Attorney General for New South Wales v Haines

Supreme Court of NSW|2022-03-24|Before: Lonergan J

Judgment

By summons filed on 13 December 2021, the Attorney General of NSW, ("the plaintiff"), seeks an extension order under Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act") in relation to Mr Dale Haines ("the defendant"), extending his status as a forensic patient for a period of three years.
Listed for hearing before me was that part of the application seeking interim orders and an order for psychiatric and psychological examinations under s 126(5) of the Act.
The defendant does not oppose those interim orders being made but has flagged opposition to the final order sought.
Notwithstanding the defendant's position as to the preliminary orders, the Court is required to conduct an analysis of the tendered material to determine whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of the extension order.
The defendant is a 41-year-old male. He is presently subject to a limiting term which expires on 24 April 2022. He has been diagnosed with schizophrenia, cognitive impairment secondary to traumatic brain injury and a polysubstance abuse disorder (the latter, currently in remission in a controlled environment). He has a history of experiencing auditory hallucinations and delusions of reference and paranoia, despite trials of multiple antipsychotic medications. His illness has also been complicated by cannabis and methylamphetamine use and periods of medication non-compliance in the community.
He currently lives in the Dee Why Ward of the Forensic Hospital within the Long Bay Correctional Complex. He has unescorted ground leave on the grounds of the Forensic Hospital.
The defendant has a criminal history dating back to 1999 when he was 18 years of age. Between 26 June 2014 and 25 September 2014, he committed robberies at multiple service stations in Smithfield, Fairfield and Strathfield whilst armed with a knife. On 25 September 2014, he was charged with the following offences arising out of this conduct:

The Application

Pursuant to s 126(4) of the Act, a preliminary hearing is required. The plaintiff must satisfy the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
If the Court is so satisfied, the plaintiff seeks an order pursuant to s 126(5)(a) of the Act appointing two qualified psychiatrists or registered psychologists (or one of each) to conduct separate examinations of the defendant and to furnish their reports to the Court, and an order directing the defendant to attend those examinations.
As the matter is unlikely to be listed for final hearing until after the expiry of the defendant's status as a forensic patient, the plaintiff also seeks an order that the defendant be subject to an interim extension order pursuant to s 130 of the Act, for a period of three months.
In considering whether to make the interim extension order, it is appropriate to give weight to risk-avoidance.

Evidence

Pursuant to s 125 of the Act, an application must be supported by documentation that addresses each of the matters referred to in s 127(2), to the extent relevant, and must include a report prepared by a qualified psychiatrist, registered psychologist, or medical practitioner that assesses the risk of the forensic patient causing serious harm to others as well as the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.
The plaintiff relies upon the following evidence: 1. An affidavit of Ellen Southwood affirmed 13 December 2021, together with Exhibit ES-1, comprising a volume of documents, broadly addressing s 127(2) factors. 2. A detailed report of Dr Richard Furst, psychiatrist, dated 31 October 2021.

The Act and Threshold Requirements

The Act came into force on 27 March 2021 and repealed the former Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA). The new Act does not substantially alter the process or the test to be applied in applications for an extension order, and so the case law relating to applications under the MHFPA remains applicable.
Section 121 of the Act empowers the Supreme Court to extend a person's status as a forensic patient.
Section 122 of the Act provides that: 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 cases 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.
Mr Haines can only be made the subject of an extension order as provided for by this Schedule if I am satisfied to a high degree of probability that he poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient and the risk cannot be adequately managed by other less restrictive means. I do not have to decide that the risk that Mr Haines will cause serious harm to others is more likely than not in order to determine that he poses an unacceptable risk of causing serious harm to others.
Applications for extension orders may only be made in relation to forensic patients: (s 123). A forensic patient is defined in s 72 of the Act. Mr Haines is currently a forensic patient pursuant to transitional provisions in cl 9 of Schedule 2 to the Act.

First Limb - Unacceptable Risk of Causing Serious Harm to Others

Unacceptable Risk

The phrase "unacceptable risk" is not defined in the Act; however, it has been held to have the same meaning as in the Crimes (High Risk Offenders) Act 2006.
The question of whether the defendant poses an unacceptable risk is to be assessed on the assumption that he is not a forensic patient nor an involuntary patient. That is, the risk that Mr Haines would present if he ceased to be a forensic patient and was released.
The unacceptable risk precondition requires the exercise of a discretionary judgment. The objects of the Act should be borne in mind when undertaking this evaluative task. Intrusions on Mr Haines' right to liberty and privacy by the making of an order are not relevant considerations for the first stage analysis.
In Lynn v State of NSW [2016] NSWCA 57 Basten JA held at [126] that: "The nature of the risk …. had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community."

Serious Harm

The meaning of "serious harm" was considered by Ierace J in Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252. At [15] his Honour stated: "The meaning of "serious harm" in the context of cl 2(1)(a) has been considered in earlier applications for an extension order, by Davies J in Attorney-General (NSW) v Kereopa [2017] NSWSC 411 and RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928. Davies J considered that, having regard to the use of "serious harm" in the definition of "mentally ill person" at s 14 of the Mental Health Act 2007 (NSW), "there is no reason in principle why "serious harm" in the [Mental Health (Forensic Provisions) Act] would not include, at least, psychological harm. It may include serious economic or financial harm, but it is not necessary to reach a view about that" (at [19]). In Attorney-General (NSW) v Kereopa (No 2), RA Hulme J said (at [16]): The "risk of causing serious harm to others" was considered by Davies J in his judgment on the preliminary hearing of the present matter. I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of "grievous bodily harm" (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for "actual bodily harm" under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not "serious harm."

Second Limb - The risk cannot be adequately managed by less restrictive means

In Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 Garling J at [63] interpreted the phrase "adequately managed" as meaning: "That the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community."
In Attorney-General (NSW) v Doolan [2015] NSWSC 1773 Adamson J undertook a detailed analysis of the regimes for the treatment of mentally ill people under the MHFPA as forensic patients, compared with the Mental Health Act 2007 ("MHA") as involuntary patients, and analysed the key differences between the two regimes.
At [28] her Honour expressed the main distinction between the regimes as follows: "Generally speaking the onus in the Act is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted."

The Preliminary Hearing

The task of the Court is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence Mr Haines might call at the final hearing. The test has been described as akin to the prima facie case test applied by magistrates in committal proceedings. If the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must dismiss the application: (s 126(6)).

Dr Furst's Report

Dr Furst assessed Mr Haines on 15 October 2021. He also conducted an analysis of relevant historical documents and reports comprising Mr Haines' criminal history, the hearing and sentencing remarks of Judge Sides in August 2015 and Judge English in 2017, various reports to the Mental Health Review Tribunal, reports of Dr Allnutt, psychiatrist, in April 2008 and March 2015, reports of Dr Nielssen, psychiatrist, in August 2015 and April 2017, Court attendance notices and police facts regarding the relevant offending, a neuropsychological assessment by Ms Hitzeman, Clinical Psychologist, dated June 2019, and various more recent mental health physical examination notes and reports and reports and determinations of the Mental Health Review Tribunal (the Tribunal) between March 2019 and September 2021 as well as some OIMS case notes and inmate profile details.
Dr Furst noted that Mr Haines has never married and has no children. He has been on a disability pension since 2001 and was living in public housing in Fairfield Sydney at the time of his arrest.
After difficulties with schooling, he left school early and ended up in the Mandala Unit at Gosford Hospital in June 2002 diagnosed with a drug-induced psychosis and/or schizophrenia. Dr Furst suggested that with hindsight, this was the onset of his now chronic schizophrenia.
Mr Haines made a suicide attempt in 2004 which led to an extended admission to James Fletcher Hospital. He was treated with depot antipsychotic medication.
Mr Haines had ongoing problems retaining work due to his drug use and probably also due to his mental illness. He had supervision from the local Community Mental Health Team and had injectable antipsychotic medication because he was the subject of a community treatment order (CTO). Dr Furst concluded that whilst compliant with his depot antipsychotic medication at the time of commission of the multiple robbery offences, he had stopped taking his oral medication and was using methylamphetamine and cannabis.
Dr Furst noted a significant head injury in 2001 when Mr Haines was aged twenty. He was found unconscious near or on railway lines near Byron Bay/ Lismore and the history suggests he suffered a traumatic brain injury and or hypoxic brain injury with associated cognitive impairment.
Mr Haines told Dr Furst that the robberies he had committed were for food, cigarettes and money for drugs.
Mr Haines has been reviewed by the Tribunal every six months both in relation to his fitness and in relation to his care, detention and treatment. The Tribunal ordered his transfer to the Forensic Hospital in September 2017, with the transfer being delayed due to bed availability until September 2018.
Mr Haines told Dr Furst that he felt calm and has not heard any voices for a while but then gave an account about "Jamie", an apparent voice he hears who makes him think certain things and write things - lists of things he should or should not do.
Dr Furst noted Dr Allnutt's conclusion in 2008 of schizophrenia or schizoaffective disorder with cognitive impairment with deficit in frontal and temporal lobes and drug dependence.
The analysis and diagnosis of Dr Nielssen made in his July 2015 report was also noted in the context of this observation by Dr Furst: "Significantly, based on both his clinical interviews and review of available documents, Dr Nielssen, who has extensive experience in relation to the assessment, treatment and long-term management of schizophrenia, was clear in his opinion that Mr Haines had a disabling form of mental illness (chronic schizophrenia, partly treatment resistant) for which he will require considerable support when he is released to the community in order to be able to live independently. Accordingly, Dr Nielssen recommended that Mr Haines be referred to live in a group home run by a non-government organisation that provides psychiatric rehabilitation and ensures continuity of care for people with disabling forms of schizophrenia."
Other assessments by clinicians confirmed the diagnosis of schizophrenia and cognitive deficits. The neuropsychological assessment in June 2019 by Ms Hitzeman confirmed cognitive function in the borderline range i.e. 2nd percentile. She referred to limits in both verbal and nonverbal reasoning and thinking abilities. She attributed the problems to neurotoxic effects of prolonged polysubstance use, acquired brain injury and frontal and temporal lobe impairments.
Dr Furst noted some recent incidents of relevance and interest in the Forensic Hospital reports and case notes including that in May 2021 Mr Haines spoke of talking to his friend "Jamie" who was "in prison in Brisbane". He was observed talking to himself on several occasions and laughing and then apparently trying to hide from nursing staff the fact that he had been talking to himself. Mr Haines also expressed the view to his treating team (and to Dr Furst) that he is not mentally ill and attributed past symptoms to drug use. Dr Furst concluded that this was indicative of his low level of insight into his illness and treatment needs.
Mr Haines' treating team in July 2021 - Dr Pulley and Dr Jackson - noted on assessment that his presentation was consistent with his schizophrenic illness and related cognitive deficits, that he had grandiose delusional beliefs that he has the ability to communicate via "mental telepathy" and that he was hearing the voice of "Jamie" who he described as being derogatory and at times distressing but that Mr Haines had limited insight into his diagnosis and dismissed his psychotic symptoms as related to previous drug use.
The diagnosis reached by the treating team, and agreed with by Dr Furst, is chronic and treatment resistant schizophrenia with persistent positive psychotic symptoms in the form of delusions and hallucinations. He also has cognitive impairment secondary to traumatic brain injury, (more correctly described according to DSM-5 as "persistent neurocognitive disorder" according to Dr Furst) and substance abuse disorder involving alcohol, cannabis, methylamphetamine and buprenorphine.
His treatment in the Forensic Hospital consists of frequent monitoring of his mental state, fortnightly review by his treating psychiatrist(s), monthly multidisciplinary team meetings and reviews and monitoring of his Clozapine levels as well as metabolic monitoring.
Dr Furst concluded that Mr Haines does pose a risk of causing serious harm to others if he ceases to be a forensic patient. He described both static (background) risk factors and dynamic (current) risk factors that applied to Mr Haines.
Mr Haines has several significant background risk factors. They include a previous history of serious violence, being the robberies in Queensland and New South Wales between 1999 and 2014 using threats of violence, the number and seriousness of his prior criminal convictions being robberies committed in quick succession which once started, seemed to not stop until arrest. He was only 18 years at the time of his first four robberies with violence in Brisbane. He has a serious mental illness. He has a long history of drug abuse and addiction. He has an intellectual disability and now functions around the lowest 2% of the population in relation to cognition. He has barely worked in paid employment and is likely to be a pensioner for life and has never had any long-term intimate committed relationships as an adult.
In terms of dynamic risk factors, he remains prone to criminality given his criminal history, he is prone to use weapons when committing robbery, he would be homeless if released, he is probably unemployable, he will need to rely on the pension and lack of money has been a factor behind previous offending, he has no stable relationships and this is unlikely to change, he has no pro-social interests or hobbies, he has no social support, his mental state remains unstable and his low level of cognitive function makes him prone to impulsivity. He also lacks insight into his mental illness.
Dr Furst noted that unfortunately there are no protective factors other than those imposed as part of the involuntary treatment and management he receives in the Forensic Hospital as part of his status as a forensic patient.
Dr Furst explained that if Mr Haines is released, there would be inadequate supervision and treatment, likely noncompliance with medication leading to florid psychosis, relapse into drug use and homelessness.
In terms of available less restrictive alternatives for management, Dr Furst stated that classification as an involuntary patient under the Mental Health Act 2017 (NSW) would not provide sufficient oversight, regulation and control as Mr Haines needs specialist input in his treatment planning and graduation to a rehabilitation placement in a medium secure forensic unit when he is sufficiently well (and that is not now), where his conditional release orders could be supervised by the Tribunal.
A CTO would not work as he does not have accommodation or direct family support and is not clinically well enough to manage independent accommodation, attend appointments and take medication as would be required by a CTO.
Dr Furst concluded that there are simply no viable or realistic less restrictive means available for Mr Haines.

Mental Health Review Tribunal Findings

At the most recent Mental Health Review Tribunal hearing in July 2021 the current arrangements and treatment orders were not changed. The Tribunal found that Mr Haines continued to be unfit to be tried, his diagnoses remained schizophrenia, cognitive impairment secondary to traumatic brain injury and polysubstance abuse disorder - in remission in a controlled environment. It was noted that his risk factors were difficult to explore with him, that he continued to require a high level of observation to maintain adherence to his medication regime and lacked insight into any real benefit that he gains from treatment. A request to be transferred to a Medium Secure Unit was proposed on behalf of Mr Haines, but that was not thought by the Tribunal to be appropriate.

Decision

I have considered the material tendered that is of the nature set out in s 127(2) (c), (d), (e),( f), (g) and (h) and I have borne in mind the mandate to consider the safety of the community: (s 127(2)(a).
I have carefully considered the very thorough report of Dr Furst that was tendered in compliance with s 125(b) and the detailed analysis he has conducted to reach his assessment of the risk that Mr Haines presents of causing serious harm to others, the need for ongoing management to remain as it is at this stage, and why there are not other less restrictive means that would adequately manage those risks. His views are clearly in step with those relied upon and acted upon by the Tribunal.
I accept Dr Furst's views and analysis in full and am persuaded by that analysis and the other material tendered in the Exhibit to the affidavit of Ms Southwood that the interim orders sought should be made.

Orders

I make the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: 1. The Court appoints two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 31 May 2022; and 2. The Defendant is directed to attend those examinations. 1. Pursuant to ss 130 and 131 of the Act, the defendant is subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 24 April 2022 and expiring three (3) months after that date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2022

Mental Health Act 2017(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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