Attorney General of New South Wales v Christian bht Thompson

Legislation

1. As earlier stated, the application by the Attorney General is governed by the provisions of the MHFP Act and, in particular, Pt 5 of the Act, which makes provision for forensic patients. The MHFP Act defines a forensic patient as a person detained pursuant to an order under the MHFP Act, either initially as a result of criminal charges or as a result of an extension order that has been made.
2. The objects of Pt 5 are set out in s 40 of the MHFP Act, which is in the following terms: "40 OBJECTS The objects of this Part 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 treatment 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. Note: Section 68 of the Mental Health Act 2007 sets out general principles with respect to the treatment of all people with a mental illness or mental disorder."
3. The extension order that is sought by the Attorney General is governed by the provisions of s 54A of the MHFP Act, which, in turn, refers the Court to Sch 1. Clause 2 of Sch 1 is in the following terms: "2 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 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 a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."
4. As can be seen from the foregoing, the Court is permitted to render a person subject to an extension order on the basis of a test that has become relatively familiar in the area of the Crimes (High Risk Offenders) Act 2006 and the Terrorism (High Risk Offenders) Act 2017. There seems no good reason why the approach adopted in relation to the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act ought not to be applied to the test in Sch 1 cl 2 of the MHFP Act.
5. Care, however, must be taken because, under cl 2 of the MHFP Act, the Supreme Court is permitted to render a person subject to an extension order in circumstances where the tests have been, to some extent, elided from the separate tasks contained in the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act, and the level of discretion seems greater.
6. The Court, as presently constituted, analysed the operation of the Terrorism (High Risk Offenders) Act and, to the extent that it was legislation in pari materia, the Crimes (High Risk Offenders) Act in the State of NSW v Ceissman [2018] NSWSC 508. The Court has previously taken the view that the approach in the Crimes (High Risk Offenders) Act should be applied to matters under the MHFP Act to the extent appropriate: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [12] (per Davies J). The approach in Attorney General of New South Wales v McGuire has been taken in a number of other cases: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859; New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863; Attorney-General for the State of New South Wales v Boyce by His Tutor Jennifer Thompson [2017] NSWSC 144; Attorney General for New South Wales v Kapeen [2017] NSWSC 226.
7. In State of NSW v Ceissman, supra, I referred to the notion of unacceptable risk to which the Schedule refers and, relying upon the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, referred to the determination of an "unacceptable risk" as being an application of a matrix which balances, on the one hand, the probability of the risk manifesting and, on the other hand, the harm that would be inflicted if the risk were to manifest, assuming, in each case, that the likelihood of the risk manifesting is not insignificant: see State of NSW v Ceissman, supra, at [24], [25].
8. Under the MHFP Act, the risk that the Court examines is the risk posed by the forensic patient in circumstances where she or he would no longer be a forensic patient. In other words, the risk that is balanced to determine whether the risk is unacceptable is the risk posed by the patient if the patient were no longer detained at a mental health facility.
9. Once the Court has been satisfied, assuming for the purposes of this analysis, that the Court is so satisfied, to a high degree of probability that a particular forensic patient poses an unacceptable risk of causing serious harm to others, the Court is required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney General to prove that the risk cannot be so managed.
10. One of the means of managing a person with an unacceptable risk is the regime implemented by the legislature under the Mental Health Act 2007, an analysis of which was performed by White J (as His Honour then was) in the Re J (No 2) [2011] NSWSC 1224 at [89]-[95]. That analysis was performed by White J for a slightly different purpose, namely to determine the meaning of the term "serious harm" in the Mental Health Act. See also Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, per RA Hume J, at [16] and Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [14]-[19], per Davies J.
11. In dealing with the question of whether there are less restrictive means of managing unacceptable risk, an examination of the comparison of the regime under the Mental Health Act and the MHFP Act is appropriate. With respect, I adopt the analysis of Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96]-[129].
12. The plaintiff relies upon an overall distinction related to onus between the two Acts, and submits that the onus in the MHFP Act is in favour of greater restrictions on the forensic patient and is displaced by evidence before the Tribunal in order for restrictions to be lifted. Whereas, under the Mental Health Act, the onus in relation to a patient is in favour of the liberty of the person and the relevant decision-makers must, by and large, be satisfied that the restriction is warranted. In that submission, the plaintiff relies upon the comments by Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2), supra, at [121]. That overall distinction is a broad distinction that appropriately summarises the difference in approach.
13. Further, the plaintiff relies upon four main differences that arise from the summary of Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2), supra, which the plaintiff submits are, again, the main differences warranting emphasis for the purposes of the proceedings now before the Court. It is appropriate for the Court to repeat that submission: "[23] First, detention: a forensic patient is to remain in detention (in a mental health facility, correctional facility or other place) unless the criteria for release in s 43(a) of the MHFP Act (including that the safety of any member of the public will not seriously be endangered by the patient's release) are met. By contrast, an involuntary patient is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered. [24] Second, release from detention: only the Tribunal has the power to release a forensic patient, and it may do so only if it has an independent expert risk assessment report and only if the criteria for release in s 43 of the MHFP Act are met. By contrast, any authorised medical officer can discharge an involuntary patient at any time and he or she must do so in certain circumstances (eg, if the patient is not 'mentally ill'). There is no requirement for an independent expert risk assessment report. [25] Third, imposition of conditions while the patient is in the community: the MHFP Act empowers the Tribunal to impose conditions relating to various matters (including accommodation, treatment, medication, conduct, case management and drug testing) when it orders the release of, or grants leave of absence to, a forensic patient. By contrast, when a civil patient is released into the community, he or she may be subject to conditions that relate to treatment only (eg, medication and therapy, counselling, management, rehabilitation etc). [26] Fourth, breaches of conditions/recall: a forensic patient is subject to the oversight of the Tribunal, which has substantial powers of 'recall' from release or leave of absence in circumstances where, for example, the patient has breached a condition of release or is at risk of 'causing serious harm to himself or herself or to any member of the public because of his or her mental condition'. By contrast, when a civil patient is realised into the community, the responsibility for overseeing treatment rests with the patient and the director of community treatment. Recall options are much more limited."
14. The legislature has prescribed mandatory considerations (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40) in cl 7(2) of Sch 1, which are in the following terms: "7 DETERMINATION OF APPLICATION FOR EXTENSION ORDER … (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."
15. Pursuant to authority, it is necessary, to have regard to each of the criteria prescribed, if available. It is noteworthy, and, in my view, not a coincidence that the first such criterion is the safety of the community. It is also appropriate for the Court to note that other matters, not prescribed in s 7(2) of the MHFP Act, may be relevant, but are not mandatory criteria for the consideration of the Court.

Submissions

1. There is a significant degree of consensus as to the principles to be applied to the issues before the Court. The difference between the parties is one of fact, namely, the application of the principles to the position of the defendant.
2. The plaintiff's submissions deal at some length with the principles. Those submissions were helpful, but, as earlier stated, uncontentious. Largely, those submissions accord with the view taken by the Court and reflected above.
3. As to the issues of contention, which are essentially whether the defendant poses an unacceptable risk and whether that risk can be adequately managed by less restrictive means than an extension pursuant to the application of the plaintiff, the parties differ.
4. The plaintiff submits that Mr Christian poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and relies on the terms of cl 2(1)(a) of the Schedule to the MHFP Act. The Court has already recited, without significant comment, the chronology of the treatment of Mr Christian.
5. The plaintiff relies upon the recent diagnosis of serious mental illness: schizoaffective disorder, comorbid with Borderline Personality Disorder and a substance abuse disorder. The plaintiff relies upon the psychiatric evidence to submit that the schizoaffective disorder is considered to be his primary and most serious diagnosis and emphasises the recent nature of the diagnosis, which, it is submitted, has the effect that the current treatment strategy is only in the early stages and adaption of that treatment may be necessary.
6. Further, the plaintiff submitted that the disorder, assuming it has been extant but undiagnosed for some time, is likely to have played a role in the commission of the sexual offences. Lastly, the plaintiff submitted that the schizoaffective disorder has increased the defendant's prospects of reoffending and, in particular, in accordance with the report of Dr Ellis has referred to it being a basis as an independent risk factor for sexual offending.
7. Further, the plaintiff submitted that the clinicians and health professionals who have assessed the defendant agree that he poses a risk of reoffending. That agreement is based upon a variety of approaches in the assessment of such risk. Further again, the clinicians and health professionals concerned are unanimous that the defendant requires inpatient treatment.
8. The plaintiff referred to the comments of Ellis DCJ that, in the absence of his mental illness, the defendant would have been sentenced to a significant period of imprisonment because of the serious nature of the sexual offences committed.
9. Further, the plaintiff submitted that the defendant has shown little or no insight into his offending and continues to deny having committed the offences and, on occasion, the defendant has insisted that he was set up by the victims for financial gain.
10. The defendant has refused to participate in Sex Offender Treatment Program or its equivalent, despite repeated requests. Again, the clinicians and health professionals, in their assessment of the defendant's attitude, agreed that his refusal to accept responsibility for the offences is problematic and requires addressing.
11. The substance abuse disorder is, according to the plaintiff, largely unknown and, if the defendant were under a regime that was less restrictive than the current regime, this is likely to be an aggravating feature of the otherwise diagnosed mental illnesses. The intoxication of the defendant was a factor in the commission of the index offences and the serious disinhibiting effect of alcohol is extremely problematic. The defendant has similarly not completed a drug and alcohol rehabilitation program.
12. In dealing with the adequacy of less restrictive means, the plaintiff relies heavily on the report of Dr Furst who recommended that the defendant continue to be managed under the MHFP Act and remarked that anything less strict would destabilise the defendant. The plaintiff also relies upon Dr Ellis. Although this report is more equivocal, the plaintiff submits that it is more in the nature of a record of fact and should be treated with caution because of the lack of understanding of the legal difference between the Mental Health Act and the MHFP Act regimes.
13. The plaintiff submits that it is appropriate only for the defendant to be allowed release, if any, on the basis of a decision of the Tribunal, rather than one doctor, as is the case under the Mental Health Act regime. This is particularly so in circumstances where the defendant has had a history of relationship breakdowns with clinicians which points to the desirability of the Tribunal's supervision continuing.
14. The defendant, in his submissions or submissions on his behalf, did not concede that the plaintiff has shown that the defendant is an unacceptable risk of serious harm to others if the limiting term were not extended. However, the defendant submits very little in support of that proposition, other than reliance upon the burden of proof being with the plaintiff and the burden not having been discharged.
15. The defendant also accepts the plaintiff's submissions as to the correct approach to the high degree of probability.
16. Rather, the defendant has relied, for its major submissions, on the subsequent step to be considered. In other words, the defendant, while not accepting that the defendant is an unacceptable risk, submits that, even if the Court were to find that the defendant is an unacceptable risk, would not find that the plaintiff has discharged its onus in satisfying the Court that no less restrictive regime is appropriate.
17. In that regard the defendant submits that the risk, assuming for these subsequent submissions that the Court was satisfied that there was an unacceptable risk, can be adequately managed by other, less restrictive, means and, in particular, under s 14 of the Mental Health Act. The defendant points out that the regime under s 14 of the Mental Health Act also includes residency in the Forensic Health Hospital and then in a Mental Health Facility.
18. The defendant submits that the unacceptable risk is adequately managed when it is able to be "mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill … patients being confined in some form of institutional care rather than taking their place in the community …". The defendant submits that less restrictive means includes managing the patient as an involuntary patient under the Mental Health Act, and is capable of being judged by the legal power of others to control the defendant's actions and the practical operation of the power in the circumstances of the defendant.
19. The defendant also relies upon the reports of Dr Furst and Dr Howell, as well as Dr Ellis. The first two reports are relied upon expressly for the criterion in cl 7(2)(b) and the latter for the criterion under cl 7(2)(c) of the Schedule.
20. The defendant submits that he participated in one day escorted leave and there was no evidence that he was a risk of serious harm to the community during that time. Further, the defendant has not been shown, notwithstanding his lack of insight, to be at risk of refusing to take his medication as prescribed. The defendant submits that the Court is not concerned with removing all risk, but whether the defendant poses an unacceptable risk and whether the unacceptability of that risk can be sufficiently ameliorated by less restrictive means than an extension of the limiting term.
21. The defendant also relies upon the period when he was on bail for three years and did not breach his bail conditions or cause serious harm to others. During that time he attended his psychiatrist and general practitioner regularly and, although he did attempt suicide during that time, the defendant says that is not a factor to be considered in relation to the safety of the community.
22. The one issue on which the parties do differ is the reliance on the principles arising out of the Crimes (High Risk Offenders) Act and their application to the regime under the MHFP Act. The defendant, correctly, points out that the regime under the MHFP Act has a far wider reach and greater caution should be taken when applying the principles.
23. Further again, the risk in the different regimes is significantly different. In both the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act the risk is one of committing a serious violence offence or a terrorism offence. In the former case that is an offence that results in grievous bodily harm or death. More importantly, neither high risk offenders regimes involve a concept of the adequacy of less restrictive means.

Consideration

1. The Court has set out the history of the defendant's offending and treatment in the chronology earlier in these reasons for judgment. It is clear from the report of Dr Furst that there have been some difficulties in stabilising the medication regime under which the defendant has been treated.
2. There has also been some differences in diagnosis. The diagnosis has consistently suggested Borderline Personality Disorder, but only recently has suggested Schizoaffective Disorder. At one stage he was diagnosed with Bipolar Affective Disorder [Type II] with the possibility of psychotic illness.
3. During his time in hospital at least up until mid-2017, the defendant reported to doctors that he was doing "quite well" but he believed that staff "were talking about him", regarding this as "paranoid thoughts", and alluded to the "suppressed rage" and depression".
4. Dr Furst refers to the defendant's treatment and the care under Dr Trevor Ma, psychiatrist, since mid to late 2017. During that time there were multiple aggressive verbal outbursts; the defendant voiced paranoid thoughts, including that fellow patients were deliberately trying to spread gastroenteritis to him; he required sedation; and was ultimately referred to a medium secure forensic unit. His mood was unstable.
5. The Tribunal reviewed the defendant's case on 19 October 2017 at the Forensic Hospital and adjourned those issues to 23 November 2017 for further consideration. There was consideration given to the potential for the defendant to be transferred to a medium secure forensic unit, such as Morisset.
6. Dr Furst reports that grave concern was expressed by the Tribunal in relation to the defendant's plans or expressed intention to be released directly into the community. Dr Furst noted that the defendant was verbally aggressive and physically intimidating to his treating team outside the Tribunal hearing in October 2017.
7. The Tribunal noted that he continued to need supervision, care and treatment and the report recites: "Given his risk vulnerabilities, it was determined [there] were reasonable grounds for believing that care, treatment and control were needed for Mr Christian's own protection from serious harm or the protection of others from serious harm. The Forensic Hospital was seen as the least restrictive environment which enabled care and treatment to be effectively given to Mr Christian, ultimately recommending no change to the present order that Mr Christian be detained in the Forensic Hospital at Malabar on an involuntary basis for ongoing care, treatment and control."
8. In November, the defendant was prescribed and commenced on zuclopenthixol. Dr Furst concluded that the defendant suffered from a mental illness in the form of schizoaffective disorder and continued to manifest paranoid delusions, including about judicial officers, solicitors and his treating team, has poor insight and emotional instability. Dr Furst repeated that the defendant meets the diagnostic criteria for schizoaffective disorder, substance use disorder and borderline personality disorder and remains a 'mentally ill person' within the meaning of the Mental Health Act. Dr Furst opined that the defendant continues to pose a risk of causing serious harm to others if he ceases to be a forensic patient and that risk is at least at a moderate level of future violent offending/aggression and a low-moderate risk of future sexual offending.
9. As at February 2018, when the orders of the Court issued, Dr Furst expressed the following opinion: "Having regard to all of the available information outlined above, I am of the opinion that Mr Christian is not yet stable in his mental state, with evidence of ongoing paranoid thinking and schizoaffective disorder that is treatment resistant. He has failed to adequately engage in a highly restrictive and supported setting in the Bronte Ward at the Forensic Hospital. Although treatment at Morisset Hospital is desirable in the longer-term and would be his logical rehabilitation pathway given he plans to live in Cooranbong and has the support of family and his carer, I am of the opinion he currently remains too symptomatic, including paranoia about his treating team and he is largely disengaged in rehabilitation, meaning that at a transfer to Morisset, or a transferred to any other less restrictive psychiatric hospital environment on an involuntary basis, would be premature and would likely destabilise his mental state and result in more florid psychosis."
10. Further, Dr Furst opined: "Having regard to his risk profile and clinical needs, I am of the opinion that care, treatment and control as a forensic patient is needed for Mr Christian's own protection from serious harm or the protection of others from serious harm. I am of the opinion that the Forensic Hospital is the least restrictive environment which would currently enable care and treatment to be effectively given to Mr Christian."
11. Dr Furst also expressed the opinion, in terms of the length of time that an extension order ought to be made, that an appropriate figure was 2 years for the extension, which period would allow for the treating team to manage his schizoaffective disorder more aggressively; provide psychoeducation; and provide other interventions over the next 12 months at the Forensic Hospital and thereafter ensure their stabilisation.
12. As earlier stated the report of Dr Andrew Ellis, Forensic Psychiatrist, is less definitive. Nevertheless Dr Ellis expressed the following opinion: "Concern with relying solely on the Mental Health Act scheme would be that this type of clinical may not be provided, with quick transfer to a generalist psychiatric unit and/or rapid discharge to any available community accommodation. Brief reviews have previously discounted the possibility of an enduring mental illness, and given his atypical presentation, there may be pressure to discharge to private providers only on a resource related basis. This type of fractured care is generally unsatisfactory. He could theoretically be discharged from care without consultation or external review. This scenario might lead to non-compliance with antipsychotic medication and substance use with rapid escalation in risk in the absence of monitoring. Given the current attention to his case, this scenario appears less likely." A significant difference in forensic patient status is when on conditional release, recall to hospital or prison may be enacted more rapidly in a cycle of clinical deterioration. It does not require the deteriorate to a point where he becomes a 'mentally ill person', although if clinicians are mindful of the need to appraise his 'continuing condition' under s 14 of the Mental Health Act, early deterioration or non-compliance with treatment could be the grounds for hospitalisation. This has greater relevance in this case than some other forensic patients as his risk stems from a number of clinical areas including substance use and personality disorder as well as mental illness. An increase in risk could be managed in the circumstance where other clinical conditions deteriorate but his mental illness does not. … … Ultimately, the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order. If conducted in an evidence-based fashion in the manner suggested above the use of the civil mental health legislation could be as safe and effective as an order for detention or conditional release. It would also remove the possibility of restrictive and ineffective recall to prison in the event of a non-criminal breach of conditions of release."
13. Overall, and bearing in mind the mandatory criteria established by cl (7)(2) of the Schedule to the MHFP Act, I am satisfied that the defendant represents an unacceptable risk within the meaning of that Act, as explained above. Further, I am satisfied, notwithstanding the theoretical availability of adequate care under the Mental Health Act, that given Mr Christian's complex mental condition, including the subsistence of a number of disorders and his lack of insight into his own offending, treatment under the Mental Health Act, otherwise than under a limiting term, poses unacceptable risks to the community.
14. The fact, if it be the fact, that the MHFP Act might impose a regime that is little different from the regime under the Mental Health Act simply means that the case-by-case approach applicable to the defendant is one that would allow, at least on a trial basis, a less restrictive set of conditions. Nevertheless, on all of the evidence before the Court, the Court is satisfied that without the involuntary and restrictive nature of the review by the Tribunal, the defendant poses an unacceptable risk of safety to the community.
15. I draw comfort in this respect from the treatment by the defendant of his treating team during interviews and his sexually suggestive gestures about members of staff at The Forensic Hospital.
16. It is for the foregoing reasons that the Court made orders on 8 March 2018.

Amendments 05 June 2018 - [36] - Amended and new paragraph inserted to correct a slip. 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: 05 June 2018