Attorney General of New South Wales v Christian

Supreme Court of NSW|2020-03-02|Before: Harrison J, Rothman J

Judgment

HIS HONOUR: By summons filed on 11 February 2020 the plaintiff seeks the following orders: "1. An order pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"): (a) appointing two qualified psychiatrists and/or psychologists to conduct separate psychiatric/psychological 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 (b) directing the defendant to attend those examinations. 2. An order pursuant to clause 7 of the Act that the defendant's status as a forensic patient be extended for a period of 1 year from the date of the order. 3. An order pursuant to clauses 10 and 11(1) of Schedule 1 to the Act that the defendant be subject to an interim extension order commencing on and from 12 March 2020 for a period of three months. 4. An order restricting access to the Supreme Court file in respect of this proceeding such that access would only be granted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard."
The defendant consents to the making of orders 1, 3 and 4. It remains necessary for me to be satisfied that an interim order is necessary even notwithstanding the fact that the defendant does not oppose it.
On 9 March 2018, Rothman J ordered that the defendant be subject to an extension order for a period of 2 years from 12 March 2018 pursuant to cl 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744. His Honour's detailed analysis, and the evidence upon which he relied, remain respectively of assistance and relevant for present purposes, and a familiarity with his Honour's decision is assumed.
In support of its claim for interim orders, the plaintiff relied upon the following evidence: 1. Affidavit of Jack Vidler affirmed 12 February 2020. 2. Affidavit of Lucy Nichols affirmed 25 February 2020.

Consideration

Applications for extension orders may be made in relation to forensic patients: cl 3 of Schedule 1.
A forensic patient is defined in s 42 of the Act. As a result of Rothman J's orders of 9 March 2018, making an extension order in respect of the defendant for a period of 2 years from 12 March 2018, the defendant falls within the definition of a forensic patient: s 42(a1). Further, because the defendant is subject to an existing extension order, which expires on 11 March 2020, an application for an extension order can be made in respect of him: cl 4(1)(b) of Schedule 1. Clause 4(2)(b) provides that an application for an extension order may not be made more than six months before the expiry of the existing extension order.
Section 54A of the Act, which sits within Part 5, empowers this Court to extend a person's status as a forensic patient (extension order) in accordance with Schedule 1. The objects of Part 5 of the Act, set out in s 40 are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatments orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to the victims.
Clause 1 of Schedule 1 of the Act provides that this Court may make an extension order. The test is set out in cl 2: (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. (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 risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.

Serious harm

Dr Marcelo Rodriguez, a psychologist, furnished a report dated 17 December 2019. He assessed the defendant at the Bloomfield Hospital at Orange on 5 December 2019 in order specifically to address the defendant's risk of causing serious harm to others and whether his risk of doing so and his need for ongoing management as a forensic patient could not adequately be managed by means less restrictive than extending his status as a forensic patient.
With respect to the first issue, Dr Rodriguez said this: "Does Mr Christian pose a risk of causing serious harm to others if he ceases being a forensic patient? Yes, Mr Christian poses a risk of causing serious harm in similar circumstances to the index offence. It is not possible, however, to say whether he will definitely be a risk for similar episodes of sexual violence. His risk is, however, able to be adequately managed by less restrictive means. His ongoing admission appears to be overly restrictive, counter-therapeutic, unhelpful to all parties including other patients, and essentially unproductive. In the past, Mr Christian has required a more secure setting such as the Forensic Hospital, this is not presently required, nor does he seem appropriately placed according to his clinical presentation at Bloomfield Hospital. The primary issue is whether his diagnosis of Bipolar II Disorder is accurate. If this can be 'answered' it would assist significantly in ascertaining what kind, if any, psychotropic and psychosocial treatment Mr Christian would need. (a) If yes, please describe the nature and level of risk and the factors contributing to that risk With current risk assessment techniques in behavioural science, it is not possible to determine whether an individual person will re-offend. It is possible to identify risk factors associated with group re-offending established in the scientific literature in order to manage re-offending risk. Risk appraisal instruments can also be restrictive in identifying which individual from a particular risk group will re-offend. They are also limited in identifying current (dynamic) risk as many risk assessment instruments tend to focus on historical factors, which may not be relevant to the individual in the present time. I have considered a number of approaches to evaluating Mr Christian's risk of offending violently or sexually, including the Historical-Clinical-Risk Management-20 - Version 3 (HCR-20v3) (Douglas et al., 2013), the Stati-99R and the Risk for Sexual Violence Protocol (RSVP) (Hart et al., 2003). Re: Assessment of Mr Christian's risk of violence Historical factors • Mr Christian has a history of problems with violence as evidenced by the index offence. There are no other major events of violence other than general aggressiveness. • He has a possible history of antisocial behaviour as evidenced by his non-sexual offences and some attitudes observed during his period of institutionalised care; • He has a history of problems with intimate relationships with an inability to form a relationship with long-standing partner; and possible problems maintaining stable relationships with his family and limited non-intimate relationships; • He has no apparent history of problems with employment, although, the corroborative information is not reliable; • He has a history of problems with substance use (alcohol and cannabis); it appears that he abused pain medication (Buprenorphine) due to his attempt to treat headaches, which is not what the medication is prescribed for; • He has a history of problems with personality disorder; • He has an apparent history of problems with traumatic experiences; • He has no history of problems with violent attitudes; • He has a history of problems with supervision response (minor transgressions at the start of institutionalised care). Dynamic factors His only risk factor is currently related to limited insight into his offence. He does not, however present with problems related to: • Violent ideation or intent • Symptoms of mental disorder • Instability • Treatment or supervision response. It is acknowledged that Mr Christian is currently placed in a controlled environment and dynamic risk factors are subject to fluctuation in different settings. Future Risk Management factors Mr Christian presents with a number of risk factors that potentially increase his risk of future violent re-offending. These include: • He may discontinue mental health treatment if not under conditions offered by an involuntary order. He has maintained difficult relationships with treating teams in the past and he may decide to discontinue treatment; • He has no long-term accommodation, although it seems that he has stable accommodation with Ms Butler; • He faces possible future problems with personal support (his relationship with his family is largely unknown and there had been periods of estrangement). He has a close relationship with Ms Butler and no other identifiable peer supports; • Potential problems with treatment or supervised response. His personality disorder is not responsive to medication and modestly responsive to psychotherapy. Despite this, there has been some progress in Mr Christian's attitude toward care providers over the years, which may impact change. He seems to respect the efforts and treatment intervention of Dr Burns and Dr van Rensburg. It is possible that the gains will be translated into the future, particularly, if Dr Burns and Dr van Rensburg are able to provide follow-up community treatment for a period of time. Consistency in treatment is paramount for individuals with BPD; • He presents future risk for problems with stress as he has experienced depression, anxiety and personality issues, which could disrupt his psychological functioning and ability to cope."
Dr Rodriguez concluded that the defendant had a number of future risks for violent re-offending which suggested an ongoing need for moderate levels of support, monitoring and supervision.

Less restrictive means

Addressing the second issue, Dr Rodriguez said this: "4. Please provide your opinion as to any need for ongoing care and treatment of Mr Christian as a forensic patient. In answering this question, please provide your opinion as to whether the risk of Mr Christian causing serious harm to others can be adequately managed by the following means and, if not, the reasons why not in each case: (a) Continuation of his forensic patient status Mr Christian has progressed well, albeit, it is too early to predict whether this will be maintained into the future. He has proven a most unreliable historian in the past, which does not assist him or provoke confidence of genuineness. In the past, he has presented with Ganser-like symptoms. Therefore, it is difficult to predict whether his current progress related to mood stability and behaviour will be maintained into a meaningful way into the future. At present, he is receiving three night overnight leave and unescorted leave. This is very encouraging, although a longer term in the community with much less supervision will be a test for him. Given his period of supervised care for many years, and the requirement to monitor his progress in the community for a longer period, it is reasonable that an extension of supervision as a Forensic Patient be considered. The benefits include: • Ensuring that he receives regular and assertive mental health treatment • Providing regular oversight by case-management and psychiatrist reviews • Prescription of medication and reviews of its therapeutic effects • Modifying or ceasing medication if appropriate • If ceasing medication, he will need closer monitoring in the event that he relapses, which may require re-admission to a mental health facility • Provision of psychological treatment and reviews of treatment efficacy • Provision of D&A services if required • Overseeing his medical treatment • Assisting him with pursuing or finding appropriate employment and long-term housing. (b) Classification as an involuntary patient under the Mental Health Act 2007 Mr Christian is not presently a mentally ill person as defined by the Mental Health Act 2007 in that he is not experiencing hallucinations, delusions serious thought disorder or severe mood disturbance. He would not presently meet criteria as a mentally ill person and would therefore not meet criteria for involuntary patient order. (c) A community Treatment Order As previously discussed, it is not clear that he suffers from a mental illness; however, he is prescribed medication that treats Bipolar Disorder and therefore it is not possible to observe any mood disturbance. He would not presently be eligible for a Community Treatment Order. (d) A Guardianship Order A Guardianship Order would not effectively manage his risk due to its limited powers. Guardianship orders are not designed for this purpose. (e) Any other less restrictive means Mr Christian could be made a Voluntary Patient but would NOT be under any supervision by the Mental Health Review Tribunal. If Mr Christian does not comply with treatment and/or supervision, he could not be directed to comply by the Mental Health Review Tribunal. In view of the serious index offence, if he were to reject or be non-compliant with treatment, there would be no avenue to enforce treatment unless he became psychiatrically unwell again and met criteria as 'Mentally Ill or Mentally Disordered' as defined in the Mental Health Act, 2007. In my opinion, an extension of his forensic order is the least restrictive means of care. Under a forensic order, the Tribunal has a recall power for Mr Christian to be involuntarily admitted to a psychiatric facility and may make an order under Section 68 of the Mental Health (Forensic Provisions) Act, 1990." (emphasis added)

Disposition

Once proceedings such as these have been commenced, the Court is required within 28 days, or such further time as may be allowed, to conduct a preliminary hearing into the application: cl 6(4). If the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders appointing two qualified psychiatrists or psychologists to conduct examinations and furnish reports: cl 6(5). If, as in the present case, the limiting term to which a forensic patient is subject will expire before the proceedings are determined, the Court may make an interim extension order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: cl 10.
The uncontested evidence is that the defendant at present poses a risk of causing serious harm to others if he ceases to be a forensic patient. So much follows from the opinion of Dr Rodriguez that the defendant has a number of future risks for violent re-offending. Dr Rodriguez is also of the opinion that, having regard to the risk that he has identified, an extension of his forensic order is the least restrictive means of care.
Having regard to the evidence, I am in the circumstances satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order and an interim extension order. The orders I make will therefore be as follows: 1. Order pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990: 1. appointing two qualified psychiatrists and/or psychologists to conduct separate psychiatric/psychological 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 2. directing the defendant to attend those examinations. 1. Order pursuant to clauses 10 and 11(1) of Schedule 1 to the Act that the defendant be subject to an interim extension order commencing on and from 12 March 2020 for a period of three months. 2. Order restricting access to the Supreme Court file in respect of this proceeding such that access would only be granted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard. 3. List the proceedings for mention on 1 June 2020. 4. Grant liberty to the parties to apply on 24 hours' notice.

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: 03 March 2020

Mental Health (Forensic Provisions) Act 1990(NSW)

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