Attorney General for New South Wales v Kapeen bht Jennifer Thompson

Supreme Court of NSW|2018-04-26|Before: Johnson J, Beech-Jones J

Judgment

JOHNSON J: By Summons filed on 26 March 2018, the Attorney General for New South Wales ("the Plaintiff"), seeks orders with respect to the Defendant, Robert Steven Kapeen by his tutor Jennifer Thompson, pursuant to s.54A and Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act").
Mr Kapeen is presently subject to an extension order made by Beech-Jones J on 22 May 2017 under Clause 1 of Schedule 1 of the MHFP Act that his status as a forensic patient be extended for a period of 12 months from 3 June 2017, a period which will expire on 2 June 2018: Attorney General for New South Wales v Kapeen [2017] NSWSC 685 ("the 2017 final decision").
Mr Kapeen is currently detained at the Long Bay Hospital Mental Health Unit, within the Long Bay Correctional Centre. As will be seen, steps have been taken to seek the transfer of Mr Kapeen to the Forensic Hospital at Malabar (which is not a correctional centre), but he remains at present a person detained in a correctional centre.

The Summons

The Summons seeks, by way of preliminary orders pursuant to Clause 6(5) of Schedule 1 of the MHFP Act: 1. An order appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of Mr Kapeen and to furnish reports to the Supreme Court of the results of those examinations and directing Mr Kapeen to attend those examinations; 2. an order pursuant to Clauses 10 and 11 of Schedule 1 of the MHFP Act that Mr Kapeen be subject to an interim extension order commencing on 2 June 2018 for a period of 28 days.

The Preliminary Hearing

A preliminary hearing under Clause 6(4) of Schedule 1 of the MHFP Act proceeded before me on 26 April 2018. The Plaintiff was represented by Ms Palaniappan of counsel and the Defendant was represented by Ms Hawkins of counsel.
The Plaintiff relied upon the following evidence: 1. the affidavit of Gillian Buchan affirmed 26 March 2018; 2. Exhibit GB1 comprising two folders of documents referred to in Ms Buchan's affidavit of 26 March 2018; 3. a further affidavit of Gillian Buchan affirmed 13 April 2018; 4. Exhibit GB2 being a folder of documents referred to in Ms Buchan's affidavit of 13 April 2018.
An affidavit of David Norman affirmed 20 April 2018 was read in the Defendant's case.
Ms Buchan and Mr Norman were not required for cross-examination.
During the course of the preliminary hearing, it was determined that the Court should take evidence by telephone from Dr Andrew Ellis, forensic psychiatrist, who is the Acting Clinical Director, Forensic and Long Bay Hospitals. Dr Ellis had furnished a report dated 25 November 2017 which was relied upon by the Plaintiff on the present application. Dr Ellis gave oral evidence (T23-27, 26 April 2018).
I granted counsel an opportunity to furnish further written submissions following the hearing on 26 April 2018 in circumstances where Dr Ellis had given oral evidence that day which required further consideration by counsel. Counsel for the Plaintiff and the Defendant furnished additional written submissions on 30 April 2018.
The Plaintiff's claim for orders at the preliminary hearing was resisted on behalf of Mr Kapeen.

Issues at the Preliminary Hearing

The 2017 final decision of Beech-Jones J provides a practical starting point on the present application given his Honour's assessment of the evidence and issues at that final hearing.
Ms Hawkins accepted that Mr Kapeen met the criteria for "forensic patient" as defined in s.42(a1) of the MHFP Act and that the present application had been brought within the last six months of the existing extension order so that the requirements of Clause 4 of Schedule 1 of the MHFP Act were met.
Ms Hawkins submitted that the Plaintiff had not otherwise satisfied the requirements for the making of orders adverse to Mr Kapeen at the preliminary hearing and that the Summons should be dismissed.
Clause 6(5) of Schedule 1 of the MHFP Act 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, the Court must make the preliminary orders sought by the Plaintiff. The formula to be established is akin to the test of a prima facie case in committal proceedings (as they stood prior to 30 April 2018): State of NSW v Manners [2008] NSWSC 1242 at [8]-[9].
The matters to be established to that extent at the preliminary hearing are those contained in Clause 2 of Schedule 1 of the MHFP Act which 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 determining whether to make an interim extension order, the Court must have regard to the factors contained in Clause 7(2) of Schedule 1 which states: "7 Determination of application for extension order … (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. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order."
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])."
Later in this judgment, I will consider and apply (at a prima facie level) the unacceptable risk test and the less restrictive means test as posed under Clause 2 of Schedule 1 of the MHFP Act.

The Index Offence

The index offence for the purpose of the present application is the same offence as was relied upon before Beech-Jones J. It is convenient to set out the following extract from the 2017 final decision (at [16]-[23]): "16 Much of what follows is taken from Kapeen (No 1). Mr Kapeen is 49 years of age. As I will explain, he is a schizophrenic. On or about 12 September 2014 Mr Kapeen was charged with one count of sexual intercourse with a person under the age of ten years 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 ten years contrary to s 61N(2) of the Crimes Act was also laid. 17 On 26 October 2015, Mr Kapeen was found unfit to be tried. Pursuant to s 14(a) of the Act he was referred to the Mental Health Review Tribunal (the 'Tribunal'). 18 Mr Kapeen has not since been found fit to be tried. Following a special hearing conducted under s 19 of the Act on 13 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 ten (the Act; s 22(1)(c)). 19 On 1 December 2016, Bennett DCJ nominated a 'limiting term' for Mr Kapeen of 2 years and 6 months commencing 13 September 2014 and expiring 12 March 2017, (the Act, s 23(b)). His Honour also ordered that Mr Kapeen be detained in custody (the Act, s 24(1)(b)). As a consequence of these orders, Mr Kapeen became a 'forensic patient' under s 42 of the Act. 20 In his judgment imposing a limiting term, Bennett DCJ summarised the facts that his Honour had previously found in support of the charge by reference to a witness whose evidence his Honour had accepted. His Honour stated: 'She came upon the accused lying on his back with a 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". 21 The boy referred to in this passage was the victim. In his judgment addressing whether, on the limited evidence available, Mr Kapeen committed the offence charged, his Honour noted that the witness referred to in this passage was a person visiting her sister in a place known as 'Hillcrest' where 'there are a number of homes and also a community hall'. 22 The witness had stated that as she entered the area she was approached by two children and, as a consequence, she went to the community hall. In a grassed area outside the hall she came across Mr Kapeen and the victim. 23 At the hearing before his Honour there was evidence that the victim had 'severe intellectual limitations' and that he had been sexually assaulted by others. Bennett DCJ noted the Crown's concession that, in light of that material, it could not disprove the 'reasonable possibility' that the victim 'initiated sexual contact in which the accused joined in the offence'. His Honour stated that he agreed with that concession."

Approaching this Application Against the Background of the 2017 Final Decision of Beech-Jones J

I will approach the present application, by reference to the conclusions reached in the 2017 final decision of Beech-Jones J. The appropriate way forward is to have regard to what his Honour said on those issues and to consider, in light of all the evidence on the present application, what findings should be made on those matters for the purpose of this preliminary hearing.
No appeal was brought from the judgment and orders of Beech-Jones J of 22 May 2017. Although I am not bound by his Honour's findings, given that his Honour had before him the same body of evidence of events up to 22 May 2017 as is before the Court at the present preliminary hearing, it is appropriate to treat his Honour's conclusions as a proper starting point for my consideration of the present application. His Honour's reasons are required to be taken into account under Clause 7(2)(h) of Schedule 1.
I note that concurrent evidence was given before Beech-Jones J at the 2017 final hearing by Dr Ellis, Dr Kerri Eagle, forensic psychiatrist, and Dr Susan Pulman, psychologist.
After referring to evidence and submissions made with respect to the unacceptable risk issue, Beech-Jones J said (at [75]-[79]): "Many of the points raised by Mr McGrath SC [for Mr Kapeen] were addressed by the three psychiatrists in their oral evidence. Generally, my assessment of those matters accords with those doctor's assessments. Even allowing for the possibility that the victim 'initiated' sexual conduct, the comments of Mr Kapeen as reported by Dr Ellis and in the SNRG report went beyond the mere recitation of what occurred. Instead they reveal that Mr Kapeen lacks any insight into the wrongfulness of his offending behaviour. Given his intellectual impairment and mental illness, this is not surprising. The circumstances of the offending do not suggest that Mr Kapeen is a sexual predator in the sense of someone who seeks out victims. However, consistent with what is known about Mr Kapeen's intellectual impairment and mental illness, the circumstances of the offence suggest that he has no concept of self-restraint and no capacity for insight into the wrongfulness of his own conduct. His sexual assault on the victim was brazen. It was carried out in an open area near a community hall. It appears to have only ceased because the witness scared the victim away; it was not the presence of the witness that caused Mr Kapeen to stop his conduct. The 18 year period in which Mr Kapeen was not convicted of any offence is a matter that must be considered. However, as noted by Dr Eagle, little is otherwise known about Mr Kapeen during that period. What is now known is that he had sexual intercourse with a six year old boy in a public place and that he is effectively incapable of learning to regulate his behaviour. As noted, Mr Kapeen's history does not suggest that if he was to be released into the community straight away he would seek out children to sexually abuse. However, it does appear that he has an affinity with children and it seems likely that he would tend to gravitate towards them. If he has access or any contact with children it seems there is a clear risk that he would act without restraint. Needless to say, if he repeated his conduct the consequences would be severe. It follows that I am satisfied to a high degree of probability that Mr Kapeen poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. For the sake of completeness, this assessment of risk is based on a risk of his repeating a similar offence to the index offence. Although there was material suggesting that there may be a risk of his inflicting violence on others, I was not satisfied to a high degree of probability that he posed an unacceptable risk of causing serious harm in that form."
In the 2017 final decision, Beech-Jones J approached the less restrictive means issue upon the basis that there was no prospect of Mr Kapeen ever ceasing to suffer from a "mental illness" under s.14 Mental Health Act 2007 (at [83]). His Honour observed that the "only other less restrictive means relevant to Mr Kapeen's circumstances is classification as an involuntary patient" (at [13]).
Beech-Jones J adopted the reasoning of Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [101]-[129]. In this way, his Honour undertook a comparison of the legal regime that would govern Mr Kapeen if he was to be treated as an involuntary patient under the Mental Health Act 2007 compared to his treatment as a forensic patient under the MHFP Act as well as a consideration of the practical operation of those laws in his case. His Honour said at [88]-[92]: "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'."
Beech-Jones J then said at [93]-[96]: "93 These matters point in favour of the court being satisfied in cases such as this of clause 2(1)(b). 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."
The evidence before his Honour in 2017 did not involve the more concrete (but still uncertain) position concerning the Forensic Hospital which is contained in Dr Ellis' evidence on the present application to which reference will be made.
Based on the evidence before him, Beech-Jones J concluded (at [99]-[100]): "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."
His Honour observed (at [102]) that the position as at 22 May 2017 was "unsatisfactory, bordering on the totally unacceptable" given that Mr Kapeen was to be detained at the Long Bay Hospital within a correctional centre essentially because of the absence of any other appropriate facility. His Honour declined to make an extension order for a period of two years, but made an order for a one-year period noting that an extension for a two-year period would have the "capacity to encourage bureaucratic inertia rather than require a proper focus on the appropriate medium term accommodation needs for Mr Kapeen, especially as his schizophrenia and polydipsia may worsen" (at [103]).

The Report of Dr Ellis Dated 25 November 2017

A further report of Dr Ellis dated 25 November 2017 is before the Court on the application and, as I have mentioned, Dr Ellis gave short oral evidence on 26 April 2018. The evidence of Dr Ellis is important to the determination of the present application. As the Acting Clinical Director of the facility in which Mr Kapeen is presently housed (the Long Bay Hospital Mental Health Unit) and the facility where it is hoped that he may be located in the future (the Forensic Hospital), Dr Ellis is ideally placed to provide evidence which assists the Court on this application.
As discussed in the 2017 final decision of Beech-Jones J, Mr Kapeen (now 50 years old) is subject to mental illness and intellectual disability and has developed psychogenic polydipsia, a condition which causes him to drink substantial quantities of water.
In his report dated 25 November 2017, Dr Ellis said (pages 5-6): "Since my previous review there has been a continued decline in cognitive function. He has continued to display water seeking behaviour and this has largely responded to nursing intervention to limit his access to water. There have been no further seizures. He has displayed an unsteady gait, which after investigation is most likely due to a new diagnosis of normal pressure hydrocephalus (increased volume of cerebrospinal fluid which decreases brain tissue). He often presents as disheveled and requires assistance with basic activities such as showering, cleaning and dressing. He is described as slow, but responds to nursing directions for these tasks. He continues to report intermittent auditory hallucinations, and has recently had a change in antipsychotic medication. The only behavioural response to hallucinations is water seeking, There have been no episodes of self harm. The last record of concerning behaviour directed to others is in May 2016 where corrections staff note he was 'aggressive' to Justice Health staff, and Justice Health staff note he was 'irritable' and 'dismissive'. He has been considered for a variety of placements, and most recently has been accepted to a nursing home. Disability placements cannot accommodate water restrictions. Forensic psychiatric units are less suitable for his physical monitoring requirements and he would be vulnerable due to his unsteady gait and cognitive impairment. This nursing home placement was considered the most appropriate as they were able to provide physical monitoring and care, water restrictions, restrict him leaving, house him only with men and restrict any access to children. The relevant old age community mental health service that visits that facility were also being referred to."
The proposal that Mr Kapeen be placed in a nursing home did not come to pass. Mr Kapeen's condition is such that the nursing home in question could not provide a place for him.
Dr Ellis referred to Mr Kapeen's medical history in this report (page 7): "Of most concern is a new diagnosis of normal pressure hydrocephalus. Mr. Kapeen has displayed a number of episodes of confusion, unsteady gait and incontinence over 2017. He has been investigated at Prince of Wales Hospital and on Magnetic Resonance Imaging (MRI) of the brain with typical findings of enlarged ventricles (fluid spaces in the brain). The condition is thought due to chronic narrowing of the aqueduct (connecting passage between the ventricles). The condition is not rapidly progressing and he is not thought a candidate for surgery to reverse the process. This condition is associated with cognitive decline, unsteady gait and incontinence. He has experienced seizures secondary to water intoxication in 2015. I note complaints of over-drinking were recorded prior to entering custody in disability notes. This remains an active problem requiring behavioural intervention and environmental restriction. Water intoxication and resultant low sodium renders him more prone to confusion in the context of hydrocephalus. Notes indicate removal of a kidney post injury in his teens. I did not examine for a surgical scar. He is treated for hypertension and high cholesterol. He has been recently investigated for chest pain, and has a normal angiogram however has been placed on aspirin. There is no history of cranial infection or allergy. He is unaware of any family history of psychiatric illness or addiction."
In this report (pages 9-10), Dr Ellis expressed the opinion that Mr Kapeen continued to meet criteria for a diagnosis of schizophrenia and that he met the criteria for intellectual disability and substance use disorder (alcohol and cannabis). Dr Ellis stated (page 10): "Adding to his problems with cognitive function is a Major Neurocognitive Disorder due to hydrocephalus His memory, flexible thinking and functional ability is declining from his low baseline due to the slow structural damage to the brain that occurs with this condition. It is likely to further decline as the condition progresses."
Dr Ellis observed that there was insufficient evidence to conclude a paraphilia or psychosexual disorder. However, there were concerning features to Mr Kapeen's presentation and that this consideration required further monitoring (page 10).
In the course of considering Mr Kapeen's risk of serious harm to others, Dr Ellis said (pages 11-12): "Currently he presents with acute ongoing symptoms of mental illness (delusions and hallucinations), very limited insight into his mental function and no insight into its relationship to prior offences, instability in his affect (feels sad with suicidal ideas) and would likely experience problems with supervision outside of clinical environments (evidenced by continuing to subvert water restrictions). He has few personal supports and professional services are not yet in place in the community. With treatment and rehabilitation in a locked nursing home environment some of these factors can be ameliorated. Risk factors specific to sexual offending include the conviction against a male child, minor attitudes condoning the behaviour (displacing responsibility to the victim), a history of exposure to sexual abuse and a history of general offending. There is a potential more serious risk factor in that possible deviant sexual arousal (paraphilia) has yet to be excluded as a reason for offending. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr. Kapeen does not clearly evince this in the current clinical evaluation or review of his offence history, however this should be monitored for as part of his risk management."
Dr Ellis concluded with respect to risk (pages 12-13): "He has had only limited exposure to treatment and rehabilitation to moderate this risk. This has been limited as he is only partially responsive to pharmacological treatment, and is unlikely to benefit from specific psychosocial rehabilitation owing to his cognitive function. His insight is poor, and there is a significant possibility that he would default from whatever treatment he has responded to without supervision. In considering structured professional and clinical parameters in the absence of any treatment or supervision, I remain of the opinion that Mr. Kapeen would fall into a group of persons with a risk offending that is moderate, and greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many forensic inpatients, however his physical care needs render this risk both manageable and more appropriate in a locked nursing home. There would be clinical grounds to continue intervention to manage this risk."
Dr Ellis said concerning treatment and supervision of Mr Kapeen (page 13): "He currently requires psychiatric and medical care for the treatment of his schizophrenia, declining cognitive function, and declining motor function. The most pressing need remains constant nursing observation to prevent water intoxication and intervene when falls occur. This treatment is likely to require complex psychopharmacology and highly structured behavioural redirection. He is resistant to usual antipsychotic treatment and [this] may require trials of other antipsychotic medications. The hydrocephalus makes him more sensitive to antipsychotic side effects. He requires ongoing evaluation of his psychosexual function and functional ability."
Dr Ellis said (page 14): "At present he would be considered to be a 'mentally ill person' according to the Mental Health Act 2007. He presents with delusions and hallucinations which are related to a serious risk of harm to self by water intoxication. The only safe and effective care available other than hospital at present would be on a community treatment order within the confines of a locked nursing home. He likely requires community treatment orders and guardianship to be extended indefinitely as his conditions are chronic and can only be managed rather than improved. At present a community treatment order and guardianship would manage his clinical presentation. The absence of any kind of order is likely to result in non-compliance and homelessness substantially increasing risk."
In addition to the report of Dr Ellis dated 25 November 2017, the Court also has a report dated 2 February 2018 of Ms Yiota Zingirlis, forensic psychologist, and Dr Adam Martin, consultant forensic psychiatrist, which addresses a number of issues with respect to Mr Kapeen. The authors of this report confirm the unavailability of a nursing home placement for Mr Kapeen and note that he is under consideration for transfer to the Forensic Hospital. The assessment of Ms Zingirlis and Dr Martin accorded largely with that of Dr Ellis.

Evidence of Dr Ellis on 26 April 2018

In his evidence on 26 April 2018, Dr Ellis stated that Mr Kapeen was in position number 4 on the waitlist for admission to the Forensic Hospital. Dr Ellis hoped that transfer of Mr Kapeen to the Forensic Hospital might occur by 2 June 2018, but that resource constraints are such that there was no certainty that this would occur (T23, 26 April 2018).
Ms Hawkins asked Dr Ellis (T24.33-42): "Q. Is there any prospect of Mr Kapeen ever being released at liberty back into the community to self care? A. It's a remote possibility but I don't given his clinical history, and I haven't assessed him recently but I've spoken with his clinical treating team, it's likely that he's going to require clinical care indefinitely and it's likely that he would be considered a mentally ill person according to the Mental Health Act and so it's possible that a Mental Health Review Tribunal could disagree with that and order his discharge, but I think that unlikely. It's also possible that an individual clinician could determine that he's not a mentally ill person and ask for his discharge, but I think those two possibilities are remote."
Dr Ellis was asked by me what would happen if the Court made no order on the present application so that the extension order expired on 2 June 2018 (T26.26-27.21): "Q. And that means he would have to leave the correctional centre he's in, being the Long Bay Prison Hospital. Would you expect that he would be taken by appropriate persons to the Prince of Wales Hospital for assessment under the Mental Health Act at that point? A. Yes, that was the clinical plan. If we hadn't managed to get him into the forensic hospital by the expiration of his forensic status, on the day that his forensic status ends and he's required to be released, we would use the Mental Health Act to have him transported by ambulance to the Prince of Wales Hospital and he would be assessed there as to whether he would be considered a mentally ill person. I think it's more ideal that we try and do that before the expiration because then we've got clinicians from a forensic service who know him and are involved with his care rather than landing our colleagues at Prince of Wales Hospital with a case that is entirely unfamiliar to them. Q. Yes, I understand that. So there is no prospect, to put it bluntly, that he's going to be let loose on Anzac Parade at Malabar without any assistance, he's going to be in a level of care at that time? A. Yes. It wouldn't be clinically responsible for us to do that. Q. What if there wasn't a vacancy at the forensic hospital by 2 June 2018? A. Yes, so that is a possibility because I for example, the Mental Health Review Tribunal could order people into the hospital ahead of him and we would have to comply with those orders and so it's possible that there's no bed available. In that case, we would ask we'd be liaising with Prince of Wales Hospital to admit him and hold him and we might take him then transferred from Prince of Wales Hospital once we had a bed available. I think it's less likely though, just given his place on the waiting list, and my current projections for how many patients we're going to be able to admit, but it is a possibility. It could come outside of my control if, for example, the Mental Health Review Tribunal were to make orders on three or four other patients for their admission within the next month, then I would have to admit those patients first. Likewise, the tribunal could have ordered at any time Mr Kapeen enter a forensic hospital and I would have had to admit him. So, yeah, in some way you're not in control with your own waiting list. Q. Is it something of an advantage, though, that you are, in effect, the medical director of both the Long Bay Prison Hospital and also the forensic hospital so that you are well aware of the case of Mr Kapeen and can take such steps as you can at least to try and facilitate his entry to the forensic hospital? A. Yes. I mean, I think I can't place him above or below other patients in terms of priority, but I'm aware of his case and I'm aware of the particular complexities of his case and he is on the waiting list and I would anticipate he's admitted before the expiration of his forensic status."

Determination of Application at Preliminary Hearing

I have had regard to the evidence before the Court on this application and the matters in Clause 7(2) of Schedule 1 which the Court is required to consider.
Ms Palaniappan submits that the unacceptable risk issue is to be determined by considering what risk would arise on the assumption that Mr Kapeen was not a forensic patient nor an involuntary patient under the Mental Health Act 2007. Ms Hawkins submitted that, in applying the unacceptable risk test, the Court should have regard to the evidence of Dr Ellis that there is no realistic prospect that Mr Kapeen would be released into the community as he would, at the least, be detained as an involuntary patient under the Mental Health Act 2007.
I am satisfied that the correct approach is to assess the question of whether Mr Kapeen poses an unacceptable risk of causing serious harm to others on the assumption that he is not a forensic patient nor an involuntary patient - that is, the risk that Mr Kapeen would present if he ceased to be a forensic patient and was released at the end of the extension order on 2 June 2018. In this regard, I agree with the approach adopted by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40], Schmidt J in Attorney General for the State of New South Wales v Huckstadt (No. 3) [2017] NSWSC 944 at [14] and Fullerton J in Attorney General for NSW v MZ [2017] NSWSC 1773 at [12]. Insofar as the Defendant seeks to rely upon the judgment of Garling J in Attorney General of New South Wales v McGuire (No. 2) [2014] NSWSC 288 at [57]-[59], I accept the Plaintiff's submission that it is necessary to approach that decision with caution given that it predates the judgment of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, where (in the context of analogous provisions) Beazley P stated (at 645 [44]) that the right of the person to personal liberty at the expiration of any current term is not a relevant consideration in the determination of the unacceptable risk test. Fullerton J applied this principle in Attorney General for NSW v MZ at [13]. In Lynn v State of New South Wales, Basten JA said (at 660 [126]) that the assessment of unacceptable risk must be based on an absence of protective measures.
It is apparent from the evidence that a nursing home placement is not open to Mr Kapeen at the present time. It is the clear evidence of Dr Ellis (which is consistent with the evidence of other health professionals expressed for the purpose of the hearing before Beech-Jones J in May 2017) that Mr Kapeen ought not be released into the general community with the only realistic options for his treatment and accommodation at present being within the Long Bay Hospital Mental Health Unit or the Forensic Hospital, if a place became available in the latter facility.
It is clear that Mr Kapeen poses a real risk of the commission of a serious offence against children if he was released unsupervised into the community, or even with some level of supervision in the community, at the present time. Whilst these are not realistic practical options at present, they remain circumstances which the Court must consider on this application in determining the unacceptable risk issue. It is at least possible that, if an interim extension order is not made, then Mr Kapeen may be detained at Prince of Wales Hospital on and after 2 June 2018, a situation which would be more than unsatisfactory.
I am satisfied, at a prima facie level, that Mr Kapeen poses an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. In reaching this view, I have taken into account the fact that the index offence is the only sexual matter in his history. However, the evidence of Dr Ellis explains the risk posed by Mr Kapeen in particular with respect to sexual offending against children.
In light of the evidence before this Court, I am well satisfied that the Plaintiff has established for the purpose of this preliminary hearing, the unacceptable risk issue contained in Clause 2(1)(a) of Schedule 1 of the MHFP Act.
The second issue requires the Court to consider whether, at a prima facie level, the risk cannot be adequately managed by other less restrictive means.
At a practical level, the evidence focused on the question whether Mr Kapeen is likely to be transferred to the Forensic Hospital. Transfer to that facility can occur whether Mr Kapeen is a forensic patient or a civil patient detained under the Mental Health Act 2007. The issue under Clause 2(1)(b) of Schedule 1 requires the Court to consider, at a preliminary hearing, whether the person ought remain a forensic patient by way of an interim extension order.
Ms Palaniappan noted that the Plaintiff supported the physical movement of Mr Kapeen to the Forensic Hospital, but submitted that there was no certainty that that step would occur by 2 June 2018. It was submitted that, upon all the evidence, the Court should form the view at a prima facie level that it was appropriate that Mr Kapeen remain a "forensic patient" subject to an interim extension order, with the Court to determine what order should be made at the final hearing in light of the evidence tendered at that time.
Ms Hawkins noted that there was some uncertainty in relation to the potential transfer of Mr Kapeen to the Forensic Hospital, but submitted that the Court should proceed upon the basis that this would occur. It was submitted that a pathway is now available to Mr Kapeen so that the Court should not be satisfied at the prima facie level with respect to the less restrictive means issue with the result that the Summons ought be dismissed. It was submitted that a proper foundation had not been established for the making of the interim extension order in all the circumstances.
In approaching this issue at the preliminary hearing, it is important to keep in mind that the legislation is concerned with the safety of the community and, as was noted by RA Hulme J in Attorney General of New South Wales v Skerry at [54], the focus should be more on the question of adequately managing risk rather than identifying whether one regime is more or less restrictive than the other.
Mr Kapeen is presently housed in the Long Bay Hospital Mental Health Unit within a correctional centre. It is proposed to take steps to effect his transfer to the Forensic Hospital, which is not a correctional centre. If there was clear evidence that Mr Kapeen was to be transferred to the Forensic Hospital before 2 June 2018, then this would be an important factor on this application. However, although it is possible that transfer of Mr Kapeen to the Forensic Hospital will occur before 2 June 2018, it is also at least possible that it may not happen by that time despite Dr Ellis' best efforts. There is a heavy demand for the valuable facilities at the Forensic Hospital: State of New South Wales v Windle (No. 3) [2017] NSWSC 727 at [92]-[103].
As Beech-Jones J explained in the 2017 final decision (at [27] above), the Mental Health Review Tribunal will play a more intensive role in the management of Mr Kapeen if he continues to be a forensic patient. This aspect fortifies a finding, at the prima facie level, that the less restrictive means test is made out in this case.

Conclusion

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).
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.
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.
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.
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.
I will also make the order sought in the Summons restricting access to the Court file by non-parties, this being an order usually made in proceedings of this type.

Orders

I make the following orders: 1. an order pursuant to Clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990: 1. appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of Robert Steven Kapeen and to furnish reports to the Supreme Court on the results of those examinations; and 2. directing Mr Kapeen to attend those examinations. 1. an order pursuant to Clauses 10 and 11 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that Mr Kapeen be subject to an interim extension order commencing on 2 June 2018 for a period of 28 days; 2. an order restricting access to the Court's file in the matter such that access by a non-party to the proceeding would be permitted only by leave of a Judge of the Court and only with prior notice to the parties so as to allow them an opportunity to be heard with respect to the application for access.

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: 08 May 2018

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