Attorney General for New South Wales v Randall

An Overview of the Case

1. The Defendant was born in February 1960 and is now 61 years of age.
2. On 6 March 2019, the Defendant was charged that, on 23 January 2019, he committed an offence of wounding with intent to cause grievous bodily harm (s.33(1)(a) Crimes Act 1900) and, in the alternative, reckless wounding (s.35(4) Crimes Act 1900).
3. On 10 December 2019, her Honour Judge English found the Defendant unfit to be tried and referred him to the Mental Health Review Tribunal ("MHRT") under s.14(b) MHFP Act.
4. On 13 December 2019, the MHRT found that the Defendant remained unfit to be tried, but adjourned the question as to whether he would become fit and ordered his transfer to and detention at Long Bay Hospital within the Long Bay Correctional Complex.
5. On 11 June 2020, the MHRT review was adjourned and, on 19 June 2020, the MHRT determined that the Defendant remained unfit and would not become fit to be tried within 12 months.
6. On 2 September 2020, her Honour Judge Baly SC conducted a special hearing at which the Defendant was found not guilty on Count 1 (the s.33(1)(a) offence). With respect to Count 2 (the s.35(4) offence), her Honour found the Defendant, on the limited evidence before the Court, to have committed the offence. Pursuant to ss.24 and 27 MHFP Act, the Defendant was referred to the MHRT to be detained in a mental health facility for the duration of a limiting term which her Honour specified as being a period of one year and 10 months commencing on 6 March 2019 and expiring on 5 January 2021.
7. The Defendant was and remains a forensic patient in the charge of the MHRT. He has been in continuous custody since 6 March 2019 having been detained variously at the Metropolitan Reception and Remand Centre ("MRRC"), the Mental Health Screening Unit of the MRRC and the Mental Health Unit of the Long Bay Hospital pursuant to orders made by her Honour Judge Baly SC and the MHRT.
8. In a report dated 5 November 2020 prepared for the purposes of Clause 5(b) of Schedule 1 MHFP Act, Dr Kerri Eagle, forensic psychiatrist, noted the Defendant as having a long-term diagnosis of treatment resistant schizoaffective disorder resulting in persistent positive symptoms of psychosis, including thought disorder and delusions. Due to his high loading of risk factors, including historical risk factors, persistent clinical risk factors and risk management factors, Dr Eagle considered that the Defendant would be a high risk of causing serious harm to others if he ceased to be a forensic patient and expressed the opinion that there were no less restrictive means to manage that risk.
9. As noted earlier, on 16 December 2020, Button J granted an interim extension order for a period of three months from 5 January 2021, with that period to expire on 4 April 2021, and appointed two experts to examine the Defendant and prepare reports for the Court.
10. On 20 January 2021, the Defendant was transferred to the Forensic Hospital at Malabar.
11. Dr Ellis and Dr Singh each examined the Defendant and have prepared reports for the Court. In the reports, Dr Ellis and Dr Singh agree as to a diagnosis of schizoaffective disorder and substance use disorder, the second of which is in remission in a controlled environment.
12. Both experts express the opinion that the Defendant poses a risk of causing serious harm to others.
13. There is some divergence in the opinions of the court-appointed experts as to whether there is a less restrictive means available to manage the risk posed by the Defendant.
14. Dr Singh has expressed the view that there is no less restrictive means to ameliorate the Defendant's risk than to extend his status as a forensic patient for a period of two-to-three years.
15. Dr Ellis is of the view that either the extension of his status as a forensic patient (for a period of two years) or his reclassification as an involuntary patient under the Mental Health Act 2007 is appropriate, without expressly providing an opinion as to which ought be preferred, although Dr Ellis does note that forensic patient status allows for rapid recall to hospital in the event that the patient deteriorates.
16. Dr Eagle's opinion was that extension of the Defendant's forensic patient status constituted the least restrictive means appropriate to the case.

Threshold Requirements

1. I am satisfied that each of the threshold requirements for an application such as this are satisfied in this case: 1. the Defendant is a forensic patient who is subject to a limiting term (Clause 4(1), Schedule 1, MHFP Act); 2. the Plaintiff's application was not made more than six months before the end of the limiting term (Clause 4(2), Schedule 1, MHFP Act).
2. Further, the Plaintiff's application is supported by documentation addressing the matters referred to in Clause 7(2) of Schedule 1, MHFP Act. This includes a report (from Dr Eagle) assessing the Defendant's risk of causing serious harm to others, addressing the need for ongoing management of the Defendant as a forensic patient and giving reasons why the risk of the Defendant causing serious harm to others cannot be adequately managed by other less restrictive means (Clause 5, Schedule 1, MHFP Act).

Applicable Legal Principles

1. The Plaintiff bears the onus of satisfying the Court to a high degree of probability that the Defendant: 1. poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and 2. that this risk cannot be adequately managed by other less restrictive means.
2. It is not necessary that the risk of the person causing serious harm is more likely than not for the person to satisfy the unacceptable risk precondition (Clause 2(2), Schedule 1, MHFP Act).
3. With respect to the first issue (in 31), as R A Hulme J observed in Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 at [16], a "risk of causing serious harm to others" may concern physical or psychological harm. If the harm is physical, "serious harm" does not require harm to the level of "grievous bodily harm", but contemplates something more than would satisfy the minimum threshold for "actual bodily harm" under the criminal law. The threshold for "actual bodily harm" is relatively low. Injury need not be permanent, but must be more than merely transient or trifling with bruises and scratches to a victim being typical examples of injuries which constitute actual bodily harm: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [44].
4. With respect to the second issue (in 31), the question of "less restrictive means" directs attention to the management of the person's risk under the available statutory regimes, including the MHFP Act and as a civil patient under the Mental Health Act 2007. The nature of the risk posed must be assessed by reference to past conduct, the seriousness of possible future conduct and the period over which the risk may come to fruition based on the absence of protective measures: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126]; Attorney General for New South Wales v Peterson (bht Rodrigues) [2020] NSWSC 651 at [16].
5. Clause 7(2) of Schedule 1, MHFP Act requires the Court to have regard to a number of factors when determining whether or not to make a forensic patient extension order. Clause 7(2) provides: "(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others."

The Defendant's Troubled Psychiatric History and its Intersection with the Criminal Law

1. As noted earlier, the Defendant is now 61 years old. He has suffered from schizophrenia for most, if not all, of his adult life.
2. The Defendant committed offences as a child and young adult, including break, enter and steal, driving offences and drug possession offences. The Defendant was diagnosed with chronic treatment resistant schizophrenia in his early 20s. He became a client of a mental health service at the age of 24 years and was diagnosed with schizophrenia (paranoid type) at that time.
3. The Defendant was convicted of two counts of assault when he was 27 years old and was convicted of further assaults when aged 29, 30, 31, 34, 37, 38 and 40 years.
4. In 1999, when aged 39 years, the Defendant wielded a knife when refusing to take his injectable medication. In May 1999, Ms Barbara McMullen of the Community Mental Health Service reported that the Defendant had a diagnosis of chronic paranoid schizophrenia, that he had been non-compliant with his treatment and that episodes of psychosis had resulted in multiple admissions to Kenmore Hospital in Goulburn.
5. In June 2000, when the Defendant was aged 40 years, Dr Roger Wenden described him as chronically delusional and thought disordered.
6. In October 2000, the Defendant threw a rock through a neighbour's window and threatened to stab a person whilst holding a long bladed kitchen knife.
7. In July 2003, the Defendant used petrol to light a fire, causing an explosion. The fire damaged the Defendant's unit and required the evacuation of neighbouring homes. The Defendant was taken to hospital pursuant to an order under s.33 MHFP Act. Dr Tran, psychiatrist, diagnosed the Defendant with chronic schizophrenia and as being psychotic at the time he lit the fire.
8. In 2004, the Defendant was admitted to Long Bay Hospital. He was assessed to have treatment resistant schizophrenia and to be prone to violent behaviour during periods of acute relapse.
9. In 2015, the Defendant threatened to pour petrol on a neighbour and set the neighbour alight, but he was not charged with an offence arising from that incident.
10. On 23 January 2019, the Defendant was detained at Waratah House having been scheduled under the Mental Health Act 2007. The Defendant lunged at a fellow patient with a metal kitchen knife and cut the other patient's lip. This attack was prompted by a delusion about the other patient. It was this incident that gave rise to the special hearing before her Honour Judge Baly SC, which led to the setting of the limiting term relevant to the present application.

Consideration of Statutory Factors Under Clause 7(2) of Schedule 1 of the MHFP Act

1. Clause 7(2)(b) of Schedule 1, MHFP Act requires consideration to be given to the reports of the court-appointed experts, Dr Singh and Dr Ellis. Reference has been made earlier to some essential features of those reports. It is not necessary to set out in extensive detail the contents of those reports, which should be available to health practitioners who are involved in the treatment of the Defendant as well as the MHRT.
2. Dr Singh undertook a clinical interview with the Defendant at the Long Bay Hospital on 16 January 2021. In her report, Dr Singh found that the Defendant was "acutely unwell" despite receiving treatment in the Long Bay Hospital and that he had "very limited insight into his illness" at that time. It is noteworthy that Dr Singh recommended that the Defendant be transferred to the Forensic Hospital. As noted earlier in the judgment, the Defendant was transferred to the Forensic Hospital on 20 January 2021 and is presently housed in the Bronte Unit.
3. Dr Singh stated that the Defendant's current risks cannot be safely contained by community-based care (pages 29-30). Dr Singh indicated that remaining on a forensic order "moves oversight from individual clinicians in health services to automatic oversight" by the Forensic Division of the MHRT. This regime would also centralise the collation of relevant information, allowing more robust risk assessment and formulation to be undertaken by individual clinicians across both health and disability services (page 30).
4. Dr Singh considered alternatives to a forensic treatment order. She rejected the option of a community treatment order based upon the Defendant's history of previous failed community treatment orders (page 30). She also considered that a guardianship order was not sufficient to contain the Defendant's current risks.
5. Dr Ellis conducted a clinical interview with the Defendant on 25 January 2021, by which time the Defendant was housed in the Forensic Hospital. Dr Ellis considered that the Defendant could be safely and effectively managed under the scheme provided by the Mental Health Act 2007 which allows for involuntary admission to hospital, administration of psychotropic medication and, when suitable, discharge under a community treatment order (page 11). However, Dr Ellis recognised the limitations upon treatment of the Defendant by order under the Mental Health Act 2007. He noted that a significant difference between the two regimes existed so that if the Defendant retained the status as a "forensic patient", his recall to hospital or prison would occur more rapidly in the event of clinical deterioration (page 11).
6. Dr Ellis observed that, with a forensic order, the Defendant would be subject to oversight by the Forensic Division of the MHRT and could only be discharged from his order by that Division (page 12).
7. Dr Ellis stated that the Defendant was not suitable, as at February 2021, for a community treatment order or guardianship order and that, if an order extending the Defendant's status as a forensic patient was made, a period of two years was recommended. At that point, a greater understanding of the progression of his cognitive function and care needs would be apparent to understand the best environment to manage his risks (page 12).
8. Clause 7(2)(c) requires consideration to be given, in particular, to the report of Dr Eagle dated 5 November 2020.
9. I cannot improve upon the summary of Dr Eagle's report as contained in the judgment of Button J in Attorney General of NSW v Randall at [31]-[34]: "31 Dr Eagle opined that his risk of reoffending is strongly correlated with his severe mental illness. She also expressed the view that he poses a risk of causing serious harm to others if he were to cease to be a forensic patient. Furthermore, she stated that the defendant would pose a significant risk of serious harm to others and would be difficult to manage if he were released directly into the community, because of the factors mentioned by me immediately above. Dr Eagle emphasised the possibility of ineffective and insufficient supports for his mental health in the community; the aggressiveness of the defendant, including with regard to enforcement of compliance; and his underlying lack of insight. 32 However, her opinion was that, if the defendant were able to access assertive and intensive mental health treatment over an extended period of time, which is more likely to be accessible as a forensic patient, he may be successfully released into the community, if the process is undertaken gradually. 33 As for the alternative of the defendant being able to be detained pursuant to the MHA, Dr Eagle noted that, in that setting, there is no oversight by the Tribunal of treatment or risk management. She was also concerned about the possibility of discharge into the community without appropriate support and monitoring. She expressed concern about management in an in-patient psychiatric facility as an involuntary patient (it is to be recalled that the limiting term was imposed after a violent incident featuring the use of a weapon within a psychiatric facility). Dr Eagle also rejected the possibility of a Community Treatment Order (CTO) or a guardianship order safely managing the defendant in the community, in light of the extensive history of failure, non-compliance, and disruption when that very way of management has been attempted over many years. 34 In short, Dr Eagle expressed the view that an extension of the forensic status of the defendant would provide oversight by the Tribunal to ensure that there is an effective risk management plan to enable his safe transition into the community."
10. I have kept in mind, of course, that Dr Eagle conducted a clinical review of the Defendant before his transfer to the Forensic Hospital on 20 January 2021.
11. It may be seen then that Dr Eagle's report accords substantially with the report of Dr Singh. In particular, Dr Eagle expressed the opinion that extending the Defendant's status as a forensic patient would "provide oversight by the Tribunal to ensure that there is an effective risk management plan to enable his safe transition into the community" (at [34]). Dr Eagle rejected the possibility of a community treatment order or guardianship order in light of the Defendant's "extensive history of failure, non-compliance and disruption" when such measures had been attempted in previous years.
12. In addition to the expert psychiatric reports obtained for the application to the Court, particular assistance has been provided by the report of Dr Ho dated 15 February 2021 which was provided to the MHRT in the discharge of its functions and should be taken into account under Clause 7(2)(d).
13. Dr Ho noted that the Defendant's overall mental state had improved and that he appeared more settled and "less pressured in speech" and "was more adherent to staff requests" (page 4). Since transfer to the Forensic Hospital, the treating team had not observed symptoms of acute mood disturbance in the Defendant (page 8).
14. Dr Ho stated that the Defendant continued to experience acute symptoms of psychosis and presented with an increased risk of violence and that he would "benefit from ongoing assessment and review by the multi-disciplinary team", with the Defendant's "placement in the Forensic Hospital [representing] the least restrictive option for his safe and effective care" (page 9).
15. Dr Ho outlined a future assessment and treatment program for the Defendant. Dr Ho concluded the report with the following summary (page 10): "It is the opinion of the treating team that Mr Randall remains a 'mentally ill person'. He has an established diagnosis of schizoaffective disorder, and he continues to [experience] paranoid delusions, perceptual disturbance of visual and auditory kind, passivity experiences and formal thought disorder. It remains the opinion of the treating team that the safety of Mr Randall and the public may be severely endangered if he was to be released into the community at this time. The treating team is of the opinion that the Forensic Hospital represents the least restrictive option for his safe and effective care. Mr Randall remains unfit for trial due to his ongoing prominent psychotic symptoms, disorganisation and cognitive impairment."
16. Clause 7(2)(e) requires consideration to be given to any order or decision made by the MHRT regarding the Defendant relevant to the present application. It is sufficient to observe that the Defendant's history before the MHRT in 2019 and 2020 confirms that deep-seated nature of his mental illness and the significant difficulties which have attended the treatment of his condition.
17. For the purpose of Clause 7(2)(g), I note that the Defendant has not been subject to release orders since becoming a forensic patient and has been in continuous custody or detention since his arrest on 6 March 2019.
18. With respect to Clause 7(2)(h), the judgment of her Honour Judge Baly SC noted, with respect to the incident giving rise to the limiting term, that there had been a serious assault upon the victim by use of a knife and that the incident was unplanned and occurred in the context of some provocation. Her Honour found that leniency was inappropriate given the Defendant's criminal record and the significance to be attached to the protection of the community.
19. Clause 7(2)(a) requires the Court to consider the safety of the community. This aspect embraces all the factors referred to so far under Clause 7(2) and the broader and critical factor of the safety of the community having regard to the Defendant's history, current condition and prognosis.

Should A Forensic Status Extension Order be Made?

1. The evidence points to the Defendant having a long-standing and deep-seated psychiatric disorder which has raised real concern with respect to the safety of other persons and the community generally. The evidence is all one way in that respect and does not need to be repeated at this point in the judgment.
2. The first question is whether the Plaintiff has demonstrated to a high degree of probability that the Defendant poses an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. I bear in mind the legal principles to be considered with respect to this aspect of the Court's decision (see [31]-[35] above).
3. The Defendant's history and the expert psychiatric opinions of Dr Eagle, Dr Singh, Dr Ellis and Dr Ho all point to this aspect being established to the requisite standard. The Defendant has a history of violence, both in the community and in a mental health facility. I am satisfied to a high degree of probability that he poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
4. The second question is whether the Plaintiff has satisfied the Court to a high degree of probability that the risk posed by the Defendant cannot be adequately managed by other less restrictive means.
5. In this respect, the opinions of Dr Eagle, Dr Singh and Dr Ho all point clearly to the only realistic means of management of the Defendant's risk involving extension of his status as a forensic patient.
6. I have considered the opinion of Dr Ellis which left open, to an extent, the prospect that the Defendant may be capable of management by order under the Mental Health Act 2007 in certain circumstances. However, even Dr Ellis recognised that this was not an immediate prospect and that the civil management regime would not involve the important oversight by the Forensic Division of the MHRT which facilitated prompt action, in the interests of community protection, were the Defendant's condition to deteriorate.
7. The Court is conscious of the particular benefits which arise from the Defendant now being housed in the Forensic Hospital. He is not detained in a correctional centre and has available to him multi-disciplinary treatment and care of a specialised type in the Forensic Hospital which is the most secure mental health facility in New South Wales: State of New South Wales v Windle (No. 4) [2017] NSWSC 1155 at [12].
8. It is of importance that the Defendant has been making some progress in the Forensic Hospital. Although Dr Ho's report is understandably cautious, it is the case that the treatment now being provided to the Defendant is the best available treatment and is being afforded to him in the most secure environment available in a mental health facility.
9. The question whether a person's risk can be adequately managed by less restrictive means must be judged by the legal power of others to control the Defendant's actions, placement and treatment, as well as the practical operation of how those controls 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]; Attorney General of NSW v Kereopa (No. 2) at [17].
10. I have had regard to the helpful summary in the judgment of Adamson J in Doolan (No. 2) at [96]-[129], where her Honour summarised the differences between the regime in the MHFP Act and under the Mental Health Act 2007. Adamson J said at [119]-[121]: "119 A principal focus of Part 5 the [MHFP] Act is the protection of the safety of members of the public. This is to be distinguished from the Mental Health Act, which contains provisions which concern the safety of other persons: such as in the definitions of mentally ill persons (in s 14) and mentally disordered persons (in s 15) where the 'protection of others from serious harm' is a factor; and in s 43 where the authorised medical officer who discharges an involuntary patient must be satisfied that adequate measures will be taken to prevent the patient causing harm to, relevantly, 'others'. However, a reading of the Mental Health Act reveals that its principal focus is the interests of the person concerned, rather than the safety of persons who may be affected by his or her conduct. I reject the defendant's submission that the interests of the person always coincide with the interests of the community and that all references to 'safety' in the Mental Health Act ought be read as including the safety of others. Plainly, it is in the interests of a person not to endanger the safety of others. However, the respective interests of the person and the community do not necessarily coincide. 120 I have set out the differences between regimes under various topics in order that the broader conclusions can be seen against the more detailed analysis. As long as the defendant is classified as an involuntary patient, there is little difference between the controls that apply to manage the risk and those that would apply if he continued to be a forensic patient. However, if that comparison were the only relevant or determinative one, there would be no need for the Act to apply to persons who are either 'mentally ill' or 'mentally disordered' since they would be able to be confined as involuntary patients under the Mental Health Act. 121 Generally speaking the onus in the [MHFP] Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not 'mentally ill'."
11. The MHRT generally has the power to decide whether to release a forensic patient under the MHFP Act, subject to certain criteria (s.43 MHFP Act). However, in the case of a forensic patient who is subject to an extension order, the MHRT may not order the patient's release unconditionally, but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order (s.57(2A) MHFP Act).
12. If, on the other hand, the person is an involuntary patient under the Mental Health Act 2007, an authorised medical officer may discharge the patient at any time and must do so if, broadly speaking, the patient is not a mentally ill person and no other care of a less restrictive kind is available: ss.12, 42, 43 Mental Health Act 2007.
13. Consideration of factors of this type played a significant part in the opinions of Dr Eagle, Dr Singh and Dr Ho with respect to an assessment of the "less restrictive means" issue in this case. As noted earlier, although Dr Ellis left open the use of an order under the Mental Health Act 2007, he stated that such an option was not appropriate at the present time and noted, as well, the additional protective aspects which would operate through the involvement of the Forensic Division of the MHRT if the Defendant's status as a forensic patient was extended.
14. In all the circumstances, I am satisfied to a high degree of probability that the risk posed by the Defendant cannot be adequately managed by other less restrictive means, so that it is appropriate that an order be made extending his status as a forensic patient as sought in the Summons.
15. The Plaintiff seeks an extension for a period of two years. Dr Singh observed that a period of two-to-three years may be appropriate in the Defendant's case. Dr Ellis nominated a period of two years.
16. Having regard to the evidence concerning the treatment of the Defendant in the Forensic Hospital, and all the psychiatric evidence, I am satisfied that the appropriate term for the order is a period of two years. This period should provide time for the Defendant's medical condition to be properly reviewed and for a treatment program to be put in place in an environment where specialist psychiatric care is available.
17. I note that the MHFP Act will shortly be repealed upon the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the 2020 Act") which is scheduled to commence on 27 March 2021. The transitional provisions under the 2020 Act are such that the order which the Court will make with respect to the Defendant will continue to operate under the statutory regime contained in the 2020 Act, which is essentially the same as that presently contained in the MHFP Act.

Orders

1. Pursuant to s.54A and Clauses 1 and 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990, the Court makes an order extending the status of the Defendant as a forensic patient for a period of two years from today, 25 March 2021.
2. I continue the order made by Button J on 16 December 2020 restricting access to the Court's file so that access will not be granted to a non-party to the proceedings without the prior leave of a Judge of the Court, and with prior notice being provided to the parties to allow them an opportunity to be heard in respect of the application for access.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2021