HIS HONOUR: By summons filed on 15 May 2024, the Attorney General for New South Wales seeks an order pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") against the defendant, Barbara Perry, extending the defendant's status as a forensic patient pursuant to ss 121, 127(1)(a) and 128 of the Act. The plaintiff seeks the order for a period of three years.
The defendant appears by her tutor, Dr Katherine Pavlidis Johnson. I note that as a forensic patient, the defendant is a "person under a legal incapacity": Civil Procedure Act 2005 (NSW), s 3. As such, r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) requires the appointment of a tutor to carry out the proceedings.
In the event, the defendant chose not to be present herself. I was informed that this decision was made based on the distress the proceedings caused to her. Her tutor appeared by audio-visual link.
[2]
Background
The defendant is a 43-year-old Indigenous woman born in July 1980. The defendant has been detained since her arrest on 2 April 2014. She was at that time charged with one count of aggravated assault with intent to rob with wounding, causing grievous bodily harm and two counts of assault occasioning actual bodily harm. The defendant was found unfit to be tried with respect to those offences on 14 July 2017. Judge Girdham SC found that on the limited evidence available, the defendant committed the three offences as charged. On 18 August 2017, Girdham SC DCJ imposed limiting terms with respect to the three offences totalling a period of 5 years and 2 months commencing on 2 April 2014.
Prior to the expiry of that limiting term, application was made for an extension of the applicant's status as a forensic patient pursuant to the Act. As a result of that application, the defendant's status as a forensic patient was extended for a period of five years by Wright J: see Attorney General for New South Wales v Perry (No 2) [2019] NSWSC 1141.
Prior to the expiry of that order, the present summons was filed seeking a further extension. The matter came before me on 1 August 2024 for a preliminary hearing. On that date I made an interim order for the extension of the defendant's status as a forensic patient commencing from the expiry of the existing order on 15 August 2024, for a period of three months. Additionally, I made an order appointing two qualified psychiatrists, registered psychologists or medical practitioners or a combination of such persons to conduct separate examinations of the defendant and to furnish reports on the results of those examinations: see Attorney General for New South Wales v Perry (bht Johnson) (Preliminary) [2024] NSWSC 1002 ("preliminary judgment"). In accordance with those orders, the defendant was examined by, and reports were prepared by, Dr Anna Farrar and Dr Calum Smith. The matter was listed before me for final hearing today.
I set out aspects of the background to the proceedings in my reasons on the preliminary hearing. I will not repeat those matters here. I also set out the legislative framework in those reasons. Again, I will not repeat all of what is set out in that regard.
There is, on the present application, no issue that the formal preconditions for the making of an order are satisfied The test to be applied before making any order as sought by the plaintiff is provided by s 122 of the Act. That section provides:
122 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 Part 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 the patient ceases to be 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.
Note -
Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
[3]
Consideration
The defendant, through her counsel, does not oppose the making of a further order, conceding that I would find the test in s 122 to be satisfied. The defendant does, however, contend that any order should be limited to a period of two years and not three years, as sought by the plaintiff.
The defendant's concession as to the making of an order is, in my view, appropriate and should be accepted. That is to say I am satisfied that (a) the defendant poses an unacceptable risk of causing serious harm to others if she were to cease being a forensic patient; and (b) that risk cannot be adequately managed by other less restrictive means. I have come to that view having considered the various matters set out in s 127(2) of the Act as found in the evidence tendered before me. I note that that evidence replicates the evidence tendered on the preliminary application, subject to the tender of additional evidence primarily consisting of evidence and reports not in existence at the time of the preliminary hearing.
I note that at the time of the preliminary hearing I had regard to the evidence in the context of the test to be applied at that stage. Nonetheless, subject to that caution, it is sufficient to refer for the purposes of these reasons to the most significant evidence that has since become available. That evidence is primarily the Mental Health Review Tribunal decision of 8 August 2024, the reports of Drs Farrar and Smith and the report the defendant's treating team provided to the Mental Health Review Tribunal for the purposes of their decision of 8 August, together with a short email provided by a member of that treating team with the input of the defendant's treating psychiatrist. Drs Farrar and Smith were, I note, provided with, and had regard to, the materials tendered on the preliminary application. The Mental Health Review Tribunal is also, of course, well appraised of the defendant's situation and background reports.
[4]
The Mental Health Review Tribunal decision of 8 August 2024
The defendant was most recently reviewed by the Mental Health Review Tribunal on 8 August 2024, one week after the preliminary hearing before me. The Tribunal determined that there should be no change to the current orders. The effect of that determination was that the defendant was to remain detained at the forensic hospital appropriate to her needs, having regard to her safety and the safety of others. The Tribunal further determined that the defendant may exercise escorted day leave, supervised day leave and supervised overnight leave for up to six nights per week, subject to the discretion of the medical superintendent. The Tribunal noted that the defendant remains unfit to be tried, a situation which shows no sign of abating.
The Tribunal in its reasons for determination noted that the defendant is currently detained at the Austinmer Women's Unit at the forensic hospital. Assessments, had in March 2024, taken place for the purposes of placement at the Bunya Unit. I take it from the materials that that is a unit for forensic patients with a lower level of security. Unfortunately, the defendant has been unable to transfer to that unit. I note in this regard that the result appears to be that the defendant's transition to the community will necessarily be one involving a transition process from the Austinmer unit, or at least a facility of a similar level of security.
With regards to that transition process, a supported independent living property in Newcastle has been located by the defendant's NDIS provider. The Tribunal noted that the defendant had viewed the property and accepted it. She has also begun the process of meeting her support workers and the Tribunal noted that thus far they have been well-received by her. This would tend to indicate positive, although preliminary steps towards transition following what has been, on the defendant's history, something of a road of ups and downs. The Tribunal noted that the defendant had also undertaken therapeutic leave to attend Malabar beach in addition to viewing the property. There is no suggestion that the overnight leave available pursuant to the conditions has been undertaken. The Tribunal report notes that the plan is for slow transition, with the defendant meeting all of the support workers who will assist her, multiple times before discharge.
The report of the defendant's treating team dated 23 July 2024 and provided to the Tribunal for the purposes of their determination was also tendered before me. The version tendered before me, I am told, was revised to correct some inaccuracies in an earlier form of the report, particularly as to the defendant's history of recent violence. Notably, that report states that the defendant has "not demonstrated any physical violence towards staff or patients" over the past year. The report documents six instances of verbal aggression or aggression towards staff since January 2024. The report notes that the increase in aggressive incidents over the six-month period could be as a result of delays in her discharge process as well as ongoing cultural dislocation and sporadic contact with her family and changes in ward milieu.
The report states that, despite these outbursts of aggression, they being in the nature of slamming doors, hitting walls and throwing objects, there has been no physical aggression towards other people since July 2023. The report notes that while the defendant's risk profile has not significantly changed, she has demonstrated a greater period of being behaviourally settled and also demonstrated improvements in managing interpersonal conflict without resorting to violence or aggression towards staff or peers.
A selection of notes from the Justice Health file were also tendered, indicating in a general sense, positive interactions and, consequently, what appears to be positive progress on the part of the defendant.
[5]
Dr Farrar
Dr Farrar assessed the defendant on 30 August 2024 for a period of two hours. She reported that the defendant was cooperative but an unreliable historian due to her prominent psychotic symptoms and cognitive impairment. Dr Farrar described the defendant as displaying prominent thought disorder including prominent delusions. Dr Farrar expressed the opinion that the defendant suffers a chronic mental illness, that being a schizoaffective disorder which she notes is a psychotic disorder. Dr Farrar reported that the defendant's illness is characterised by chronic and treatment-resistant delusions, hallucinations and thought disorder.
Dr Farrar is of the opinion that the defendant is a mentally ill person as defined under the Mental Health Act 2007 (NSW) due to the presence of those disorders, in turn resulting in a significant risk of harm to the defendant and others.
Dr Farrar assessed the defendant as posing a moderate to high risk of causing serious harm to others and, in Dr Farrar's opinion, the defendant does pose a risk of causing such harm should she cease to be a forensic patient. That ongoing situation appears to be as a result of the treatment-resistant nature of the defendant's illness.
Dr Farrar reported her view that an extension to the defendant's status as a forensic patient would allow for a more gradual supervised step-down to the community. Such a process would, it is anticipated, include conditional release, overseen by the Mental Health Review Tribunal. In Dr Farrar's opinion, the most appropriate way to manage the defendant's risk is through this process. She considers the continuation of the defendant's status as the least restrictive means available capable of adequately managing the defendant's risk of serious harm to others.
[6]
Dr Smith
Dr Smith saw the defendant on 2 and 16 September 2024 via audio-visual link. Dr Smith reported significant portions of his interviews with the defendant. That report provides a vivid picture of the extent of the defendant's delusions and her degree of thought disorder.
Dr Smith is of the opinion that the defendant suffers from treatment-resistant schizophrenia which he notes has been a consistent finding of clinicians who have assessed her over many years. He notes that many clinicians have also diagnosed an additional mood component suggesting that the correct diagnosis is a schizoaffective disorder.
Dr Smith was of the opinion that, in addition to the chronic treatment-resistant schizophrenia, the defendant suffers a cognitive impairment. He observed a history of longstanding and entrenched violence, seemingly related to symptoms of the defendant's illness. He observed that this has been difficult to treat but that there has been a small degree of abatement more recently.
In terms of assessing the defendant's risk, Dr Smith noted the presence of a high loading of historical and clinical risk factors. He observed that the defendant remains acutely unwell and lacking insight into her illness, her need for treatment and the risk that this poses to herself and others.
Dr Smith was of the view that having regard to the defendant's past behaviour, the relationship between that behaviour and her mental state, her ongoing clinical state and her cognitive impairment, there is a high degree of likelihood of future violence. Dr Smith reported that there was, as a result, a need for a high degree of care and implementation of restrictions in order to safely manage the defendant.
Dr Smith expressed the opinion that the defendant will pose a serious risk of harm to others if she ceases to be a forensic patient. He categorised the risk as high. Whilst noting that there has, over a reasonably significant recent period, been an abatement of the aggressive behaviours, he cautioned in his report that that abatement has occurred in a stable and controlled environment with a high level of staff support, including a full multidisciplinary team, treatment including medications prescribed for the most serious cases of illness and a high level of psychosocial support. He noted that the defendant's abstinence from what I take to be a reference to illicit drugs has also strongly contributed to the abatement in interpersonal aggression.
Dr Smith notes that any change to these factors, either individually or collectively, would increase the defendant's risk of causing serious harm to others. Given those considerations, Dr Smith was of the view that the defendant should remain a forensic patient in order to properly manage the risk of serious harm which she presents. In Dr Smith's opinion, the main benefit of the defendant remaining a forensic patient is that she would be subject to regular reviews by the Tribunal.
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Detention under the Mental Health Act?
Given the view of the psychiatrists that the defendant is mentally ill, the reality would appear to be that if the defendant was not to remain a forensic patient, she would be detained as an involuntary patient under the Mental Health Act, that is, she would be detained on the basis that she suffers a mental illness and presents a danger to herself and others. In that context, both Dr Smith and Dr Farrar considered the appropriateness of her detention as a forensic patient as compared to her detention as an involuntary patient or potentially a person subject to a community treatment order. Both Drs Farrar and Smith were of the view that, amongst those options, treatment as a forensic patient was appropriate, maintaining the view that the defendant's risk cannot be adequately managed by other less restrictive means. Dr Smith noted in this regard that the defendant is a person who, even by the standards of forensic patients, is very complex. He notes that should the defendant transfer to a general adult unit as an involuntary patient, there will be a loss in that the staff at that facility will not have the same experience that has been built up by the present treating team.
Dr Smith noted the possibility that the defendant could be taken off her forensic status but remain at the Forensic Hospital. Dr Smith noted issues with such a plan. Beyond the issues noted by Dr Smith, the primary difficulty that I see is that there would be no guarantees that the defendant would be kept in the Forensic Hospital either in the immediate future or longer term. That would be, given the evidence, undesirable.
Dr Farrar, in a short supplementary note, advised that from her perspective the primary difficulty with managing the defendant as an involuntary patient is that it would not allow for the same level of structured transition to the community. She observed that it, firstly, would not allow for a step-down to a medium secure Forensic Hospital such as the Bunyip Unit. As I have indicated, it seems that such a transition will not occur. More significant then, having regard to that fact, is Dr Farrar's opinion that management in the community under a conditional release order as a forensic patient has an advantage over management under a community treatment order which would be the case if released after a period of detention as an involuntary patient.
[8]
Conclusion
Having regard to the evidence, the considerations under s 127(2) and particularly the recent reports of Drs Farrar and Smith, I am of the view that the defendant poses an unacceptable risk of causing serious harm to others should she cease to be a forensic patient and that risk cannot be adequately managed by other less restrictive means.
[9]
The Duration of the Order
In my reasons granting the interim order, I noted that the defendant has made progress, particularly and critically as regards a reduction in incidents of violence. I observed that (at [46] of my preliminary judgment):
"In that context, the determination in this matter should not be seen as a further step in an endless cycle of extensions."
That observation remains true.
The plaintiff, in the summons, seeks an order for three years. Dr Farrar expressed the view that three years would be appropriate. Dr Farrar reported that such a period would allow for ongoing assessment for personality disorder and neurocognitive disorder, drug and alcohol treatment, possible psychological treatment including offence-specific treatment and a planned transition to supported independent living and conditional release planning.
Dr Smith's opinion as to the appropriate length of an order was that it should be for a period of two to three years. He indicated his view that in determining the issue a balance has to be struck between the benefit of monitoring provided by the defendant's status as a forensic patient on the one hand and the tenet of least restrictive care on the other, observing that there is no particular research basis to use to answer this question.
Insofar as Dr Farrar based her view on the need to allow time for various testing to be done and treatment to be provided, Dr Smith was asked and gave his opinion with respect to the utility of such treatments. In Dr Smith's view, the value of assessing the defendant for personality disorder or neurocognitive disorder or undertaking drug and alcohol treatment and offence-specific psychological treatment is dubious. In short, that view is based on the chronic nature and ongoing symptoms of the defendant's mental illness resulting in Dr Smith's view that "without wishing to put too fine a point on it, I think it would be likely to be a waste of time".
Dr Maryam Nesvaderani, a member of the treating team, also provided a view, having discussed the matter with the defendant's treating psychiatrist, Dr Daniel Riordan. In short, there appears to be no likelihood that the treating team would undertake such testing or treatments. The result is that at least some of the foundation for Dr Farrar's view that a term of three years is appropriate is undermined.
The defendant, as I have indicated, advocates for a term of two years. In that context, it is submitted that the defendant has demonstrated feelings of hopelessness at the prospect that she may never be released from the Forensic Hospital. The defendant's concern in this regard is identified as a risk factor for deterioration in her presentation, thus contraindicating the benefit of an order for as long as three years. In the defendant's submission, an order for two years would appropriately balance the risk that the defendant currently demonstrates if not subject to an order, against the risk that an overcautious approach will extinguish hope in the defendant for release, potentially precipitating a deterioration. Such a deterioration will both increase the risk posed by the defendant and delay any ultimate release to the community.
As I have observed, the defendant was subject to an overall limiting term of five years and two months, followed by an extension for a period of five years, with the result that she has been continuously detained since her arrest on 2 April 2014. Her current mental illness and overt symptomology are such that transition to the community within two years may appear optimistic. The reality is, though, as I understand the opinion of the experts, the defendant's condition will remain ongoing, but it is hoped that that condition can be managed so that it does not result in a risk of serious harm to others.
Given the difficulty identified by Dr Smith in determining an appropriate length of time together with the potential detrimental effect on the defendant of an order for as long as three years, I am of the view that the appropriate term is one of two years.
[10]
Orders
I make the following order:
1. Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant be subject to an order for the extension of her status as a forensic patient for a period of two years from today.
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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: 30 October 2024