Attorney General of New South Wales v Christian bht Thompson

Consideration

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.
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.
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".
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.
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.
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.
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."
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.
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."
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."
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.
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."
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.
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.
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.
It is for the foregoing reasons that the Court made orders on 8 March 2018.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Cases Cited (14)

Cited By (3)