Attorney General for New South Wales v McGregor

Supreme Court of NSW|2021-06-02|Before: Beech-Jones J

Background

Mr McGregor is fifty-five years of age. He is deaf and non-verbal. He has a longstanding diagnosis of schizophrenia. From around 1988 to 1992 he accumulated a number of convictions for assaults. In November 1996 he was convicted of maliciously inflict grievous bodily harm and served a sentence of six months imprisonment. In 2006 to 2009 he was convicted of assault on various occasions, as well as what appears to be some relatively minor dishonesty offences.
In 2014, Mr McGregor was arrested and charged with, amongst other matters, demand property with menaces and being armed with intent to commit an indictable offence. The police facts alleged that he produced a knife at a supermarket and via a handwritten message demanded cigarettes. Those matters were dealt with under former s 32 of the MHFPA.
On or about 12 June 2018, Mr McGregor was charged with recklessly cause grievous bodily harm with an intention to cause that harm, contrary to s 33(1)(b) of the Crimes Act 1900. On 2 September 2019, Mr McGregor was found unfit to be tried.
On 18 May 2020, following a special hearing, his Honour Judge Craigie SC found him guilty on the limited evidence of the alternative offence of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act. In short, his Honour was relevantly satisfied, on the limited evidence presented, that Mr McGregor had punched an elderly woman in her face following the escalation of an incident when they both alighted from a bus. The victim suffered fractures to her sinus cavity and her right hip when she fell over. Subsequently, his Honour imposed a limiting term of three years commencing on 12 June 2018 and expiring on 11 June 2021.
Consistent with the terms of the MHFPA, Mr McGregor became subject to the jurisdiction of the Mental Health Review Tribunal (the "MHRT").
On or about 16 March 2021, and in accordance with orders and reasons given by the MHRT in February 2021, he was conditionally released into the community and made subject to a community treatment order. As I understand it, he is presently living in supported accommodation and receives assistance under the National Disability Insurance Scheme.

Dr Ellis' Reports

A number of reports from a forensic psychiatrist, Dr Ellis, were tendered on the application. It is necessary to refer to them in some detail, partly because of the significance attached on this application to the "matters alleged in the supporting documentation" and partly because Dr Ellis has provided a number of reports concerning Mr McGregor over the years.
In that regard, Dr Ellis prepared his report dated 31 March 2021 with the benefit of having seen Mr McGregor on 13 November 2018 and 10 July 2020, as well as what appears to be a reasonably comprehensive set of previous reports and relevant records.
Based on that material, Dr Ellis reported that Mr McGregor was first admitted to a psychiatric hospital in 2003, which was some time after he had been diagnosed with schizophrenia. Dr Ellis described Mr McGregor as being regularly admitted after that time, including in 2007 when someone matching his description was seen lying on train tracks, although Mr McGregor denied it was him, and again in 2017 where he is said to have poured 20 litres of chlorine over the carpet in his flat and he was evicted.
Dr Ellis said that by late 2017 Mr McGregor was homeless and then he was admitted under the Mental Health Act some time during 2018. He had regular psychiatric reviews when he entered custody following his arrest.
Dr Ellis noted a paucity of material concerning his personal background prior to 2003. It seems that he had been diagnosed with neuro-sensorial deafness when he was six months old.
In terms of diagnosis, Dr Ellis confirmed that Mr McGregor met the diagnostic criteria for schizophrenia. Amongst other matters, Dr Ellis described and referred to his ongoing presentation of bizarre delusions and auditory hallucinations. Dr Ellis also found that Mr McGregor met the criteria for substance use disorder, with a salient use of stimulants, opioids and, at some point, cannabis. Further, Dr Ellis considered it was clear that Mr McGregor had a neurocognitive disorder and noted that he had a structural brain abnormality associated with intellectual disability.
In terms of an assessment of risk, Dr Ellis referred to the use of the "HCR-20V3" assessment tool, which in Mr McGregor's case had identified a number of risks for future offending, including his history of personal violence, a sustained history of general offending, a lack of stable family/intimate relationships evidenced by social isolation, impulsivity, substance abuse, a diagnosis of mental illness, employment problems and poor prior engagement with rehabilitation. Dr Ellis also noted that there were absent some other risk factors, such as an anti-social personality and persistent violent attitudes.
In terms of overall risk, Dr Ellis opined as follows: "In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr McGregor would fall into a group of persons with a risk [of] offending and serious harm that is high, and greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many forensic patients managed in the community. There would be clinical grounds to continue intervention to manage this risk."
In his report of 31 March 2021, Dr Ellis also addressed the relative benefits in terms of managing risk of Mr McGregor continuing as a forensic patient or being managed under the Mental Health Act. It is unnecessary to describe his analysis in that report, because he returned to that topic and clarified his position in a supplementary report dated 26 May 2021. In that report, Dr Ellis observed that in the past: "…the public mental health services and CTOs (community treatment orders) have failed to manage his risk, best evidenced with the index offence."
He further stated: "The advantages of CR in this case are the very short time he will have been on CR in his current setting to establish compliance with treatment, housing and services. He has some risk stemming from his cognitive impairment and prior drug use, which is less well managed by mental health legislation alone. His treating team are new and would benefit from the support of statewide forensic mental health services who would be allocated to his case. His risk has been long term, and long term management will be required. I would recommend a further two years as a forensic patient to ensure this stability prior to transfer to a CTO given the clinical complexity of his case and the length of time he has presented a risk in the past."
The reference to a "CR" in this extract is to a conditional release order, being a facility available if his status as a forensic patient is continued.

The Act's Requirements are Met

The formal aspects set out in Pt 6 of the Act for the making of an application have been satisfied. Mr McGregor is clearly a "forensic patient". The material filed by the Attorney General includes the supporting documentation required by s 125. The pre-hearing procedures specified in s 126, including the various notification of time limits, have all been complied with.
The evidence of Dr Ellis that I have summarised and which itself constitutes parts of the matters set out in the supporting documentation strongly points to both limbs of s 122(1) having been met, at least for the purposes of making an interim order.
In particular, Dr Ellis' evidence supports an assessment that Mr McGregor poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and in particular by his engaging in conduct similar to that which occurred in 2018.
Further, consistent with the discussion in Doolan, Dr Ellis' report supports a conclusion that the risk posed cannot be adequately managed by other less restrictive means, that is, by means other than an extension of his status as a forensic patient.
Before confirming those conclusions, it is necessary to consider the criteria set out in subs 127(2)(a) which governs the decision of this Court whether or not to make an extension order.
The first criteria is the safety of the community (s 127(2)(a)). That is addressed by the making of the order.
The next criteria concerns reports received under s 126(5) (s 127(2)(b)). That has not occurred yet.
The next criteria is to consider the report of a qualified psychiatrist provided under s 125(b) of the Act (s 127(2)(c)). That is Dr Ellis' report which I have addressed.
The next criteria required to be considered is any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application (s 127(2)(d)). In this case, a number of reports were tendered, all of which are consistent with Dr Ellis' report.
One of those reports was provided by Dr Christina Matthews, a generalist and forensic psychiatrist, dated 30 January 2021. Dr Matthews' report comprehensively addresses Mr McGregor's personal background and present circumstances. Her report includes an analysis of the risk assessment tool HCR-20V3 in terms that are consistent with Dr Ellis' application of that tool. Her report otherwise concluded that Mr McGregor "presents with a high load of historical risk factors for future violence" which are "static and are unlikely to change considerably in future", although she noted that his "current dynamic factors for violence are less prominent, with a low-moderate rating provided".
Sub-section 127(2)(e) of the Act refers to any order or decision made by the MHRT with respect to the forensic patient. I have already referred to the relevant determination of the MHRT in February 2021 that led to Mr McGregor's conditional release.
Sub-section 127(2)(f) refers to any report of the Secretary, the Minister of Health or other designated bodies. It is not suggested there is any such report.
Sub-section 127(2)(g) refers to the level of the forensic patient's compliance with any of his obligations which he has been subject to as a forensic patient. I was not referred to material suggesting that there were any instances of non-compliance.
Sub-section 127(2)(h) refers to the views of the Court that imposed the limiting term. I have already referred to the salient aspects of Judge Craigie SC's determination.
Otherwise, I have considered the information that is available as to the risk that Mr McGregor poses, (s 127(2)(i)).
Accordingly, I confirm the assessment I referred to earlier. I will make orders 1 and 2 in the summons.

Other Matters

At this point, I note two other matters.
First, yesterday the Court was advised that difficulties had been experienced in obtaining an Auslan and deaf interpreter for Mr McGregor to enable him to view today's proceedings. It was respectfully asked that he be released from attendance. These are civil proceedings. There is no obligation on Mr McGregor to attend these proceedings absent any specific order from the Court. It is entirely a matter for him and those that advise and assist him as to whether he wishes to view the proceedings. However, if he does, every effort should be made to allow him to do so by the obtaining of those interpreters. That is a matter that should be brought to the attention of the Listing Offices in the Court when the matter is listed.
Second, prayer 4 of the summons seeks an order restricting access to the Court's file, such that access would only be permitted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. Generally speaking, I do not make orders which would bind other Judges in that way. Instead, I would make an order to similar effect, namely, that any application for access by a third party to the Court's file in the proceedings is to be referred to a Judge of the Court.
Accordingly, the orders the Court makes are as follows: (1) Pursuant to ss 121 and 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"), the Court: a. Appoints two qualified psychiatrists, or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. Directs the Defendant to attend those examinations. (2) Pursuant to ss 121, 130 and 131 of the Act, the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 10 June 2021 and expiring three (3) months later. (3) Any application for access by a third party to the Court's file in these proceedings is to be referred to a judge of the Court. (4) Grant liberty to approach Beech-Jones J for a further order consistent with Order 1. (5) Stand over the proceedings for directions before the Duty Judge at 10.00am on 7 June 2021.

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: 07 June 2021

The Mental Health and Cognitive Impairment Forensic Provisions Act 2021

The Act came into effect on 24 March 2021. Proceedings concerning the extension of the status of a person as a forensic patient are governed by Pt 6 of the Act. Previously such applications were governed by Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (the "MHFPA" and "Schedule 1").
The working assumption of the careful submissions filed in support of this application by both parties is that, although the operative legislation has changed, there is no relevant difference between those two sets of provisions. I am proceeding on that assumption as well. To that end, I note that cl 9 of Pt 2 of Sch 2 to the Act provides: "A person who, immediately before the commencement of part 5 of this Act, was a forensic patient or a correctional patient under the former Act is taken to be a forensic patient or a correctional patient within the meaning of this Act, and this Act applies accordingly."
It will be evident from the balance of this judgment that Mr McGregor was a person who, immediately before the commencement of Pt 5 of the Act, was a "forensic patient" under the MHFPA, and it follows that the Act applies, accordingly, to him.
I outlined the operation of Schedule1 to the MHFPA in Minister for Health v Paciocco [2016] NSWSC 1530 at [10] to [20], and Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [9] to [19]. I will not repeat that discussion. For present purposes three matters should be noted.
First, the threshold test of unacceptable risk is now located in s 122(1)(a) of the Act. To my observation, it is in identical terms to former cl 2(1)(a) of Sch 1.
Second, the other crucial aspect of the assessment, namely, whether the "risk cannot be adequately managed by other less restrictive means", formerly found in cl 2(1)(b), is now found in s 122(1)(b). The discussion by Adamson J of that test in Attorney General v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 ("Doolan") remains apposite.
Third, as it was with applications under Schedule 1 for interim orders, with applications under the Act for interim extensions and for orders appointing psychiatrists to examine a defendant, they are to be assessed by reference to whether the "matters alleged in the supporting documentation would, if proved" justify the making of the relevant order; see s 126(5) and s 130(5)(b). Of necessity, that involves a lower level of scrutiny of any matter stated in the documentation supporting the application than would occur at a final hearing.

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