNorton, mistook

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to be the Prime Minister at the time, McNorton was under a,

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or suffering from a persecutory delusion

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that the Tories were spying on him.

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It's now well known that there was a public outcry following

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Mc Norton's special acquittal on the grounds of insanity.

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They thought the court had had been far too soft,

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even though the, the jury acquitted

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because it believed that he was incapable

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of distinguishing right from wrong.

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But the government came under pressure

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to clarify the procedure relating

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to insanity in criminal trials.

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And for that purpose, the House

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of Lords summoned the English judges, I think,

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14 judges in total,

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to answer five questions that were put to them.

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And it was in response to the second

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and third questions that the judges

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suggested the standards by which, the defense

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of Insanity was to be judged.

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And they offered criteria which have become known

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as the McNaughton rules.

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So to establish a defense of insanity,

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it was necessary that the accused was laboring under

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such a defect of reason from disease of the mind

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as to not know the nature

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and quality of the act he was doing,

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or if he did know it,

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that he did not know he was doing what was wrong.

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Ironically, if these criteria had been strictly applied at

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Mc Norton's trial,

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it's likely he would not have been acquitted.

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Nevertheless, the rules have now become well embedded

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as the basis of legal insanity in most Anglo

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American common law jurisdictions, even though they have

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and are continuing to be widely and soundly criticized.

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On one view, the state

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of the current insanity defense is lamentable.

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Uh, it, the defense retains a number of features

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that are simply suited to a modern legal system,

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and it fails to affect modern medical

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or psychiatric understandings of mental disorder.

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Another criticism is that it is, it's stigmatic in the,

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in the labeling of, of insanity.

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People don't like to be labeled as insane.

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It's also said that it's ambiguous in its language,

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very archaic language,

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and arguably it's only a value to a very small fraction

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of people with mental issues

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who are caught up in the criminal justice system.

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So, understandably, it's one of the most controversial

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doctrines of the criminal law.

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Statutory defense is defined in our crimes act as section 23

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of the Crimes Act 1961.

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The defense is substantially based on the McNorton rules.

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It's existed in New Zealand for about 128 years

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without any major modification. In

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2021, the New Zealand Court

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of Appeal had occasion in a case called, the Crown

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and Cameron to reexamine the parameters

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of the insanity defense in the context

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of considering the merits of the,

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the appellant's claim in that case

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that he suffered from sexsomnia.

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So-called, sleep sex at the time

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of the alleged sexual offense.

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Now, the insanity defense itself depends on a presumption

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of sanity, which means that

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whenever insanity is raised by a defendant at a trial,

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the defendant acquires the legal burden

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of proving the defense, to the civil standard

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of a balance of probabilities.

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Now, the in, in the Cameron case, the, the Court

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of Appeal reiterated the framing

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of the defense of insanity as a

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so-called two limb model

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of assessing criminal responsibility.

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So the first limb applies where

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as a result of natural iil

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or disease of the mind, those are the, requirements,

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the mental requirements, natural iil or disease of the mind.

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The defendant is incapable of understanding the nature

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and quality of the act

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or omission, so that,

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first limb focuses on the physical act or omission,

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and is in effect a requirement

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that the defendant did not know what he was doing.

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The court in Cameron also noted that this limb

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applies where the defense is one of automatism

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and automatism is, a special defense where

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a person acts without conscious volition, usually in a state

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of unconsciousness,

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but where the, the cause of the automatic state,

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is attributable to a disease,

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rather than some external cause like

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concussion or hypnotism.

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The second limb of the test applies where

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because of disease of the mind, the defendant

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is incapable of knowing that the act was morally wrong,

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having regard to the commonly accepted

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standards of right and wrong.

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Now, the expression, disease of the mind, which

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of course was derived from the McNaughton case,

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is an archaic legal term,

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but it's not a medical term of art,

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and it doesn't, again, on medical opinion.

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Uh, it is essentially,

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essentially means a serious mental illness that's likely

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to recur,

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and warrants the person's detention for treatment.

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The court in Cameron suggested that the paradigm case

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for this limb would, to apply would be where

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a defendant suffering from delusions acted intentionally,

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but believed that the act he was

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or she was doing was justified,

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which was essentially the position with Daniel McNaughton.

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The inclusion in the New Zealand test of morally wrong

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was a significant departure from the common law standard

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outlined in the McNorton rules,

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under which a person can still be found guilty

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of a crime if he knew the act was legally wrong,

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even if he thought it was justifiable for him.

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So in England and Wales, still this test has been criticized

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as being unjustly restrictive

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because it would appear to exclude paranoid schizophrenics

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and people with psychosis who are unable to claim

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any justification for their actions.

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So that's a, an important difference with the defense

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as it's developed in New Zealand.

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The New Zealand test in section 20, section 23

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of the Crimes Act is framed as requiring a defendant

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to be incapable of understanding the nature

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and quality of the act,

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or in the alternative limb of being incapable of knowing

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that the act or omission was morally wrong.

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Um, in Cameron case, the Court of Appeal held

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that incapacity is not an objective standard.

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It said the question is simply whether

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the defendant understood the nature and quality of the act,

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or knew their act were wrong.

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The McNorton rules themselves refer specifically in both

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limbs of the insanity test to an absence

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of actual knowledge.

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It's to say that the person did not know, as opposed to

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incapacity to know the change appears

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to have been made in the, nine,

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the 1879 English Commissioner's

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draft criminal code.

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And it has continued through subsequent enactments

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of the New Zealand Crimes Act,

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in eighteen ninety three, nineteen hundred and eight,

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and 1961, all of which now

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use the expression incapable of knowing, et cetera.

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The difficulty is simply that the expression incapable

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of knowing is a higher test than simply knowing.

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And while a person is not incapable of knowing

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if, if they are rather, if a person,

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is not, not capable of knowing,

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then clearly they did not know the relevant fact.

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Um, and so it's still possible for an accused not

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to know some fact, even if they can take,

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retained the capacity to know it if their mind had been

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tuned or turned to that, issue.

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The, the problem is simply this, that, that a judge

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may direct a jury in terms of the defendant's capacity

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to know relevant facts, which could lead a jury to apply a,

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a more rigorous standard in assessing the defendant's

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performance than the law actually requires.

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Methamphetamine addiction has become a major problem in many

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countries,

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and presents serious challenges in the application

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of the law, in New Zealand.

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There, an increasing number of cases coming

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before the courts where the offender was subject

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to a methamphetamine addiction at the time

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of the alleged offense,

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which sadly are often serious assaults or homicides.

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So meth addicted offenders are often paranoid

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and may develop delusional ideas

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that reach psychotic intensity.

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Uh, and in reality, in severe cases,

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drug induced psychosis can imitate schizophrenia

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and may be expressed in delusional thoughts,

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hallucinations, and thought disorders.

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And so that creates significant problems, both

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in the assessment of criminal responsibility,

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and in appropriate care and treatment.

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A particular legal challenge presented

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by methamphetamine induced behavior is

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that people offending under the influence of methamphetamine

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are often profoundly disturbed in a profoundly disturbed

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mental state, which may be accompanied by irritability,

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aggression, sleeplessness, mood swings,

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and as I said before, paranoia.

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But the problem is not every such state of,

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mental impairment is necessarily capable

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of excusing the alleged behavior.

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Uh, and that means that there's significant variation in

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legal outcomes depending on the particular constellation

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of impairments at the time of the offending behavior.

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And often people, offending under the influence

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of methamphetamine have a range of mental,

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issues going on.

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Furthermore, as far as the defensive insanity is concerned,

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there are major challenges in deciding whether a drug

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induced psychosis amounts to a disease of the mind

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because of the heavy burden

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that methamphetamine use places on the health system,

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on account of the high level of care associated

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with managing meth related psychosis.

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Some psychiatric professionals may be reluctant to confirm

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a diagnosis of meth induced psychosis

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and may prefer to regard it simply as an artifact

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of intoxication, rather than,

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a bonafide a mental illness.

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And that, of course, leads to highly variable character

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of expert testimony, both in support of

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and opposed to the insanity defense when

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with methamphetamine is an issue, offenders

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with an almost identical diagnostic profile in terms

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of their mental, impairment, of,

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and it may be of, of severe mental illness compared to other

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offenders who are found insane, may nevertheless

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be denied the defense simply

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because of professional disagreement as to their knowledge

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of moral wrong.

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So in a sense, psychiatrists become the arbiters of whether

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or not the person has,

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an insanity defense in New Zealand.

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This has become a highly vexed, area

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of the law and practice.

16:25.325 --> 16:27.945
Um, many questions arise.

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Uh, firstly is, is disease of the mind

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an appropriate descriptor

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for an acknowledged mental impairment that is closely tied

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to methamphetamine consumption?

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Is the focus in the legal test in section 23 on knowledge

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of moral wrong, appropriate,

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or even meaningful in this context?

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Should the impact of paranoia be assessed independently

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of the insanity model?

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And if so, how would this work?

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Recent case law experience,

17:07.085 --> 17:09.985
in New Zealand has clearly stretched the utility

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and the applic applicability

17:12.725 --> 17:14.745
of the traditional model of insanity.

17:15.765 --> 17:19.825
So despite being profoundly, paranoid

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and delusional, a majority of defendants fail simply

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to meet the narrow, insanity formulation.

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And this is typically

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because they are judged to know

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that their acts were morally wrong despite the cascading

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effects of minds which are in total disarray.

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Unfortunately, there's no simple solution to this problem,

17:44.525 --> 17:47.185
but I think it does illustrate an urgent need

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for a major review of the insanity defense to ensure

17:50.925 --> 17:55.725
that it's better able to respond to the diverse challenges

17:56.395 --> 17:59.925
presented by behavior, which may be driven by lack

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of impulse control as opposed to cognitive disorder,

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as is typical in myth induced offending.

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But, of, of course at this, at the present time,

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lack of impulse control is not an element within the,

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recognized element within the insanity defense,

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the convention on the rights of Persons with Disabilities.

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The CRPD came into force on the

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3rd of May, 2008.

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It's an international human rights treaty,

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which deals exclusively with the rights of persons

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with disabilities and necessarily implicates offenders

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with a mental impairment.

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Central to the CRPD is Article 12,

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which obliges states to recognize that persons

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with disabilities enjoy legal capacity on an equal

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basis with others in all aspects of life.

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This has been taken to mean that a person who experiences

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difficulties with decision making must be supported

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to make his or her decisions, rather than having the right

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to make decisions taken away and given to another person.

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The so-called Substitute Decision maker.

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However, article 12

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has been interpreted in a radical manner

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by the UN Committee on the Rights of Persons

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with disabilities, which oversees, the,

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the CRPD,

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and the committee would claim that any use

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of compulsory admission in mental health care

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is in direct violation of human rights.

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So accordingly, the committee has asserted

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that all substituted decision making,

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all compulsory treatment, involuntary admissions

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and diversion from the criminal justice system on the

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grounds of mental disability, which

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of course would include the insanity defense

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should be abolished.

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Now it's not clear what the full implications

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of this approach will be for mentally impaired defendants

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as regards the insanity defense.

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However, there's no question that viewing

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mentally impaired defendants as persons with rights equal

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to those with cap capacitated persons is a significant

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challenge to both service providers and to policy makers.

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It may mean, for example, that detaining a person

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on the basis of assessment by officials of,

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Of the person's insanity,

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effectively converts their disability

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into the core cause of their detention.

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And that would be contrary to Article 14 of the CRPD,

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which prohibits the deprivation of liberty on the basis

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of a disability.

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Under current New Zealand Law, international instruments,

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including the CRPD,

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do not prevail over primary legislation.

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The New Zealand Court of Appeal has held

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that the CRPD does not override New Zealand legislation,

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and that, where a New Zealand statute

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clearly provides for a particular outcome,

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that outcome is lawful even if it is not consistent

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with the CRPD.

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So for the meantime, the insanity defense in New Zealand

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at least prevails over the suggested restrictions required

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by the CRPD,

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but I think it's likely that future reform

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of in sanity laws, both locally

21:52.215 --> 21:55.675
and internationally, will be crafted

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to better reflect the rights framework of the CRPD

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and the fundamental rights of persons not

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to be discriminated against on account of disability.

00:00 - The defense of insanity does have very ancient origins in the common law of England. And of course, it has great symbolic significance because it declares that the rules of the criminal law are directed to rational persons who possess the capacity to understand and to comply with those rules,

00:22 - which they presumed to know. some form of excuse on the grounds of mental impairment goes way back, at least to the writings of re dereon in the 13th century. And more recently, other early tests for lack of criminal capacity aimed to assess, for example, whether an offender could account or number 20 pence. And, and the more recent, test in the 18th century was whether or not the lack of capacity, was

00:58 - representative of a wild beast. The so-called Wild Beast Test, but the more recent history of insanity focuses on two cases in the early 19th century. In 18 hundreds, the year 1800 James Hadfield was acquitted on the grounds of insanity. and in the wake of his trial, the difficult question of what to do with people who were insane at the time of the crime, was at the time the crime was committed,

01:32 - that issue was settled. The, with the passing of the Criminal Lunatics Act of 1800, the nominated procedure was the passing of a special verdict of not guilty by reason of insanity, which allowed for indefinite detention until his Majesty's pleasure was known. Mr. Hadfield was held in Bethlehem Hospital for 41 years, I believe, until he died in 1841. And that was just two years

02:07 - before the celebrated case of Daniel McNorton, which is still the most important landmark case in the, development of the insanity defense. Now, Mr. McNorton had shot and killed, Edward Drummond, who was the private secretary for the then Prime Minister of England, sir Robert Peele, whom Mr. Drummond, mistook to be the Prime Minister, sorry, who, McNorton, mistook to be the Prime Minister at the time, McNorton was under a,

02:47 - or suffering from a persecutory delusion that the Tories were spying on him. It's now well known that there was a public outcry following Mc Norton's special acquittal on the grounds of insanity. They thought the court had had been far too soft, even though the, the jury acquitted because it believed that he was incapable of distinguishing right from wrong. But the government came under pressure to clarify the procedure relating

03:18 - to insanity in criminal trials. And for that purpose, the House of Lords summoned the English judges, I think, 14 judges in total, to answer five questions that were put to them. And it was in response to the second and third questions that the judges suggested the standards by which, the defense of Insanity was to be judged. And they offered criteria which have become known

03:47 - as the McNaughton rules. So to establish a defense of insanity, it was necessary that the accused was laboring under such a defect of reason from disease of the mind as to not know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. Ironically, if these criteria had been strictly applied at Mc Norton's trial,

04:21 - it's likely he would not have been acquitted. Nevertheless, the rules have now become well embedded as the basis of legal insanity in most Anglo American common law jurisdictions, even though they have and are continuing to be widely and soundly criticized. On one view, the state of the current insanity defense is lamentable. it, the defense retains a number of features that are simply suited to a modern legal system, and it fails to affect modern medical

05:00 - or psychiatric understandings of mental disorder. Another criticism is that it is, it's stigmatic in the, in the labeling of, of insanity. People don't like to be labeled as insane. It's also said that it's ambiguous in its language, very archaic language, and arguably it's only a value to a very small fraction of people with mental issues who are caught up in the criminal justice system. So, understandably, it's one of the most controversial

05:33 - doctrines of the criminal law. Statutory defense is defined in our crimes act as section 23 of the Crimes Act 1961. The defense is substantially based on the McNorton rules. It's existed in New Zealand for about 128 years without any major modification. In 2021, the New Zealand Court of Appeal had occasion in a case called, the Crown and Cameron to reexamine the parameters of the insanity defense in the context

06:09 - of considering the merits of the, the appellant's claim in that case that he suffered from sexsomnia. So-called, sleep sex at the time of the alleged sexual offense. Now, the insanity defense itself depends on a presumption of sanity, which means that whenever insanity is raised by a defendant at a trial, the defendant acquires the legal burden of proving the defense, to the civil standard

06:44 - of a balance of probabilities. Now, the in, in the Cameron case, the, the Court of Appeal reiterated the framing of the defense of insanity as a so-called two limb model of assessing criminal responsibility. So the first limb applies where as a result of natural iil or disease of the mind, those are the, requirements, the mental requirements, natural iil or disease of the mind.

07:20 - The defendant is incapable of understanding the nature and quality of the act or omission, so that, first limb focuses on the physical act or omission, and is in effect a requirement that the defendant did not know what he was doing. The court in Cameron also noted that this limb applies where the defense is one of automatism and automatism is, a special defense where a person acts without conscious volition, usually in a state

07:58 - of unconsciousness, but where the, the cause of the automatic state, is attributable to a disease, rather than some external cause like concussion or hypnotism. The second limb of the test applies where because of disease of the mind, the defendant is incapable of knowing that the act was morally wrong, having regard to the commonly accepted standards of right and wrong.

08:32 - Now, the expression, disease of the mind, which of course was derived from the McNaughton case, is an archaic legal term, but it's not a medical term of art, and it doesn't, again, on medical opinion. it is essentially, essentially means a serious mental illness that's likely to recur, and warrants the person's detention for treatment. The court in Cameron suggested that the paradigm case

09:04 - for this limb would, to apply would be where a defendant suffering from delusions acted intentionally, but believed that the act he was or she was doing was justified, which was essentially the position with Daniel McNaughton. The inclusion in the New Zealand test of morally wrong was a significant departure from the common law standard outlined in the McNorton rules, under which a person can still be found guilty of a crime if he knew the act was legally wrong,

09:44 - even if he thought it was justifiable for him. So in England and Wales, still this test has been criticized as being unjustly restrictive because it would appear to exclude paranoid schizophrenics and people with psychosis who are unable to claim any justification for their actions. So that's a, an important difference with the defense as it's developed in New Zealand. The New Zealand test in section 20, section 23 of the Crimes Act is framed as requiring a defendant

10:17 - to be incapable of understanding the nature and quality of the act, or in the alternative limb of being incapable of knowing that the act or omission was morally wrong. in Cameron case, the Court of Appeal held that incapacity is not an objective standard. It said the question is simply whether the defendant understood the nature and quality of the act, or knew their act were wrong. The McNorton rules themselves refer specifically in both

10:54 - limbs of the insanity test to an absence of actual knowledge. It's to say that the person did not know, as opposed to incapacity to know the change appears to have been made in the, nine, the 1879 English Commissioner's draft criminal code. And it has continued through subsequent enactments of the New Zealand Crimes Act, in eighteen ninety three, nineteen hundred and eight,

11:27 - and 1961, all of which now use the expression incapable of knowing, et cetera. The difficulty is simply that the expression incapable of knowing is a higher test than simply knowing. And while a person is not incapable of knowing if, if they are rather, if a person, is not, not capable of knowing, then clearly they did not know the relevant fact. and so it's still possible for an accused not to know some fact, even if they can take,

12:05 - retained the capacity to know it if their mind had been tuned or turned to that, issue. The, the problem is simply this, that, that a judge may direct a jury in terms of the defendant's capacity to know relevant facts, which could lead a jury to apply a, a more rigorous standard in assessing the defendant's performance than the law actually requires. Methamphetamine addiction has become a major problem in many countries, and presents serious challenges in the application

12:44 - of the law, in New Zealand. There, an increasing number of cases coming before the courts where the offender was subject to a methamphetamine addiction at the time of the alleged offense, which sadly are often serious assaults or homicides. So meth addicted offenders are often paranoid and may develop delusional ideas that reach psychotic intensity. and in reality, in severe cases,

13:21 - drug induced psychosis can imitate schizophrenia and may be expressed in delusional thoughts, hallucinations, and thought disorders. And so that creates significant problems, both in the assessment of criminal responsibility, and in appropriate care and treatment. A particular legal challenge presented by methamphetamine induced behavior is that people offending under the influence of methamphetamine are often profoundly disturbed in a profoundly disturbed

13:59 - mental state, which may be accompanied by irritability, aggression, sleeplessness, mood swings, and as I said before, paranoia. But the problem is not every such state of, mental impairment is necessarily capable of excusing the alleged behavior. and that means that there's significant variation in legal outcomes depending on the particular constellation of impairments at the time of the offending behavior. And often people, offending under the influence

14:39 - of methamphetamine have a range of mental, issues going on. Furthermore, as far as the defensive insanity is concerned, there are major challenges in deciding whether a drug induced psychosis amounts to a disease of the mind because of the heavy burden that methamphetamine use places on the health system, on account of the high level of care associated with managing meth related psychosis. Some psychiatric professionals may be reluctant to confirm

15:16 - a diagnosis of meth induced psychosis and may prefer to regard it simply as an artifact of intoxication, rather than, a bonafide a mental illness. And that, of course, leads to highly variable character of expert testimony, both in support of and opposed to the insanity defense when with methamphetamine is an issue, offenders with an almost identical diagnostic profile in terms of their mental, impairment, of,

15:51 - and it may be of, of severe mental illness compared to other offenders who are found insane, may nevertheless be denied the defense simply because of professional disagreement as to their knowledge of moral wrong. So in a sense, psychiatrists become the arbiters of whether or not the person has, an insanity defense in New Zealand. This has become a highly vexed, area of the law and practice.

16:25 - many questions arise. firstly is, is disease of the mind an appropriate descriptor for an acknowledged mental impairment that is closely tied to methamphetamine consumption? Is the focus in the legal test in section 23 on knowledge of moral wrong, appropriate, or even meaningful in this context? Should the impact of paranoia be assessed independently of the insanity model?

16:59 - And if so, how would this work? Recent case law experience, in New Zealand has clearly stretched the utility and the applic applicability of the traditional model of insanity. So despite being profoundly, paranoid and delusional, a majority of defendants fail simply to meet the narrow, insanity formulation. And this is typically because they are judged to know

17:32 - that their acts were morally wrong despite the cascading effects of minds which are in total disarray. Unfortunately, there's no simple solution to this problem, but I think it does illustrate an urgent need for a major review of the insanity defense to ensure that it's better able to respond to the diverse challenges presented by behavior, which may be driven by lack of impulse control as opposed to cognitive disorder, as is typical in myth induced offending. But, of, of course at this, at the present time,

18:11 - lack of impulse control is not an element within the, recognized element within the insanity defense, the convention on the rights of Persons with Disabilities. The CRPD came into force on the 3rd of May, 2008. It's an international human rights treaty, which deals exclusively with the rights of persons with disabilities and necessarily implicates offenders with a mental impairment. Central to the CRPD is Article 12,

18:46 - which obliges states to recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. This has been taken to mean that a person who experiences difficulties with decision making must be supported to make his or her decisions, rather than having the right to make decisions taken away and given to another person. The so-called Substitute Decision maker. However, article 12 has been interpreted in a radical manner

19:25 - by the UN Committee on the Rights of Persons with disabilities, which oversees, the, the CRPD, and the committee would claim that any use of compulsory admission in mental health care is in direct violation of human rights. So accordingly, the committee has asserted that all substituted decision making, all compulsory treatment, involuntary admissions and diversion from the criminal justice system on the

20:01 - grounds of mental disability, which of course would include the insanity defense should be abolished. Now it's not clear what the full implications of this approach will be for mentally impaired defendants as regards the insanity defense. However, there's no question that viewing mentally impaired defendants as persons with rights equal to those with cap capacitated persons is a significant challenge to both service providers and to policy makers.

20:38 - It may mean, for example, that detaining a person on the basis of assessment by officials of, Of the person's insanity, effectively converts their disability into the core cause of their detention. And that would be contrary to Article 14 of the CRPD, which prohibits the deprivation of liberty on the basis of a disability. Under current New Zealand Law, international instruments, including the CRPD,

21:11 - do not prevail over primary legislation. The New Zealand Court of Appeal has held that the CRPD does not override New Zealand legislation, and that, where a New Zealand statute clearly provides for a particular outcome, that outcome is lawful even if it is not consistent with the CRPD. So for the meantime, the insanity defense in New Zealand at least prevails over the suggested restrictions required by the CRPD,

21:46 - but I think it's likely that future reform of in sanity laws, both locally and internationally, will be crafted to better reflect the rights framework of the CRPD and the fundamental rights of persons not to be discriminated against on account of disability.

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