Attorney General of New South Wales v Ramirez

The evidence

1. The following documentary material was tendered or read on behalf of the plaintiff at the hearing: 1. The affidavit of Jessica Murty affirmed 11 May 2022 together with Exhibit JM-1, which was referred to in the affidavit and comprised of two volumes; 2. The affidavit of Jessica Murty affirmed 15 August 2022; 3. The affidavit of Jessica Murty affirmed 26 October 2022 together with Exhibit JM-2 as referred to in the affidavit; 4. The affidavit of Jessica Murty affirmed 1 December 2022 together with Exhibit JM-3 as referred to in the affidavit; 5. The expert report of Dr Anna Farrar dated 28 October 2022; and 6. The expert report of Dr Calum Smith dated 28 October 2022.
2. The following documentary material was read on behalf of Mr Ramirez at the hearing: 1. The affidavit of Anna Goulston affirmed 29 November 2022, with some redactions to Annexure A (being the report of Dr Natasha Rae, Mr Ramirez' treating psychiatrist); 2. The affidavit of Abiha Asghar affirmed 29 November 2022; and 3. The affidavit of Brody Walsh affirmed 29 November 2022.
3. At the hearing of the matter, the two experts Drs Farrar and Smith gave concurrent oral evidence.

The statutory scheme

1. As set out in the long title, the MHCIFP Act is "an Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes".
2. The first four Parts of the MHCIFP Act deal with preliminary issues including the definition of certain terms, summary proceedings, defence of mental health impairment or cognitive impairment, and fitness to stand trial. Part 5 is headed 'Forensic patients and correctional patients'; Part 6 is headed 'Extension of status as a forensic patient'; and Part 7 is headed 'Tribunal proceedings'. [3]
3. Division 1 of Part 5 is headed 'General principles and concepts'. Section 69 sets out the objects for Part 5 and s 69(2) expressly extends the objects of Part 5 to the provisions of Part 6. Section 69 reads as follows: 69 Objects (1) 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 have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention 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, (f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims. (2) The objects of this Part extend to the provisions of Part 6.
4. The definition of a "forensic patient" is found within Part 5 of the MHCIFP Act in s 72(1). Relevantly, the definition includes a person who has been given a limiting term after a special hearing and who is subsequently subject to an extension or interim extension order and who is detained in a mental health facility (s 72(1)(b) of the MHCIFP Act).
5. Section 121 of the MHCIFP Act, which is to be found within Part 6, empowers this Court to make an extension order - being an order to extend a person's status as a forensic patient.
6. The test the Court must apply when deciding whether to make an extension order is set out in s 122, as follows: 122 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 Part 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 the patient ceases to be 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.
7. It is accepted that the structure and language of the statutory regime under the MHCIFP Act closely parallels that of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the HRO Act"), which empowers the Court to order a "high risk" offender to be subject to a continuing detention order or an extended supervision order. As such, authorities dealing with the HRO Act are helpful in elucidating the provisions in the MHCIFP Act. Unlike the HRO Act, however, the MHCIFP does not empower the Court to make specific orders about the care, treatment or control of a forensic patient. Such matters are left to the Tribunal.
8. Section 127(1) of the MHCIFP Act provides that a Court may determine an application for an extension order by making the order or dismissing the application. Section 127(2) provides that the Court must have regard to various matters listed in that subsection in addition to any other matter it considers relevant.
9. Section 128 provides that an extension order can be made for a period up to but not exceeding five years from the date the order commences.

Satisfaction to a "high degree of probability"

1. As set out in s 122(2) above, in determining satisfaction to a "high degree of probability", I am not required to be satisfied that the risk of Mr Ramirez causing serious harm to others is more likely than not in order to determine that he poses an unacceptable risk of causing serious harm to others. Nor am I required to be satisfied that it is more likely than not that the risk he poses cannot be adequately managed by other less restrictive means.
2. The first limb of the test - "unacceptable risk of causing serious harm to others" is provided for in s 122(1)(a). Neither of the terms "unacceptable risk" or "serious harm" are defined in the MCHIFP Act.
3. For the purposes of s 122(1)(a), whether or not the defendant poses an "unacceptable risk of causing serious harm to others" is to be assessed independently from s 122(1)(b). That is, the assessment must be made on the assumption that Mr Ramirez would be neither a forensic patient nor an involuntary patient and would be released into the community at the end of his extension order without any oversight by the courts or the Tribunal: Attorney General for New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [10] (R A Hulme J).
4. The meaning of "unacceptable risk" was considered in the context of high risk offenders by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] ("Lynn"): "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters". "What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
5. In Lynn, Basten JA stated at [126]: "The nature of the risk…posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community…"
6. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the objects of s 69 of the MHCIFP Act and must have regard to the matters listed non-exhaustively in s 127(2). Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).
7. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).
8. The meaning of "serious harm" is, as noted above, undefined in the MHCIFP Act, although the same term is used in s 14 of the Mental Health Act 2007 (NSW) (the "Mental Health Act"). The phrase "serious harm" is not defined by the Mental Health Act either. It has been accepted that it includes physical or psychological harm, albeit subject to the requirement that the harm be "serious": see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J); referred to by Chen J in Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274 at [25].

Preconditions to making extension orders under s 121

1. It is not in issue that the various statutory preconditions found in s 124 of the MHCIFP Act are satisfied, and I find that they are made out: 1. Mr Ramirez is a forensic patient who is subject to an existing extension order (s 124(1)(b)); 2. The plaintiff's application was not made more than six months before the expiry of the existing extension order (s 124(2)(b)).
2. Further, the plaintiff's application is supported by documentation addressing the matters referred to in s 127(2). This includes reports (referred to below) assessing Mr Ramirez' risk of causing serious harm to others, addressing the need for ongoing management of Mr Ramirez as a forensic patient and giving reasons why the risk of Mr Ramirez causing serious harm to others cannot be adequately managed by other less restrictive means (s 125).

Relevant matters to be considered

1. I must have regard to the non-exhaustive list of matters listed in s 127(2) of the MHCIFP Act as follows: (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(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 Communities and Justice 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 the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (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.
2. I now outline the material I have taken into account, in accordance with s 127(2) of the MHCIFP Act, in reaching my conclusion.

Consideration of material before me

1. Mr Ramirez' background and criminal history (commencing with the details of the index offences) have been set out in Lonergan J's reasons in Attorney-General of New South Wales v Ramirez [2018] NSWSC 662 at [5]-[7] and [23]-[27], which I set out here for convenience: The index offence [5] In 2014, when [Mr Ramirez] was 31, he was charged with three counts of sexual intercourse without consent and one count of assault with act of indecency. It is uncontroversial that the assaults occurred all together in one incident whilst [Mr Ramirez] and his victim were both inpatients in the PECC Unit of Liverpool Hospital. This unit is a psychiatric emergency care centre where patients are admitted for (usually) short periods. [6] The offence occurred on 20 June 2014. It involved [Mr Ramirez] and the victim watching a movie, and when it ended, the victim went to her bedroom. Some time later, [Mr Ramirez] entered her bedroom and asked to talk to her. He then jumped on the bed, pulled down her pants, and put his penis in her vagina. He also put his hands down her chest and grabbed one of her nipples, and then after removing his penis placed his finger in the victim's vagina and a thumb in her anus. It is said that the sexual assault ended when the victim told [Mr Ramirez] to stop, and he got off and went to the door saying words to the effect of, "I thought that's what you wanted". [7] An immediate complaint was made to the nurse on duty. The Defendant was transferred to another hospital. He was arrested and charged on 9 July 2014. … The Defendant's background and criminal history [23] The Defendant is 34 years old and was born in Young in Central New South Wales. He is of Aboriginal descent, has one full-blood sister and ten half-siblings. He was diagnosed at age 16 with schizoaffective disorder. Prior to his current incarceration it is reported that he was homeless. He was unwell and was admitted to the PECC Unit at Liverpool Hospital where the index offences took place. [24] Currently, he is housed at the Bronte Unit at the Forensic Hospital in Malabar and has been there since 6 December 2017 having previously spent his time at Concord Centre for Mental Health from shortly after the time of his arrest for the index offences. [25] The Defendant has a long record of criminal offending, none of which would amount to "serious harm", save for the index offences. The offending was referred to in Graham ADCJ's remarks on sentence in September 2016. Graham ADCJ noted that this previous offending had been dealt with by way of bonds associated with treatment and supervision or dealt with pursuant to s 33 of the Mental Health Act 2007 (NSW) ("the MHA"). The offending comprises assault in 2000 where [Mr Ramirez] (aged 17) punched two male victims on the street in Dubbo. There were some failures to appear and warrants issued. In 2004 he was charged with possess prohibited drug and custody of a knife in a public place. In 2005 he was charged with assault occasioning actual bodily harm, maliciously destroy or damage property, and fail to appear in accordance with bail undertaking. This series of charges involved [Mr Ramirez] punching his girlfriend in the mouth and splitting her lip at a time when she was three months pregnant with their child. In 2005 there was an unlicensed driving offence and driving under the influence of alcohol. There was also a contravene ADVO in 2005 and 2006. There were later some larceny, shoplifting and other possession charges over the following 10 years. Sentencing remarks - September 2016 index offences [26] Graham ADCJ observed that whilst the sexual offences committed in 2014 were degrading and serious, the offending represented "a single episode of assault over a relatively short time which was opportunistic, not planned, and not worsened by gratuitous violence or threats". [27] The sentencing judge also stated that while [Mr Ramirez] was not able to rely on a defence of mental illness, "…his actual state of mental illness, and his psychotic state at the time, meant that his judgment was impaired, and while he may have realised that what he was doing was wrong, that realisation was a clouded one, impaired by the symptoms of his mental illness. In those circumstances his moral culpability should be seen as being significantly reduced."
2. The two experts who were appointed to provide reports for the final hearing before me, [4] Drs Farrar and Smith, agreed that Mr Ramirez poses an unacceptable risk of serious harm to others. They also agreed that the risk cannot be adequately managed by less restrictive means. They gave evidence concurrently at the final hearing.

Court ordered report of Dr Anna Farrar dated 28 October 2022

1. Dr Farrar is a Forensic Psychiatrist. She was ordered by the Court to provide a report for the final hearing, which included the following information.
2. Dr Farrar examined Mr Ramirez on 17 October 2022 by audio visual link to Bloomfield Hospital, Orange ("Bloomfield") for two hours. Dr Farrar also had access to other material including a series of past medical reports and other information contained within and attached to the affidavits of Jessica Murty.
3. Dr Farrar summarised Mr Ramirez' personal history by relying on an account provided in part by his sister (noting that the history provided by him was not reliable) which can be outlined as follows: 1. His parents are both Aboriginal; 2. He was raised by his grandmother after his mother's incarceration; 3. He had extended periods of homelessness; 4. He has one daughter born in 2004; 5. He worked as a landscaper for his father's business full time for several years; 6. He was expelled from high school for cannabis use; 7. He was a talented soccer player in high school and travelled overseas for tournaments; 8. He had studied at the Aboriginal Dance Theatre Redfern; 9. He developed psychotic symptoms around the age of 16 in the context of his drug use and he started using heavier drugs around the age of 20.
4. It was noted that his nursing report dated 21 May 2022 included his need for prompting and assistance with activities of daily living including personal hygiene, laundry and supervision of medications.
5. As to Mr Ramirez' psychiatric history, the following was noted:
6. His Bloomfield assessment record dated 15 September 2022 (the day of his admission to that unit) noted that he had had treatment with various psychotropic medications since 2014.
7. According to a Mental Health Review Tribunal report by Drs Kansou and Reznik dated 31 August 2022, he was diagnosed with Schizophrenia aged 16 and had a history of admissions to hospitals in Blacktown, Liverpool, Concord and Bloomfield with symptoms of thought disorder, grandiose delusions, auditory hallucinations and suicidal ideation. He was noted to have psychotic symptoms on reception to custody in 2014, including thought disorder and grandiose delusions and was diagnosed with Schizophrenia or Schizoaffective Disorder with manic features. Mr Ramirez was transferred to Long Bay Hospital Mental Health Unit in 2015 for clozapine treatment due to treatment resistant psychotic symptoms. He was admitted to the Forensic Hospital in 2017. Neuropsychological testing in April 2018 with the Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV) showed borderline cognitive functions with particular impairments in processing speed and verbal concepts. Drs Kansou and Reznik opined that Mr Ramirez had Treatment Resistant Schizophrenia, Stimulant Use Disorder, Cannabis Use Disorder and Borderline Intellectual Functioning.
8. Dr Farrar also noted the following additional reports/decisions and their contents: 1. A report by Dr Richard Furst dated 9 November 2014 in which he opined that Mr Ramirez had Schizoaffective Disorder (symptoms of grandiose delusions, mood disturbance, thought disorder, auditory hallucinations and lack of insight) as well as Substance Use Disorder (cannabis, amphetamine, methylamphetamine); 2. A report by Dr Jonathan Adams dated 18 March 2015 in which he reported that Mr Ramirez had Schizoaffective Disorder (with symptoms of thought-disorder, grandiose and bizarre delusions and impaired insight); 3. A report by Dr Gerald Chew dated 19 November 2017 in which he included that Mr Ramirez had Schizoaffective Disorder; 4. A report by Dr Adrian Keller dated 21 July 2018 in which he reported that Mr Ramirez had Schizophrenia with differential diagnosis of Schizoaffective Disorder; 5. A Tribunal decision dated 25 June 2021 in which it was recorded that Mr Ramirez had a history of absconding, non-compliance with treatment and previous CTOs. It was further noted that since his transfer to a forensic health unit in Dee Why he had no negative behaviours, but did have suicidal ideation, auditory hallucinations, grandiosity, disinhibited actions, limited insight and had remained unfit to plead. 6. A report by Dr Kerri Eagle dated 8 March 2022 in which she included her opinion that Mr Ramirez had Schizoaffective Disorder (with attenuated symptoms of delusions, hallucinations and thought disorder), Severe Substance Use Disorder and Borderline Intellectual Function.
9. Dr Farrar noted his current antipsychotic medication and other medications (including treatment for insulin resistance) and current medical history including urinary incontinence, hepatitis C (treated in 2017), asthma, poor dentition, haemorrhoids, and metabolic syndrome.
10. Dr Farrar also noted self-reports of cannabis use and problematic drinking, and that according to the Tribunal's decision dated 25 June 2021, Mr Ramirez reported that he smoked cannabis and ice (methamphetamine).

Mental State Examination on 17 October 2022

1. Dr Farrar noted that Mr Ramirez was cooperative but a vague and unreliable historian who was at times difficult to understand. There was no evidence of psychomotor agitation. His affect was restricted. His mood was reported to be anxious but objectively he appeared normal or euthymic. His speech was of normal rate, volume and rhythm although Dr Farrar stated that at times he mumbled and was difficult to understand. He was mildly thought disordered and had grandiose ideation (describing himself, unprompted, as a "professional dancer, culture dancer"). His presentation was consistent with a cognitive impairment.
2. A structured professional violence risk assessment tool was utilised to assess Mr Ramirez' future violence (the Historical Clinical Risk Management-20 Version 3 (HCR V3)). As to Historical Scale Risk Factors, it was noted that he had a history of violence as an adult, other antisocial behaviour as an adolescent and adult, a history of problems with family relationships and romantic relationships, a history of substance use and a history of Schizoaffective Disorder requiring previous inpatient mental health treatment and long-term use of antipsychotic medication to control his symptoms. Dr Farrar opined that Mr Ramirez' criminal history was suggestive of him having violent attitudes. He also had a history of non-compliance with treatment for his Schizoaffective Disorder prior to his index offences, including absconding and Community Treatment Orders. It was noted that he had required clozapine treatment due to treatment-resistant symptoms. He also had a Neurocognitive Disorder.
3. As to Clinical Scale Risk Factors, it was noted that whilst Mr Ramirez endorsed a history of psychosis, he had limited understanding of his diagnosis, symptoms and his need for treatment. He did not have insight into his violence risk, nor into his Substance Use Disorders, Neurocognitive Disorder, nor his medical conditions.
4. Mr Ramirez denied current or recent violent ideation or intent, which was supported by the available documentation.
5. Dr Farrar noted that his Schizoaffective Disorder had largely stabilised with mental health treatment in a forensic specialist inpatient environment. He did not present with overt psychotic symptoms or mood symptoms, however, he had grandiose ideation and poor insight. Mr Ramirez had evidence of ongoing symptoms of Neurocognitive Disorder, including problems with his memory.
6. Dr Farrar also noted that there was no evidence of recent affective or behavioural instability. In the last 6 months, his mood had been stable and there had been no documented behavioural instability. He had transitioned without issue from the Forensic Hospital to Bloomfield. It was noted, however, that Mr Ramirez had cognitive instability related to his Neurocognitive Disorder, including impairments in his comprehension, orientation, and memory.
7. It was noted that Mr Ramirez had been compliant with mental health treatment under strict supervision conditions. He had responded to treatment with antipsychotic medication and his psychotic and manic symptoms were observed to be largely in remission although he still had grandiose ideation.
8. Mr Ramirez' Risk Management Scale Risk Factors were assessed on the basis of possible community release. 1. As to professional services and plans, he reported he wanted to study dance and work as a professional dancer. He would accept National Disability Insurance Scheme (NDIS) support. He did not have an identified Community Mental Health Team. 2. As to his living situation, he had no community accommodation but would live in NDIS supported accommodation if available. 3. As to personal support, he had no personal support by way of next of kin, primary carer or regular family contact. Whilst he had a Financial Management Order, he did not believe that he required a Financial Management Order or Guardian. 4. As to medication, he indicated he would continue antipsychotic treatment, but wanted to cease clozapine and continue on Clopixol antipsychotic injection. However, this plan was not supported by Bloomfield documentation. 5. As to stress and coping, he reported anxiety and stress relating to his current legal proceeding but denied any other stress or problems at Bloomfield.
9. Dr Farrar's diagnosis, using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), was Schizoaffective Disorder.
10. It was also concluded that he had a Neurocognitive Disorder (Mild), noting that he did not have a history of learning difficulties or intellectual disability. Dr Farrar opined that he may have developed cognitive symptoms secondary to his mental illness, substance use or his medical conditions (the latter of which she stated was less likely). In 2018, a Wechsler Adult Intelligence Scale neuropsychological test of Mr Ramirez showed borderline cognitive functions with impairments in processing speed and verbal concepts. It was noted that Mr Ramirez had support from the Public Trustee and Guardian for financial management. Dr Farrar noted deficits in his orientation and memory on assessment on 17 October 2022, and there was evidence of problems with comprehension. He needed prompting and supervision with activities of daily living.
11. Dr Farrar also concluded, on the basis of his presentation at the assessment and the supportive documentation, that his condition was consistent with a Substance Use Disorder (Alcohol, Cannabis, Methamphetamine), although this was in sustained remission in controlled environments.
12. Dr Farrar wrote that at the time of the assessment, Mr Ramirez' psychotic symptoms were attenuated such that he was not a mentally ill person as defined under the Mental Health Act due to the absence of symptoms of delusions, hallucinations, severe mood disturbance, serious disorder of thought-form or sustained or repeated irrational behaviour indicating the presence of these symptoms.
13. Dr Farrar described Mr Ramirez' Schizoaffective Disorder as chronic, although appropriate treatment could lead to remission of symptoms and impairments. Neurocognitive Disorder is also a chronic condition. Dr Farrar noted that function could be improved with appropriate supports and skills development, while also noting that symptoms and impairments worsen with age. Substance Use Disorder is not necessarily chronic if the sufferer can achieve abstinence and insight over a sustained period (this would be regarded as being in remission).
14. As to Mr Ramirez' risk of causing serious harm to others, Dr Farrar noted that a relapse of his Schizoaffective Disorder would increase his risk given the index offences occurred when he was psychotic and an inpatient. Psychotic symptoms including delusions and hallucinations can increase violence risk; mania or disinhibition can increase violence risk; and psychosis/mania can severely impair judgement. A relapse of his Substance Use Disorder would increase his risk of harm due to increased disinhibition, problems with decision-making and judgement and increased risk of relapse of psychotic and/or affective symptoms. Further, Mr Ramirez' Neurocognitive Disorder can increase his risk of causing serious harm to others by impairing his comprehension, judgement, and compliance with treatment.
15. Mr Ramirez' static risk factors cannot be managed or modified. His Clinical Scale risk factors and Risk Management Scale risk factors might change or fluctuate over time, affecting his risk of causing serious harm to others. A relapse or deterioration of his Schizoaffective Disorder or Substance Use Disorder would increase his risk of causing serious harm to others. Improvements in his insight and compliance would reduce his risk of causing serious harm to others. Improvements in his community accommodation, community support and personal support would also reduce his risk of causing serious harm to others.
16. Dr Farrar assessed his risk of causing serious harm to others as "moderate to high" on the basis of his presentation, history and assessment. Accordingly, in her opinion, Mr Ramirez poses a risk of causing serious harm to others if he ceases to be a forensic patient.
17. Critically, Dr Farrar was of the view that it would be appropriate to manage Mr Ramirez' risk of causing serious harm to others by continuation of his forensic patient status as it would allow him to access appropriate specialist forensic mental health care for his conditions and a gradual step-down to community care. It would allow for continued care at Bloomfield, a forensic specialist unit; continued forensic rehabilitation including access to study and employment programs; further neuropsychological testing if appropriate; occupational therapy assessment; referral for placement in appropriate accommodation (likely NDIS supported accommodation); referral to appropriate community mental health support; and assistance with family contact.
18. In Dr Farrar's view, other options would not be appropriate: 1. As indicated above, in her view, Mr Ramirez could not be an involuntary patient as he was not a "mentally ill" person under the Mental Health Act; 2. A Community Treatment Order was not appropriate to manage his risk as he did not have current community accommodation (required for a Community Treatment Order); 3. As at the time of her report, he was subject to a Financial Management Order but not a Guardianship order. In any event, Dr Farrar opined that he could not be managed under a Guardianship Order alone as he requires specialist forensic treatment and step-down to the community.
19. Accordingly, Dr Farrar was of the view that there were no other less restrictive means than remaining a forensic patient. Further, Dr Farrar considered that an appropriate period of time for the extension of Mr Ramirez' order was two years - to allow for continued treatment at Bloomfield and community discharge planning.

Court ordered report of Dr Calum Smith dated 28 October 2022

1. Dr Smith is a Forensic Psychiatrist who was also ordered by the Court to provide a report for the final hearing. He too had access to a number of past reports, including that of Dr Kerri Eagle dated 8 March 2022. Dr Smith noted that Dr Eagle diagnosed Mr Ramirez with Schizoaffective Disorder, Borderline Intellectual Functioning and severe Substance Use Disorder. Mr Ramirez was scored by Dr Eagle as 5 on the STATIC 99R assessment, which put him in the above average risk category for sexual violence risk. He scored 14 out of 26 on the STABLE 2007, placing him in the well above average risk category when compared with other sexual offenders. The report noted that he offended (with the index offences) despite being an inpatient with a high level of supervision. Dr Eagle's report noted in relation to Mr Ramirez' forensic status that: "barriers to the effective treatment and management of Mr Ramirez's illness and associated with his illness… [include] his homelessness and his repeated absconding from mental health units. Most of these barriers would remain if Mr Ramirez were discharged into the community in the absence of a forensic order."
2. Dr Eagle was of the opinion that the risk would not be able to be adequately managed in the absence of a forensic order, and that it would likely take two years to manage the risk based on the predicted length of time it would take to organise accommodation in the community plus a period of transition in the community.
3. Dr Smith also noted a Tribunal report by Dr Reznik dated 5 June 2022. In particular, it was noted that "transfer to a medium secure unit is unlikely to benefit him due to the severity of the treatment resistant schizophrenia". It noted him to be "malodorous and not attending to his activities of daily living." It further noted that he was verbally abusive to a nursing staff member.
4. Dr Smith also noted other reports and material including the following: 1. The material received from the Tribunal and tendered at the preliminary hearing; 2. Tribunal Treating Team Report dated 31 August 2022; 3. Tribunal Order for Detention, Transfer and Leave dated 9 September 2022; 4. Psychiatric Report by Dr Richard Furst dated 9 November 2014; 5. Psychiatric Report by Dr Jonathon Adams dated 18 March 2015; 6. Transcript of Fitness Hearing before Judge Sides dated 19 March 2015; 7. Transcript of Special Hearing before Acting Judge Graham in the NSW District Court dated 26 July 2016 - noting the following finding: "I am satisfied that the accused actually knew, in respect of each of the counts of sexual intercourse, that the complainant was not consenting to that particular act of sexual intercourse. The Court makes that finding as a matter established beyond reasonable doubt in respect of each of those counts, 1, 3 and 4." 1. Transcript of Sentencing Proceedings before Acting Judge Graham in the NSW District Court dated 2 September 2016 - including the qualified finding of guilty and nominating the term of 4 years. 2. Orders of Acting Judge Graham pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (now repealed) dated 2 September 2016 - which included a passage regarding the ongoing presentation of Mr Ramirez in jail: "He presents in psychosis in the absence of significant disturbance in his mood. His grandiose delusions, and his history of marked elevation of mood, are consistent with a diagnosis of schizoaffective disorder, rather than schizophrenia… The chronic nature of his symptoms, and his history of psychosis, in the absence of mood disturbance, make a diagnosis of bi-polar disorder unlikely. His illness has been complicated by his drug and alcohol use, homelessness, and lack of insight. He has become estranged from his family and lacks support in the community… Dr White also said "Despite his denials, it would seem from the collateral information that he would qualify for a diagnosis of poly-substance use disorder." 1. Mr Ramirez' previous offences. In the course of his summary of his criminal history, Dr Smith noted a number of "fail to appears". He noted a Facts Sheet of 2 February 2006, which included a contravene Apprehended Domestic Violence Order - which indicated an apparent history of demanding money from his grandmother and an allegation that he was swinging a metal dog lead. Another allegation noted that he climbed into a window at his grandfather's house, a residence he had previously stayed at after being released from prison. A further allegation involving his grandmother included a threat in the following terms: "I'll be back Wednesday, and I'll cut the homecare lady's throat and I'll watch the blood run to the ground and I'll lick it up". A number of offences involving marijuana possession were noted, including occasions where Mr Ramirez was clearly drug affected. There were also some minor stealing offences. 2. A report prepared for a Tribunal hearing on 15 November 2018, including a report dated 7 November 2018 from Dr Trevor Ma, which itself included a neurocognitive review from June 2018. It found that it was difficult to accurately state Mr Ramirez' premorbid IQ but suggested that he was of at least average intelligence. However, his current general intellectual functioning was in the 3rd centile (borderline functioning range), as was his verbal comprehension. His overall reading skills, mathematics skills and oral language skills were in the "extremely low range". Fluctuations in his attention and concentration were noted and his ability to process visual information and his working memory were both in the borderline range. No difficulties with motor skills were noted. Mr Ramirez had problems with his executive functioning including problem solving and inhibition. 3. A report for a Tribunal hearing on 16 May 2019, which noted a high loading of historical risk factors but a low loading of clinical risk factors. Assessed pursuant to the Risk for Sexual Violence Protocol (RSVP) scale, Mr Ramirez had a moderate loading of risk factors. It was noted that he no longer displayed disinhibited sexual behaviour. 4. A report for a Tribunal hearing on 14 November 2019 included a report of Dr Andrew Ellis and Dr Joel Singer (dated 4 October 2019), which noted: "There are two prior similar episodes that did not progress to criminal conviction. Both of these episodes involve less physical force than the above-mentioned episode of serious sexual violence, and hence others at the time considered that sanctions should not proceed. In both cases Mr Ramirez was an inpatient and likely suffering positive symptoms of psychosis. This reinforced the need for ongoing psychiatric care for Mr Ramirez to maintain a stable mental state and should in the future he be placed with female psychiatric patients caution should be exercised." Dr Smith also noted that this report scored Mr Ramirez as 6 on the STATIC 99R - the difference in result with that noted by Dr Eagle was based on the predicted age at release. This report also noted that Mr Ramirez had "reportedly engaged in sexual activity with the family dog and [had] contact with an intellectually disabled woman who was 20 when he was 13 years old". It further noted "Mr Ramirez's neighbours complaining to a family member that he was engaging in sexual acts with stray dogs he was collecting in his mid-20s…additional police force events indicate that when Mr Ramirez was 20 years of age he entered his 13 year old cousins bedroom at night and made sexual comments towards her". This report also noted several episodes of domestic violence, one allegedly precipitated by his ex-partner rejecting physical advances. Further reference was made to other allegations involving fellow patients where charges were not pursued on the basis of unreliability of evidence - one concerning the above incident following rejection, and the other alleging a touching of the vagina of an apparently sedated co-patient. The following comment was made in relation to the incidents: "[they] provide evidence that Mr Ramirez has engaged in chronic sexual violence. Mr Ramirez has a diversity of sexual violence as evidence[d] by the type of sexual violence he has engaged in and the diverse range of victims with regard to age, functioning, relationship to him and potential[ly] species. Mr Ramirez['] perpetration of sexual violence has become progressively more frequent, serious, and diverse and involves an increase from non-contact to contact offences including physical coercion". In relation to early sexual experiences, it was also noted: "There are reports from [his sister] that at approximately the age of five Mr Ramirez was residing at his grandmother's house which had no boundaries around appropriate sexual behaviour e.g. was exposed to pornography by a family member, resided in a household where transactional sexual activity was arranged between truck drivers and his 20 years old aunt by his grandmother, experienced attempts by a male adolescent family member to engage in sexual activity with him, experienced physical violence from his grandmother, had a male adult truck driver get into bed with him naked and additional concerns have been raised that further incidents of abuse from adult males occurred when he was unsupervised." 1. Further reports which had been prepared for Tribunal review hearings, including an update on 10 June 2021 within a report from Dr Andrew Custodio and Dr Robert Reznik which noted that Mr Ramirez exhibited a continuing "level of disinhibition with wearing revealing clothing", wearing "a shirt unbuttoned all the way down to his belt" and "making inappropriate gestures to staff such as winking". It was noted that he was witnessed responding to unseen stimuli despite denials of such. 2. Another Treating Team Report of 7 December 2021 (including a report from Dr Dulip Wettasinghe and Dr Robert Reznik), which noted that Mr Ramirez told a student nurse that he heard tapping sounds and saw people in his room watching him. The report also recorded a room search during which some unusual items were found including chicken bones and newspaper clippings about gangs and drugs. Mr Ramirez said that he kept the bones in his room "for the smell, to keep cockroaches and ants away. I learnt that in Jamaica". 3. The letter from Lawrence K, from the National Disability Insurance Agency (NDIA) to Mr Ramirez dated 18 August 2021, which noted a total funded support of $65,494. 4. A Financial Management Order of 8 January 2010, in which it was recorded that Mr Ramirez had a long history of failure to meet basic needs for shelter and food, and that his sister had assisted in the past with managing his money. He was also vulnerable to exploitation from others in relation to money. 5. Dr Smith also reviewed Bloomfield records provided to him by email on 21 October 2022. A urine drug screen dated 19 September 2022 was negative for all drugs. Some other entries recorded that Mr Ramirez was "appropriate in conversation. Nil delusions or hallucination expressed" and that he presented as "Normal, logical, coherent". Dr Smith noted, however, that this is not in keeping with the description at the Forensic Hospital or his presentation at his own assessment. A note on page 123 recorded that: "Whilst on the Gosling Creek walk, [Mr Ramirez] was touching [fellow patient] on the buttocks. Remind [Mr Ramirez] to keep his hands to himself". Dr Smith also noted changes in medications including the increase in sodium valproate, cessation in amisulpride, and a plan to start aripiprazole long acting injectable.

Mental State Examination 7 October 2022

1. Dr Smith examined Mr Ramirez over Zoom for around an hour and 15 minutes. Mr Ramirez was noted to speak in a mumble and was difficult to hear. He stated he was not Aboriginal, but Argentinian, and claimed to have played football professionally in Italy and South America. Dr Smith outlined the history he was able to obtain - which seemed to be a challenge. Dr Smith also outlined the history previously obtained from his sister in the report from the Clovelly ward. This included that Mr Ramirez had been good at school prior to the onset of mental illness and substance abuse, and had been a talented soccer player who went to Sweden around age 13 years for a soccer trip. He had also been a talented dancer in his teens. It was also reported that he had had extended periods of homelessness and that he had fathered a daughter born in 2004. There were also reports of traumatic experiences including abuse and sexual abuse. There is a history of psychosis on his father's side.
2. Dr Smith summarised Mr Ramirez' psychosexual history.
3. Dr Smith noted that Mr Ramirez was not unduly agitated. His speech was difficult to make out, and he spoke quickly. He had a blunted affect in keeping with a longstanding diagnosis of schizophrenia. It was noted: "What thoughts he had come in a grossly disordered manner, and he exhibited an intense preoccupation on certain topics which were expressed in, variously, a disorganised, rigid, or concrete manner. In terms of content, he was grossly psychotic. He had what appeared to be delusional memories regarding his previous employment, including his sporting prowess, and the number of children".
4. It was noted that Mr Ramirez was possibly experiencing auditory hallucinations although he denied it.
5. His future Violence Risk Assessment was undertaken using the "HCR-20 v3". His sexual violence risk was assessed using the RSVP version 2. In a section entitled "Joint formulation of sexual and violence risk", Dr Smith noted that Mr Ramirez' twenties appeared to have been marked by gross mental illness, chronic substance use, and interaction with the mental health and criminal justice systems. He was repeatedly hospitalised. Dr Smith said: "There is grossly disorganised, often bizarre, and seemingly anti-social behaviour, including convictions for theft, and multiple aggressive and violent acts. There are repeated failures to appear, and breaches of bail and ADVOs".
6. Dr Smith noted the emerging sexualised behaviour culminating in the index offences. During Mr Ramirez' period of incarceration, Dr Smith noted consistent reports of ongoing psychotic symptoms and some institutional breaches or odd behaviour but less than would be suggested by his behaviour in the community. Dr Smith said: "This suggests that medication, abstinence from drugs, and a restricted environment are effective in helping treat his illness, modulate his behaviour, and contain his risk".
7. Dr Smith opined that given Mr Ramirez' presentation on review as delusional and thought disordered, he had poor insight despite intensive and ongoing treatment. Dr Smith was of the view that the interaction of the mental illness, cognitive impairment and substance abuse disorder posed risk and that his lack of ability to understand this was "concerning".
8. The results of the RSVP assessment showed a high loading of historical and future risk factors which would categorise him as medium to high risk (consistent with the STATIC 99R scoring where he was assessed as either "above average" or "well above average" risk).
9. Further, there is a significant historical loading in terms of violent risk, although the current treatment for it seems to have changed his behaviour, thus moderating the risk. Dr Smith opined his overall risk of violence was currently low to moderate, with the caveat that this was in a restricted environment.
10. Dr Smith was of the view that Mr Ramirez' violence and sexual violence risk overlapped and were linked in part to the underlying factors of impulsivity and disinhibition. Looking forward, Mr Ramirez had few protective factors and limited supports. Whilst he was making progress on his functional level, this was in a particular context of residing in a Forensic Hospital where he needed reminders to complete basic activities of daily living such as showering and dressing appropriately. Dr Smith opined that "[h]e remains extremely psychotic".
11. Dr Smith noted that Mr Ramirez exhibited ongoing psychotic symptoms at the interview and had a longstanding diagnosis of Schizoaffective Disorder. Dr Smith opined that he remained "significantly unwell now even though he is on the gold standard treatment of clozapine, and had been cared for in…secure settings" and that given the length of time he had been unwell, Dr Smith was of the view that it was likely that he will probably have lifelong illness.
12. Dr Smith further noted Mr Ramirez had complex trauma, and that he comes from a disenfranchised marginalised group, having been likely to have experienced sexual abuse at an early age and further negative experiences in his past including homelessness. He noted that Mr Ramirez had a diagnosis of Substance Use Disorder which remained in remission in a supervised environment. He had also been diagnosed as having borderline to moderate cognitive impairment, which was likely to have arisen from major mental illness, trauma and use of substances for a prolonged period from an early age. This had resulted in Mr Ramirez having difficulties with understanding, organising and planning, which was likely to have made managing a complex mental illness and maintaining behavioural change for a prolonged period of time difficult.
13. Unlike Dr Farrar, Dr Smith was of the view that Mr Ramirez was a mentally ill person under the Mental Health Act. Dr Smith noted that the material and expert consensus indicated that when Mr Ramirez was unwell, using substances, and not treated, he was considered to be in a high-risk category of causing serious harm to others. Accordingly, Dr Smith was of the view that he considers Mr Ramirez to pose a risk of causing serious harm if he ceases to be a forensic patient. If he ceased to be a forensic patient, he would not have the same oversight, and this would likely increase his risk further. The specific risks include but are not limited to: ongoing gross psychotic symptoms, lack of insight in general and specifically into his offending, cognitive deficits, and a voiced desire to cease taking clozapine. Dr Smith opined that these risks could not be managed without an extension of his forensic status.
14. Dr Smith was of the view that there were practical advantages of being managed as a forensic patient, including being subject to regular reviews by the Tribunal. This would mean that any problems in terms of transition to the community could be addressed and if necessary, placement could be changed according to the Tribunal. Additionally, on an appropriate application, the Tribunal could terminate a person's status as a forensic patient if it saw fit.
15. As to other options, Dr Smith was of the view that there were limitations to the option of a Community Treatment Order (CTO), including under-resourcing of community services (which is especially an issue in the early phase of a patient's transition to the community). Furthermore, a CTO could be allowed to lapse, or could be rescinded at any time. There is no 'positive' oversight requirement in relation to termination as there is for a forensic patient supervised by the Tribunal. Further, whilst a CTO enforces medication, Mr Ramirez has a range of needs including supported, possibly secure accommodation. He may need initial assistance with being prompted to undertake his personal care, and would need, at least initially, enforceable restrictions on consumption of alcohol or drugs. Dr Smith stated that CTOs do not cover these aspects of transitioning a complex forensic patient to the community and managing them safely there.
16. As to the option of a guardianship order, it was noted that Mr Ramirez is under guardianship for financial matters, and that a guardianship order could be used to place him in supported accommodation.
17. Finally, Dr Smith opined that if an extension order was to be made, two years was appropriate, albeit an "optimistic 'best case'" scenario.

Oral evidence of Drs Farrar and Smith

1. The two doctors gave evidence concurrently at the hearing on 6 December 2022. After confirming the material in the reports, evidence including the following was given. Both doctors confirmed they had reviewed notes and reports from Bloomfield which outlined Mr Ramirez' progress since they had assessed him, including a report from Dr Rae. [5] Dr Smith acknowledged that Mr Ramirez was improving since being at Bloomfield, but that was "really moving off quite a low bar" and he was still a mentally ill person. Dr Farrar acknowledged, after reading Dr Rae's report, that although he did not present as a mentally ill person the day she assessed him, on a different day she may have deemed him to be a mentally ill person. Both doctors agreed that such a fluctuating presentation enhances his risk.
2. The experts were asked if the appointment of a guardian for Mr Ramirez (which had occurred after their reports were prepared) changed their assessment. Dr Smith stated that it did not change his assessment of risk to any significant extent as a complex and multi‑faceted plan needs to be put in place to manage Mr Ramirez' risk moving forward and that whilst guardianship was one part of risk management, it was not something that was sufficient to adequately manage the risk on its own. Dr Farrar was essentially of the same view. It was further noted that the guardianship order as it currently stood did not include a "restrictive practices function" such that if Mr Ramirez was transferred into the community, the accommodation service would not be permitted to lock the doors or the gates at all times. Dr Smith also noted that a guardianship order would not accommodate urine and drug screening - which would be needed for Mr Ramirez' management. Rather, a forensic patient extension order would be an appropriate way to manage his various needs in a wholistic manner.
3. As to the new NDIS plan, both experts noted this was a useful first step, but that without the pivotal inclusion of accommodation, it was not useful for Mr Ramirez' transition to the community at this time.
4. Both doctors acknowledged there was some recent clinical improvement, but that it did not change their overall assessment of Mr Ramirez' risk, given the longstanding nature of his serious psychiatric illness and his high level of historical risk factors. Both doctors endorsed the preferred model of managing Mr Ramirez' risk being a gradual stepdown from a secure forensic hospital to living in the community, with an assessment at each progression point. It was the view of the experts that this gradual stepdown was best achieved with a forensic patient extension order under the supervision of the Tribunal and no other less restrictive means would manage the risk appropriately. Both experts remained of the view that without such an extension order, Mr Ramirez posed a medium to high risk of causing physical, sexual and psychological harm to others.

Supplementary Report of Dr Kerri Eagle dated 30 November 2022

1. As noted above, Dr Eagle had prepared an earlier report on 8 March 2022. [6] That report was requested pursuant to s 125(b) of the MHCIFP Act. The supplementary report considered the reports of Drs Farrar and Smith, as well as other additional material. She was asked to comment on whether that material changed her earlier opinion. Dr Eagle concluded that her opinions remained unchanged, and that she remained of the view that Mr Ramirez would need to continue to be managed under a forensic order to ensure the success of his transition into the community. She opined it was not clear how Mr Ramirez would respond or cope with the transition to the community, and that he would require close monitoring and restrictions on his access to substances and his exposure to de-stabilising influences. She observed that these types of restrictions were unable to be implemented under a CTO or guardianship regime. In her view, the oversight of the Tribunal provided an informed transparent decision-making process for decisions involving risk management and release with the benefit of input from all relevant stakeholders, especially during the important phase of transition to the community.

Report of Dr Natasha Rae dated 29 November 2022 (Annexure A to Affidavit of Anna Goulston affirmed 29 November 2022)

1. This report was tendered on behalf of Mr Ramirez. Dr Rae is Mr Ramirez' treating psychiatrist at Bloomfield. She recorded that he was transferred to Bloomfield from the Forensic Hospital on 16 September 2022. [7] After noting Mr Ramirez' history, Dr Rae set out his progress since admission to Bloomfield. She noted he had settled into the ward well. On arrival, he was very sedated and his clozapine level was very high but he remained psychotic. She concluded that he required more assertive mood stabilisation and a cessation of his antidepressant. She reduced his clozapine level as there was no evidence over many years that the supra-therapeutic levels had improved his mental state or influenced his sexual disinhibition. Dr Rae also added a depot antipsychotic as a safety net in the event he showed poor compliance in the future with oral medication.
2. She noted an improvement in his behaviour and function on this new medication combination (such as dressing more appropriately and not winking at staff). His self-care has improved and he is able to cook his own meals with supervision. His incontinence, hypersalivation and speech have improved. He can participate in activities outside the unit without incident and is compliant with direction. He is not sexually inappropriate with members of the public.
3. Dr Rae opined that his level of function has improved such that the occupational therapy assessment completed at the Forensic Hospital which recommended a very high level of support was no longer valid. Mr Ramirez would require 24 hour care and support with his self-care, planning, shopping, cooking, and community access but not the SDA-Robust level indicated previously. Dr Rae noted that he has an active NDIS plan with support coordination. A recent planning meeting on 24 October 2022 granted him community access supports.
4. Dr Rae's diagnosis aligns with that of the two court appointed experts. She is of the opinion that he is a mentally ill person within the meaning of the Mental Health Act. Dr Rae opines that his risk of sexual reoffending is related to his sexual disinhibition as a result of a manic relapse of his Schizoaffective Disorder. He may relapse if he is poorly compliant with medication or has access to illicit substances. She states that he will require supervision and monitoring of his medication to ensure compliance and that he should reside in a single sex home and have no unsupervised access to vulnerable women. Dr Rae set out the discharge planning that she envisaged would be required.

Guardianship Order (Annexure B to Affidavit of Anna Goulston affirmed 29 November 2022)

1. As part of Mr Ramirez' case, a copy of the Guardianship Order made on 24 November 2022 was tendered. Pursuant to this order, a public guardian was appointed for 12 months and was given a series of functions that included accommodation, healthcare, mental and dental services and legal services functions.

Affidavit of Abiha Asghar dated 29 November 2022

1. This was also part of Mr Ramirez' case. Abiha Asghar is a Service Leader for Support Coordination at a disability service provider funded under the NDIS. Relevantly, she notes that whilst engagement with Mr Ramirez has commenced, an updated Occupational Therapy functional assessment and an updated Home and Living Assessment is required to take into account Mr Ramirez' current functional capacity. The updated assessment has yet to be requested. She states that it is intended that these will be provided to the NDIS by February 2023 and notes that Mr Ramirez' need for Supported Independent Living supports is expected to remain the same at 1:1 staff support 24/7 for the first 12 months after discharge. She also intends to complete further referrals with expressions of interest to suitable accommodation providers. It is noted that in order to facilitate Mr Ramirez' transition to the community from an in-patient status at a hospital, he would require a period where NDIS-funded support workers with mental health qualifications were able to assist him in accessing the community, including engaging in activities of interest. This could commence whilst he was an in-patient at Bloomfield. This would transition, when appropriate, to overnight leave. She noted that a NDIS plan re-assessment meeting was held on 24 October 2022 and an updated plan was approved for a 12 month period on 27 October 2022. It included funding for 10 hours per week with 1:1 support to access the community and to engage in activities of daily living. Ms Asghar expects that if his supported local community access commences by early next year, Mr Ramirez would be able to transition back into the community by September 2023 with adequate supports to minimise risk of harm and to allow Mr Ramirez to progress towards achieving his NDIS goals.

Affidavit of Brody Walsh dated 29 November 2022

1. This affidavit was also part of Mr Ramirez' case before the court. Mr Walsh is a Behaviour Support Practitioner employed by a social services organisation funded under the NDIS. Mr Ramirez has been a client since 19 October 2021, and a Comprehensive Behaviour Support Plan has been developed for him which has been updated most recently on 22 November 2022. It will be further updated as required.

The extension order should be made

1. I have had regard to all the above material.
2. I have already found that the matters in ss 124 and 125 of the MHCIFP Act are satisfied. [8]
3. In accordance with s 127(2) of the MHCIFP Act, I have had regard to matters and information including: 1. The safety of the community (s 127(2)(a)); 2. Reports received from Drs Farrar and Smith (s 127(2)(b)); 3. The report of Dr Eagle (s 127(2)(c)); 4. The many other reports included in the material provided to me, including those referred to or summarised in the reports of Drs Farrar and Smith (s 127(2)(d)); 5. The orders and decisions made by the Tribunal with respect to Mr Ramirez (s 127(2)(e)); 6. Other reports from those responsible for the detention, care or treatment of Mr Ramirez (s 127(2)(f)); 7. The level of Mr Ramirez' compliance with his obligations whilst a forensic patient (s 127(2)(g)); 8. The views of the courts that imposed the limiting term and the existing extension order (s 127(2)(h)); and 9. Other information as to the risk that Mr Ramirez will in future cause serious harm to others if not subject to an extension order, including the Financial Management Order; Guardianship Order, and the updated NDIS Plan and associated funds (s 127(2)(i)).
4. On the basis of the material referred to above (and noting that only the first limb was actively contested by Mr Ramirez), I am satisfied to a high degree of probability that: 1. Mr Ramirez poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and 2. the risk cannot be adequately managed by other less restrictive means.
5. Further, having regard to the matters in s 127(2) referred to above, and keeping in mind the objects of Part 6 of the MHCIFP Act as set out in s 69, I am of the view that I should exercise my discretion to make an extension order of two years.
6. In coming to this state of satisfaction I note the following: 1. The experts agree that Mr Ramirez has Schizoaffective Disorder, Severe Substance Use Disorder (in remission) and Borderline Intellectual Function or Neurocognitive Disorder. 2. The court-appointed experts agree that Mr Ramirez poses at least a "medium to high" or "moderate to high" risk of causing serious harm to others based on his presentation, history and assessment if he ceases to be a forensic patient. 3. There is a recorded history of absconding, as well as non-compliance with treatment and previous CTOs. 4. Mr Ramirez shows limited understanding of his diagnosis, his symptoms and his need for treatment. He does not have insight into his violence risk, his Substance Use Disorder, his Neurocognitive Disorder nor his medical conditions. 5. All the experts were of the view, and I accept, that it would be appropriate to manage Mr Ramirez' risk of causing serious harm to others by continuation of his forensic patient status as this would allow him to access appropriate specialist forensic mental health care for his conditions and would allow a gradual step-down to community care. An extension order would allow for continued care at Bloomfield, a forensic specialist unit; continued forensic rehabilitation including access to study and employment programs; further neuropsychological testing if appropriate; occupational therapy assessment; referral for placement in appropriate accommodation (likely NDIS supported accommodation); referral to appropriate community mental health support; and assistance with family contact. 6. An extension order of 2 years would be appropriate to allow for the gradual step-down to community care to occur (including the finding of appropriate accommodation), with appropriate supervision at every progression point.
7. Accordingly, I make the following orders: 1. Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that James Aaron Ramirez be subject to an order for the extension of his status as a forensic patient for a period of two (2) years commencing on 29 December 2022 to continue to 28 December 2024. 2. Direct that the Registrar of the Court notify the Tribunal of the making of the above extension order.

Endnotes

1. Pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
2. Pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed), s 42.
3. Attorney-General of New South Wales v Ramirez (No 4) (Final Orders) [2018] NSWSC 1466.
4. "Tribunal" is the Mental Health Review Tribunal (constituted under the Mental Health Act 2007 (NSW) ("the Mental Health Act"): s3 MHCIFP Act.
5. Pursuant to the orders made by Harrison J in Attorney General of New South Wales v Ramirez [2022] NSWSC 1241.
6. This report is summarised below.
7. Dr Eagle also noted that she had prepared a risk assessment report regarding Mr Ramirez dated 25 July 2018.
8. The Affidavit of Abiha Asghar stated that the transfer occurred on 15 September 2022, and the Bloomfield notes reflected this. 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: 23 December 2022