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[2025] NSWSC 1117
Supreme Court of NSW
2025-09-26
Coleman J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney-General for New South Wales v Dale Haines (BHT Barbara Ramjan) (Final) [2025] NSWSC 1117
Hearing dates: 1 September 2025
Date of orders: 26 September 2025
Decision date: 26 September 2025
Jurisdiction: Common Law
Before: Coleman J
Decision: 1. The summons is dismissed
2. The plaintiff is to pay the defendant’s costs
Catchwords: MENTAL HEALTH — forensic patient — extension of status as forensic patient — schizophrenia — substance use disorder — experts disagree about extension of status as a forensic patient — least restrictive measure — relevance of community treatment order in risk management — extension not granted
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930
Attorney General for New South Wales v Haines (Preliminary) [2025] NSWSC 774
Attorney General v Gallagher [2006] NSWSC 340
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Minister for Health v Paciocco [2017] NSWSC 4
Texts Cited: Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, Text Revision
Category: Principal judgment
Parties: Attorney General for New South Wales (Plaintiff)
Dale Thomas Haines (Defendant)
Representation: Counsel:
K Ng (Plaintiff)
T Spohr (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2025/00143637
Publication restriction: Nil
By Summons filed 11 April 2025, the plaintiff seeks orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”) against the defendant.
On 22 July 2025, Harrison CJ at CL made orders that the defendant be examined by two qualified psychiatrists (later varied by consent to be one psychiatrist and one psychologist) who were to furnish reports to the Court on the results of those examinations. His Honour also made an interim extension order (“IEO”) extending the status of the defendant as a forensic patient for a period of 3 months commencing 24 July 2025 (see: Attorney General for New South Wales v Haines (Preliminary) [2025] NSWSC 774).
The IEO followed orders made by Yehia J on 8 July 2022 under the Act that the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from 24 July 2022 (see Attorney General for New South Wales v Haines (Final) [2022] NSWSC 930 (“Haines (final) (2022)”)).
I will assume familiarity with their Honours’ judgments.
Before the Court for determination is prayer 3 of the summons by which the plaintiff seeks:
An order pursuant to ss 121, 127(1)(a) and 128 of the Act that the defendant be subject to an order for the extension of his status as a forensic patient for a period of two (2) years from the date of the order.
The defendant is presently 44 years old. He is currently not in a relationship and has no dependent children. The defendant has ongoing contact with his parents.
The defendant has been a forensic patient since 15 May 2017. Between 22 October 2024 and 14 May 2025, the defendant was ordered to be detained at Bloomfield Hospital for care and treatment, however, was granted access to unsupervised day and overnight leave at a supported independent living accommodation by the Mental Health Review Tribunal (“the Tribunal”). Since 12 November 2024, the defendant has been residing in the community in that supported independent living accommodation. On 14 May 2025, the defendant was granted conditional release by the Tribunal to reside in that accommodation.
The defendant completed primary school and attended high school up to Year 11. He receives a Disability Support Pension.
The defendant’s history of alcohol and substance use commenced at the age of 15, with the consumption of alcohol and use of cannabis. The defendant subsequently used amphetamines from his late teenage years, after which he commenced the use of crystal methamphetamine, which he was using (along with cannabis) in the period leading up to the index offending. The defendant reports that he has been abstinent from substance use since his admission to the forensic hospital seven years ago and has been subject to regular random testing.
The defendant has been diagnosed with chronic schizophrenia and substance use disorder. His schizophrenic illness is characterised by auditory hallucinations, command hallucinations, delusions of reference, persecutory and grandiose delusions, paranoia, and thought disorder. His symptoms of schizophrenia worsen in the context of substance use and non-compliance with treatment. The defendant also suffers from a cognitive impairment which is likely contributed to by his brain injury, chronic psychotic illness and prolonged substance use.
The defendant’s criminal history commenced in 1999, at the age of 18, with 4 charges of robbery with actual violence, in relation to which he served 7 months imprisonment in Queensland. The defendant’s subsequent criminal history in New South Wales includes offences of assault occasioning actual bodily harm, possession of prohibited drugs, and multiple counts of robbery armed with an offensive weapon.
The defendant remains on the antipsychotic medication Clozapine, which was first administered to him in June 2016. Whilst the defendant has a history of non-compliance with treatment, he has been compliant with the medication since his transition to supported independent living accommodation.
Between 26 June 2014 to 25 September 2014, the defendant was charged with multiple armed robbery and assault offences in relation to robberies of service stations in Smithfield, Fairfield and Strathfield, as well as a bank in Umina.
On 17 August 2015, the defendant was found unfit to be tried for the offences by Sides QC DCJ.
On 21 April 2017, following a special hearing, English DCJ found that on the limited evidence available, the defendant had committed the following offences:
(a) six counts of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW); (b) one count of face disguised with intent to commit robbery contrary to s 114(1) of the Crimes Act; (c) one count of robbery simplicit**er contrary to s 94 of the Crimes Act; (d) one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; and (e) an additional offence of common assault contrary to s 61 of the Crimes Act was taken into account pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
(Together, “the index offences”).
On 13 December 2021, the plaintiff commenced proceedings in the Supreme Court seeking orders to extend the status of the defendant as a forensic patient for the first time. The preliminary hearing of those proceedings was conducted on 24 March 2022.
On 14 April 2022, Lonergan J made orders for the appointment of experts and that the defendant be subject to an IEO extending his status as a forensic patient for a period of three months, from 24 April 2022 until 24 July 2022.
As noted at [3], on 8 July 2022, Yehia J extended the defendant’s forensic patient status for a period of three years, commencing on 24 July 2022 and expiring on 24 July 2025.
The defendant has been periodically reviewed by the Tribunal since the previous extension of his status as a forensic patient.
On 14 May 2025, the Tribunal granted the defendant conditional release to his supported independent living accommodation. The Tribunal was satisfied that a conditional release order was the least restrictive means of safe and effective care currently available to the defendant that would not seriously endanger either the defendant or the public.
On 11 June 2025, Dr Sara Alamyar, Psychiatry Registrar, and Dr Kiernan Dorney, Consultant Forensic Psychiatrist, wrote to the Tribunal to request a variation to the Tribunal’s conditional release order. Specifically, Drs Alamyar and Dorney sought that the defendant be conditionally released to an alternate supported independent living accommodation, and the transfer of his care to the St Mary’s Community Mental Health Team. The reason for this request was following advice from the defendant’s National Disability Insurance Scheme (“NDIS”) care coordinator that the landlord of the defendant’s supported independent living accommodation had ended the lease of the property and wanted to move back in within the following few weeks.
At the most recent review hearing on 9 July 2025, the Tribunal ordered that the defendant’s conditional release order be varied to permit the proposed change in supported independent living accommodation, as well as the associated change in case manager and treating psychiatrist to St Mary’s Community Mental Health.
The plaintiff is one of the ministers administering the Act as required by s 123 of the Act.
The application is made in accordance with ss 124 and 125 of the Act.
The threshold requirements as set out in s 124 of the Act are satisfied. That is:
(a) the defendant has been a forensic patient since 15 May 2017; (b) the defendant was previously subject to an extension order imposed by Yehia J which commenced on 24 July 2022 and expired on 24 July 2025; (c) the application for an extension order, filed on 11 April 2025, was made fewer than 6 months before the end of the defendant’s previous extension order; and (d) on 22 July 2024, Harrison CJ at CL made orders for two experts to furnish reports to the Court and an interim order extending the defendant’s status as a forensic patient for a further three months commencing on 24 July 2025. Accordingly, the defendant’s status as a forensic patient is now due to expire on 24 October 2025.
(a) the Affidavit of Kate Lawrence affirmed on 11 April 2025 that exhibits the bundle ‘Exhibit KL-1’ containing documentation addressing each of the matters referred to ins 127(2) of the Act (s 125(a)); (b) the Affidavit of Kate Lawrence affirmed on 20 May 2025, together with ‘Exhibit KL-2’; and (c) the Affidavit of Kate Lawrence affirmed on 22 August 2025, and its annexures.
(a) Dr Gordon Elliott, Forensic Psychiatrist, dated 15 August 2025; and (b) Dr Carollyne Youssef, Clinical and Forensic Psychologist, dated 18 August 2025.
On 14 April 2025, Ms Barbara Ramjan was appointed to act as the defendant’s tutor in these proceedings. On 5 May 2025, Ms Ramjan filed a consent to act as tutor for the defendant.
The defendant did not put any evidence before the Court.
The parties agree that the Court has jurisdiction to grant the relief sought.
“23 Mr Haines became a forensic patient when he received the limiting terms imposed by her Honour Judge English on 15 May 2017. While a person has a status as a forensic patient, their care, treatment and supervision, or detention, is dealt with by the Tribunal.
24 The effect of the interim extension order made by Justice Lonergan on 24 April 2022 is that the defendant retained his status as a forensic patient beyond the expiry of that limiting term.
25 Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person’s status as a forensic patient. A Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order (s 124(1)). The defendant is encompassed by that section by virtue of being subject to an interim extension order.
26 In determining whether an order extending Mr Haines’ status as a forensic patient should be made, regard must be had to the objects enunciated in s 69 of the Act. They are as follows:
(1) to protect the safety of members of the public;
(2) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment;
(3) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through CTOs;
(4) to facilitate the provision of hospital care or care in the community through CTOs for any of those persons who require involuntary treatment;
(5) to give an opportunity for those persons to have access to appropriate care; and
(6) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
27 In making any orders under the Act, I must have regard to those objects.
28 Section 122 sets out the test for when an extension order of a person’s status as a forensic patient may be made:
122 Forensic patients in respect of whom extension orders may be made
(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that—
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
Note—
Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
29 The application is to be determined in accordance with Division 3 of the Act:
127 Determination of application for extension orders
(1) The Supreme Court may determine an application under this Division for an extension order—
(a) by making the order, or
(b) by dismissing the application.
(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant—
(a) the safety of the community,
(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),
(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,
(e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,
(f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,
(g) the level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),
(h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,
(i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
(3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
30 The Court’s power to make an extension order is discretionary. Section 127(1) provides that the Supreme Court may determine an application to extend a person’s status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not extending five years from the day on which it commences (s 128(1)(b)). Nothing prevents the Supreme Court from making a subsequent extension order against the same forensic patient (s 129).
31 Section 127(2) (as set out above) lists a number of matters that the Court “must” have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to “any other matter it considers relevant”….”
In accordance with the orders made by Harrison CJ at CL, the defendant was examined by Dr Gordon Elliott, psychiatrist and Dr Carollyne Youssef, psychologist. Both produced reports dated 15 August 2025 and 18 August 2025 respectively.
It is on the basis of these two reports, and taking into account the other material put before me, that I will make the assessment required as to whether the defendant should be subject to an order extending his status as a forensic patient. The summary of the expert reports below is drawn from the Supplementary Statement of Agreed Facts which I am satisfied accurately reflects the experts’ reports and conclusions.
Neither of the experts were called to give evidence or required for cross-examination. That is regrettable in a case like this where the experts’ views and conclusions differ. Further, where as is the case here, there is a submission that one expert’s conclusion on a relevant issue should be preferred over the other, it is difficult for the Court to resolve that issue when there has been no testing of the experts’ evidence by questions from the parties or the Court. I consider in matters of this kind where there is an issue as to whether the relief sought should be granted and the experts have different opinions on a relevant matter; ordinarily those experts should be called to give evidence to best enable the Court to determine which of the conflicting opinions should be accepted. If the experts are not called, this would be a matter that may impact upon whether the party with the onus of proof has discharged that onus.
Dr Elliott conducted a psychiatric assessment with the defendant via audio-visual link for a period of 80 minutes on 12 August 2025. During the interview, the defendant acknowledged that he had psychosis and experienced this every time he used drugs. He reported that he had last used drugs seven years prior and stated, “When I use drugs, I do armed robberies”, in reference to his index offending. In relation to his continued struggles not to use methamphetamines, the defendant had written about 200 pages of affirmations and stated: “I’m better off not using it, I don’t want to, its poison”.
The defendant described his symptoms of psychosis, including seeing colours and “pictures from the mind eye”. Dr Elliott observed that the defendant grew thought disordered when describing these symptoms. The defendant also referred, when asked, to experiences of mental telepathy and paranoia in relation to his psychosis. Dr Elliott noted that it was clear the defendant continued to believe his theories of mind control and talking to gods and more likely than not continued to experience auditory hallucinations. Dr Elliott reported that the defendant had a varying level of insight into his illness.
When asked whether he would take medication if he was not required to, the defendant stated, “I don’t want to, but I do”. The defendant described the adverse effects of treatment as significant weight gain, sexual dysfunction, excess saliva and the need to take laxatives. He told Dr Elliott that he did not think he received any benefit from his medication.
Dr Elliott opined that the defendant has chronic treatment-resistant schizophrenia. The defendant’s schizophrenia has been characterised by a range of psychotic symptoms, including formal thought disorder, delusional beliefs and auditory hallucinations. The defendant exhibited negative symptoms and cognitive deficits associated with schizophrenia.
Dr Elliott considered that the defendant’s illness had likely been exacerbated by his use of cannabis and methamphetamines, though he displayed an inherent treatment resistance, as manifested in his continued display of symptoms in secure settings where his abstinence from illicit substances was relatively assured. Dr Elliott also noted that the defendant displayed continued psychotic symptoms during the assessment despite his high dose of Clozapine and the injectable psychotic, Abilify Maintena. The symptoms displayed may have been a result of the defendant being in an assessment with a new clinician. Dr Elliott opined that the defendant most likely continued to experience auditory hallucinations and more than likely retained elements of his delusions.
Dr Elliott also noted that the defendant has a known cognitive impairment. The defendant manifests specific and permanent cognitive deficits, including in executive functioning, his ability to learn new material, working memory and attention. He is not considered to have an intellectual disability.
Dr Elliott is of the view that the defendant meets the definition of having a “mental illness” as defined within s 4 of the Mental Health Act 2007 (NSW), however the defendant is not a “mentally ill person” as defined in that act. In forming this view, Dr Elliott noted that the defendant had been entirely compliant with treatment and medication, and cooperative with the weekly routine at his supported independent living accommodation. Compliance with medication has occurred as the defendant transitioned to increasing periods of leave to his now conditional release at his supported independent living accommodation.
Dr Elliott administered the Historical Clinical Risk Management-20, Version 3 (“HCR-20”).
Dr Elliott assessed the defendant as having a “high” loading of historical risk factors for violent offending, including his history of violence and other antisocial behaviour, his limited social contact outside of family and support workers, his absent employment record, and his history of substance use disorders, major mental illness and treatment resistance. Dr Elliott also noted the defendant’s apparent history of poor compliance with oral medication while on a Community Treatment Order (“CTO”), though he appeared to have been compliant with depot administration.
Dr Elliott assessed the defendant as having a “moderate” loading of clinical items. Dr Elliott observed that the defendant had “at best” partial insight into his schizophrenia and a “much higher” insight into his substance use. He did not display violent ideation or intent but did display continued evidence of low-grade psychotic symptoms.
The defendant demonstrated a “low” loading of items on the risk management scale. Dr Elliott stated that the defendant was well engaged with professional services, had a stable living situation, high levels of personal support, appeared compliant with treatment and willing to adhere to staff direction and strategies to manage his risk. Dr Elliott considered that the defendant remained vulnerable to stress given his limited ability to learn new adaptive skills.
Dr Elliott opined that the defendant’s loading of historical risk factors was the key to concerns regarding his future risk. Dr Elliott observed that the scoring of historical risk factors is unchanging and did not take into account his progress in abstinence from substances, compliance with treatment, or time since last offending. These factors were reflected in the defendant’s lower scores on dynamic risk factors.
Dr Elliott opined that “there remains a risk that [the defendant] may cause serious harm to others if he ceases to be a forensic patient”. Dr Elliott observed that the most likely nature of the serious harm would be the defendant’s return to armed robbery to support a relapse into substance use. Dr Elliott considered that the likelihood of such harm would be critically dependent on the defendant remaining abstinent from illicit substance use, particularly methamphetamines. Dr Elliott considered that a return to methamphetamine use would be a critical event and dramatically increase the likelihood of the defendant causing serious harm to others.
In this regard, Dr Elliott states that it is important the defendant remains compliant with Clozapine. He noted that the defendant has been compliant with Clozapine without significant resistance. If the defendant were to cease, or reduce his dose of, Clozapine, Dr Elliott considered it “likely” that the defendant would suffer a relapse of his psychosis. If this occurred, however, he was not convinced this would “necessarily” lead to an unacceptable risk of serious harm to others. Rather, it would more likely result in a readmission to hospital.
Dr Elliott was encouraged by the defendant’s frankness on his substance use. Dr Elliott considered given this insight and already evident willingness to engage with NDIS and treating teams, the defendant did not present as a continued risk of serious harm if no longer a forensic patient, so long as the risk he does pose was managed.
Dr Elliott stressed that the defendant’s mental state, apart from a brief and minor relapse, has been stable. The defendant has been cooperative with his treating team and enjoys his living environment where he has extensive NDIS supports. Dr Elliott noted that while the defendant described a continued struggle to remain abstinent from substance use, he is significantly more self-aware and insightful about this problem than about his mental illness. Dr Elliott comments that 24-hour disability support will act as an early means of capturing any relapse and bring it to the attention of the community mental health team.
Dr Elliott opined that the defendant would not present as a continued risk of serious harm to others if he ceased to be a forensic patient, so long as the risk he posed was managed by a combination of the defendant’s existing care, treatment and support and with a CTO. Dr Elliott considered this would be the least restrictive means of managing the defendant’s risk of serious harm to others. Dr Elliott felt that the defendant did not continue to pose an unacceptable risk of serious harm given his compliance with his current care and treatment.
Dr Elliott considered that the current care, treatment and support of the defendant was a critical component in managing his risk. It was important for the defendant to continue receiving high levels of NDIS support. If the defendant were prematurely discharged from his supported independent living accommodation to totally independent living, Dr Elliott stated that he would likely quickly come under immense stress with maintaining his own accommodation and activities of daily living without support. This would be a high-risk state for him becoming homeless and returning to substance use.
Dr Elliott stated that a CTO can be viewed as an order which requires a mental health service to provide continued care. Without a CTO, patients are typically discharged rapidly to GP care alone. Dr Elliott was concerned that, were the defendant to suffer a relapse, “there would, even with the supervision of his disability providers, be delays before this would be managed assertively by the local mental health service, allowing him to become more unwell and potentially wander from his accommodation and return to a high risk state for serious harm to others; much as occurred prior to the index offences”. Dr Elliott states that in favour of the defendant’s treatment as an active patient of the local mental health service is his treatment with Clozapine via monthly Clozapine clinics. This serves as an attachment to the service and a means of regular psychiatric review.
Dr Elliot said that a CTO was an important component of managing the defendant’s risk should he cease to be a forensic patient. Dr Elliot opined that the defendant’s level of insight was mixed at best, and he saw little benefit from his medication, instead seeing it as a burden. Dr Elliot noted the defendant does accept treatment, but he did have a concern that the defendant would gradually come to a realisation that, as a voluntary patient he could refuse treatment, and would do so.
Dr Elliott stated that Clozapine is the mainstay of the defendant’s antipsychotic treatment, and, as an oral only treatment, it is difficult to enforce. However, in Dr Elliott’s view, given the concerns around the risk of serious harm the defendant would pose were he to reduce Clozapine, a breach of a CTO would provide an avenue for early admission to recommence Clozapine without him becoming “so unwell as to progress down a path of full relapse of psychosis and a return to methamphetamine use”.
Dr Elliott expressed a caveat to his opinion. This caveat was not related to the defendant’s compliance with the CTO but arose from Dr Elliott’s concern about the readiness of civilian mental health services to continue to manage the defendant’s risk assertively with a CTO. Dr Elliott noted that community mental health services are resource poor and constantly looking for patients to discharge to GP care to allow for new referrals, particularly given the current public psychiatry climate in NSW. Dr Elliott also referred to his discussion with Dr Kiernan Dorney, who had doubt as to whether a CTO would be pursued if the defendant’s forensic order lapsed.
Regarding alternative forms of management, Dr Elliott noted the following:
the defendant’s mental state is relatively stable, and he would not currently be considered for admission to a mental health inpatient unit as an involuntary patient under the Mental Health Act;
A Guardianship Order would not add anything to the management of the defendant’s risk of harm; and
A Financial Management Order would not realistically assist in the management of the defendant’s risk.
Dr Elliott considered that, if the Court decides on an extension order, a period of two years would allow for a sustained period of assessment of the defendant’s adaption to his supported independent living setting, his compliance with mental health care and treatment, and his continued engagement with his NDIS disability provider.
Dr Youssef conducted an interview with the defendant via audiovisual link for a period of approximately two hours on 14 August 2025.
The defendant reported that he was residing in supported independent living accommodation and that he had daily support workers, was happy where he was and did not intend to move. Dr Youssef noted that the defendant was not concerned about his order extending now that he was in the community, though he did not want to remain on Clozapine.
During the interview, the defendant was forthcoming with information about his childhood, family and school experience, however, appeared somewhat more guarded when discussing his mental health and specifically when asked questions about hallucinations. Dr Youssef noted that the defendant denied any history of auditory or visual hallucinations. However, he stated that he has delusions but had come to realise these “are just in [his] head”. The defendant reported having voices inside his head which he conversed with.
Dr Youssef noted that, the defendant was less thought disordered than when they had met previously, he was orientated to time and place and that no other unusual mannerisms were observed. The defendant was engaged in the interview and repeated his answers when requested to multiple times without incident. He also reported experiencing telepathic communication, describing a “spiritual connection” with others, particularly women. Dr Youssef noted that the defendant also reported that if he were to sever his head, he possessed the ability to reattach it using a “blue light” that can “fuse” it back together, stating “I have delusions, hack my head off, things like that, breathing under water, mental telepathy, all about spiritual gifts ... hear voices in my head ... no issues now, I talked too much ... I need to talk less”. The defendant stated that he had tried to cut his head off on two prior occasions and he believed he was asked by a woman to do this each time. He noted that he thought he might do this again if he was asked by another woman.
Dr Youssef observed that the defendant believed that he had drug induced psychosis rather than schizophrenia and expressed his annoyance with taking antipsychotic medication, particularly Clozapine, as he believed he did not need it. The defendant found the side effects of Clozapine very upsetting, including hypersalivation, weight gain, and erectile dysfunction, and he expressed a desire to cease this medication. However, the defendant acknowledged his doctors did not agree with him stopping the medication. The defendant also acknowledged he is an addict and still thought about ice, alcohol and, less frequently, cannabis. The defendant had written 200 affirmations about not using drugs, which he felt were helpful in helping him maintain his abstinence. The defendant stated he understood drugs had been bad for his mental health and it is best for him not to use substances again.
Dr Youssef also noted that the defendant reported that he felt the need to limit what he shared and keep certain thoughts to himself, as speaking too much led others to suggest he was mentally unwell. Dr Youssef observed that the defendant indicated an awareness that withholding certain information may prevent him from being labelled unwell. The defendant reported that he could get “into trouble” for talking about it.
Dr Youssef formed the view that the defendant meets the diagnostic criteria under the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition Text Revision, for the following conditions: Schizophrenia, Major Neurocognitive Disorder due to Traumatic Brain Injury and Stimulant, Alcohol and Cannabis Use Disorders (severe, in remission, in a controlled environment).
With respect to the defendant’s schizophrenia diagnosis, Dr Youssef noted that the defendant exhibited an absence of awareness of his schizophrenia symptoms. This absence of insight was the most common predictor of non-adherence to treatment, and was also associated with higher relapse rates, an increased need for involuntary treatments, poorer psychosocial functioning, aggression, and a more unfavourable course of the illness. Dr Youssef also opined that the defendant’s moderate to severe Traumatic Brain Injury may also be associated with neuropsychological, emotional and behavioural complications, and that the defendant’s existing neurocognitive deficits are likely to have been compounded by his use of methamphetamine.
Dr Youssef is of the view that the defendant meets the definition of having a “mental illness” and is a “mentally ill person” as outlined in the Mental Health Act.
Dr Youssef assessed the defendant’s risk of violent recidivism using an actuarial risk assessment, the Violence Risk Appraisal Guide - Revised (“VRAG-R”). This tool placed him in the eighth of nine risk “bins” for risk of violent recidivism. The VRAG-R has moderate predictive accuracy, and the defendant’s score was unchanged over time because of the focus on static variables.
Dr Youssef also evaluated the defendant’s current level of risk for violent reoffending by administering a more comprehensive evaluation using the HCR-20. Utilising this tool, the defendant was assessed as having a “high” loading of historical risk factors, with reference to the defendant’s lengthy history of problems with violence, absence of intimate or non-intimate relationships, absent record of stable employment, significant mental health history, and history of utilising violence or the threat of violence to achieve his goals.
The defendant’s loading of clinical risk factors was assessed as “moderate-high”. In making this assessment, Dr Youssef stated that the defendant acknowledged the role that substance use played in his offending behaviour, however he struggled to identify any other factors that may be related to his aggression. Dr Youssef observed the defendant is passively compliant with treatment. Further, Dr Youssef noted that overall reports indicate an improvement in the defendant’s symptomology, however he continued to exhibit both the positive and negative symptoms of schizophrenia and show evidence of delusional beliefs reflective of issues with his cognitive functioning. In Dr Youssef’s view, the defendant demonstrated limited insight regarding the importance of ongoing intervention and support, as well as the need for medication. Dr Youssef noted that the defendant is compliant with treatment and denies any violent thoughts.
Dr Youssef also assessed the defendant as having a “moderate” loading of risk management factors. This was on the assumption that the defendant would continue to reside in supported independent living accommodation and receive the same degree of support via NDIS funding and the community mental health team. Dr Youssef stated that there appeared to be reasonable plans in place for the management of the defendant’s mental illness. The defendant expressed being happy where he lived. With respect to his treatment, Dr Youssef noted that the defendant was compliant, however, he continued to express his desire to cease Clozapine and did not believe he needed medication. The defendant did not agree with his schizophrenia diagnosis.
With respect to the defendant’s protective factors, Dr Youssef assessed the defendant using the Structured Assessment of Protective Factors for Violence Risk. The defendant’s leisure activities and financial management, which he reported no difficulties in, are limited protective factors arising from the motivation to be a positive member of society. Dr Youssef concluded that the defendant’s strongest protective domain was his external supports, namely professional care and living circumstances which are intensively supervised by NDIS staff, with limited protective factors identified in the internal and motivational domains.
On the basis of the above assessment, Dr Youssef opined that the defendant’s static risk placed him in the high-risk category for violent recidivism, and he had a “Moderate-High” overall loading of dynamic risk factors. His risk of serious physical harm is considered “Moderate-High”, and his imminence of violence is considered “Low” in the context of his current supports. Dr Youssef noted that the defendant is a “Moderate” priority for intervention.
Dr Youssef stated that the defendant has some insight into his offending behaviour in acknowledging the role of substance use in increasing his risk due to the financial burden it places on him and the impact on his behaviour. Dr Youssef said that the factors most likely to provide an exponential escalation in the defendant’s risk of reoffending involved inadequate community support and supervision, relapse into substance use, financial difficulties, difficulty coping and poor problem-solving, and a cessation of his medication with a deterioration in his mental health.
On the basis of the risk formulation outlined above, Dr Youssef opined that the defendant continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient. Dr Youssef considered that the defendant’s status as a forensic patient was necessary to manage his risk of harm to others, as it ensured ongoing oversight by the Tribunal, including regular reviews of his progress, treatment and supervision. Dr Youssef noted that, without an order, the defendant could reject his current supports, which would elevate his risk of harm to others (emphasis added).
Dr Youssef states adherence to medication, attending regular psychiatric appointments, meaningful engagement with mental health staff, continued abstinence from substances, a structured lifestyle with ongoing intensive support from NDIS staff, coupled with an increase in protective factors focusing on the development of effective coping skills, engagement in meaningful activities and the development of specific life goals is likely to reduce the risk of recidivism for the defendant.
Dr Youssef recommended that any extension order be for a period of 18 months to 2 years, based on the defendant’s risk of reoffending, an assessment of his dynamic risk factors, consideration of his current mental health condition including its chronicity, severity and the recency with which he has been released to the community.
Regarding alternate forms of management, Dr Youssef noted the following:
the purpose of the defendant’s existing care, treatment and supports are to manage mental health and provide support for his disability, rather than risk management;
guardianship would not encompass all aspects of the defendant’s daily life or address his full range of current risks and needs, and guardians’ powers do not extend to enforcing actions;
a Financial Management Order would not have the jurisdiction to manage the defendant’s behaviour as concerned with his risk; and
classification as an involuntary patient was not necessary nor sufficient to manage the defendant’s needs and risks.
With respect to a CTO, Dr Youssef opined that the defendant’s substantial forensic needs related to his risk of reoffending could not be adequately addressed by a CTO. Dr Youssef noted that the defendant had previously been subject to CTOs, the conditions of which were insufficient to manage his risk, with substance use and treatment non-adherence. Dr Youssef said that under a CTO, an individual is required to accept treatment, care, and management provided by a community mental health service or facility.
Dr Youssef observed that, whilst NDIS funding and support remained vital for the defendant and supported independent living accommodation helped provide stability and mitigate some risks, there were significant limitations to relying on NDIS services for risk management. Dr Youssef also observed that the defendant had the right to refuse or discontinue NDIS support without consequence, and there was a likelihood he may do so if not under an order. Dr Youssef opined that it was necessary for the defendant to have NDIS funding and support in combination with an extended order.
The plaintiff submitted that the most recent risk assessments demonstrate that the risk posed by the defendant has remained largely unchanged since the imposition of the extension order in July 2022. It was noted that the defendant exhibited symptoms of his schizophrenia in each of the assessments with the experts.
The plaintiff pointed to the fact that the defendant was only “passively” complying with taking his medications, submitting it was noteworthy that the defendant had little insight into his diagnosis and need for the medications, particularly the Clozapine, to control his schizophrenia. The plaintiff highlighted the risk of the defendant lapsing into a pattern of re-offending if he ceased his medications.
The plaintiff accepted that there was some divergence of opinion between Dr Elliott and Dr Youssef as to whether a CTO could adequately manage the defendant’s risk. The plaintiff submits that the conclusion of Dr Youssef in this regard should be preferred.
The plaintiff’s written submissions posit that evidence supported a conclusion that the defendant posed an unacceptable risk of serious harm to others if his status as a forensic patient was not extended. This would be particularly so if he ceased taking his medications and fell back into substance use.
The plaintiff accepts that Dr Elliott’s formulation of the risk does not rise to the point of the defendant posing a risk of serious harm (I interpolate let alone that any risk is unacceptable). However, the plaintiff submits that Dr Elliott’s opinion needs to be seen through his view that the defendant’s risk and its management, depends on how he is managed.
In oral submissions, as will be developed more below, the issue of how the plaintiff would be managed if his status as a forensic patient was not extended, and the impact of this on the risk he poses, assumed prominence. Whether the defendant would be subject to a CTO was of particular significance. The plaintiff submitted it was unclear if a CTO would be imposed on the defendant if his status as a forensic patient was not extended. Even if a CTO was in place, the plaintiff submitted, relying on Dr Youssef’s opinion, it would not be sufficient to manage the defendant’s risk such that it was acceptable.
The defendant submitted that the evidence does not establish to the requisite high degree of probability that the defendant poses an unacceptable risk of serious harm if his status as a forensic patient comes to an end. It was submitted that, at most, the evidence only establishes that there is a risk that he may relapse into mental ill health, which may or may not lead to, or be associated with, a relapse into substance use.
The defendant submits that a CTO, together with the current treatment and support in place for the defendant, is a less restrictive manner of managing his risk. The defendant submits that the issue is not whether a CTO will be imposed, but rather whether it is available as a less restrictive means by which the risk posed by the defendant can be managed.
The defendant submits that there is no basis articulated by the plaintiff by which the opinion of Dr Youssef should be preferred to Dr Elliott. Relevant to this consideration is the fact that Dr Elliott is a psychiatrist and Dr Youssef a clinical psychologist. In any event, the defendant submits that the opinion of Dr Youssef as to the risk posed by the defendant is equivocal and does not support a conclusion to the high degree of probability required that the defendant poses an unacceptable risk of causing serious harm to others.
The defendant submits the application should be dismissed.
The authorities and principles applicable to such applications were concisely summarised by Yehia J in Haines (Final) (2022) at [32]-[53]. I do not understand those principles to be in dispute.
I keep in mind that I must determine whether, on the evidence before me, the plaintiff has established to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others and that the risk cannot be adequately managed by less restrictive means other than by an order extending his status as a forensic patient. The standard of proving something to a “high degree of probability” means something beyond more probably than not, but less than beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
I also keep in mind that an order of the kind sought by the plaintiff can only be made if and only if the Court is satisfied to the requisite standard of those matters. As Yehia J in Haines (Final) (2022) observed at [34], referring to the judgment of McClellan CJ at CL in Attorney G**eneral v Gallagher [2006] NSWSC 340, these words emphasise the care with which the Court must approach the question of whether to make an extension order of the kind sought which would impose continuing restrictions on the defendant’s liberty.
I note that the question of whether any risk posed by the defendant is unacceptable is a discretionary assessment to be undertaken based on the likelihood of the risk eventuating and the potential consequences if the risk does eventuate: Haines (Final) (2022) at [36]-[41] per Yehia J and the authorities there cited. As to “serious harm”, as Yehia J said at [42] of her Honour’s judgment, it can mean physical or psychological harm. If the former, it does not have to be grievous bodily harm but must be more than actual bodily harm. If the latter, it must be something more than emotions such as fear or panic.
In determining whether or not to make the extension order, I must take into account the matters in s 127(2) of the Act. I have set out the detail of the reports of the experts appointed to examine the defendant. They have each assessed the risk posed by the defendant of causing harm to others. I accept such a risk exists and I must consider the safety of the community having regard to that risk. However, I consider on the expert evidence and the other material before me, that the plaintiff has not discharged its burden of proving to the high standard required that the defendant poses an unacceptable risk of causing serious harm to others. Unlike when the matter was before Yehia J and the experts all formed the view that the defendant posed such a risk (and the extension order was not opposed), here the experts have different views on the risk and the extension order is opposed.
Dr Elliott is of the opinion that there remains a risk that the defendant “may cause serious harm to others if he ceases to be a forensic patient” (emphasis added). He says that the nature of the harm would most likely be a return to armed robbery to support a relapse into substance use. The likelihood of that occurring is “critically dependent” on whether he remains abstinent from illicit drugs, particularly methamphetamine. He also notes that it is important that the defendant continues to take his Clozapine. The defendant has been compliant in that regard and his treating team do not have a concern about non-compliance. Importantly, Dr Elliott said that if the defendant ceased taking that medication, or reduced its dose, “…it is likely he would suffer relapse of his psychosis, but I am not convinced this would necessarily lead to an unacceptable risk of serious harm to others”. Rather, Dr Elliott thought that this would lead to readmission to hospital. The position would be different, however, if he returned to using methamphetamine.
Unlike when the matter was before Yehia J in 2022 where there was no accommodation, social or NDIS support in place, those matters are in place now. Additionally, the evidence before Yehia J indicated that the defendant at that time had no insight into his mental illness. Whilst he only now has limited insight into his mental illness, he does have insight into his substance use and the impact it has had on him. Dr Elliott opined that because of that insight, the defendant’s willingness to engage with his NDIS workers and treating team, and the results of the risk assessment he conducted, he did not consider that the defendant posed a continued risk of serious harm to others if he ceases to be a forensic patient, so long as the risk he does pose is managed.
The management Dr Elliott referred to was the current care, treatment and support the defendant is receiving. Additionally, he considered a CTO as an important component of managing the defendant’s risk. I do not read his opinion, however, as saying that without a CTO the defendant would pose a risk of serious harm to others if he ceased being a forensic patient, although his risk should be managed with the combination of his current care, treatment and supports as well as a CTO.
Dr Youssef’s opinion, whilst more in favour of the plaintiff than that of Dr Elliott is, as the defendant submits, somewhat equivocal. After considering the risk scenarios she considers he poses, Dr Youssef concludes that the defendant “… continues to pose a risk of violence to others, with the potential for this to be serious, if he ceases to be a forensic patient” (emphasis added). I do not consider Dr Youseff’s report, including this conclusion, is enough for the plaintiff to have discharged its onus. I reach that conclusion not only based on my reading of her conclusions, but because of the differences between her opinion and that of Dr Elliott.
Even if I am wrong in my conclusion that the expert evidence does not support a conclusion to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others, I do not consider that the plaintiff has discharged its burden to also prove that the risk posed by the defendant cannot be managed in a less restrictive manner. As I have observed, this issue took prominence in the hearing of the application. I accept the defendant’s submissions that the plaintiff bears the onus of proving to a high degree of probability that the risk posed by the defendant cannot be managed in a less restrictive way than by the order sought.
This limb of the two matters the plaintiff must prove under s 122(1) of the Act was considered by Yehia J in Haines (Final) (2022) at [43]-[53]. Her Honour there set out the provisions of the Act relevant to the plaintiff proving to a high degree of probability that the defendant’s risk to the community cannot be managed by less restrictive means.
Her Honour set out the provisions of the Mental Health Act dealing with CTO’s:
“49 Therefore, it is apt for me to consider a CTO as an alternative means of managing the risk of serious harm Mr Haines poses. A CTO is an order made under s 51 of the Mental Health Act authorising the compulsory treatment of a person. Section 53 provides for the circumstances in which a CTO may be made:
53 Determination of applications for community treatment orders
(1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order.
(2) For that purpose, the Tribunal is to consider the following—
(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,
(b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order,
(c) a report as to the efficacy of any previous community treatment order for the affected person,
(d) any other information placed before the Tribunal.
(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that—
(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and
(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and
(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.
(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.
(4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.
(5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied—
(a) the affected person has previously refused to accept appropriate treatment,
(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,
(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),
(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.
(6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force.
(7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required—
(a) to stabilise the condition of the affected person, and
(b) to establish, or re-establish, a therapeutic relationship between the person and the person’s psychiatric case manager.
(8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.
50 The form and duration of a CTO is provided for in s 56 of the Mental Health Act:
56 Form and duration of community treatment orders
(1) A community treatment order is to—
(a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and
(b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan.
(2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made.
Note—
Section 53 (6) specifies that the maximum period for an order is to be 12 months.
(3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient.
(4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order.
(5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect.
Note—
The Tribunal may vary or revoke a community treatment order in accordance with section 65.
51 A person subject to a CTO is required to comply with that order (s 57(1)). The Director of Community Treatment for the declared mental health facility which is implementing a treatment plan under a CTO is also empowered to take all reasonable steps to ensure that medication is administered, and services are provided in accordance with the order, including without the consent of the affected person (s 57(2) and (3)).
52 Section 58 of the Mental Health Act deals with breaches of a CTO and s 59 authorises that the Director of Community Treatment to request police assistance in the event that the CTO is breached.”
In addition to a CTO other possible “less restrictive” means of addressing a person’s risk to the community are through the appointment of a Guardian by the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW), the making of a financial management order, or classification of the defendant as an involuntary patient. Neither of the experts considered that any of these alternatives were appropriate to manage the risk posed by him. The issue of a CTO was the relevant alternative considered in most detail.
I have mentioned that Dr Elliott said that a CTO would be an important part of managing the defendant’s risk if he ceased to be a forensic patient. That is in combination with his current care, treatments and NDIS supports. Dr Elliott noted that if the defendant refused to continue with his Clozapine, the breach of a CTO would provide an avenue for early admission to recommence that medication without him becoming so unwell that he would progress to a full relapse of psychosis and a return to methamphetamine use. Additionally, he considered that a CTO would mean that if the defendant suffered a relapse, even with the supervision of his NDIS providers, there would be delays before the local mental health service managed the issue.
Dr Elliott ultimately concluded that a combination of the defendant’s existing care, treatment and supports with a CTO is the least restrictive means of managing his risk of serious harm to others. He placed a caveat on that opinion. That caveat was not with respect to the defendant’s compliance with a CTO, but rather with the readiness or ability of the local mental health service to manage the defendant’s risk assertively with a CTO. This, he said, is an issue not just for the defendant, but for all mental health patients in New South Wales. However, on balance, he considered that the defendant’s risk can be managed with this combination of measures.
Dr Youssef had a different opinion with respect to whether a CTO would effectively manage the defendant’s risk. She said the defendant had previously been subject to a CTO, the conditions of which were insufficient to manage his risk. She said that the defendant requires ongoing intervention, support and treatment for his mental health conditions as well as having substantial forensic needs related to his risk of reoffending. She opined that these needs cannot be adequately addressed by a CTO.
The plaintiff submitted that the opinion of Dr Youssef on this issue should be preferred. No cogent reason was given as to why this was so. As I have mentioned, neither of the experts were called so that this difference could be explored. The Court was also unable to ask those experts questions which might have resolved this difference.
I can see no reason why the opinion of Dr Elliott should be rejected and that of Dr Youssef preferred on this issue. The plaintiff bears the onus of proving to a high degree of probability that the risk posed by the defendant could not be managed in a less restrictive means. They have called two experts who have different conclusions on this issue and cannot, in my opinion, offer a cogent reason why one should be preferred over the other.
There was debate in the hearing as to whether it was the mere availability of a less restrictive means of managing the defendant’s risk that was to be considered or whether I had to be satisfied that a less restrictive means of managing that risk would in fact be in place. That is, here, is it enough that a CTO if made could be a less restrictive means of managing the defendant’s risk, or did I need to be satisfied that a CTO would be in place and therefore manage the defendant’s risk in a less restrictive way? I consider the former is the case. Whilst Yehia J did not specifically consider this question, I note that in [46] of her reasons in Haines (final) (2022), in making the assessment of whether there were less restrictive means of managing the defendant’s risk, her Honour considered the alternative orders that could be made.
The requirement under s 122(1)(b) is that the plaintiff must prove to a high degree of probability that the risk posed by the defendant cannot be managed by other less restrictive means. The question is not whether the risk posed will not be managed by less restrictive means. The onus on the plaintiff is to prove to a high degree of probability, the negative: Minister for Health v Paciocco [2017] NSWSC 4 at [8].
I accept the defendant’s submissions that it is the availability of means other than an order extending the defendant’s status as a forensic patient which is to be considered. In this case that is a CTO as the experts have each otherwise opined that other alternative means (such as involuntary admission or guardianship orders) would not manage the defendant’s risk. A CTO could be applied for by persons listed in s 51(2) of the Mental Health Act. There is no evidence put forward by the plaintiff to suggest that if one was applied for that it would not be made.
I have dealt above with the experts’ views as to whether a CTO could manage the risks posed by the defendant in a less restrictive way than an order extending his status as a forensic patient. As stated, I accept the opinion of Dr Elliott that, in combination with the existing care, treatment and supports in place for the defendant, a CTO could do so.
For the above reasons, I do not consider the plaintiff has established the matters required under s 122 of the Act. The orders I therefore will make are:
The summons is dismissed.
The plaintiff is to pay the defendant’s costs.
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Attorney-General for New South Wales
Dale Haines