Solicitors:
Crown Solicitors Office (Plaintiff)
Ryan Payten Le (Defendant)
File Number(s): 2023/179018
[2]
EX TEMPORE JUDGMENT (REVISED)
Mr McGregor is a forensic patient under an extension order that I made on 27 August 2021 for a duration of two years. My order expires on 9 September 2023. By summons filed on 2 June 2023 the Attorney General for New South Wales (the "Attorney General") seeks a further extension of that order for a period of one year. I am conducting the preliminary hearing in the matter required by the provisions of s 126(4) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). When I refer to legislation in this oral judgment I will be referring to that Act unless I specify otherwise.
At this preliminary hearing the Attorney-General is seeking an order under s 126(5) for the appointment by the Court of experts to provide opinions relevant to s 127(2)(b) and a direction that Mr McGregor attend those examinations. The Attorney-General is also seeking an interim extension order for a period of three months from the expiration of the current order under s 130. I have been greatly assisted on this preliminary hearing by the written and oral submissions of Ms Rose of counsel for the Attorney-General and Ms Goodhand of counsel for Mr McGregor.
The statutory test I have to apply in regard to the relief sought is stated in the Act and is well understood. So far as the orders under s 126(5) are concerned, if I am satisfied that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an extension order, I am required by law to make orders appointing the experts and directing Mr McGregor's attendance for examination. There is no discretion involved.
A similar test applies under s 130, although I have a discretion under that provision to refuse to make the interim extension order if I decide that is in the interest of justice. My power to make an interim extension order is conditioned upon my satisfaction that the current extension order will expire before the proceedings are determined, that is before they are finally determined, and, similarly to s 126(5), that the matters alleged and the supporting documentation would, if proved, justify the making of an extension order. There is no difficulty with the first condition. As I have said, the existing order expires on 9 September and I am told that if I make orders for the appointment of experts it is unlikely that those orders can be complied with until early to mid October. Clearly, that process is an essential part of the procedure and it cannot be undertaken before the expiration of the current order.
So far as the second condition is concerned, it is not my role at the preliminary hearing to be actually satisfied that the matters alleged in the supporting documentation are proved to the requisite standard of proof. What I am concerned with is assessing their capacity to justify the final order if proved at the final hearing.
In undertaking that limited assessment, I am required to bear in mind that s 122 prescribes a high standard of proof in relation to the central question which must be established before the court is empowered to exercise its discretion to make an order and that high standard of proof is a high degree of probability which is a standard greater than the usual standard which applies in civil proceedings, which these proceedings are, but not as high as the stringent standard of proof of beyond reasonable doubt that applies in criminal prosecutions.
It is not necessary that I, today, be satisfied to that high degree of probability. It is only necessary, when I make my assessment, that I bear that high degree of probability in mind when I make a decision about the capacity of the evidence that justify a final order.
There is no issue before me that the procedural requirements of ss 124 and 125 have been satisfied in this matter and, indeed, Ms Goodhand, who appears on the instructions of Mr McGregor's tutor, Dr Johnson, has informed me that there is no issue, that the requirements of ss 126(5) and 130 have been satisfied, although this is not a consent jurisdiction and it remains for me to be satisfied.
The fact that experienced counsel accepts that the statutory test has been satisfied is a relevant factor for my consideration, so far as the requirements of s 127, which is the provision which governs the court's power on a final hearing, are concerned.
The central question to which I have referred is this - as provided by s 122. At the final hearing, the court can only make a further extension order if the judge is satisfied to a high degree of probability that (a) the forensic patient, here, Mr McGregor, poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and (b) that risk cannot be adequately managed by other, less restrictive, means. Although at the final hearing, that higher standard of proof applies, the section makes it quite clear that it is not necessary that the Supreme Court decides that the risk to others is more likely than not.
The principal application is an application for an extension and I have before me the judgment of Justice Beach-Jones, as the Chief Judge then was, at the preliminary hearing in 2021 ([2021] NSWSC 638) and my own judgment after the final hearing in 2021 ([2021] NSWSC 1085). I did not regard it as necessary that I reinvent the wheel for the purpose of today's judgement. Although the final judgment was made after a hearing there was no close contest, but the findings I then made were apposite at the time and to my mind it is sufficient that I look at the material since then in order to make a decision about this case, especially as there is no real dispute that an interim order may be made.
The question for determination arises against the background that Mr McGregor, since his mid-30s, has been diagnosed as suffering from a serious psychiatric condition of paranoid schizophrenia and he has the misfortune to be burdened by a treatment-resistant form of that psychiatric disease. It is also apparent that Mr McGregor has either a significant neurocognitive impairment or, perhaps, an intellectual disability, although current evidence favours the former rather than the latter.
On top of all of this, Mr McGregor has suffered a profound neurosensory deafness, probably since birth, and that diagnosis was made when he was about six months' old. Although that disability does not directly feed into the question of risk, it does indirectly, because, obviously, it makes ordinary communication in the community extremely difficult. He is appearing via AVL today with the assistance of both an AUSLAN interpreter and a relay interpreter, so that he can follow these proceedings. Moreover, that deafness and the difficulties that it presents for him, has increased his social isolation. These disabilities, his psychiatric condition, his neurocognitive impairment and his profound deafness, are permanent disabilities. And in combination, they feed into what the experts have said about the risk, given the disabilities. The difficulties that they present in daily life for Mr McGregor and the social isolation to which he is subject because of them means it is perhaps of no real surprise that he has acquired a criminal record over the decades. His offending has embraced a broad range of criminality, and of particular concern for today's hearing includes crimes of violence.
His index offending was a crime of violence, which occurred on 12 June 2018 at Paramatta, when he caused grievous bodily harm to the complainant. After a special hearing because Mr McGregor was found not fit to plead, the factual component of the offence was found to be proved on the limited evidence then available, and after a further hearing, the presiding judge, his Honour Judge Craigie QC, imposed a limiting term of three years duration. Looking at the background to that apparent offending, it is instructive in terms of the potential for risk in the present case. At that time, Mr McGregor was effectively homeless, having been evicted from his social housing premises because of damage he was alleged to have caused at the premises.
Although he had from time to time been under a community treatment order, he unsurprisingly lost touch with the community mental health team from whom he was receiving that treatment, and his schizophrenia was untreated at the relevant time of the apparent offending. Moreover, his apparent offending arose out of a simple unfortunate interaction, perhaps misunderstanding between him and the complainant, an elderly lady. They were both passengers on the same bus. It seems that Mr McGregor accidentally bumped her, causing the complainant to remonstrate with him.
He attempted to communicate in sign language, which the complainant did not understand. She continued to berate him. He formed the impression she was swearing at him, and in a spontaneous peak of anger, he punched her part to the left side of her face, knocking her to the ground, and in the fall, she suffered a displaced complex fracture of the neck of her right femur. She also suffered facial fractures to her left cheek. Those facts, I think demonstrate the nature of the risk that Mr McGregor can pose if he is unsupported, untreated and left homeless in the community.
Having fully reviewed all of the evidence, including all of the evidence touching upon the mandatory considerations under s 120(7), after the final hearing in 2021, I expressed my conclusions as (at [44]-[46]):
I am satisfied to a high degree of probability that Mr McGregor poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. It is clear from his history and from the opinions of the experts to which I have referred that the risk of serious, violent physical harm to others is closely related to the nature of his mental illness, neurocognitive deficits and deafness. I am satisfied to that high degree that if he were left to his own devices to support himself in the community, the co-morbidities affecting him could once again descend into homelessness, non-compliance with treatment and substance abuse. As the circumstances of the index offending demonstrate, minor negative social interactions can quickly escalate, not the least because of Mr McGregor's complete inability to communicate with others for the purpose of defusing the situation. His lack of insight means that in those circumstances his awareness of the possible harmful consequences of his actions are unlikely to operate as any effective brake upon a sudden violent impulse.
I am also satisfied to the high degree of probability that the risk cannot be adequately managed by other less restrictive means. I am left with the overwhelming impression, from virtually the whole of the expert evidence in the case, that even the combination of a Guardianship Order and a CTO [Community Treatment Order] of themselves would be insufficient to manage the risk. Mr McGregor has been previously been subject to a CTO, before the index offending and, as it were, seemed to fall "off the radar". The evidence does not establish that, absent the Conditional Release Order as a forensic patient, the whole suite of conditions to which he is subject and by which he appears to be managing so well in the community in a supervised way can be replicated by other less restrictive means.
Given my finding in relation to s 122, it's necessary to consider whether, in the exercise of my discretion, I should make an extension order or dismiss the application. Given my findings as to the s 122 conditions and my analysis of the matters relevant to my determination, I am satisfied that an extension order should be made.
The evidence before me does satisfy me that the regime which has been put in place under the conditions of the conditional release order made by the Mental Health Review Tribunal ("MHRT") had been very effective in managing Mr McGregor's risk and, if I may say so, greatly improving his quality of life. He has told Dr Ellis, when he saw him for the purpose of these proceedings, that he was happy in his situation at that time.
There are, however, a couple of things I should refer to about that. The first is that Ms Rose reminded me of the content of the NDIS assessment or appraisal from October 2022, annexed to the affidavit of Mark McAlary of 17 August 2023, and there have been some issues of concern. In particular, there was an issue where there was an altercation between Mr McGregor and one of his support workers that led to a degree of aggression, with Mr McGregor waving his arms and adopting an angry expression, and culminating, on 21 September 2022, with some contact with the support worker when he poked her hard on the shoulder. That experience caused the support worker to seek redeployment.
It is also true that while he has been abstinent from the use of illicit substances and alcohol, which is a great achievement for him, he has an ongoing interest in playing the poker machines at the local club, which sometimes has led him to be irresponsible with his money, and that was the reason for the frustration with the support worker on 21 September 2022. And, that degree of irresponsibility is notwithstanding the fact that there has been a financial management guardianship order made by the NSW Civil and Administrative Tribunal.
It is also apparent that in 2022 he missed a number of appointments with his treating psychiatrist. I should say, that is not necessarily to be laid at Mr McGregor's feet, part of it was to do with, I think, the hangover from the lockdowns because of the COVID-19 pandemic and other aspects might have been due to a misunderstanding on the part of support workers. But, it does demonstrate that it has not all been plain sailing since I made the order.
There is also a concern about his medication on two levels. One is after his treating psychiatrist increased the dosage it took the support workers quite some time to adjust to that in terms of amending the instructions in relation to the 'Webster-pak' so that Mr McGregor got the correct dosage. But, potentially more significantly, a Dr Ellis, in his risk assessment report, has expressed a concern about the current combination of medications that Mr McGregor is receiving. In his report of 27 February 2023, he said this (at pp 14-15):
"[Mr McGregor] currently requires outpatient psychiatric care for the treatment of his schizophrenia, substance use and cognitive problems. This treatment requires complex psychopharmacology and highly structured psychosocial supports. He is resistant to usual antipsychotic treatment and requires a review of his current management (there is an interaction between aripiprazole and olanzapine that renders them less effective in combination). Given his propensity to seizures combination with antiepileptic medications is required. Ideally the [Community Forensic Mental Health Service] if they were to review him, could have his case reviewed by the psychopharmacology resource network between the New South Wales Forensic Services and California Department of State Hospitals, given the complexity in his case."
The evidence before me does not establish that that important review has yet taken place.
I must say, however, that overall his progress, so far as I can see at this preliminary hearing, has been positive, and that is confirmed, I think, by the consideration that the MHRT, while continuing to find Mr McGregor still unfit to plead, has not seen fit to revoke or recall the conditional release order, and the only changes made to the conditions have been to take account of changes in his residence or in the identity of principal support persons, like his case worker.
Although it is not germane to my decision about interim orders, I am impressed by the contents of the affidavit of his current case manager, Ms Nadia Kolakovic affirmed on 26 July 2023. A concern that has been expressed is that no steps had yet been taken to institute the process for obtaining an appropriate community treatment order ("CTO") if Mr McGregor ceased to be a forensic patient. However, Ms Kolakovic has said that were his forensic patient status to cease, for instance because no extension order is made after the final hearing, an application would be made for a CTO.
Returning to the question of risk, I have had close regard to Dr Ellis's reports, including his second report of 5 April 2023. After the review of further documentation Dr Ellis has adhered to his assessment in relation to risk as expressed in his report of 27 February. That issue is dealt with at pp 13-14 of his report. I will not set out all of his reasoning in regard to his conclusions. Suffice it to say I found it balanced, impartial, and persuasive. The doctor recognises the limitations with the usual actuarial measures, and also, to some extent, in the structured professional judgment tools used in this area. However, those tools remain valuable in as much as they provide a structure for analysis.
Dr Ellis also points out that risk assessment is not intended to be predictive of future behaviour, rather it is an analysis of current status. His conclusion was as follows (pp 13-14):
"In considering the 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 offending and serious harm that is high, and greater than a theoretical average offender or psychiatric patient. He would currently present with a risk profile equivalent to many general psychiatric patients managed in the community, and his current treatment and supports significantly moderate his underlying risk making [it] now low. There would be clinical grounds to continue intervention to manage this risk as it would likely fluctuate quickly without his current living circumstances and support."
Dr Ellis also made it quite clear that, in his opinion, the less restrictive regime which would be available under the Mental Health Act 2007 (NSW), including a CTO, and the personal and financial management measures of a guardianship order would not be as effective as the current regime as a forensic patient. Although, he also made it clear that his opinion was that the existing regime should continue for the relatively short period of one year in order to clarify the outstanding issues to which I have referred.
In his first report he said it is possible that the less restrictive regime under the Mental Health Act may be effective. But, in his second report he was firmer in his regard that the current regime is more appropriate, and his reason for so stating was that he regarded the current service provisions providing better coverage than a less restrictive one and he regarded oversight by the MHRT as an important factor. I should say that an important aspect of this case has been the level of support that Mr McGregor has received under the NDIS. He is coming up for his annual review, and as I remarked to counsel, given the notorious fact that the NDIS itself is under review, I cannot be certain now that the same high level of support which had been so beneficial to Mr McGregor will necessarily continue until a reassessment is undertaken at the end of September 2023. Acknowledging that the matter is not an entirely clear cut one, I am satisfied that the matters alleged in the Attorney General's supporting documentation, including the report of Dr Ellis, if proved to a higher degree of probability at the final hearing, would justify a finding that the conditions in s 122 have been satisfied to a higher degree of probability.
I have also had regard to the mandatory considerations under s 127 of the Act. Specifically, I have had regard to the material available now to determine whether that material is capable of supporting an order under s 127(1) of the final hearing. In this regard, I have taken particular consideration of the safety of the community.
Obviously, I am yet to receive the reports of the Court appointed experts, but it seems to me that in each other respect, the risk assessment report and Dr Ellis's general psychiatric opinion, and the orders that the MHRT has continued to make would all point in the direction of making a further extension order. I have also had regard to the report prepared by Ms Kolakovic attached to her affidavit, which I think comes within the purview of s 127(2)(f), which indicates to me that Mr McGregor's progress has been good, and that she has a certain level of confidence that he could be managed in the community if he was no longer a forensic patient.
I have already made mention of Mr McGregor's compliance, which on the whole, has been very good with the supports he is receiving. I have had regard as I have said to Judge Craigie's judgment, and I have taken account of the other matters that I have referred to in the course of these reasons. It seems to me that those matters, if they remain the same and are proved at the final hearing, would justify the Court making a further extension order. As I said at the outset, the decision to impose an interim extension is itself discretionary under s 130. But it seems to me, given my acceptance of Dr Ellis's opinion and the outstanding issues I have identified, that the only proper exercise of my discretion, is for me to make the interim extension order sought. As I indicated during the course of my judgment, in matters under the Act, it is not for the Court to impose conditions. Conditions are imposed by the MHRT, and the exercise of its powers. But I have indicated to the parties, areas of concern which would perhaps be of assistance to the Court at the final hearing if those matters could be considered.
As I have indicated given my conclusion, I am bound to make orders appointing two appropriately qualified experts to provide reports to the court and directing Mr McGregor to attend for examination.
Direct the parties to bring in short minutes of order giving effect to these reasons by lodging them electronically with my chambers by 10.00 am Monday 28 August 2023.
[3]
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Decision last updated: 29 August 2023