Attorney General for New South Wales v Skerry

Supreme Court of NSW|2021-10-22|Before: Dhanji J

EX TEMPORE Judgment (REVISED)

HIS HONOUR: By summons filed on 24 August 2021, the Attorney General for New South Wales seeks various orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), hereafter the Act, against the defendant, Michael Skerry, who appears by his tutor Ms Barbara Ramjan.
The primary order sought by the plaintiff is an extension to the defendant's status as a forensic patient, hereafter an extension order, pursuant to s 121 of the Act. At this stage, the plaintiff seeks preliminary orders pursuant to s 126(5) of the Act, appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant; to furnish reports to the Supreme Court on the results of those examinations; and directing the defendant to attend those examinations.
Those orders were sought together with an order that the defendant be subject to an interim order for the extension of his status as a forensic patient pursuant to ss 130 and 131 of the Act. That order is sought for a period of three months from the expiry of the current order applying to the defendant. The orders were not opposed by the defendant. I do note, however, that the defendant has indicated opposition to the making of a final order.
The plaintiff relies upon the affidavits of Ann-Marie Nader of 20 August 2021 and 9 October 2021, together with the associated annexures and exhibit.

CONSIDERATION

As noted above, the defendant does not oppose the making of an order. Nonetheless, it remains for me to be satisfied that an order should be made. I am firstly satisfied that the existing extension order will expire before these proceedings are finally determined. The question for resolution is therefore whether "the matters alleged in the supporting documentation would if proved justify the making of an extension order". If I am so satisfied, there remains a discretion in s 130 as to whether an order should be made. The test referred to immediately above is in the same terms as the test under the former Act and has been described as being akin to the test of a prima facie case in committal proceedings (under the regime that existed prior to 2018), see Attorney General for New South Wales v Kapeen (Preliminary) [2018] NSWSC 619 at [16].
The question of unacceptable risk is to be determined by considering the risk that would arise on the assumption that the defendant is not a forensic patient nor an involuntary patient under the Mental Health Act 2007 (NSW) (see Kapeen). In approaching the second limb of the test for an extension order, namely whether the risk cannot be adequately managed by other less restrictive means, the focus should be more on the question of adequately managing risk rather than identifying whether one regime is more or less restrictive than the other, see Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [54].
In determining the application for an extension order, as already noted above, the Court is required to have regard to the various matters in s 127(2). Therefore, in determining whether the supporting material would justify the making of an order, I must also consider these matters as are presently applicable. Section 127(2)(a) requires that I have regard to the safety of the community. Section 127(2)(b) requires me to consider any report received from persons appointed under s 126(5) to conduct examinations of the defendant. At this stage, that is the preliminary hearing, no such reports have been received and this paragraph is not presently applicable. Section 127(2)(c) requires consideration of the report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b).
Dr Andrew Ellis provided a report dated 25 June 2021 which has been provided as part of the application pursuant to s 125(b). That report deals with, inter alia, the risk posed by appropriate management of the defendant.
Dr Ellis notes the defendant is currently subject to a conditional release order. The current conditions of that order were modified subsequent to Dr Ellis' report, but I note not in a manner material to this application. Dr Ellis provides a diagnosis of schizophrenia with a possible diagnosis of intellectual disability or neurocognitive disorder and also a diagnosis of substance abuse disorder. According to the report, the defendant has no dependents and currently lives with one other resident in a three bedroom house that is supported by staff 24 hours a day, seven days a week. Dr Ellis notes that the defendant has a history of noncompliance with community treatment orders under the Mental Health Act. The current expert evidence is to the effect that there is a significant possibility that he would default from treatment that he has, to date, responded to, if he is not supervised. Dr Ellis reported that the defendant would, "in the absence of any treatment or supervision fall into a group of persons whose risk of reoffending is high".
Dr Ellis opined that the defendant is a mentally ill person within the meaning of the Mental Health Act. As such, a community treatment order under that legislation is an available option. Dr Ellis, however, stated there is a substantial difference" in the care and risk management provided to an outpatient on a forensic order as opposed to a community treatment order. The substantial difference in regard to risk management is the recall power of the clinical team and the Mental Health Review Tribunal. The other differences are procedural rather than clinical. With a forensic order, the defendant would be subject to more oversight by the forensic arm of the Mental Health Review Tribunal. He could only be discharged from this order or granted interstate and overseas leave by order of the forensic arm of the Mental Health Review Tribunal. If his care is progressed to a community treatment order, he would be under the sole care of general mental health services and specialist input into his treatment would then be optional rather than routine as when on a forensic order.
Dr Ellis went on to express the view that while the defendant could be safely and effectively managed under a community treatment order, such a scheme "would be more clinically acceptable once a greater period of stability can be established". The report goes on to refer to risks arising as a result of the defendant's prior poor compliance with treatment regimes.
Section 127(2)(d) requires that I have regard to "any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient". In addition to the report of Dr Ellis, there are a number of earlier reports. Indeed, some of those reports were relied upon by Dr Ellis in preparing his most recent report. Together they describe a longstanding mental illness with difficulties in management.
The most recent report, other than that of Dr Ellis, is the report of the Community Forensic Mental Health Service dated 25 February 2021 prepared for the Tribunal. In that report Dr Claire Keating, consultant forensic psychiatrist, opined that the defendant's current arrangements involving one to one supervision are commensurate with his risk management needs, and that issues may arise with other nongovernmental organisation services if they are not aware of the need to strictly adhere to the one-to-one monitoring at all times. She opined that there is a need for close monitoring of the defendant with all residents, not only females.
Section 127(2)(e) and (g) require that I have regard first to "any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application", and secondly, "the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient". In December 2012, the defendant was transferred to the Long Bay prison hospital. In July 2015, he was transferred to the forensic hospital during the first extension order and commenced taking clozapine. That is a drug which is generally prescribed to reduce sexual desire.
On 7 March 2018, the defendant was transferred from the forensic hospital to Bloomfield Hospital. During his admission and detention under the Mental Health Act in Bloomfield from 2018 to August 2020, positive symptoms of schizophrenia (delusions and hallucinations) largely responded to clozapine. However, according to Dr Ellis, the defendant's insight into his condition remained marginal and Dr Ellis anticipated the potential need for indefinite treatment.
On 26 August 2020, following a period of successful overnight leave from Bloomfield Hospital, the Tribunal made a conditional release order. On 26 February 2021, the defendant's most recent review before the Tribunal, the Tribunal confirmed the present arrangement for care, treatment, and control. The Tribunal noted that the defendant was residing in 24 hour supported accommodation with the Challenge Community Services at Coffs Harbour, and that he had recently been reviewed by the Community Forensic Mental Health Service (CFMHS). The defendant presented at that review as mentally stable with occasional persecutory ideas, cognitive deficits, and limited insight. In a report dated 25 February 2021, the CFMHS considered that he presented with a low to moderate risk of further sexual offending, provided that he remains adherent to the risk management plan.
The defendant's most recent review was on 27 August 2021, and on 7 September the Tribunal made an order which appears at annexure A to the most recent affidavit of Ms Nader. The Tribunal found that the defendant had been generally stable up to a month prior to the assessment, but noted a number of concerning incidents between the period of late July to mid-August 2021. (I note that the decision refers to 2020, but that appears quite plainly to be a typographical error and should refer to 2021.) Those incidents included pursuing two young women at the zoo, requesting a male client for a cuddle, becoming increasingly persistent when making requests of staff or when his perceived needs had not been met, apparently deliberately leaving the line of sight of staff on two occasions (remaining in line of sight being a condition of the order), inviting a female neighbour for a coffee and a chat, showing an increased preoccupation with being released from supervision and relocating to Tweed Heads, and reporting that he was fearful of being persecuted by outlaw motorcycle gang members. It was also noted that the defendant has retained persecutory beliefs regarding his ex-partner entering his room at night and assaulting him due to his past behaviour towards her.
The Tribunal concluded that it was, "too early to see", whether the clozapine medication was having proper effect in terms of the defendant's recent problem behaviour. Otherwise, the Tribunal noted that his care and treatment were appropriate and that he would be reviewed in six months. The view that it was, "too early to see", is understandable.
Ms Keating's report of 17 August 2021 noted that while the defendant has had a good response to treatment with clozapine, given the ongoing persecutory ideas, she supported an increase to the dose of clozapine and indicated that she understood that that was to commence, "this week". Given the recency of that adjustment to medication and the underlying symptoms and behaviours leading to that adjustment, as I say, one can understand the Tribunal taking the view that it was too early to tell whether the medication would have effect with respect to concerning recent behaviours.
Section 127(2)(h) requires me to have regard to the views of the Court that impose the limiting term or existing extension orders. With respect to the imposition of the limiting term, Judge Madgwick was clearly troubled by the need for specific deterrence in the context of the defendant's limited comprehension of the seriousness of what he had done. As noted above, subsequent to the imposition of the limiting term, extension orders have been made by Adams J and, most recently, RA Hulme J.
At the time of the most recent review, the defendant was detained at Bloomfield. If not detained as a forensic patient, he would have been detained under the Mental Health Act. Nonetheless, RA Hulme J was satisfied to a high degree of probability that the defendant posed an unacceptable risk of serious harm to the community. His Honour concluded at [82]: "Mr Skerry is in need of oversight by the Mental Health Review Tribunal if he is to be considered for release into the community and for his supervision whilst there. The level of risk is such that the safety of the community would be best assured by the powers of the Tribunal being available to quickly and decisively deal with any relapse of Mr Skerry's condition or his commitment to maintaining his prescribed treatment and medication."

CONCLUSION

As noted above, the defendant is no longer detained, having been released to live in the community pursuant to a community release order made by the Tribunal on 26 August 2020. If he ceases to be a forensic patient, it can be anticipated that he would remain living in the community but he would be under a community treatment order under the Mental Health Act. The scope of such an order would be more limited than the conditional release order he is currently on.
The conditional release order includes conditions that he must accept a case manager (who is named in the order); participate in rehabilitation or other programs that his case manager requires him to attend; that he accept a named psychiatrist at the Coffs Harbour Mental Health Service as his treating psychiatrist; that he accept prescribed medication; and that he reside at his supported accommodation. There are also prohibitions on the use of drugs and alcohol.
The focus of any community treatment order would be on the acceptance of treatment such as the taking of prescribed medication: see ss 50 - 56,Mental Health Act. As noted above, RA Hulme J was of the view that there were powers exercisable by the Tribunal which were of practical significance in managing the risk posed by the defendant. While the setting is different, given the defendant is now in the community, the additional powers of the Tribunal are still of utility.
While Dr Ellis reports that the defendant could be managed under a community treatment order, reading the report as a whole, I take the reference to "could" to mean that, while it may be possible to manage the defendant under a community treatment order, it is not the most clinically acceptable option. Dr Ellis' opinion was, as noted above, that the preferable course in managing risk is that the defendant be subject to the oversight and powers of the Tribunal.
Noting the matter is at a preliminary stage and noting the applicable test, I am satisfied that the matters alleged in the supporting material relied on by the plaintiff would, if proved, justify the making of an order. I am also satisfied, having regard to all the material, that any discretion contained in s 130 should be exercised to make the interim order sought. It also follows that the test in s 126(5) with respect to the appointment of experts is satisfied. ORDERS
Accordingly, I make the following orders pursuant to 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act): 1. I appoint two qualified psychiatrists to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court, and direct the defendant to attend those examinations. 2. Pursuant to ss 130 and 131 of the Act, the defendant is to be subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the existing extension order for a period of three months. 3. Access to the court file is restricted in this proceeding such that access is permitted to a non-party only with the leave of a judge of the court and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
To the extent that leave was required to rely upon the report of Dr Ellis, that was granted at the outset of the hearing.

Amendments 08 February 2022 - [10] and [32] - correction made - N Adams J amended to Adams J 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: 08 February 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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