Attorney-General of New South Wales v Ramirez

Supreme Court of NSW|2018-09-18|Before: Lonergan J

Background to the application

The background to the application is set out in Attorney-General of New South Wales v Ramirez [2018] NSWSC 662 in [5]-[10] and [23]-[27]. I will not repeat that background here other than to note that the defendant was said to have engaged in a sexual assault upon a female fellow patient at the PECC Unit at Liverpool Hospital in 2015. He was found unfit to be tried and was remanded in custody in March 2015, with the District Court imposing a limiting term on 2 December 2016 making the defendant a forensic patient pursuant to s 42(a) of the Act.
The expert opinions that were considered for the interim orders I have made included psychiatrists Dr Chew and Dr White and other opinions of healthcare professionals who had observed the defendant whilst in the forensic patient custodial setting.
Dr Chew concluded that there was a risk of the defendant causing serious harm to others if he does not receive intensive psychiatric support, treatment and rehabilitation which he stated is best managed, at least initially, in the forensic psychiatric system. Dr Chew diagnosed schizoaffective disorder and identified that the defendant needed "the usual Forensic Patient pathway - a period stepping through in a graded fashion the rehabilitation wards at the hospital and the medium secure unit system". Dr Chew expressed a concern that reliance on the civil mental health system pursuant to the Mental Health Act 2007 was risky because a patient like Mr Ramirez could "fall between the cracks" due to the prioritising of forensic beds over civil patients.
Dr Chew gave evidence in a concurrent evidence session with forensic psychiatrists Dr Eagle and Dr Keller on 18 September 2018. I will return to this evidence later in this judgment. I obtained significant assistance from the experts giving evidence in this format as the respectful and considered debate between them clarified the areas of contention and the bases for the differing views as to how long was an appropriate time for the necessary order to last.

Reports of court-appointed experts Dr Eagle and Dr Keller

Dr Eagle

Dr Eagle conducted an interview with the defendant face to face on 16 July 2018 over a period of approximately 80 minutes. Her report is comprehensive, having carried out the clinical assessment summarising current presentation, history of presenting illness, past psychiatric history and substance use history. She noted the account of the index offences and the defendant's forensic history and personal history. She completed a mental state examination and the examination of the historical documents.
Dr Eagle reached a diagnosis of schizoaffective disorder and described it as a chronic psychotic illness, characterised by relapses in psychosis and episodes of severe mood disturbance such as mania or depression. She noted recurrent relapses of psychosis giving rise to grandiose delusions as well as some disorganised thought processes, disorganised behaviour, and features of mania including elevated mood, increased energy and activity, pervasive grandiosity and increased sexualised behaviour during relapses. Significantly, Dr Eagle noted these symptoms persisted, although they attenuated following treatment with anti-psychotics including Clozapine.
Dr Eagle also diagnosed a severe substance use disorder, in remission in the controlled environment the defendant is in, and that substance use previously involved cannabis, alcohol and stimulants.
Whilst noting there are inherent limitations in any process of risk assessment, Dr Eagle concluded that the defendant has a moderate to high loading of historical risk factors for future violence, including a history of problems with violence, anti-social behaviour, substance use, difficulties with relationships and employment and his major mental disorder, and the treatment resistant nature of his illness. She also noted clinical factors being the active symptoms of major mental disorder and his problems with insight and instability.
Dr Eagle concluded that release into the community carries with it a risk that the defendant would have problems with professional services and plans, bearing in mind previous community treatment orders and assertive case management have not been effective in managing his illness and behaviours.
In terms of sexual reoffending, analysis and scoring places the defendant in the highest category of potential reoffending putting him in a category of well above average risk. Dr Eagle noted dynamic risk factors included problems with significant social influences, lack of capacity for relationship stability, hostility to women, impulsivity, poor problem solving skills, lack of cooperation with supervision and sexual preoccupation.
The risk of relapsing into substance use potentially interacts with the defendant's severe mental illness in a risky and negative way. Dr Eagle said this: "The combination of these disorders substantially increases his risk of violence. Poor social cognition and disinhibited behaviours that have been associated with his illness have further contributed to his problematic sexual behaviours and sexual offending. His disorganised thinking and behaviours have given rise to homelessness and this has likely increased his exposure to de-stabilising factors and antisocial peers who exert a negative influence".
Dr Eagle then goes on to identify the variety of problematic violent behaviours including the opportunistic sexual violence directed at a stranger in an inpatient setting involved in the index offence.
In respect of the severe substance use disorder (page 19), Dr Eagle noted that the defendant will remain vulnerable to relapse to substance use, particularly given his mental illness, although better control of his substance use disorder may be able to be achieved with adequate support and supervision. She also noted that "the stabilisation of his mental illness will optimise his prospects of addressing his substance use disorder".
Dr Eagle stated that in her view, the defendant does pose a risk of causing serious harm to others in future if he ceases to be a forensic patient. However she noted that if he ceased to be a forensic patient he will most likely continue to be detained at the Forensic Hospital as an involuntary patient under the Mental Health Act. She noted in this regard that forensic beds are generally prioritised for forensic patients and this could create accommodation difficulties, because his presentation would be dealt with having regard to resources available at the relevant mental health service to which he presented at any given time.
In terms of whether classification as an involuntary patient under the Mental Health Act is an option, Dr Eagle said (page 22) that the defendant is at risk of causing serious harm to others that cannot be adequately managed as an involuntary patient under the Mental Health Act at least following discharge from the Forensic Hospital. She articulated her concern that the supervision regime available under the Mental Health Act would not be sufficient to effectively manage the defendant's risk of serious harm to others. It is also noted that the index sexual offending occurred when the defendant was under the care regime of the Mental Health Act in a PECC Unit at a hospital.
Dr Eagle concluded that she is of the view that continuation of the defendant's forensic patient status is the least restrictive available means of providing ongoing effective risk management.
Dr Eagle concluded in terms of the time needed before release as follows: "I am of the opinion that Mr Ramirez requires ongoing stabilisation of his illness in a high secure mental health facility, such the Forensic Hospital. This would need to be followed by the development of a comprehensive risk management plan that addresses his risk of sexual reoffending, aggression and other challenging behaviours (such as absconding). He should then have a process of rehabilitation (for instance, to optimise his social, vocational and cognitive function) in a setting that can accommodate a gradual transition into less restrictive environments before reintegrating into the community. In my experience, given Mr Ramirez's treatment resistant illness and associated risk factors this process is likely to take at least 3 years, if not longer." (emphasis added)

Dr Keller

Dr Keller assessed the defendant in July where he took a history, a strange description of the index offending as told by the defendant, and noting that the defendant had a lack of insight and understanding into the pathway through which the Forensic Mental Health Network would work such as moving him to a medium secure unit at an appropriate time. The defendant did however know that he was rated C2 which meant that he was able to move around the grounds of the hospital, accompanied by members of nursing staff and groups of several patients. In terms of attitude to treatment and understanding of his illness, Dr Keller noted that Mr Ramirez agreed with his diagnosis of schizoaffective disorder and agreed he needed to take medication. The main side effect noted was drooling, some weight gain and sedation. There were still some grandiose beliefs expressed including that he had studied law from the age of 7 to 11 from a "Head Barrister", that he was a commando and a professional dancer.
Dr Keller concluded that the defendant's insight into his illness was superficial at best, although the defendant was accepting he had a serious mental illness.
Dr Keller carried out an analysis of the assessments and opinions of other psychiatrists who had reviewed the defendant in 2014, 2015, 2017 and 2018.
Dr Keller reached the view that the defendant had schizophrenia with a differential diagnosis of schizoaffective disorder, characterised by the presence of multiple bizarre grandiose delusions, some hallucinations and formal thought disorder. There are also negative symptoms such as flat affect, apathy and lack of motivation and a reduction of functioning in several domains including interpersonal relationships and self-care. Dr Keller noted the disorder had been continuously present for over 15 years, and that, combined with his presentation and evidence of misusing multiple substances in the past including amphetamines, ecstasy, cannabis and alcohol, created a high risk profile.
Dr Keller relevantly concluded that the illness, which he thought met the criteria for a diagnosis of schizophrenia, has been: "…extremely chronic given that the information available to me suggests the onset was about 16 years of age and he is now 34 years old. His symptoms have been persistent as there does not appear to be any period in which he has been free of his symptoms of schizophrenia. He also appears to have what might be described as a 'treatment resistant illness', given that his symptoms have been severe and not responsive to other anti-psychotic medications. He has required to be treated with clozapine, which is usually reserved for cases of treatment resistance schizophrenia or schizoaffective disorder. Even whilst being treated with this medication, which has been now prescribed for over 12 months, he continues to experience persistent psychotic symptoms."
In terms of serious risk of harm to others if he ceases to be a forensic patient, Dr Keller was of the view that the defendant does pose a risk of causing serious harm to others if he ceases to be a forensic patient. He agreed with the assessments completed by Dr Chew and Dr White that the defendant presents with a very high level of static or historical risk factors along the lines of those also identified by Dr Eagle. He has also dynamic risk factors particularly his ongoing significant clinical symptoms of his mental illness, his persistent poor insight into his mental health and the substance misuse issues.
Dr Keller noted that some of the risk factors may diminish with further treatment and rehabilitation through the Forensic Mental Health Network ("FMHN") because at that stage he had only spent about six months in the Forensic Hospital and he had not prior to that had the opportunity to have an intensive period of forensic psychiatric rehabilitation. Treatment at the MRRC where he had been housed previously would have only consisted of medication and monitoring, and no psychiatric rehabilitation.
Dr Keller noted however that: "On the other hand in a less contained structured environment, some of those risk factors may further increase. Some of his destabilisers, including access to alcohol and illicit substances and a reduction in structure and support, would potentially increase his level of dynamic risk. When combined with his very high loading for static risk, this would place him in a much greater risk of causing harm to others. These factors need to be taken into account in considering the pace at which Mr Ramirez might transition through the forensic mental health system."
Importantly, Dr Keller in the concluding parts of his report where he addresses why he is of the view that the defendant should remain as a forensic patient for 5 years, concluded that really the defendant is in the "slow stream" of progress through the FMHN. He noted that the application initially made by the Attorney-General sought an extension of a period of only 3 years, and that in his view would be "a minimum feasible period" to enable the defendant to receive further treatment as a forensic patient within the FMHN. Dr Keller made it clear that an order for an extension of Forensic Patient status for 5 years would be what is appropriate to manage the defendant's risk of causing serious harm to others. He sets out his reasons for this which are cogent and well-argued.
First is that nearly all of the 4 year limiting term was served in a correctional setting, not a rehabilitation setting. Having had 8 years' experience as the Clinical Director of the Forensic Hospital, a patient such as the defendant would ordinarily take at least 3 and often up to 5 years to transition through all the necessary steps and it was important that this not be rushed.
Dr Keller stated that he could see: "…no evidence to suggest that he was likely to be transitioning through the hospital, and indeed through the FMHN, rapidly enough to anticipate that he would be released into the community within 3 years. My assessment of his current clinical state, with his protracted and treatment resistant psychotic symptoms and poor insight, would suggest that Mr Ramirez belongs to that group of forensic patients that might be considered 'slow stream'. In other words, he would be likely to transition more slowly compared to some other forensic patients."
Dr Keller concluded that the slowness with which people like the defendant were likely to transition through a medium secure unit was at least 2 years, and often longer. There were also concerns about the defendant's level of support and ability to reintegrate into the community after that, given his background of itinerancy and homelessness and instability of social networks.
There is also the long history of substance abuse which is another risk.
Dr Keller concluded that all the factors suggest the maximum period available under the legislation that is, 5 years, should be strongly considered to enable "a graded transition through the levels of care within the FMHN".

Conclave evidence focusing on the defendant's forensic progress and the length of the extension period required

Dr Keller reiterated the reasons set out in his report as to why the defendant ought to have an extension of 5 years. He also expanded on the problematic nature of the community aspect of the defendant's rehabilitation and care and explained in more detail the "slow stream" analysis he had mentioned in his report as follows: "…perhaps I did not stress even strongly enough the community aspect of his care, but certainly if you take into account the fact that he remains in Bronte, he is going to have to transition through Clovelly, Elouera, Dee Why, Elouera, then onto a medium secure unit and in my experience once he - even - not, not taking into account the delays which are likely to occur, even the best case scenario, a medium secure unit that accepted Mr Ramirez and was able to take him at the earliest opportunity is likely to need to look after Mr Ramirez in that facility for at least two years and then community care after that. I would be thinking five years as a forensic patient would be an absolute minimum, but I also understand that that's the maximum that can be, that can be allowed for within the constraints of the legislation." (T34, 37-48)
Dr Keller was of the view that if an order was made for only 3 years, this would not make sufficient allowance for transitioning to the community in a safe fashion. He would anticipate that the defendant would still be only in a medium security unit at the 3 year mark and he should not be released into the community without forensic supervision. If the defendant is still in a medium secure unit at the end of 3 years, it seems likely that a further application could be made, but there are risks that if his forensic pathway has not been properly completed, he would be released to the "vagaries of the Civil Mental Health System" and "that would be a poor outcome".
Dr Eagle on the other hand described a "different formulation to Dr Keller" of the defendant's progress. She explained the main obstacle was lack of available beds and that the system has provided delays in the defendant's care to date and it is likely to continue to provide or present obstacles to his transition into the community. She was of the view that: "His transition and his treatment should be based on his individual needs, not on predetermined pathways, and I think that is the clinicians view generally when they are treating patients and when they are making recommendations to the Mental Health Review Tribunal. Unfortunately though, we do operate within the system, and unfortunately the system has these very much extended waiting periods, and so that is why I meant at least three years. So if there were the resources available and Mr Ramirez was able to be transitioned according to his treatment needs and his rehabilitation needs and his risk management needs, I'm of the view that he could be reintegrated into the community successfully in three years."
Dr Eagle also outlined the downside of an order for 5 years being that in her experience of instances where forensic patients in extension applications have been given extensions, those extensions have allowed those forensic patients to remain, for instance, in gaol: "…because the pressure is off to transfer them out of a gaol into an appropriate therapeutic setting such as The Forensic Hospital, and we can already see that Mr Ramirez has sat in gaol for two years when he could have been treated in The Forensic Hospital as a forensic patient from 25 November 2015 when he was found unfit and seen by the tribunal. But because the expectation is that he needs to wait in a line, he wasn't afforded that treatment, and that has delayed his progress by two years. So yes, there are instances when a longer order can take the pressure off services to move certainly through a system, and there are also instances where a shorter order - and there's a patient where this specifically occurred. Because there was a shorter order, the patient was referred to a medium secure unit - successfully, I might add, and accepted by a medium secure unit - and a time limited order was made by the tribunal, bearing in mind that he needed to be a forensic patient when he was at the medium secure unit and they wanted to have every opportunity for him to progress in his rehabilitation. So that in fact affected his speedier progress I guess, or more appropriate progress; progress in response to his actual risk management needs. So I think that my view as an expert and a clinician is that orders for forensic status need to be in response to the risk management needs of the individual patient, if they are to be the least restrictive and most effective form of care available, or they are to be part of that least restrictive and most effective form of care."
Dr Eagle then outlined why she thought 3 years was an appropriate length taking into account that: "…Mr Ramirez will need to spend some time on the Clovelly Ward, where I'm a clinician. He will need to probably spend at least six months on the Clovelly Ward for us to be confident that he is able to tolerate those lesser levels of support and restrictions. Given his severe mental illness, I agree that he probably would also benefit from a further period of time on the Dee Why Ward, but I wouldn't expect that that would need to be any longer than six to 12 months, barring sort of, as I've said, bureaucratic delays. There would not necessarily be a need for him to go to Elouera Ward. A number of patients are sent to medium secure units from the Dee Why Ward. It would only be if there were specific rehabilitation needs that could not be met in a medium secure unit, or specific risk needs that meant that the person needed to be exposed to for instance knives in a high secure facility rather than in a medium secure unit, that would warrant him going to an Elouera Ward. He may be able to be managed by going from Dee Why to a medium secure unit.…barring delays… The biggest delay will be between him getting from a high secure facility…You'd also need to factor in the fact that Mr Ramirez may not previous [proceed] as we are expecting. He may relapse. He may go to a medium secure and take some drugs and relapse and come back. So you know, those sort of possible variables obviously would delay his progress, which is why it's at least that period of time."
Dr Chew indicated agreement with Dr Eagle generally in respect of her responses and assessment.
Dr Keller emphasised that in his opinion 3 years was insufficient, and that for in-hospital care alone he thought 3 years was insufficient and that does not include a period in the community which is absolutely essential for Mr Ramirez, to be conditionally released as a forensic patient, before one would even contemplate a community treatment order. Dr Keller concludes the following to be a realistic path: "It's possible that he may not need to go to Elouera. He could be transferred directly from Dee Why, but I would think probably 12 months Clovelly, 12 months in Dee Why, would be around about the best case scenario. But I think a medium secure unit would want Mr Ramirez to be within their facility, including periods of gradual leave, escorted leave, unescorted leave, probably for 18 months to two years realistically…So you're already looking at four years before community release, and then you'd want at least another year, if not more, as a conditionally released forensic patient. So there's your five years already. So yeah, I would disagree with the timeframe that's been put forward."
Dr Eagle maintained her opinion: "He is likely to be able to progress to the Clovelly Ward and the Dee Why Ward relatively quickly…the challenging time is when Mr Ramirez is in a medium security facility and they are attempting to integrate him back into the community so, yeah, that is going to take probably between a year to two years to integrate him into the community and to have him in the community with the level of support he needs to be able to live a safe and prosocial life where he won't reoffend hopefully…a number of options at that point. One of them is a conditional release order and that is the most restrictive and that is - you know, that guarantees that he can't put a foot wrong without the oversight of the Mental Health Review Tribunal and it's very useful for forensic patients because we can keep them under those orders and guarantee the safety of the community forever if we wish. In Mr Ramirez's case, as is the case with a lot similar civil patients with similar illnesses, we would need to look at other options and there are other options. Obviously a CTO has already been discussed. That is probably not likely to be particularly effective in Mr Ramirez's case, but it's the level of support that he gets that's probably going to be the most important determinant in his future prognosis and care and there are a number of options through NDIS now and supported accommodation that can be looked at and coming from the forensic system it is likely that those things will be able to be accessed more readily which is positive than coming from the civil system where you're competing with a lot of similar patients with similar problems."

Dr Ma's evidence

Dr Ma co-wrote a detailed report in April 2018 for the Mental Health Review Tribunal. Inappropriate comments, touching staff and dressing in an unusual fashion was noted. Dr Ma said that the defendant's behaviour generally improved after transfer to the other side of the Bronte unit. Dr Ma stated that transfer to the Clovelly unit within the next 6 months was expected and appropriate progress.
Dr Ma gave evidence that in his view and from his experience focused on Mr Ramirez: "...18 months is generally the minimum time that patients will spend in a medium secure unit. When we talk about Mr Ramirez, in particular, I would expect approximately 18 months to two years, probably closer towards the two year mark. The reason I say this is because I think we highlighted - the experts highlighted a little bit earlier, on the one hand Dr Keller mentioned "slow stream" and then we also highlighted that he's gone through Bronte relatively quickly compared to other patients in Bronte…I think this is because, I think, back to what Dr Eagle mentioned, in regards to the patient's needs, all patients have different needs. So the goal at Bronte and generally the high secure hospital in general is to identify and address problem behaviours that will put other people at risk and potentially themselves. As you've heard, Mr Ramirez has not presented with acute aggressive episodes. My opinion is that his deficits lie in his level of insight, his living skills, and the residual symptoms that he's experiencing. I suspect that he will be able to progress through the high secure hospital relatively ‑ probably on average - you know, probably on average, with the average patient, you know, relatively quickly, but he might have some difficulties in the longer term addressing some of those more chronic issues that I've just highlighted."
Dr Ma agreed that there were moderate loading of clinical risk factors with the defendant and a moderate to high loading of static historical risk factors.
Dr Ma agreed that 18 months is generally the minimum time the patients will spend in a medium secure unit and he expected approximately 18 months to 2 years probably closer to the 2 years' mark because he agreed with Dr Keller that the defendant is likely to be "slow stream" although noting that he had gone through Bronte relatively quickly compared to other patients. Dr Ma made the following observations about that: "So the goal of Bronte and generally the high secure hospital in general is to identify and address problem behaviours that will put other people at risk and potentially themselves. As you've heard, Mr Ramirez has not presented with acute aggressive episodes. My opinion is that his deficits lie in his level of insight, his living skills, and the residual symptoms that he's experiencing. I suspect that he will be able to progress through the high secure hospital relatively ‑ probably on average - you know, probably on average, with the average patient, you know, relatively quickly, but he might have some difficulties in the longer term addressing some of those more chronic issues that I've just highlighted."

Decision

Dr Ma, Dr Chew and Dr Eagle agree that the necessary lower limit for the defendant to properly progress through the forensic mental health pathways and resultantly reduce the risk that he will pose of serious risk to others is a minimum of 3 years, although Dr Eagle's view and Dr Ma's optimism, given the defendant's good progress recently, would support a conclusion that 3 years may be sufficient. Dr Keller's well-argued if pessimistic view also made some significant points.
Given the exigencies and problems identified with releasing to the community for management under the Mental Health Act, and the obvious advantages of careful management and stepping down through the FMHN, it seems that a period of 4 years would take into account the concerns and considerations set out in the evidence of the experts, including the allowance for possible relapse and to cover the difficult re-integration into the community in the well-supported, consistent, conservative, structured process that the FMHN would provide.

Order

Pursuant to cl 1 and cl 7(1)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 the defendant be subject to an order for the extension of his status as a forensic patient for a period of four (4) years commencing on 30 September 2018 to continue to 29 September 2022.

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Mental Health (Forensic Provisions) Act 1990(NSW)ss 30, 40, 54A, 42, 74B, Sch

Judgment

By Amended Summons filed in court on 18 September 2018, the Attorney-General of New South Wales, the plaintiff, seeks an order to extend the status of James Aaron Ramirez, the defendant, as a forensic patient for the maximum period of 5 years pursuant to cl 7(1)(a) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act").
On 14 May 2018, following a preliminary hearing, I made an order appointing two psychiatrists to conduct examinations of the defendant and furnish the reports to court.
On 18 May 2018, I made an order pursuant to cl 10 of Sch 1 that the defendant be subject to an interim extension order from 8 July 2018 for a period of 28 days: Attorney-General of New South Wales v Ramirez [2018] NSWSC 662. The interim extension order was renewed by me on 1 August 2018 (Attorney-General of New South Wales v Ramirez (No 2) [2018] NSWSC 1305) and again by me on 30 August 2018 (Attorney-General of New South Wales v Ramirez (No 3) (Interim Orders) [2018] NSWSC 1444), that order dating from 2 September 2018 to 30 September 2018. No further interim order can be made beyond 30 September 2018: cl 11(2) of Sch 1. A final order is required.
It was not in issue at this final hearing that the requirements of the Act were met. It was conceded by the defendant's legal representatives that an order extending the status of the defendant as a forensic patient should be made. The issue is whether the extension should be for 3 years or for up to the statutory maximum of 5 years.
I am entirely satisfied, to a high degree, that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. I am satisfied to a high degree that the risk cannot be managed by other less restrictive means.
The defendant submitted that in making the determination, I should take into account that "less restrictive means" entails with it a consideration of the length of the proposed extension, and that given that both the objects of the Act (ss 30 and 74B) cross-reference s 68 of the Mental Health Act, I must factor into my decision the shortest appropriate extension.
The psychiatric experts provided evidence, both oral and written, supporting a range of 3 to 5 years as the necessary extension period.
I have concluded an appropriate extension period of 4 years and these are my reasons.

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