Attorney General for New South Wales v Perry

The previous reasons for decision - Attorney General for New South Wales v Perry [2019] NSWSC 703

1. These reasons should be read in conjunction with my previous reasons for decision in relation to the preliminary and interim orders, Attorney General for New South Wales v Perry [2019] NSWSC 703.
2. As envisaged by cl 10(b) of Sch 1 to the MHFP Act, when dealing with the application for examinations and an interim extension order at the preliminary hearing, I proceeded on the basis that the matters alleged in the supporting documentation were assumed to be proved. On the present application for final orders, none of the matters alleged in that supporting documentation was challenged by the defendant. Indeed, as explained below, the subsequent, additional evidence adduced at the final hearing confirmed those matters which formed the basis for my earlier decision. In addition, I was satisfied that the material before the Court at the final hearing provided an adequate basis for concluding that the matters originally alleged in the supporting documentation were proved.
3. My previous reasons for decision, therefore, remain applicable, especially the parts of those reasons dealing with relevant statutory provisions and principles, the defendant's background and criminal history, the index offences, her conduct in custody, relevant considerations under cl 7(2) of Sch 1 to the MHFP Act, and the consideration of whether the defendant posed an unacceptable risk of causing serious harm to others if she ceased to be a forensic patient. In the interests of brevity and efficiency, I shall not repeat that material here but it should be treated as incorporated in these reasons.

The evidence

1. The evidence at the final hearing included the evidence adduced on the preliminary hearing, including most importantly the report dated 20 March 2019 of Dr Kerri Eagle, forensic psychiatrist, as well as: 1. Dr Singh's and Prof Basson's reports referred to above; 2. an affidavit of Ms Seares affirmed on 15 August 2019 to which was attached a letter dated 15 August 2019 from Dr Ellis, forensic psychiatrist and Medical Superintendent of the Forensic Hospital; and 3. the oral evidence of Prof Basson.
2. Neither Ms Palmer of counsel, who appeared for the plaintiff, nor Ms Goodhand of counsel, who appeared for the defendant, submitted that there was any disagreement between the expert witnesses as to any substantial issue. In my view, the expert evidence was strikingly consistent and Dr Singh in a number of instances expressly adopted or concurred with the opinions of Dr Eagle. I accept, without hesitation, the evidence of Dr Eagle, Dr Singh and Prof Basson.

Additional relevant matters under cl 7(2)

1. In my previous reasons, I considered a number of the matters referred to in cl 7(2) of Sch 1 to the MHFP Act but it was noted that there were no reports at that stage from the psychiatrists appointed under cl 6(5) of Sch 1 to the MHFP Act. Thus, there was nothing that fell within cl 7(2)(b) of Sch 1 to consider in those reasons. The reports from Dr Singh and Prof Basson have now been obtained in accordance with cl 6(5) and must be considered, by virtue of cl 7(2)(b).
2. In addition, there was the letter from Dr Ellis, Superintendent of the Forensic Hospital, which related to the risk that the forensic patient will in future cause serious harm to others and thus falls for consideration under cl 7(2)(i).
3. Apart from these additional matters, my previous consideration of cl 7(2) factors remained applicable.

Reports received from the persons appointed under cl 6(5) - cl 7(2)(b)

Report of Dr Yolisha Singh of 26 June 2019

1. Dr Singh interviewed the defendant at the Forensic Hospital on 21 June 2019. She also had discussions with the defendant's treating forensic psychiatrist, Dr Daniel Riordan, as well as two registered nurses from the Forensic Hospital. Dr Singh also reviewed the extensive documentation concerning the defendant's history and treatment.
2. In appraising the defendant's risk of committing serious harm, Dr Singh referred to the Historical Clinical Risk Management - 20 version 3 (HCR-20 v3), a structured professional judgement tool which is widely used clinically and in research to assess for risk of violence and general reoffending. This tool identifies historical risk factors, current clinical factors and future risk management factors.
3. In relation to the defendant, prominent historical risk factors for future violence included marked personal violence commencing in childhood and escalating through her life, prolific other antisocial behaviour, relationship instability, employment problems, problems following directions, significant past substance use and severe and enduring mental illness. Dr Singh's view was that this indicated a high loading of historical risk factors associated with violence in the longer term.
4. Clinical risk factors included lack of insight into her propensity for violence, lack of understanding of her mental illness, substance use and need for treatment. Additionally, the defendant presented with a severe instability of mental state and having symptoms of acute and chronic psychosis. Her recent assault on a fellow patient suggested that her level of irritability and impulsivity remained problematic despite assertive management in a highly regulated environment. This assessment was said to indicate a high loading of modifiable clinical risk factors for violence in the short to medium term.
5. As to future risk management factors, Dr Singh noted that even though the defendant had been provided highly specialised intensive psychiatric care by a highly skilled multidisciplinary team within a high secure inpatient unit, this had not attenuated her acute symptoms of psychosis or her reactive, unpredictable aggression. It was also noted that the defendant was unable to live independently in supported accommodation and deteriorated rapidly when transitioned to such independent living in 2012. Her treatment response has been minimal and it was highly unlikely that the defendant would be able to comply voluntarily with her treatment plan or even manage the restrictions imposed by her physical health problems, such as diabetes, effectively. She would require assertive and consistently implemented external supervision and support to manage the risk factors.
6. In assessing the defendant's protective factors, Dr Singh used the Structured Assessment of Protective Factors for Violence Risk 2nd Edition (SAPROF). It was noted that the defendant had a dearth of such factors.
7. Dr Singh was of the opinion that the defendant suffered from a mental illness, namely schizoaffective disorder, which seriously impaired her mental functioning and was characterised by the presence of all of the following symptoms: delusions; hallucinations; serious disorder of thought form; a severe disturbance of mood; and sustained or repeated irrational behaviour. In addition the defendant suffered from substance use disorder, which was in remission in a controlled environment, and post-traumatic stress disorder.
8. Dr Singh was of the opinion that the defendant's risk of harm could not currently be adequately managed by way of guardianship orders and she was unaware of any facility other than the Forensic Hospital that would be able to provide the level of security and support she required. In addition, as the defendant was acutely unwell and had no insight into her illness or ability to provide informed consent to treatment interventions, the risk of harm could not be adequately managed if she were free of any coercive orders.
9. It was Dr Singh's opinion that the defendant's risk of causing harm to others was unlikely to change in the short to medium term. Should her mental health improve and stabilise, Dr Singh thought the defendant would benefit from oversight from the Mental Health Review Tribunal (MHRT) during any transition back to the community.
10. Dr Singh concurred with Dr Eagle's opinion that the process of engaging in multi-risk assessments with independent practitioners, and the stress of multiple court proceedings were potential destabilisers for the defendant and therefore, if an extension order were considered appropriate, it should be for a period of five years.
11. Based upon the structured risk assessment framework referred to above, Dr Singh was of the opinion that the defendant presented with a high loading of risk factors for violence and hence fell into the high risk category of people with an elevated future risk of violence. This was said to be so whether she remained a forensic patient or not. Dr Singh also thought it highly unlikely that her modifiable risk factors could be addressed and her protective factors could be enhanced in the short to medium term.
12. If the defendant ceased to be a forensic patient, Dr Singh thought it likely that she would remain at the Forensic Hospital where she would receive equivalent treatment to what she would receive if she were a patient under the Mental Health Act 2007 (NSW), sometimes called an involuntary, civil patient. Therefore, the risk of causing serious harm to others would not necessarily increase, if she ceased to be a forensic patient and remained in the Forensic Hospital. However, this was qualified to a certain extent when Dr Singh went on to say: "If [the defendant] is discharged to a less restrictive environment, then her status as a forensic patient would likely enhance her access to suitable treatment options in the community, such as a medium secure unit, and hence mitigate her risks to others. If she ceased to be a forensic patient, then her access to such appropriately secure accommodation may be more limited, given the scarcity of this resource. It is my opinion that [the defendant's] current risks cannot be managed in a non-forensic facility at present, though she may be suitable for transfer to a non-forensic facility if her illness is stabilised. As detailed in Dr Eagle's report dated 20th March 2019 (8.1.5.4) 'if [the defendant's] forensic status were to end, the role of the [MHRT] would change. As a forensic patient, the MHRT has input into the suitability of [the defendant's] placements, must approve any proposed leave or release and can impose conditions and restrictions upon release. The mandate and emphasis of the MHRT differs with respect to forensic patients compared to involuntary (non-forensic patients). As a forensic patient, the MHRT must consider the safety of the community in considering any plan for leave and/or release. As a non-forensic patient, the emphasis is on the least restrictive option for care and the MHRT [can] only intervene if the person meets the definitions of a mentally ill person. In the latter case, a designated medical officer can discharge the person at any time when a least restrictive option becomes available.' As explained above, if [the defendant] where a forensic patient, [she] could not be released without the approval of the MHRT and they would have significant oversight and input into the suitability of her treatment plans, including her risk management plans and the proposed accommodation options. Further, in the absence of a forensic order, should [the defendant's] mental health deteriorate in the community, transfer back to the high secure Forensic Hospital is likely to be more difficult to achieve as an involuntary civil patient."

Report of Assoc Prof Basson dated 10 July 2019

1. Prof Basson saw the defendant at the Forensic Hospital on 28 June 2019 and reviewed the documentation provided in relation to this matter. He also referred to the HCR-20 v 3 assessment tool used in forensic psychiatric practice to assess future risk. He identified historical factors, clinical factors and risk factors, which were largely consistent with those identified by Dr Singh and referred to above. In Prof Basson's opinion, based on this assessment, the defendant remained at high risk of violence to others as long as her psychosis was unresolved.
2. In his formulation, Prof Basson was of the view that the defendant presented as a patient with seriously treatment resistant schizophrenia with a history of disturbed upbringing involving abuse and multiple care placements and a significant history over 30 years of substance misuse, some of which were markedly psychoactive. Her mental state made therapeutic activities such as occupational therapy and psychology almost impossible. He noted that placement of the defendant at the Forensic Hospital as opposed to prison had brought about some improvement but this had required her to be in the High Dependency Unit of Austinmer Ward of the High Secure Forensic Hospital.
3. Prof Basson was of the view that the defendant was a mentally ill person as defined in the Mental Health Act suffering from schizoaffective psychosis.
4. It was his opinion that the defendant remaining a forensic patient in the Female Ward of the Forensic Hospital (Austinmer) and particularly the High Dependency Unit was the least restrictive environment for her at the present time in order to protect her from self-harm and harm to others. The defendant had complex medical and psychiatric problems that that would take years to manage and maybe settle. In Prof Basson's view, should the defendant be assessed in the future as capable of moving from the Forensic Hospital to a lesser security environment, such a move needed to be overseen by the Forensic Section of the MHRT as it is conversant with the risk, safety and mental health issues involved.
5. In his report and in his oral evidence, Prof Basson expressed the view that in relation to overseeing her care in the Forensic Hospital and should the Forensic Section of the MHRT form the view that she no longer required that level of security, the defendant would be best managed as a forensic patient because of the checks on risk and monitoring of risk management and care plans available to such a patient. As I understood it, this was based in part upon the fact that, in the case of forensic patients, the MHRT was required to consider the safety of members of the public and protection of others from serious harm, as well as the care and safety of the patient, whereas in the case of civil, involuntary patients, they could be discharged by an authorised medical practitioner without necessarily having regard to the safety of the members of the public or the protection of the community.
6. In oral evidence, Prof Basson described some of the other differences in the approach and processes dealing with forensic patients compared to civil, involuntary patients including that: "So if you are proceeding through the system [as a forensic patient], first of all a regular risk assessment on a three‑monthly basis has to be done and, within the forensic network, that risk assessment is done by a trained forensic team. [At the six‑monthly MHRT review] Civil patients tend to rely on a report, whereas [for] a forensic [patient], we [the forensic team] would have to put in the report and we would have to show that we have done the risk assessment that we have done the risk management plan, that we have a proper worked out care plan and, in addition, that we are prepared to be carefully cross‑examined about our reasoning behind all of this."

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others - cl 7(2)(i)

1. The letter from Dr Ellis, Superintendent of the Forensic Hospital, indicated that civil, involuntary patients are admitted to the Forensic Hospital in circumstances where other facilities have not been able to safely and effectively manage them. In these circumstances, it was highly unusual that an individual authorised medical officer would discharge such a patient without reference to any other staff. Usually, such patients would not be discharged directly to the community but to another declared mental health facility, a disability service provider or accommodation provided by Corrective Services.

Unacceptable risk

1. In light of the defendant's criminal history, the nature and circumstances of the index offences, the matters referred to in cl 7(2) considered above and in the previous reasons for decision and, especially, the opinions of, and material reviewed by, Dr Eagle, Dr Singh and Prof Basson, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if she was released and was no longer a patient in the high security environment of the Forensic Hospital.
2. I also accepted the psychiatric experts' opinions that the risk that the defendant posed of causing serious harm to others was essentially the same provided that she was detained in the Forensic Hospital, whether as a forensic patient or a civil, involuntary patient. It did not follow from this, however, that the defendant did not pose an unacceptable risk of causing serious harm to others if she ceased being a forensic patient. Why this is so depends principally on the nature of test in cl 2(1) of Sch 1 to the MHFP Act, understood in the context of the MHFP Act as a whole.
3. Clause 2(1) of Sch 1 of the MHFP Act provides: "(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."
4. That clause contains a two-step process of analysis. First, the Court must determine whether it is satisfied to a high degree of probability that the patient poses an unacceptable risk "if he or she ceases being a forensic patient": cl 2(1)(a). Then, the Court must consider whether or not it is satisfied to the same standard that there are other "less restrictive means" that could be used to manage that risk adequately: cl 2(1)(b).
5. When considering the first step in cl 2(1)(a), the Court must take into account that under s 54 of the MHFP Act, a person who ceases to be a forensic patient "must be discharged from the mental health facility in which the person is detained" unless the person has been classified as an involuntary patient under s 53 of the MHFP Act.
6. Section 53 relevantly provides: "(1) The Tribunal may, on a review of the case of a forensic patient detained in a mental health facility, correctional centre or other place following a special hearing, classify the patient as an involuntary patient if the patient would, by virtue of the operation of this Act or any other law, cease to be a forensic patient within 6 months after the date of the review. (1A) The Tribunal is not to classify the patient as an involuntary patient unless: (a) each Minister entitled to apply for an extension of the patient's forensic status under Schedule 1 has notified the Tribunal that an application for an extension is not proposed to be made, or (b) the Supreme Court has dismissed an application for extension of the patient's forensic status under Schedule 1. … (2) The Tribunal may order that a patient classified as an involuntary patient under this section be transferred from a correctional centre to a mental health facility. Note. A person classified as an involuntary patient ceases to be a forensic patient, see section 52 (2)."
7. A person can only be classified as an involuntary patient under s 53 if, among other things, no application for an extension of the person's forensic status is proposed to be made or this Court has dismissed an application for extension of the patient's forensic status under Schedule 1: s 53(1A)(a) and (b). Neither of those conditions could be satisfied when the Court is in the very process of considering an application for an extension of the status of the person as a forensic patient.
8. Consequently, when determining whether the requirement in cl 2(1)(a) has been satisfied, the Court is to determine whether the person would pose an unacceptable risk of causing serious harm to others, if the person was released from the mental health facility in which the person is detained.
9. This approach is appropriate because it avoids confusing the two steps involved in cl 2(1)(a) and (b). Alternative means of managing the unacceptable risk, including by admission as an involuntary patient, are able to be considered when determining whether cl 2(1)(b) has been satisfied.
10. Adpoting this approach and in light of the evidence which I accepted in the previous reasons and these reasons, I was satisfied to the requisite standard that the defendant in this case did pose an unacceptable risk of harm to other if she ceased to be a forensic patient.

Adequate management by other less restrictive means

1. The defendant submitted that there were "other less restrictive means" of adequately managing the risk posed by the defendant, namely admission to the Forensic Hospital as an involuntary patient under the Mental Health Act. Ms Goodhand relied upon, among other things, the evidence of Dr Eagle and Dr Singh that it would be unlikely there would be any greater risk of the defendant causing harm to others, if she was an involuntary, civil patient rather than a forensic patient, provided she remained in the Forensic Hospital.
2. The test in cl 2(1)(b) of whether the risk cannot be adequately managed by other less restrictive means involves: 1. identifying whether the risk of causing serious harm to others can be adequately managed by the alternative proposed; and 2. determining whether the alternative is less restrictive than the regime that would apply if an extension order were made. This is to be judged by reference to, among other things, the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96].
3. The phrase "adequately managed" has been taken to mean that the unacceptable risk is mitigated by the proposed alternative so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63].
4. The legal and some of the practical implications of admission as a civil, involuntary patient compared to being a forensic patient have been considered in detail by Adamson J in Doolan (No. 2) at [96]ff and helpfully summarised in Minister for Mental Health v Paciocco [2016] NSWSC 1530 (Paciocco) by Beech-Jones J at [61]-[64] as follows: "61. … The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]). 62. The second difference relates to release. Her Honour noted that with a forensic patient the [MHRT] may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]). 63. The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient 'to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan' (Doolan No 2 at [115]). 64. The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118])."
5. This analysis is consistent with the evidence given by the psychiatrists in this matter concerning the differences in the practical operation of the regimes applicable to forensic patients and civil, involuntary patients, in the Forensic Hospital.
6. Dr Eagle's opinion was that the defendant could not be effectively managed in the absence of any coercive orders and her risk was unlikely to change significantly over the next five years. Dr Singh's view was also that, in the defendant's present circumstances, the risk of harm to herself and others could not be adequately managed if she were free of any coercive orders and this risk was unlikely to change in the short to medium term. In Prof Basson's opinion the defendant remaining a forensic patient in the Female Ward of the Forensic Hospital (Austinmer) and particularly the High Dependency Unit was the least restrictive environment for her at the present time in order to protect her from self-harm and harm to others. He also explained the more intensive supervision regime in the Forensic Hospital applicable to forensic patients, compared to civil, involuntary patients in his evidence, which has been referred to above. In my view, this more intensive level of supervision for a forensic patient such as the defendant provided a desirable level of risk management which would not be available in respect of civil, involuntary patients.
7. In the longer term, should the applicant's mental health improve and stabilise, Dr Singh thought it would be beneficial if the MHRT oversaw the process of transition back to the community with the defendant as a forensic patient. Dr Eagle and Prof Basson were, in effect, of the same view.
8. This regime of oversight includes s 43 of the MHRT Act, which provides that a forensic patient cannot be released by order of the MHRT unless it is satisfied, on the evidence available to it, that: "(a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care."
9. In determining whether to make an order under s 43 and what conditions to impose under s 75, the MHRT must have regard under s 74 of the MHFP Act, among other things, to: "(b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for … the protection of others from serious harm, … (d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release …"
10. These provisions ensure that the risk of serious harm to others and protection of the community is appropriately considered when decisions concerning a forensic patient are made. There are no provisions having a similar effect in respect of civil, involuntary patients.
11. On a practical level, Dr Eagle noted that: "If she were to be transferred to an alternative facility, forensic patient status would enable substantially more oversight by the MHRT of her risk management, care and treatment than if you were not a forensic patient. She would be more easily recalled to secure hospital settings for treatment and the containment of her risk."
12. Similarly, Dr Singh observed that: "in the absence of a forensic order, should [the defendant's] mental health deteriorate in the community, transfer back to the high secure Forensic Hospital is likely to be more difficult to achieve as an involuntary civil patient."
13. Being able to have the defendant more readily transferred back into a secure setting, if required, would also be of significant assistance in managing the risk she poses of causing serious harm to others in the longer term.
14. Having regard to the differences explained in Doolan No 2, the evidence of the psychiatrists and the relevant statutory provisions, I was satisfied to a high degree of probability that, in the defendant's case, the risk she poses of causing serious harm to others could not be adequately managed by less restrictive means than by extending her status as a forensic patient, whether she remains in the Forensic Hospital or becomes suitable for discharge to a less restrictive facility.

Length of an extension order

1. Dr Eagle and Dr Singh both explained that the process of engaging in risk assessments processes with independent practitioners, and the stress of multiple court proceedings were potential destabilisers for the defendant and, therefore, if an extension order were considered appropriate, it should be for a period of five years. Prof Basson's view was that the extension order should be in place for some considerable time and five years would be appropriate because that was the limit.
2. I accepted that to minimise the potential for adverse consequences for the defendant's mental health and to allow sufficient time for any transition to a less restrictive environment to be properly assessed and possibly trialled, an extension for a period of 5 years was appropriate.

Order made

1. Accordingly, on 16 August 2019, I ordered: 1. Pursuant to s 54A of the Mental Health (Forensic Provisions) Act 1990 (NSW) and cll 1 and 7(1)(a) of Schedule 1 to that Act the defendant's status as a forensic patient is extended for a period of 5 years.

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: 02 September 2019