By summons filed 1 March 2017 the plaintiff, the Attorney General for the State of New South Wales, seeks three orders against the defendant, Robert Steven Kapeen, under the provisions of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (the "Schedule" and the "MHFPA" respectively).
The first prayer for relief seeks an order pursuant to clause 6(5) of Schedule 1 for the appointment of two qualified psychiatrists, two psychologists, two registered medical practitioners or a combination thereof to conduct separate examinations of Mr Kapeen and report to the Court the results of those examinations. The proposed order would also direct Mr Kapeen to attend those examinations.
The second prayer for relief seeks an order under clauses 10 and 11 of Schedule 1, subjecting Mr Kapeen to an interim extension order which would extend his status as a forensic patient from 12 March 2017 for a period of 28 days.
The third prayer for relief seeks an order pursuant to clause 1 of Schedule 1, extending Mr Kapeen's status as a forensic patient for a period of two years from the date of the order.
This judgment only deals with the first two forms of relief that are sought. As I will explain there is some urgency in the matter because, absent any order of the Court, Mr Kapeen's status as a forensic patient will expire on 12 March 2017.
The proceedings first came before a Registrar of this Court on 3 March 2017. The Attorney's application for orders 1 and 2 was listed before me on Tuesday, 7 March 2017. On that day counsel for Mr Kapeen sought an adjournment as he had only just received the supporting material and arrangements had only just been put in place for the appointment of a tutor to act on behalf of Mr Kapeen. The matter was then adjourned to today. In the meantime the legal representative for Mr Kapeen advised the Court by email that they consented to order 2 in the summons. Two matters should be noted about that.
First, on the view I take, the Court cannot simply act on the consent of the defendant before it makes an order of any of the orders sought in the summons. Instead the Court must make its own determination as to whether the orders are justified.
Second, when the matter came on for hearing it was clarified that the position of Mr Kapeen is that he does not oppose the order sought in prayer 2 of the summons. In particular he does not wish to be heard to have been taken to have accepted the statutory test for the making of any final order is made out. Further, it was also submitted that, even though the Court might be minded to make an interim extension order, it should not make the order in prayer 1 for the appointment of two psychiatrists. I will deal with that argument shortly.
[3]
Schedule 1 of the Mental Health (Forensic Patients) Act
I summarised the provisions of Schedule 1 in Minister for Health v Paciocco [2016] NSWSC 1530 at [10]-[20]. I will not repeat that discussion save as to note the following.
First, clause 2 of Schedule 1 limits the power of the Court to make an order extending a person's status as a forensic patient. It provides
2 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 Schedule 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 he or she ceases being 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.
In her submissions, counsel for the Attorney General, Ms Callan, referred to a debate in the authorities concerning the interpretation of the phrase "unacceptable risk" as used in the equivalent provisions of the Crimes (High Risk Offenders) Act 2016. She submitted that debate was resolved by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 ("Lynn"). In Lynn, the Court held the right of an offender to his or her personal liberty is of not relevant consideration in applying the unacceptable risk test (at [44] per Beazley P). Further, in Lynn at [126], Basten JA stated:
"To evaluate this submission it is necessary to return to the exercise required of the Court. The nature of the risk he posed 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 from violent offenders.
Although the judgment in Lynn concerned different legislation it is equally applicable to the interpretation and application of the phrase "unacceptable risk" in clause 2(1)(a) of Schedule 1.
Second, the power to order the appointment of two psychiatrists, two psychologists, two medical practitioners or a combination thereof is conferred on the Court by clause 6(5) of Schedule 1. It provides that, if following the preliminary hearing the Court is satisfied that the "matters alleged in the supporting documentation would, if proved, justify the making of an extension order", then the Court must make the order appointing the two relevant practitioners and directing the relevant defendant to attend examinations before them.
The phrase "the matters alleged in the supporting documentation would, if proved" is also to be found in clause 10 of Schedule 1, which confers on the Court the power to make an interim extension order. It provides as follows:
10 Interim extension order
The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:
(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
The reference in both these provisions to the "matters alleged in the supporting documentation" and whether those matters "if proved" would justify the relevant form of order, directs attention to the material put before the Court by the Attorney General on this application. To the extent that supporting documentation sets out factual matters and opinions on matters of fact the Court does not, at this point, engage in any considered evaluation of whether those factual matters are well-founded but instead proceeds on the basis they are proven.
A further matter to note about these provisions concerns the point raised at the outset as to whether the Court can and should make an interim extension order under clause 10 but not proceed to make an order under subclause 6(5). Counsel for Mr Kapeen submitted that the most appropriate course, in light of the urgency surrounding the matter, was for the Court to only make the order under clause 10 if otherwise minded and to defer consideration of whether to make orders appointing the two forms of medical practitioners to examine the plaintiff. He submitted that the matter has come on so quickly that his client has not had the opportunity to make a considered response to the application and he should have further time to consider the matter before the processes of the MHFPA are engaged.
I do not accept that the Court should defer consideration of whether to make the order sought in prayer 1 of the summons.
In any case where the Court is satisfied of the matters in clause 10, it would follow inevitably that the criteria in clause 6(5) is established, specifically "that the supporting documentation, if proved, would justify the making of an extension order" is made out. In those circumstances, it would be futile to defer making orders under clause 6(5) for the purposes of conducting a "preliminary hearing" at a later time but within 28 days of the application being filed in Court (Schedule 1, clause 6(4)). Given that both applications are limited to a consideration of the supporting documentation there is nothing later that could be said by the defendant which would have the result of displacing the satisfaction of the criteria for the making of an order in clause 6(5). Once those criteria are satisfied the Court has no discretion under clause 6(5) but to make the order appointing two practitioners to conduct an examination.
Third, the factors to be considered by the Court to which regard is to be had in making an extension order are set out in s 7(2) which relevantly provides:
(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 clause 6 (5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (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 Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),
(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.
[4]
The Index Offence and the Imposition of the Limiting Term
Mr Kapeen is 49 years old. As I will explain, he has a history of mental illness. On about 12 September 2014 Mr Kapeen was charged with one count of having sexual intercourse with a person under the age of 10, contrary to s 66A(2) of the Crimes Act 1900. An alternative charge of assault with an act of indecency on a person under the age of 10, contrary to s 61N(2) of the Crimes Act was also laid.
On 26 October 2015 Mr Kapeen was found unfit to be tried. Pursuant to s 14A of the MHFPA he was referred to the Mental Health Review Tribunal (the "Tribunal"). Mr Kapeen has not since been found to be fit to be tried. Following a special hearing conducted under s 19 of the MHFPA on 30 November 2016, Bennett DCJ found that, on the limited evidence available, Mr Kapeen committed the offence of assault with an act of indecency on a child under the age of 10 (MHFPA, s 22(1)(c)).
On 1 December 2016 Bennett DCJ nominated a "limiting term" for Mr Kapeen of two years and six months, commencing 13 September 2014 and expiring this Sunday, 12 March 2017 (MHFPA, s 23(b)). His Honour also ordered that Mr Kapeen be detained in custody (MHFPA, s 24(1)(b)). As a consequence of that order, Mr Kapeen became a "forensic patient" (MHFPA, s 42). However, his status as such will cease if no extension order is made under Schedule 1 before 12 March 2017 (MHFPA, ss 42(a)(i) and s 52(a)).
In imposing a limiting term, Bennett DCJ summarised the facts found by his Honour supporting the charge by reference to a witness whose evidence his Honour accepted. His Honour stated:
"She came upon the accused lying on his back with the boy straddling him and moving back and forth with the boy's bottom and the area between his legs covering the accused over, in her words 'his privates'. She called out and the boy rose and ran off. He saw the accused's pants were down, his penis was exposed and erect."
The victim was six years old. There was a significant amount of evidence before Bennett DCJ to the effect that the victim had "severe intellectual limitations" and material suggesting that he may have been sexually assaulted by others. Given that material, Bennett DCJ found that his Honour was not satisfied "beyond reasonable doubt that the offence occurred at the instance of the accused."
[5]
Mr Kapeen's Personal Circumstances
On this application the State placed before the Court a significant amount of supporting material. This included a report from forensic psychiatrist Dr Ellis dated 18 January 2017. Dr Ellis's report constitutes part of the "supporting documentation" referred to in clauses 6(5) and 10 of Schedule 1. Dr Ellis examined Mr Kapeen in January 2017, although Mr Kapeen left the examination early. As is to be expected, Dr Ellis's report opines on Mr Kapeen's mental state. His report is also a useful synthesis of the effect of the other "supporting documentation".
Dr Ellis's report reveals that, prior to his arrest in September 2014, Mr Kapeen was living with his adoptive father in an indigenous community in the Maclean area. At that time he was not working and was receiving psychiatric treatment by depot injection. He also received support from disability services. Dr Ellis's report describes Mr Kapeen as having an extremely deprived upbringing. He has struggled to maintain employment since he had left school.
Dr Ellis summarised Mr Kapeen's criminal history in terms that are consistent with the other material provided to the Court. His record included a conviction at the age of sixteen in 1983 for break, enter and steal, another conviction in 1990 for the same offence, a conviction in 1992 for unlicensed driving, driving with mid‑range prescribed concentration of alcohol and unlawfully using a conveyance. Mr Kapeen was convicted of malicious damage in 1993 and fined. He was convicted of possess and self-administer a prohibited drug in 1994 and 1995. In 1995 he was convicted of failure to appear and in 1996 he was convicted of breach of recognisance, trespass and malicious damage. Prior to the index offence, Mr Kapeen had not served any period of time in custody and clearly the index offence was far more serious than any offence for which Mr Kapeen had previously committed.
Dr Ellis discussed the circumstances of the index offence with Mr Kapeen. Of some significance to this application is that Dr Ellis records Mr Kapeen stating that, "sexual activity with the child went on for a period of about two or three months before he was caught". Dr Ellis recounted Mr Kapeen's psychiatric history. He noted that Mr Kapeen was diagnosed and treated for schizophrenia in 2003. Dr Ellis noted that the medical reports record Mr Kapeen reporting auditory hallucinations from time to time. Dr Ellis stated that since being admitted into custody Mr Kapeen had been receiving antipsychotic medication. A significant feature of Mr Kapeen's condition is his psychogenic polydipsia, one consequence of which is that he drinks water repeatedly and to excess. This has had a number of adverse medical consequences for Mr Kapeen, including seizures.
Dr Ellis diagnosed Mr Kapeen as having schizophrenia. He also stated that Mr Kapeen meets the criteria for intellectual disability and substance use disorder. Dr Ellis considered there was insufficient evidence to conclude that Mr Kapeen had a paraphilia or psychosexual disorder but noted that there are "concerning features to his presentation and this consideration should be further reviewed."
Dr Ellis addressed Mr Kapeen's risk of causing serious harm to others. He noted that his score on the "Static-99R" instrument, being an actuarial measure of the risk of reoffending, was in the "low to moderate range". However, Dr Ellis's own assessment suggested that Mr Kapeen presented a greater risk than that. Dr Ellis noted that schizophrenia is an independent risk factor for sexual offending, as is substance abuse. He further noted that Mr Kapeen had only limited exposure to treatment and rehabilitation to moderate his risk. He stated that Mr Kapeen has only been partially responsive to pharmacological treatment, had not undergone specific psychosocial rehabilitation and that his insight was poor. Overall, Dr Ellis concluded that:
"Mr Kapeen would fall into a group of persons with a risk of offending that is moderate and greater than a theoretical average offender or psychiatric patient."
Dr Ellis's report also addresses the desirability of Mr Kapeen remaining as a forensic patient and compares that circumstance with him becoming an "involuntary patient" under the Mental Health Act 2007. Dr Ellis observed that the "mainstay of effective risk management" for Mr Kapeen is "specialised forensic mental health care" and that that type of treatment "could only be offered in a hospital, and owing to the specialised interventions required, a forensic psychiatric unit would be recommended." Dr Ellis also stated that it was "possible that Mr Kapeen could be safely and effectively managed under the scheme provided by the Mental Health Act, which allows for involuntary administration to hospital and administration of psychotropic medication", as well as discharge under a community treatment order. However, Dr Ellis stated that this opinion was qualified by the concern that relying solely on the Mental Health Act may result in Mr Kapeen receiving a "quick transfer to a generalist psychiatric unit and a rapid discharge to any available community accommodation", such that Mr Kapeen could "theoretically be discharged from care without consultation or external review."
Dr Ellis also addressed the different regimes for the recall of persons who are released into the community, noting that one disadvantage for forensic patients is that they may be returned into a prison and that that would be a poor result in terms of Mr Kapeen's rehabilitation. Dr Ellis concluded that, "ultimately the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order". Dr Ellis noted that "remaining on a forensic order removes the oversight from individual clinicians in health services to the automatic oversight of the forensic arm of the Mental Health Review Tribunal" and that the latter, "guarantees the interest of the forensic mental health network and its specialist clinicians in the case".
[6]
Unacceptable Risk of Causing Serious Harm to Others
I referred above to clause 2(a) of Schedule 1 which provides that an extension order can only be made if and only if the Court is satisfied to a "high degree of probability" that, inter alia, the "forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient". I also noted that, in considering an application for an interim extension order the matter is to be determined by considering it on the basis that the factual matters set out in the supporting documentation have been proven.
Even though the index offence represented Mr Kapeen's first serious offence, the material set out in Dr Ellis's report is more than sufficient to demonstrate that clause 2(a) is satisfied. The particular offence which was found to have been committed by Mr Kapeen was especially serious. The harm that could be occasioned to others by a repetition of similar conduct is manifest. The material concerning Mr Kapeen's condition and treatment since that time suggests that, if similar circumstances were to arise, there is no reason whatsoever to conclude that Mr Kapeen could refrain from engaging in that type of conduct.
In those circumstances I am satisfied that the matters alleged in the material supporting the application would, if proved, justify a conclusion that Mr Kapeen poses an unacceptable risk of causing serious harms to others if he ceased to be a forensic patient.
[7]
Risk Cannot be Adequately Managed by Other Less Restrictive Means
As also noted, the other precondition in clause 2 of the Schedule to the making of an extension order is satisfaction by the Court to a high degree of probability that the risk posed by Mr Kapeen ceasing to be a forensic patient cannot be adequately managed by other less restrictive means. In this case the only potential "less restrictive means" is that referred to by Dr Ellis, namely, the admission of Mr Kapeen as an involuntary patient under the Mental Health Act.
In Attorney General of New South Wales v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96ff] ("Doolan"), Adamson J summarised in detail the difference between the statutory provisions governing forensic patients detained under the MHFPA and the detention and release of involuntary patients detained under the Mental Health Act. In Paciocco at [61ff] I identified four of those differences. I also noted, at [65], that the effect of her Honour's analysis in Doolan was that, with the MHFPA, the onus is in favour of greater restrictions on forensic patients which "needs to displace by evidence before the Mental Health Tribunal in order for restrictions to be lifted" (Doolan at [121]), whereas, "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 a restriction is warranted" (Doolan at [121]).
I have summarised the relevant parts of Dr Ellis's report. Counsel for Mr Kapeen emphasised so much of Dr Ellis's report that suggested there was likely to be no difference as to how Mr Kapeen would be treated if admitted as an involuntary patient under the Mental Health Act compared to having his status as a forensic patient extended.
In considering Dr Ellis's report in this regard, it is to be noted that fundamentally Dr Ellis is a witness of fact. No doubt his ability to opine on various matters is informed both by an understanding of how the two relevant pieces of legislation operate legally and in practice. Nevertheless there is a limit to his analysis when it comes to determining the legal powers of control that are available.
On this application there was a debate as to the relative merits of the statutory regimes governing the recall of forensic patients and an involuntary patient released into the community. On one reading of Dr Ellis's report, the recall provisions of the MHFPA may be less conducive than those in the Mental Health Act. However, at least on this application, the decisive difference concerns the different regimes for the release of persons under the MHFPA compared with those provided for in the Mental Health Act. In particular, under the MHFPA, only the Mental Health Review Tribunal can order a forensic patient's release and they may not do so until they are positively satisfied on the evidence available that the safety of the patient or any member of the public will not be seriously endangered by the patient's release (MHFPA, s 43). By contrast there are a number of provisions of the Mental Health Act that allow for the discharge of an involuntary patient (see Doolan at [112]). These include, s 42 which confers on an authorised medical officer a discretion to order the discharge of an involuntary patient. No express limitations are imposed on this power. It can be expected that an authorised medical officer would not order the discharge of someone such as Mr Kapeen unless they had material to suggest that they no longer pose a risk to others. Nevertheless the emphatic nature of the limits on the Mental Health Review Tribunal's power to release a forensic patient in a case such as this is decisive of this application.
Accordingly, I am satisfied that the matters alleged in the supporting documentation, if proved, are capable of demonstrating to a high degree of probability that the risk posed by the defendant cannot be adequately managed by other less restrictive means, that is, means other than the continuation of Mr Kapeen's status as a forensic patient. Accordingly, I will make order 2 sought in the summons.
[8]
Psychiatric or Psychological Examination
It follows from what I stated earlier that there is no utility in acceding to the application to defer any determination of whether or not to make the orders sought in prayer 1 of the summons. The conclusion that I have reached necessarily means that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In those circumstances I have no choice but to make an order under s 6(5) and will do so.
Accordingly, the Court makes orders 1 and 2 in the short minutes of order, namely:
(1) Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Procedures) Act 1990 ("the Act"):
(a) The Court appoints two registered psychologists or psychiatrists to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations by a date agreed to by the parties.
(b) The Defendant is directed to attend those examinations.
(2) Pursuant to clauses 10 and 11 of Schedule 1 of the Act, an interim extension order be made for a period of 28 days from 12 March 2017.
[Further discussion]
The Court makes the following directions:
(3) The parties have liberty to approach the manager of listing to obtain a final hearing date with an estimate of one day.
(4) The matter be listed for directions before a Registrar on 16 March 2017 at 9.00am.
(5) The matter be listed before the Duty Judge on 5 April 2017 at 10.00am for consideration of any application by the Attorney General to extend the interim extension order.
[9]
Amendments
31 May 2017 - Coversheet - catchwords inserted
09 June 2017 - [25] - Date of Dr Ellis' report amended.
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Decision last updated: 09 June 2017