Attorney General for New South Wales v Kapeen bht Jennifer Thompson

Mr Kapeen's current circumstances

1. Mr Kapeen is aged 51 years. He has been in continuous detention since 13 September 2014. He has since been diagnosed with schizophrenia and has advancing dementia. It was common ground at the hearing for final relief, as it was at the preliminary hearing convened before Johnson J in May 2018, that Mr Kapeen will require high level supervision, nursing care, and monitoring due to his complex clinical profile, including his compromised physical and mental health, and his cognitive impairment into the foreseeable future.
2. The most debilitating physical illness is his documented and recurrent hyponatraemia as a result of excessive consumption of water (polydipsia), which in turn related to his psychotic illness. This has resulted in seizures and hospitalisation, including in the Prince of Wales Hospital, during the course of his detention as a forensic patient under the limiting term. He has also been diagnosed with chronic obstructive pulmonary disease, most recently treated by hospitalisation, again at Prince of Wales Hospital, on this occasion during the currency of an extension order under cl 1 of Sch 1 of the MHFP Act made on 22 May 2017.

The preliminary hearing

1. On 8 May 2018, Johnson J made orders pursuant to cl 6(5) of Sch 1 of the MHFP Act, appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate psychiatric examinations of Mr Kapeen and to furnish reports. At the time of making those orders, Mr Kapeen was subject to the extension order made by Beech-Jones J, an order which was due to expire on 2 June 2018: Attorney General for the State of NSW v Kapeen [2017] NSWSC 685 ("the 2017 final decision"). On the plaintiff's application Johnson J extended that extension order on an interim basis for a period of 28 days from 2 June 2018, his Honour being satisfied, at a prima facie level, that Mr Kapeen posed an unacceptable risk of causing serious harm to others were he to cease to be a forensic patient, and that it was, at that time, a risk that could not be adequately managed by less restrictive means (other than by management as a forensic patient): Attorney General of NSW v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619.
2. In the reasons published at the conclusion of the preliminary hearing, Johnson J noted that Mr Kapeen was detained as a forensic patient at the Long Bay Hospital Mental Health Unit within the Long Bay Correctional Complex, but that a process was underway for his transfer to the Forensic Hospital at Malabar, a high security forensic mental health facility operated by the Justice Health & Forensic Mental Health Network on behalf of the NSW Ministry of Health.
3. On 19 June 2018, an order was made by a delegate of the Secretary of the Minister for Health resulting in Mr Kapeen's transfer to the Forensic Hospital. He remains an inpatient at that facility.
4. It will be necessary for the determination of the questions that arise on the plaintiff's application for an extension order for a further period of two years to refer to the reports of the two Court-appointed experts, Dr Eagle and Dr O'Dea, and the evidence given by each of them in the proceedings in a concurrent evidence session. It will also be necessary to refer to the affidavit of Dr Andrew Ellis of 17 July 2018 (also relied upon by the plaintiff) in his capacity as the Clinical Director and Medical Superintendent of the Forensic Hospital in which Dr Ellis addresses Mr Kapeen's complex clinical needs and the level of care and supervision that is currently being provided to him as a patient in the Forensic Hospital; a level of care, monitoring and supervision which will, in Dr Ellis's view (and the view of the Court-appointed experts), in every likelihood continue into the foreseeable future as Mr Kapeen ages and his physical and mental health continues to decline.
5. In Dr Ellis's affidavit tendered in these proceedings, he annexes a report of 25 November 2017 which he furnished as a Court-appointed expert in the proceedings heard and determined by Beech-Jones J in May 2017, evidence to which extensive reference was also made in the preliminary hearing before Johnson J at [32]-[42]. His Honour considered that Dr Ellis's evidence was critical to the determination of the questions raised at the preliminary hearing since, as his Honour noted, he was ideally placed to assess Mr Kapeen's current clinical and forensic progress in his role as the then acting clinical director of the Long Bay Hospital and Mental Health Unit where Mr Kapeen was at that time housed, and the acting clinical director of the Forensic Hospital where it was at that time hoped that Mr Kapeen would be housed in the future. His Honour was of the view - a view which I share - that Dr Ellis was also ideally placed to assist the Court to resolve the questions that arose at the preliminary hearing and that arise now in the final hearing on the plaintiff's application for a further exclusion order under s 54A and Sch 1 of the MHFP Act. That is not to derogate in any way from the insights of Drs Eagle and O'Dea as the Court-appointed experts, but merely to emphasise what is self-evident: namely that Dr Ellis has had Mr Kapeen under his clinical care for some time and, as his most recent affidavit makes clear, he has firsthand knowledge of the range and extent of care Mr Kapeen has received on his placement at the Forensic Hospital and the ongoing clinical care he will receive in the future.
6. Also annexed to Dr Ellis's affidavit is a joint report he prepared with Dr Kirsty MacDonald, a registrar in forensic psychiatry, dated 19 July 2018, for the purposes of the most recent review of Mr Kapeen's status as a forensic patient by the Mental Health Review Tribunal pursuant to s 46 of the MHFP Act. The joint report addressed a series of questions posed for the consideration of both doctors in their joint capacity as Mr Kapeen's treating clinicians.
7. In addition to the evidence outlined above in the hearing for final orders, the plaintiff relies upon a compendious body of materials which were also tendered at the preliminary hearing before Johnson J: 1. An affidavit of Ms Gillian Buchan affirmed 26 March 2018 to which she exhibited two folders of documents exhibited in the proceedings as GB1. 2. A further affidavit of Ms Buchan affirmed 13 April 2018 to which she exhibited a folder of documents exhibited in the proceedings as GB2. 3. An affidavit of Shaun Croner, solicitor, sworn 19 July 2018 with an accompanying folder of material exhibited in these proceedings as SC1. 4. An affidavit of Ms Vindya Nanayakkara affirmed 18 July 2018.

The improperly obtained evidence

1. Although no objection was taken to any of this material in the final hearing, the Court was informed by email on 28 August 2018, that much of the material relied upon by the plaintiff in the proceedings was obtained from relevant government agencies pursuant to requests issued under cll 17(1) and 17(3) of the MHFP Act which require an agency to produce material relating "to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term". Mr Kapeen was not subject to a limiting term at the time the cl 17 requests were issued, that term having expired on 12 March 2017. Rather, Mr Kapeen was the subject of the extension order made by Beech-Jones J on 22 May 2017.
2. Accordingly, an admissibility issue arose in respect of the material set out at [35] and following of Ms Buchan's first affidavit, the material set out at [4]-[7] of Ms Buchan's second affidavit, and the material set out at [4]-[7] of Mr Croner's affidavit. The issue does not arise in respect of the balance of the material annexed to those affidavits, nor does it arise in respect of the reports of the Court-appointed experts.
3. The plaintiff's position is that the desirability of admitting the evidence is not outweighed by the undesirability of admitting the evidence (the test in s 138 of the Evidence Act 1995 (NSW)), and that the Court should exercise the discretion under s 138 to admit the evidence.
4. Mr Kapeen, through his lawyers, concedes that the improperly obtained evidence is of probative value and could have been obtained by other means. They observe, however, that while the plaintiff's conduct in obtaining the evidence was not deliberate (in the sense that it was aware that it had no entitlement to request material pursuant to cl 17 of Sch 1), it may have been reckless, and that the gravity of the contravention is significant given the role of the Attorney General for New South Wales is to serve its people, including Mr Kapeen.
5. I am satisfied that the improperly obtained evidence should be admitted pursuant to the discretion available in s 138 of the Evidence Act. The evidence could have been obtained by recourse to the ordinary processes of civil procedure, that it is highly probative and that it goes to matters considered by the Court-appointed experts, thereby permitting the Court to properly consider the weight of their opinions and the basis for them. Finally, I am satisfied that the error was not deliberate and appropriate steps were taken by the plaintiff upon its discovery to notify Mr Kapeen's lawyers and the Court.
6. A related issue arises in that some of the improperly obtained evidence (that I have resolved should be admitted) may be inadmissible by reason of the hearsay or opinion rules (though much of it appears to fall within the exceptions to those rules in ss 64, 69 and 79 of the Evidence Act). For the avoidance of doubt, I am satisfied that the hearsay rule and opinion rules should not apply to the evidence that was improperly obtained given the matters comprehended by that evidence are not genuinely in dispute and the application of the exclusionary rules would cause unnecessary expense and delay. Accordingly, I am satisfied that pursuant to s 190 of the Evidence Act, Pts 3.2 and 3.3 of the Evidence Act ought not apply to the evidence identified in [16] above, to the extent that any such evidence would or might otherwise be rendered inadmissible by operation of those parts.

The position of the parties at the hearing in summary

1. Shortly stated, the plaintiff submitted that the Court would be satisfied that the statutory criteria for the making of an extension order as provided for in cl 2 of Sch 1 of the MHFP Act is met, in that the Court would be satisfied to a high degree of probability that Mr Kapeen poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient (the unacceptable risk test), and that risk cannot be adequately managed by less restrictive means other than by his management as a forensic patient (the less restrictive means test). The plaintiff further submitted that the Court would be satisfied that Mr Kapeen should be subject to an extension order for a period of two years from the date of the order.
2. As noted by Beech Jones J in the 2017 final decision at [11]: The phrase "to a high degree of probability" in the equivalent provisions of the Crimes (High Risk Offenders) Act 2006 has been found to require "something beyond more probably than not" such that "the existence of the risk [...has] to be proved to a higher degree than the normal civil standard of proof" although it need not be to the criminal standard (Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21]).
3. Ms Tringali, counsel for Mr Kapeen, submitted that the evidence does not support the making an extension order and that the plaintiff's summons should be dismissed. She submitted that the evidence upon which the plaintiff relies establishes, at its highest, that Mr Kapeen is at a low risk of committing any act of violence, whether it be sexual or physical violence, amounting to "serious harm", a risk falling short of the statutory criteria in cl 2 of Sch 1. Ms Tringali further submitted that even were the Court satisfied that the unacceptable risk test has been satisfied, the Court would not be satisfied, to a high degree of probability, that Mr Kapeen's continued detention as a forensic patient under the MFPA Act is justified in that less restrictive means are available and appropriate for his detention as a mentally ill person under the auspices of the Mental Health Act 2007 (NSW).

The assessment of risk

1. The plaintiff submitted, and correctly, that the assessment of the degree of risk for the purposes of the application of the unacceptable risk test is to be determined by an assessment of the risk that would arise on the assumption that Mr Kapeen is not a forensic patient and not an involuntary patient under the Mental Health Act, underpinned by the further assumption that there are no any other protective measures in place to guard against risk. The plaintiff submitted that the reports of Drs O'Dea and Eagle, as confirmed by their evidence in concurrent session, more than adequately satisfies the unacceptable risk test, in particular the risk that Mr Kapeen poses with respect to sexual reoffending against children.
2. Although there were questions directed by the plaintiff's counsel to each of Drs O'Dea and Eagle as to whether, in their assessment, Mr Kapeen poses a risk of committing non-sexual offences of violence - the source of which was confined to a report of Dr Sharma, a psychiatric registrar, dated 6 May 2016 where she reported Mr Kapeen saying that he would "stab [other inmates] making faces at him if [he] had a knife" - it was Dr Eagle's view, and a view with which Dr O'Dea did not disagree, that "expressing some sort of ideation or acting on it are two separate things". Dr Eagle went further and said that it would seem from Mr Kapeen's clinical and criminal history that "the risk that he would act on these types of thoughts or beliefs is relatively low and even lower under supervision".
3. No submission was directed by the plaintiff's counsel in final submissions urging the Court to find that Mr Kapeen poses an unacceptable risk of causing serious physical harm of a non-sexual kind to others were he to cease to be a forensic patient. I will return later in these reasons to address the remaining issue; namely, whether the plaintiff has established to a high degree of probability that he poses an unacceptable risk of causing serious harm to others by committing sexual offences against a child or children.
4. On the question of less restrictive means, being the second arm of the statutory test in cl 2 of Sch 1 for the making of an extension order, the plaintiff's counsel submitted that while Mr Kapeen's continued detention in the forensic hospital (or other mental health facility) can occur whether he is a forensic patient under the MHFP Act or a "civil" patient involuntarily detained under the Mental Health Act, the Court should nonetheless conclude that it is both necessary and appropriate that he remain a forensic patient with the statutory regime under the MHFP Act for his continued supervision and monitoring by the Mental Health Review Tribunal being appropriately more rigorous than the supervision and monitoring that would obtain under the Mental Health Act. The plaintiff sought to emphasise that the Tribunal was the more appropriate entity to provide continued forensic psychiatric input into Mr Kapeen's supervision and management, and the more appropriate entity to determine if and when he might be released from detention into an approved community setting, in contrast to decisions about his future psychiatric health needs and a suitable placement in a community setting being made at a clinical level by his treating clinicians and, were he released into a suitable residential aged care facility, subject to oversight by the Forensic Mental Health Service as part of the Justice Health and Forensic Mental Health Network.
5. In approaching the less restrictive means test, the appropriate focus is on the question of the management of risk in the two competing statutory regimes, rather than seeking to identify whether one regime or the other is more or less restrictive (see Attorney General for NSW v Skerry [2015] NSWSC 859 at [54]). That said, I also gratefully adopt (as did Beech-Jones J in the 2017 final decision) the reasoning of Adamson J in Attorney General for NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [101]-[109] where her Honour undertook a comparison of the statutory regimes that would govern the defendant in that case were he to be treated as an involuntary patient under the Mental Health Act, as compared to his management as a forensic patient under the MHFP Act, together with the consideration her Honour gave to the practical operation of the two schemes as they applied to the defendant's particular circumstances.
6. It is useful to set out the analysis applied by Beech-Jones J at [88]-[92] of her Honour's reasoning as it applied to Mr Kapeen in the prior proceedings: [88] The approach stated by Adamson J in Doolan (No 2) at [96] requires a comparison of the legal regime that would govern Mr Kapeen if he was to be treated as an involuntary patient under the MHA compared to his treatment as a forensic patient under the Act as well as a consideration of the "practical operation" of those laws in Mr Kapeen's case. [89] Her Honour undertook the former analysis in Doolan (No 2) at [101] to [129] which I gratefully adopt. In relation to the particular circumstance of Mr Kapeen who, as I have stated, will continue to be a mentally ill person, I note three features of her Honour's analysis. [90] The first is that the principal focus of the Act is the "protection of the safety of members of the public" whereas the principal focus of the MHA is the "interests of the person concerned" (Doolan (No 2) at [119] to [120]). [91] The second concerns the process of decision-making, especially decisions to release persons in detention. Her Honour characterised the decision-making process for forensic patients as being "more centralised" since under the Act, the Tribunal is the relevant decision maker whereas under the MHA that Tribunal has a much more limited role. Her Honour stated that, under the MHA, "several people may have and exercise decision-making power over a person who is a civil patient" which means that the "collation of relevant information is likely to be more difficult" (Doolan (No 2) at [123]). In that regard, her Honour also considered the Attorney General's right to be heard before a forensic patient is released to be "an important safeguard" (Doolan (No 2) at [122]). [92] Third, in Doolan (No 2), her Honour reached the overall conclusion as follows (at [121]): "Generally speaking the onus in the Act is in favour of greater restrictions on the 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 a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not "mentally ill".
7. It bears emphasis that after considering the issue of less restrictive means, his Honour said as follows: [93] These matters point in favour of the court being satisfied in cases such as this of clause 2(1)(b) [the less restrictive means test]. However, there remains to be considered the "practical operation" of the relevant laws. [94] As I have twice stated, at the present Mr Kapeen is being detained in Long Bay hospital. Dr Eagle is of the view that that is an unsuitable environment in the medium term because it is, in effect, a prison. At least, however, in the short term it is secure. As he is a forensic patient, it is open to the Tribunal to cause Mr Kapeen to be transferred to the forensic hospital or to a medium security forensic institution. To date that has not occurred. There was no explanation given in the evidence as to whether that option has been considered. Dr Eagle's evidence suggests that the most likely explanation for the transfer not having taken place is simply a lack of available places. [95] If Mr Kapeen's status as a forensic patient is not extended then, as I have stated, he will continue to satisfy the definition of a "mentally ill person" under the MHA. As such, he will be capable of being detained under the MHA. However, there is an absence of evidence as to where that might occur. The effect of Dr Eagle's evidence is that there appears to be no accommodation available for Mr Kapeen outside of Long Bay Hospital, which is not a facility that can be used for civil patients. [96] In summary, if Mr Kapeen becomes an "involuntary patient", the effect of Dr Eagle's evidence is that there is nowhere that can accommodate him other than the possibility of a local hospital, which themselves have waiting lists and which can only be utilised for the short term.
8. At [97]-[100], his Honour concluded: [97] Section 42(1) of the MHA enables an involuntary patient to apply to an authorised medical officer to be discharged. Section 42(2) of the MHA empowers the authorised medical officer to discharge the person. There are no express constraints on the power. The exercise of the power is, however, governed by s 12(1) of the MHA, which provides: (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that: (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person. [98] As stated, Mr Kapeen cannot be detained at Long Bay Hospital under the MHA. Accepting Dr Eagle's evidence as to the absence of any available position in a suitable facility for an involuntary person, it follows that it is conceivable that, if an application were made for Mr Kapeen's release under s 42, an authorised medical officer could, and possibly must, release him. On the other hand, if there is no suitable place available and Mr Kapeen retains the status as a forensic patient, then he can continue to be detained at Long Bay Hospital. [99] Thus, if Mr Kapeen continues to be a forensic patient then the status quo can be continued, but if he becomes an involuntary patient then, apparently due to the absence of any available places, there is a realistic possibility he could be released. [100] In these circumstances where the evidence demonstrates that Mr Kapeen poses an unacceptable risk, and the only explanation for why he is not currently in a mental health facility is that there is no place available, then subclause (2)(1)(b) is satisfied. Overall, the comparison of the two legislative schemes and the practical operation of the laws to Mr Kapeen's circumstances means there is a high degree of probability that the risk posed by Mr Kapeen cannot be adequately managed by other less restrictive means.
9. These passages of the judgment of Beech-Jones J were cited in Johnson J's preliminary judgment where, at [26], his Honour accepted that Beech-Jones J approached the less restrictive means test on the basis that there was no prospect of Mr Kapeen ever being treated as other than suffering from a "mental illness" under s 14 of the Mental Health Act, and, that being the case, that the "only other less restrictive means relevant to Mr Kapeen's circumstances was his classification as an involuntary patient" (under the Mental Health Act) and that he could not be detained at Long Bay Hospital (where he was then housed) under that Act.
10. The situation that obtained in the 2017 final hearing and the 2018 preliminary hearing is quite different since Mr Kapeen is now housed in the Forensic Hospital and, on the evidence before me, he will remain as an inpatient until a secure placement in a nursing or aged care facility can be found, whether or not the orders the plaintiff seeks are made.
11. Moreover, as Johnson J noted in concluding at a preliminary stage that: [61] This is an unusual case. I share the concerns expressed by Beech-Jones J in the 2017 final decision concerning the placement of Mr Kapeen (see [31] above). [62] It must be said, however, that there have been very significant difficulties in locating an appropriate facility for Mr Kapeen given his unusual and deteriorating constellation of health problems. [63] In the unusual circumstances of this case, and based upon the evidence concerning the present position of Mr Kapeen, I am satisfied that the Plaintiff has satisfied both the unacceptable risk and less restrictive means elements of the test to a prima facie level. [64] In these circumstances, Clause 6(5) of Schedule 1 of the MHFP Act mandates the orders which the Court should make. These are the orders sought by the Plaintiff. Although further examination of Mr Kapeen by two health professionals may not add materially to the present position, the Court is required to make that order by operation of the legislative scheme. [65] Given that the interim extension order as sought would operate until 30 June 2018, if it be the case that Mr Kapeen is transferred to the Forensic Hospital before then, then this may bear upon the future course of the application for final relief.
12. While Mr Kapeen's recent transfer to the Forensic Hospital has now been effected and, as confirmed by Dr Ellis both in his affidavit and in the joint report, his current clinical and psychiatric needs necessitate his detention in that facility where there is high level nursing supervision and monitoring until a suitable placement is found in a commensurately secure facility in the community, I remain obliged to determine the plaintiff's application for final orders in accordance with the statutory framework under the MHFP Act. In that regard, I have already referred above to the statutory criteria in cl 2 of Sch 1 which need to be satisfied, namely satisfaction of the unacceptable risk test and the less restrictive means of management test.

The statutory framework

1. Through his counsel, Mr Kapeen concedes that he meets the criteria of "forensic patient" as defined in s 42(a)(1) of the MHFP Act, and that he is a person in respect of whom an extension order is in force such as to entitle the plaintiff to seek a further extension order.
2. Clause 7(2) of Sch 1 provides a non-exclusive list of the matters to which the Court must have regard in determining whether to make a (further) extension order as the final order sought under the applicant's summons. That list is as follows: (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.

Reports of Court-appointed exports: cl 7(2)(b)

1. As earlier referred to, detailed reports were furnished by both of the Court-appointed experts. Dr Eagle and Dr O'Dea both gave evidence in concurrent session. Dr Eagle was also one of the Court-appointed experts who furnished a report for the purposes of the 2017 final decision. Dr Ellis was the other.
2. In Dr Eagle's report, she made clear that her risk formulation was based upon a face-to-face psychiatric assessment of Mr Kapeen at the Forensic Hospital on 5 June 2018 (an assessment conducted over approximately 60 minutes), and that her assessment of risk has not significantly changed since her previous report, also prepared after a face-to-face assessment with Mr Kapeen conducted on 5 April 2017.
3. That said, she indicated a number of limitations in relation to the assessment, emphasising that a cross-sectional psychiatric assessment is itself inherently limited in this case due to Mr Kapeen's mental illness and intellectual disability. While that is a limitation often able to be compensated by reference to collateral information, in Mr Kapeen's circumstances there is a noticeable paucity of collateral information and no clinical documentation in regards to his mental state, presentation, function or treatment prior to the index offence.
4. Dr O'Dea also interviewed Mr Kapeen on 31 May 2018 for the purposes of the preparation of his report. That interview proceeded over approximately 30 minutes. Dr O'Dea noted that notwithstanding Mr Kapeen's "agreement" to participate in the interview, his mental state and "evident cognitive impairment" would not have constituted consent to the interview if tested against strict competency considerations. Dr O'Dea proceeded with the interview and the preparation of his report having given consideration to Mr Kapeen's best interests in the overall provision of psychiatric care and his treatment as a mentally ill person and for risk-management purposes.
5. So far as Mr Kapeen's current presentation as reported upon by Drs Eagle and O'Dea, it is sufficient to note the following: 1. Mr Kapeen reported that he spent his time sleeping and "walkabout", by which he said he meant "walk, walk, walk". 2. He told Dr O'Dea he was a recipient of a disability support pension for some years consequent upon a psychiatric diagnosis of schizophrenia. When asked what symptoms of schizophrenia he had suffered from, he said "I don't know really but … a fair few years ago … [voices] get along … get along … towards the water". He went on to say that he experienced "voices not during the daytime but in the night-time" with the voices saying "destroy yourself, cut yourself, harm yourself" but he said "I won't do that … I don't know whose voice that is". 3. He told Dr Eagle that it was his "mind reading to me" and that said he believed people could read each other's mind, and that messages could be sent through the mind. He said he thought that everybody could do it. He indicated a reluctance to discuss the voices further. When asked by Dr Eagle if he had a mental illness he said "yes I have" but he did not know the name of it. He said the medication prescribed to him "helped", but he did not know how it helped. 4. He told Dr O'Dea that he didn't feel sad or that life was not worth living, and he told Dr O'Dea that he denied any suicidal urges. 5. Importantly, when asked about the circumstances leading to the index offence, he told Dr Eagle that he was aware of the circumstances and said "I won't do it again but declined to answer any further questions. Later in the interview he acknowledged that the index offence involved a sexual act with a child. He was unable to articulate why the offence was "not the right thing to do", and when asked why he thought it had happened, he said "I didn't want it to happen". He then said he could not control his feelings, and when asked if he could control them now he said that he believed he could because he was "stuck in here". When asked if he could control them if he was not in custody he said "no". He provided more details of the index offending to Dr O'Dea, namely the gender of the child and his age (being 7 or 8 years of age). He suggested that the boy was the initiator of the sexual contact, and that he tried to resist the child's advances. When asked whether it was the first time that he had engaged in sexual activity with a child he said "yeah probably". He told Dr O'Dea that he was not taking his medication at the time because he didn't need it, but that he will take his medication "this time". 6. Mr Kapeen did not report experiencing sexually deviant urges or fantasies or any other sexual issues. He told both doctors that he was awaiting transfer to the Forensic Hospital, and that from there he would "wait around for a place to live … anywhere that kids aren't around". He also expressed a wish to "play pokies" and have a light beer now and then.
6. Dr Eagle's conclusion on mental examination of Mr Kapeen was as follows: On presentation, Mr Kapeen appeared a man older than his stated years (50 years of age) of Aboriginal appearance, dressed in prison greens. He was highly distractible throughout the interview and appeared to be responding to unseen stimuli on multiple occasions. He otherwise maintained appropriate eye contact. He was cooperative with the interview and rapport was able to be developed. Mr Kapeen was reactive in affect (external manifestation of mood). He smiled incongruently at times … He exhibited poverty of speech and responded to most questions with monosyllabic answers or short phrases. He displayed mild thought disorder … [and] was generally guarded in relation to his thoughts. Mr Kapeen demonstrated little insight into his mental illness or the relationship his illness might have had with his offending conduct. He displayed little capacity to improve his insight.
7. Both Dr O'Dea and Dr Eagle confirmed a diagnosis of schizophrenia characterised by passivity phenomena and hallucination with the symptoms of psychosis persisting despite treatment with at least two anti-psychotic medications administered therapeutically. They concluded that for this reason his schizophrenia is treatment resistant. Both doctors noted that Mr Kapeen's schizophrenia is complicated by his intellectual impairment and disability which, in Dr Eagle's view, may have a developmental origin.
8. Dr O'Dea also diagnosed a substance abuse disorder, albeit in remission, involving alcohol and cannabis - a disorder in his view likely to have exacerbated Mr Kapeen's mental illness prior to entering custody, impairing his ability to function. Dr Eagle noted that Mr Kapeen does not demonstrate the motivational capacity to refrain from substance use in the future.
9. Dr O'Dea also considered Mr Kapeen to meet the criteria for a major neurocognitive disorder related to what he described as "an identified organic brain syndrome of hydrocephalus associated with aquaductal stenosis, a history of seizures and polydipsia".

Risk assessment by Drs Eagle and O'Dea

1. Dr Eagle assessed Mr Kapeen's risk of sexual reoffending referable to both static and dynamic factors, historical factors, clinical factors, and risk management factors. Dr Eagle emphasised what has been long-recognised by this Court; that risk assessment is best utilised for the purposes of formulation and informing risk management, rather than for predictive purposes.
2. Dr Eagle concluded, in summary, that it is "likely" that Mr Kapeen's chronic illness and intellectual impairment played a role in the index offending which was "likely" an opportunistic act committed in circumstances where the young boy was accessible to him. Dr Eagle opined that Mr Kapeen displayed "signs of sexual arousal towards the child, and that he did not have the capacity or control to refrain from the sexual contact". Dr Eaglie considered that future high-risk scenarios are "likely" to involve situations in which Mr Kapeen has access to children and his control is further reduced, either as a result of a deterioration of his mental state or relapse into substance abuse. She considered those intrinsic and environmental factors as "likely" to present if Mr Kapeen is not adequately monitored, supervised and supported. That said, Dr Eagle also concluded that Mr Kapeen's deteriorating cognitive and physical function suggests that his basic care needs are increasing which would invariably reduce his ability to access or offend against potential victims (children).
3. Dr O'Dea was of a similar opinion with the express proviso that he found it difficult to interview Mr Kapeen in detail regarding the index offending. He reported that it is "likely" that the commission of the index offence would point to at least the potential for Mr Kapeen to be sexually aroused by male children. In his view, "the index unlawful act may be best understood, at least in large part, in the context of [Mr Kapeen's] disinhibition and poor judgment and behavioural controls related to his schizophrenic illness and cognitive impairment that were likely active at the time".
4. Dr O'Dea emphasised that Mr Kapeen requires "significant improvement in his schizophrenia illness and general cognitive functioning in order to adequately and appropriately manage his risk of … engaging in further sex offending behaviours in the community in the long term". His ultimate conclusion was expressed as follows: If Mr Kapeen were to cease to be a forensic patient and were he to be released in the community without supervision, then there is a significant risk that his overall condition would deteriorate, resulting in complications from his polydipsia and disorganised and disinhibited behaviour, and that not only would he pose a risk of serious harm to himself … he would pose a risk of causing serious harm to others, in particular, of engaging in further sex offending behaviours relating to his history of having engaged in such behaviours in the past, and his problems with disinhibition, judgment and behavioural control.
5. Both experts acknowledge, from a psychiatric risk assessment and management perspective, that irrespective of whether Mr Kapeen was to continue to have the status of a forensic patient under the MHFP Act or as an involuntary patient under the Mental Health Act as an inpatient in the Forensic Hospital he would have access to the same level of clinical care.
6. Both doctors also noted the legal procedures for discharge from the Forensic Hospital and the structure of community treatment thereafter does differ under the different statutory regimes. In their evidence in concurrent session, they both identified the challenge that presents into the future is finding an appropriate placement within a secure aged care/nursing facility in the community of a kind that will provide for 24-hour a day monitoring and supervision to address Mr Kapeen's physical condition, in particular his decreasing mobility and his untreatable polydipsia, together with the need for close monitoring and supervision of the risk of opportunistic access to children who may visit the facility.
7. Both doctors were of the settled view - a view shared by Dr Ellis as Mr Kapeen's treating physician - that Mr Kapeen's prognosis, both in respect of his physical and mental illness and deteriorating functionality, is such that it is highly unlikely that he will ever transition from the level of security to which he is subject at the Forensic Hospital into a facility in a community setting that does not provide 24-hour monitoring and closely supervised access to children. Dr O'Dea said in his evidence: Of course, if there is an institution or a hospital that can provide that level of support and security, then he would be appropriate for it. But it's not clear to me that there are any hospital beds, other than the forensic hospital, that do provide that level of security for him, and therefore looking at what might happen further down the track is very hypothetical.
8. Dr Eagle emphasised that she had given close consideration to Dr Ellis's reports, in addition to the affidavit he swore for the purposes of these proceedings, confirming her understanding that the challenge is to find a suitable nursing home placement. Dr Eagle went on to express her understanding of Dr Ellis's evidence to be that as his treating clinician he would only consider discharging Mr Kapeen to a facility that is appropriate to his needs, and that the need for close supervision and monitoring will predominate in making that judgment.
9. All doctors commiserated with the situation confronted by the Court in that the types of facilities appropriate to Mr Kapeen's needs outside of the Forensic Hospital are "very limited in availability" and each expressed the view that the continuation of his status as a forensic patient would not be necessary to manage his risk of causing serious harm to others were he to be housed in a secure hospital or nursing home facility capable of meeting his supervision and risk-management needs in accordance with a management plan styled and implemented to allow for ongoing review of his progress and the management of his risk. All three doctors were also at pains to emphasise that there is no realistic prospect that Mr Kapeen will ever be released into the community unsupervised, but that, at best, he may, at some future time move from the Forensic Hospital into a less restrictive setting, in the sense that the facility will be outside of the correctional complex.
10. A deal of contention in final submissions focused on objective reality that the necessary support, management, monitoring and supervision of Mr Kapeen is unlikely to be found anywhere in this State at this time other than in the Forensic Hospital at Malabar.
11. Whilst it was Dr O'Dea's ultimate opinion that in order to ensure "forensic input" into Mr Kapeen's future management plan (that is, specialised input by someone with experience or expertise in managing people who commit specific types of offending such as sexual offending) that a continuation of his forensic patient status was the best means, currently, of designing and implementing such a plan, he was concerned to emphasise that that should not be the case. It was his firm view that the less proscriptive regime under the Mental Health Act is the desirable way of Mr Kapeen being transited safely and securely into a community based aged/nursing care facility.
12. All doctors were again concerned to emphasise that the clinical care that Mr Kapeen requires into the future, and that level of care and supervision that he is currently receiving, will be exactly the same whether he is detained as a forensic patient under the MHFP Act or an involuntary patient under the Mental Health Act and, further, that it should not have to be the case that a person in Mr Kapeen's position needs to be fixed with the status of a forensic patient in order for the identifiable risk of serious harm to others to be able to be adequately managed. As Dr Eagle emphasised, Mr Kapeen is under a Guardianship Order in recognition of the fact that he does not have the capacity to make decisions on his own behalf. I am of the concluded view - a situation that will not change over the course of Mr Kapeen's life.

The joint report

1. Mr Kapeen was reviewed by the Mental Health Review Tribunal most recently on 28 June 2018. That review was convened in accordance with s 46 of the MHFP Act. The joint report of Drs Ellis and MacDonald earlier referred to was tendered at the Tribunal hearing.
2. In its reasons for determination dated 10 July 2018, the Tribunal noted that on admission to the Forensic Hospital, Mr Kapeen has been compliant with all aspects of his care, including compliance with his medication. The Tribunal also noted that Mr Kapeen engages politely and cooperates with staff and other patients and appears to have assimilated well into the hospital environment.
3. In the short summary of the results of mental state examination conducted on 22 June 2018 by his treating clinicians, the Tribunal noted that Mr Kapeen continues to exhibit limited insight into his illness and the reason for treatment, and appears to have impaired judgment. They also noted that Mr Kapeen currently requires a complex management plan in order to address the psychological and behavioural symptoms of his dementia, and that his eligibility for NDIS funding will be explored by his treating team.
4. The Tribunal accepted the evidence of Mr Kapeen's treating clinicians, supplemented by the evidence of various auxiliary support nursing staff. In its reasons for determination, the Tribunal noted Mr Kapeen attended the hearing in a wheelchair as a result of his beings a "falls risk", although he is being encouraged to mobilise by using the gymnasium for exercise.
5. In the result the Tribunal accepted the opinion of Mr Kapeen's treating clinicians that there are reasonable grounds for their joint belief that Mr Kapeen needs care, treatment and control for his own protection and that of others from the risk of serious harm (this is a lower threshold test than the test the Court is obliged to apply on the plaintiff's application for an extension order). His treating clinicians informed the Tribunal that less restrictive options had been considered, but that a combination of Mr Kapeen's mental illness, physical frailty, the need for his restricted access to children and the need for his ongoing monitoring of his water intake and medication meant that he was very difficult to place and that he will remain an inpatient at the Forensic Hospital for ongoing care and treatment until a less restrictive alternative placement becomes available.
6. Earlier reviews of Mr Kapeen by the Tribunal at regular intervals as mandated under s 46(1) of the MHFP Act confirmed his current diagnosis of treatment resistant schizophrenia with no possibility of improvement in his cognitive function.
7. In the Tribunal's review of 19 January 2017 (prior to the 2017 final decision), the Tribunal received evidence about Mr Kapeen's polydipsia which was also treatment resistant, in turn leading to the continued deterioration of his mental health.
8. At the further review on 15 July 2017, the Tribunal noted that no vacancies were likely in any institution able to provide the complex care Mr Kapeen required within a 12 month period of that date.
9. A further review in December 2017 recorded hospitalisation due to seizures and hypernatremia. Although the Tribunal noted that Mr Kapeen's clinical scale risk factors had improved over the previous six months, no approximate accommodation or support modules had been identified.

Views of the Court that imposed the limiting term

1. The views of Bennett DCJ have already been referred to above and do not required repetition.

Views of the Court that imposed the existing extension order (cl 7(2)(8)).

1. I note and acknowledge the reasoning according to which Beech-Jones J was satisfied in May 2017, to a high degree of probability, that Mr Kapeen posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient. I also acknowledge and confirm my agreement with his Honour's assessment that Mr Kapeen's pre-custody history did not suggest that he was a sexual predator, although it does appear that he has an affinity with children which renders it likely, given the opportunity, that he would gravitate towards children, thereby presenting a clear risk that he would act without restraint given his compromised capacity for insight and impulse control.
2. Whilst not binding on me, his Honour's assessment of the unacceptable risk test in May 2017 is entitled to very considerable weight given that the same factors, supported by a similar and expanded body of evidence were relied upon by the plaintiff in these proceedings. For reasons which I will expand upon, his Honour's finding that the unacceptable risk test was satisfied is one that I have also arrived at, albeit independently.
3. As earlier noted, when the proceedings for final relief were heard and determined by his Honour, Mr Kapeen was detained at the Long Bay Hospital as no bed was available for him at the Forensic Hospital or any other mental health facility. Because his Honour considered, at that time, the realistic possibility that were Mr Kapeen's forensic patient status not to continue he could be released into the community, his Honour was satisfied that the less restrictive means test had also been met. The situation is of course quite different now since Mr Kapeen is detained as an inpatient of the Forensic Hospital. The question that presents is whether his continued detention as an inpatient (in advance of being transited under his clinician's oversight into a community based mental health facility) is to be governed under the statutory regime in the MHFP Act, or whether he should be detained as a mentally ill person under the Mental Health Act.

Others reports of qualified psychiatrists and registered psychologists

1. The plaintiff referred me in submissions to a joint report of Dr Adam Martin and Ms Yiota Zingirlis of the Community Forensic Mental Health Service of 7 February 2018. Their reported findings mirror the historical risk factors associated with the risk of future offending by Mr Kapeen as assessed by the Court appointed experts. Their consideration of current dynamic risk factors and his active symptoms of mental illness associated with a limited understanding of the nature and impact of his illness, his lack of personal support and the likely risk of non-compliance with medication in the absence of mandated treatment is noted.
2. They recommended that Mr Kapeen be housed in a high-security setting (a view overtaken by recent events, having regard to his transfer to the Forensic Hospital). They also considered that a nursing home placement might also be suitable for his future management and treatment needs; a view with which Dr Ellis, Dr O'Dea and Dr Eagle agreed, albeit on the proviso that security and 24-hour monitoring is in place to prevent his absconding and/or preventing unsupervised access to children, whilst also providing for monitoring of his physical and clinical needs.

Other information relevant to risk (cl 7(2)(i))

1. In addition to the index offence, the plaintiff drew attention to Mr Kapeen's criminal history with entries for offending which in general terms constitute offences of a very low order. I do not consider his criminal history as informing the issues that present for consideration on this application. Similarly, I do not place any weight on Mr Kapeen's custodial disciplinary record as informing, in any relevant respect, the matters for consideration on this application.
2. I have already noted Dr Eagle's emphasis on the appointment of a guardian. I do however note and accept that the principles of guardianship provided for in s 4 of the Guardianship Act 1987 (NSW) do not provide for community protection nor the protection of others generally as relevant guiding principles. Neither is the public guardian required to conduct reviews of the person the subject of the guardianship order in contradistinction to the obligations of the Tribunal under s 46 of the MHFP Act where a person detained has the status of a forensic patient. Neither does the public guardian have coercive powers or the power to compel the provision or acceptance of forensic psychiatric care. That said, it is clear beyond question that for the foreseeable future and indeed, it would seem, until Mr Kapeen's demise, that his affairs will be the subject of guardianship arrangements which, in a practical sense, inform at the very least the question of whether less restrictive means are available to manage the risk of Mr Kapeen causing serious harm to others - the second limb of the statutory criteria for the making of an exclusion order under cl 2 of Sch 1.

Determination

1. In conformity with the principles that bind me in applying the unacceptable risk test, I am satisfied that Mr Kapeen currently presents as posing an unacceptable risk of committing a serious sex offence if he is not kept under supervision; a test that I am satisfied has been discharged to a high degree of probability. I have come to that conclusion on the basis of the evaluative assessment I have made of all of the material tendered in the proceedings. I have placed particular weight and emphasis on the considered and collective views of all expert witnesses that Mr Kapeen's limited insight into his past offending, and his deteriorating mental health is such that he is unable (cf unwilling) to self-regulate any behavioural impulse to sexual offending against a child were that situation to opportunistically present, however unlikely that might be.
2. I also accept that Mr Kapeen's poor mental health is unlikely to change and is likely to deteriorate over time. Whilst on one view that might be thought to moderate the risk of reoffending in a sexual manner, and while the magnitude or gravity of the index offence might also operate to moderate the risk of sexual reoffending against a child, I am unable to reach a view other than that reached by Beech-Jones J in June 2017 that he continues to present an unacceptable risk of causing serious harm to a child. I note that Mr Kapeen's condition, both physical and psychiatric, has not improved over the intervening 11 months but has significantly deteriorated.
3. However, I am not satisfied, to a high degree of probability, that the risk of his causing serious harm to others cannot be adequately managed by less restrictive means. I consider that safe and effective management of that risk is available under the Mental Health Act, consistent with Mr Kapeen's involuntary detention in the Forensic Hospital as a "mentally ill person" until such time as a commensurately secure, but less restrictive placement, can be found in the community.
4. In coming to that conclusion, I have given preponderant weight to the views of Dr Ellis, both in his capacity as Clinical Director and Medical Superintendent of the Forensic Hospital, Malabar, Dr Ellis's training and expertise in forensic psychiatry as reflected in his curriculum vitae, together with what I am satisfied is his high level clinical care of Mr Kapeen as an inpatient at the Forensic Hospital. In coming to that conclusion, I also observe that Mr Kapeen's detention as an involuntary patient under the Mental Health Act requires that he continue to meet the criteria provided for in s 38(4) of the Act, namely that the Tribunal determines that he is a mentally ill person and that no other care of a less restrictive kind is appropriate and reasonably available to him. The evidence to establish that state of affairs is incontrovertible. It is also of significance that any transfer from the Forensic Hospital will not be effected unless a clinical risk assessment from the treating team is undertaken, and a determination made that he is suitable for a transfer.
5. Whilst I acknowledge the statutory role and function of the Mental Health Review Tribunal in their supervision of forensic patients, on the evidence before me I have every reason to expect that Mr Kapeen's current clinical needs will be adequately managed and with forensic insight to a commendably high degree in the Forensic Hospital setting where Mr Kapeen is currently housed.
6. While the prospect of suitable residential or nursing care facilities being sourced and available in the future are at this time simply unable to be assessed in any meaningful way, the situation that presented when both Beech-Jones J and Johnson J considered the application of the less restrictive means test (respectively when final orders were made in May 2017 and interim orders made in June 2018) has shifted considerably.
7. In the preliminary hearing, Johnson J said as follows: Clear evidence that Mr Kapeen was to be transferred to the Forensic Hospital before 2 June 2018 [the expiration of the previous extension order] would be an important factor on this application.
8. His Honour went on to say: However, although it is possible that the transfer of Mr Kapeen from the Forensic Hospital will occur before 2 June 2018, it is at least possible that it may not happen by that time despite Dr Ellis's best efforts. There is a heavy demand for the valuable facilities at the forensic hospital: State of NSW v Wyndle (No 3) [2017] NSWSC 727 at [92]-[103].
9. Although his Honour also acknowledged, as do I, the intensive role the Mental Health Review Tribunal would play were Mr Kapeen to retain his status as a forensic patient under the MHFP Act, that does not foreclose on the plaintiff's obligation to satisfy the Court, to a high degree of probability, of the less restrictive means test in seeking an extension of his status as a forensic patient. The plaintiff has not discharged that onus.
10. Accordingly, I make the following orders:
11. The summons is dismissed. I note that the defendant is currently detained pursuant to an interim extension order expiring at 11.59pm on 31 August 2018. No order is made with respect to that order.
12. Pursuant to cl 11A of Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), Mr Kapeen is to be detained for 24 hours from midnight on 1 September 2018 to enable a medical practitioner or accredited person to assess whether a mental health certificate under s 19 of the Mental Health Act 2007 (NSW) should issue.
13. The plaintiff is to pay the defendant's costs.

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: 31 August 2018