Attorney General of New South Wales v Skerry

Supreme Court of NSW|2018-10-12|Before: Hulme J, Adams J

Solicitors: Crown Solicitor's Office Legal Aid NSW File Number(s): 2018/186091

Judgment

HIS HONOUR: The Attorney General of New South Wales seeks an extension order in respect of Mr Michael John Skerry (who appears by his tutor, Ms Jennifer Thompson) under Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act").
More specifically, the summons filed on 15 June 2018 seeks an order pursuant to cl 1 and cl 7(1)(a) of Sch 1 to the Act that Mr Skerry be subject to an order for the extension of his status as a forensic patient for a period of five years from the day on which the order commences.
Mr Skerry, by his tutor, opposes the making of an extension order but also says that if the Attorney General's application is granted the order should be for a period of only two years.

Statutory Provisions

Clause 2 of Sch 1 of the Act provides: "2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. Note: Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."
It was pointed out in the 2015 Preliminary Judgment (at [40]) that the issues in cl 2(1)(a) and (b) should not be elided. The question of whether the forensic patient poses an unacceptable risk of causing serious harm to others is to be decided upon a consideration of him/her ceasing to be a forensic patient. This approach has been followed in subsequent cases: see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 and the cases there cited by Johnson J at [49]. If there is the risk referred to in cl 2(1)(a), there is then the question whether it can or cannot be adequately managed by other less restrictive means. "Other less restrictive means", as the "Note" points out, includes involuntary detention or treatment under the Mental Health Act.
Clause 7 provides that this Court may determine an application for an extension order by either making the order or dismissing the application. Sub-clause 2 provides that the Court must have regard to various matters listed in that sub-clause in addition to any other matter it considers relevant.
Clause 8 provides that an extension order can be made for a period up to but not exceeding five years from the date the order commences.
Clause 12 provides that the Court may at any time vary or revoke an extension order on the application of either the Minister administering the Act (relevantly, the Attorney General) or the forensic patient or on the recommendation of the Mental Health Review Tribunal. One ground upon which an extension order may be revoked is if the Court is satisfied that circumstances have changed sufficiently to render the order unnecessary.
Certain terms in cl 2 require some brief discussion. "High degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]. "Unacceptable risk" is a term which should be given its everyday meaning in the context of the provision in which it appears and having regard to the objects of the Act: State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Lynn v State of New South Wales [2016] NSWCA 57 at [58].
Section 54A of the Act provides for the extension of a person's status as a forensic patient pursuant to Sch 1 of the Act. That provision is within Pt 5 of the Act ("forensic patients and correctional patients"). The objects of Pt 5 appear in s 40 as follows: "40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care."
The "risk of causing serious harm to others" was considered by Davies J in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [14]-[19]. I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of "grievous bodily harm" (defined in the criminal law as really serious bodily harm) but I have previously accepted that it contemplates something more than would satisfy the minimum threshold for "actual bodily harm" under the criminal law: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]. I also accepted the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not "serious harm".
"The risk cannot be adequately managed by other less restrictive means" is the second matter upon which the Court must be satisfied to a high degree of probability. Adamson J in Attorney General of New South Wales v Doolan (by his tutor Thompson) (No 2) [2016] NSWSC 107 at [96] considered that this must "be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance". Her Honour provided (at [97]-[129]) a very useful discussion of the contrast between the various provisions relating to civil patients with those applying specifically to forensic patients.

Relevant matters to be considered

As indicated earlier, I am required to have regard to the matters listed in cl 7(2) of Sch 2 of the Act.
It is unnecessary for me to set out all of the detail of Mr Skerry's background, his mental condition, criminal history and the like because that has, in large part, been done in the previous judgments concerning him to which I have earlier referred.
It is worth repeating the description of Mr Skerry's criminal history that I provided in the 2015 Preliminary Judgment. The index offence, which was committed on 6 July 2012, was described as follows: "[21] … It involved him entering the apartment of the victim, a 61-year-old neighbour, uninvited. He threatened her and then pushed and dragged her by the hair to a bedroom where he forced her to give him oral sex while telling her to 'shut up, stop crying or I'll kill you' before ejaculating into her mouth."
The balance of the criminal history was described as follows: "[27] Mr Skerry has a criminal history dating back to 1985 but not for any offences of the type or seriousness of the index offence. There are, however, a number of quite serious and concerning incidents that have been reported to police, not all of which resulted in prosecution and none of which resulted in conviction. The Attorney submitted that these could be taken into account pursuant to cl 7(2)(i) which requires the Court to have regard to 'any other information that is available as to the risk that the forensic patient will in future cause serious harm to others'. [28] Mr Skerry was a 'person of interest' to the police in relation to an indecent assault on 18 August 1993. The victim met Mr Skerry, who she said she vaguely knew from school. They had a few drinks at a club together and she agreed to go with him to an address in order for him to collect something. When they got to that address, he disrobed and pulled her head down attempting to have her perform oral sex. She managed to escape. [29] He was again a 'person of interest' in relation to an incident on 24 March 1994. The victim met him through a third party. He took her to a hotel where he produced a handgun and demanded to have sex. He proceeded to have anal and vaginal intercourse against her will. He was arrested and taken to a police station. The victim was taken to a hospital for a medical examination which she declined. She did not wish to make a complaint and Mr Skerry was released without charge. [30] On 23 February 2009 Mr Skerry propositioned a young man near Town Hall for sex. They went to a nearby fast food restaurant where he followed the young man into a disabled toilet. He locked the door and then masturbated before forcing his penis into the young man's mouth and ejaculating. Mr Skerry later claimed that the act was consensual."
For the purposes of the 2015 application, Dr Jeremy O'Dea, forensic psychiatrist, provided a report dated 1 March 2015. He made a diagnosis of Severe Chronic Treatment Resistant Schizophrenic illness complicated by Polysubstance Use Disorder. He noted that Mr Skerry remained acutely psychotic, despite assertive ongoing treatment in a secure forensic psychiatric facility for more than two years. It was thought that Mr Skerry required ongoing treatment in such a facility in order to optimise his response to treatment and manage his ongoing risk of causing serious harm to others.
Dr Andrew Ellis, forensic psychiatrist, saw Mr Skerry in June 2015. He considered that Mr Skerry met the criteria for a diagnosis of Schizophrenia and it was, at that point at least, treatment resistant. Dr Ellis also diagnosed Substance Use Disorder (Cannabis, Stimulants, Alcohol and Opioids), currently in remission in a controlled environment. Such diagnoses were consistent with ones made by two eminent forensic psychiatrists in 2012.
In the 2015 Preliminary Judgment (at [38]) I quoted Dr Ellis as having concluded: "In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Skerry would fall into a group of persons with a risk [of] offending that is high, and greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many forensic inpatients. There would be clinical grounds to continue intervention to manage this risk."
At the time of that judgment the debate was really as to the second limb of cl 2(1); whether the risk that all of the experts agreed Mr Skerry presented could be adequately managed by less restrictive means. The only practical choice was between his status as a forensic patient being extended or him being detained as an involuntary patient in a secure facility. Both Drs O'Dea and Ellis were of the opinion that Mr Skerry's risk would be adequately managed as an involuntary patient in such a facility. The doctors were, of course, looking at the issue from a medical perspective.
Reports of Dr Samson Roberts and Dr Anna Farrar, psychiatrists, examined Mr Skerry and provided reports which were considered by Adams J at the final hearing in 2015. There was also a report by Professor Susan Hayes AO, psychologist.
Adams J observed in his judgment (at [7]-[10]) that Dr Farrar reported that Mr Skerry had poor insight in relation to his schizophrenic condition and had negative attitudes towards treatment. She considered that Mr Skerry posed a high risk of future harm (violence) to others. She was of the opinion he should be detained in a secure facility and that this should most appropriately be a specialist forensic unit.
His Honour noted ([11]-[14]) various aspects of Dr Roberts' assessment. They included that "the strong influence of [Mr Skerry's] psychotic illness and his propensity to illicit substance use represent very significant risk factors for future offending". There was consistency between Dr Farrar and Dr Roberts as to the level of risk Mr Skerry posed; Dr Roberts including in this part of his report that it was "an absolute certainty" that Mr Skerry would engage in criminal activity within 12 months if released into the community in his current mental state. The risk of engaging in assaultive behaviour was considered to be high as was the risk of engaging in sexually inappropriate behaviour.
Adams J noted (at [15]) that Professor Susan Hayes AO found it problematic to reliably predict when Mr Skerry might be rehabilitated to the point where he might be safe to release into the community subject to conditions. The uncertainties surrounding this issue included whether, and when, he might accept the medication that is recommended for his schizophrenia and whether other interventions might be provided (such as cognitive behavioural therapy) and whether he would participate in them. She declined to express an opinion as to risk or to predict a time when a safe release might be possible.
Adams J said (at [19]) that it was "inescapable that the evidence establishes to a high degree of probability that [Mr Skerry] poses an unacceptable risk of causing serious harm to others". As to the second limb of cl 2(1) the choice was confined to extension of forensic patient status or treating Mr Skerry as an involuntary patient. His Honour said (at [20]) he found "decisive" the recall power provided to the Tribunal by s 68 of the Act (i.e. that breach of conditional release of a forensic patient can be dealt with by an order of the President of the Tribunal for the person's apprehension which police can act upon).

Reviews by the Mental Health Review Tribunal

Mr Skerry has been reviewed by the Tribunal six times since the extension was made in September 2015. He was detained at the Forensic Hospital for most of that time but on 21 December 2017 there was an order that he be transferred to a medium secure unit by no later than 7 March 2018. There was also an order that he be allowed to have escorted day leave. On 7 March 2018 Mr Skerry was transferred to the Macquarie Unit at Bloomfield Hospital.
Following a review on 15 May 2018 the Tribunal made an order on 7 June 2018 that Mr Skerry also be allowed unsupervised day leave in the hospital grounds.
Mr Skerry was transferred to the Forensic Hospital in July 2015. There was deterioration in his mental state and he was commenced on Clozapine, previously having been medicated with Olanzapine.
After Mr Skerry's admission to the Macquarie Unit this year he was noted to have "settled quickly into the unit [and] was compliant and engaged with interventions but was noted at times to present as demanding and entitled".
Mr Skerry's medical treating team reported that he "had a poor insight into his index event, offending behaviour and mental health and would be likely to relapse quickly if unsupported in the community". They noted that his "dynamic [risk] factors, however, were more favourable than at previous assessments in that he has responded to the introduction of clozapine, at present had no apparent or disclosed positive psychotic symptoms, was engaging well with the treating team and compliant with ward interventions".
In relation to a proposal that Mr Skerry be allowed unsupervised day leave, Dr Natasha Rae, forensic psychiatrist, was recorded as having informed the Tribunal that he had consented to long acting anti-libidinal medication with this is mind. The leave would only be to the "Bloomfield Block" in the hospital grounds and it would be implemented in a very gradual way. Further, there would be an assurance that he was abstinent from alcohol and illicit substances, compliant with the anti-libidinal medication, and he would be "shadowed" and kept in sight during the leave. The leave would be timed so as not to coincide with leave from the women's area of the hospital.
The Deputy President concluded (in part): "The evidence before the Tribunal indicates that Mr Skerry has responded to treatment with Clozapine and at this time does not present with positive symptoms of his illness. While he has engaged with treatment staff, he still presents challenges in his treatment arising in particular from his poor insight, his cognitive deficits which impair aspects of his functioning and limitations in his ability to respond to rehabilitation. He is presently receiving appropriate care in the least restrictive environment where such care can be effectively given."

Report of Dr Samson Roberts, 14 September 2018

As mentioned earlier, Dr Samson Roberts provided reports for the 2015 extension order application and was appointed to do so again for the current application. He saw Mr Skerry at the Macquarie Unit at Bloomfield Hospital on 21 August 2018 and he was also briefed with relevant documentary material which he reviewed in some detail in his report. While he noted the moderation of Mr Skerry's psychotic illness since the 2015 extension order was made and treatment with Clozapine had commenced, he commented a number of times how non-compliance with treatment and medication could see a reversion to the same level of risk.
In summarising the position, Dr Roberts noted the following in his report (pp 15-16): "Mr Skerry has suffered Schizophrenia for almost 20 years. During the majority of this time, his treatment has been undertaken on a voluntary basis. It is evident that his psychotic illness has improved significantly over recent years presumably in response to treatment with Clozapine… In addition to the psychotic illness, it is apparent Mr Skerry is affected by a degree of cognitive impairment with his composite IQ having been identified as 62. There is a history of head injury and it has not been identified as to whether the cognitive impairment represents a Major Neurocognitive Disorder arising from a brain injury or whether it represents an effect of lifelong congenital intellectual disability, namely impairment from birth, or an enduring effect of Schizophrenia and substance use. Irrespective, this reflects a condition that is not amenable to treatment nor is it expected to alter in its severity over time. Mr Skerry has a past history of illicit substance use, his substances of choice having been alcohol, cannabis, heroin, benzodiazepines and methamphetamines. He reported the absence of illicit substances use during the period that he has been a forensic patient and he is no longer on methadone maintenance therapy."
Dr Roberts said, "there remains concern that in the absence of potential consequences or at least supervision, enduring compliance would be tenuous".
Dr Roberts gained the impression that Mr Skerry had "limited insight into the positive effect that the structured experience of the hospital environment provides to him."
Dr Roberts made three psychiatric diagnoses: Schizophrenia: which represents a chronic psychotic illness typically characterised by delusions, hallucinations and disorder of thought form and which will require lifelong treatment to ensure the enduring moderation of symptoms. In Mr Skerry's case it would seem that his psychotic symptoms have been treated to remission which warrants confirmation. Only with continuing treatment of the same medication that has addressed his symptoms will they remain abated. Substance Use Disorder. Although Dr Roberts noted that this was 'currently in remission' and that Mr Skerry 'reported a lack of desire to use drugs', he also said that 'the prospect of vulnerability to coercion or vulnerability to accepting the offer of drugs remains real and more likely than not untested given the environment in which he has been housed'. Cognitive impairment. Dr Roberts described this as 'an enduring deficit with respect to [Mr Skerry's] ability to think and reason and a condition which in itself is expected to render him vulnerable in the absence of support'. It left Mr Skerry 'prone to coercion and manipulation and would inevitably provide challenges in any attempt to live independently in the community'.
Dr Roberts concluded this section of his report by observing that these three conditions compounded each other and had an additive effect in compromising his goal of independence.
Dr Roberts favoured an outcome that would see Mr Skerry released into the community under appropriate supervision. He usefully discussed the advantages and disadvantages of supervision under a CTO and under conditional release as a forensic patient. He concluded: "In my opinion, Mr Skerry's enduring psychiatric stability and his ability to pursue supported living within the community and the opportunity to re-engage with family would be better supported by him remaining a forensic patient and being conditionally released under such circumstances. This would provide a level of vigilance and support and a timely escalation of treatment in the event that such is required." (Report p21)
In answering a question as to the duration of an extension order, Dr Roberts reiterated: "At this time, Mr Skerry's ability to live, even supported, within the community remains untested and to do so in the absence of the rigorous provisions as a forensic patient would be premature from a psychiatric perspective." (Report p 22)
Dr Roberts favoured a period of "two years successful supervision in the community".

Report of Dr Sally McSwiggan, 16 September 2018

Dr Sally McSwiggan is a consultant neuropsychologist. She obtained a detailed history from Mr Skerry and conducted testing as to his intellectual ability. She concluded: "Mr Skerry's premorbid intellectual functioning was estimated to lie within the Borderline to Low Average range, in keeping with his limited educational attainment. Relative to examinees of comparable age, Mr Skerry is currently functioning within the Borderline to Extremely Low range. Mr Skerry has no particular cognitive strengths or weaknesses across his intellectual profile. It was quite flat. His ability to learn new information is comparable to his current intellectual skills, that is, limited." (Report p16)

Report of Dr Andrew Ellis, 5 October 2018

Dr McSwiggan was agreed between the parties to be one of the two court-appointed experts. There is no doubt that her report is useful but because she did not feel qualified to comment upon the issues the Court is required to determine the parties agreed for a further report to be commissioned from Dr Ellis.
Dr Ellis interviewed Mr Skerry on 28 September 2018. He noted a presentation that was "significantly clinically improved" from his previous review in 2015.
Dr Ellis referred to Dr Rae having noted that Mr Skerry had recently shown some "breakthrough delusional beliefs" (females entering his room at night to have intercourse with him). Apparently this had come to light as nurses had noted he would sleep with his clothes on, and questioned him about it. Dr Ellis said that this may relate to Mr Skerry having restarted smoking, which reduces the effectiveness of Clozapine, and the stress of current legal proceedings.
Dr Ellis found that Mr Skerry continued to meet the criteria for a diagnosis of schizophrenia, noting that this was currently in remission from the more prominent delusions and hallucinations. He noted: "However he still presents with affective restriction, mild disorganisation thought process in the form of concrete thought form and has cognitive symptoms associated with the disorder including memory and executive function deficits. He has some breakthrough delusions which he performs limited mundane acts in response to. The disorder has responded well to clozapine however he is not in full remission as he has these attenuated symptoms plus inconsistent and partial insight into his previous positive symptoms." (Report p10)
Substance use disorder was also diagnosed, although currently in remission in a controlled environment. Dr Ellis commented: "He shows some insight into the need to remain abstinent from illicit substances. He has limited strategies apart from supervision to desist from use." (Report p10)
Dr Ellis also noted that formal measures of intelligence placed Mr Skerry in an intellectually disabled range. Regardless of the cause, cognitive function was considered to be something necessarily to be taken into account in determining management options for Mr Skerry.
Concluding a detailed section of his report in which Dr Ellis discussed Mr Skerry's risk of serious harm to others he wrote: "In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Skerry would fall into a group of persons with a risk of offending that is moderate to high (reduced from the previous assessment due to effective management), and greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many medium security forensic inpatients with leave provisions. There would be clinical grounds to continue intervention to manage this risk." (Report p14)
Dr Ellis strongly argued in his report for Mr Skerry to remain detained as an inpatient in a hospital, and that this should be for a minimum of a further year, regardless of whether this was by extension of his status as a forensic patient or as an involuntary patient under the Mental Health Act. He wrote, "There is no safe and effective care available other than hospital at present".
Dr Ellis noted the procedural differences between treatment of a person as a forensic patient as opposed to a civil patient but considered the care that would be received would be the same in either case. However, in the course of this lengthy discussion in his report, Dr Ellis noted the following: "A concern with relying solely on the Mental Health Act scheme would be that this type of clinical care may not be provided, with quick transfer to a generalist psychiatric unit and rapid discharge to any available community accommodation. [Mr Skerry] could theoretically be discharged from care without consultation or external review. This scenario would likely lead to a return to previous non-compliance and substance use with rapid escalation in risk. Given the current attention to his case, this scenario appears less likely." (Report p16)
Of course, "current attention to his case" is not going to be for more than the immediately foreseeable future. Moreover, Dr Ellis is a medical expert, not the one who has to determine the questions posed by cl 2.
As to the duration of any extension order, Dr Ellis wrote: "Should the court determine extension of forensic patient status is required to manage the identified risks then the length of time recommended for extension would be five years. His risk profile is likely to require long term management (under either scheme) and is unlikely to be further reduced within that timeframe. The disorders that contribute to risk are chronic and while [they] are responding to management to a point where community discharge can begin to be planned for, are of a nature that will require ongoing supervision once discharged." (Report p17)

Concurrent evidence of Dr Roberts and Dr Ellis

Drs Roberts and Ellis were largely in agreement about a number of matters raised in the course of their evidence which was given concurrently.
They agreed that Mr Skerry posed a risk of causing serious harm to others if he were not either a forensic patient or an involuntary patient under the Mental Health Act. The risk was of both violence and causing sexual harm, but particularly the latter. Even if the unproven matters were removed from consideration the assessment of risk and the need for management would be the same.
Dr Roberts was asked about the opinion expressed in his report that Mr Skerry could currently be managed within the community, a point of distinction between the opinions of the two doctors. Dr Roberts explained that he had in mind Mr Skerry's presentation at the time of his interview and that the type of management in the community he was referring to was a "strict supervision in a group home where there is a 24 hour carer" (T5.20). He also said that he contemplated a regime that "mandates medication and ensures that the taking of the medication is confirmed".
Dr Roberts added the following which is relevant to the second issue raised in cl 2: "I believe looking medium to long term a forensic order would provide a level of confidence, from the treating team and from the community, that safety is ensured and the level of treatment required is going to be in place." (T6.10)
Dr Ellis reiterated his view that Mr Skerry was not ready at this point for discharge into the community (under either regime). He spoke of the complexity of his condition. It was a form of schizophrenia that was not completely amenable to treatment by way of a single medication. In this sense, Mr Skerry had a more severe form of illness than most people with schizophrenia. He also had cognitive deficits which meant he required an even higher level of professional support to maintain a stable mental state.
In cross-examination, Dr Roberts explained that while Mr Skerry is at Bloomfield there would be no difference in his treatment, whether he was a forensic or civil patient, because the treatment staff is well aware of his case. However, if he came to be released but later admitted it would not necessarily be to Bloomfield; it could be to a public psychiatric ward at a hospital elsewhere in the State where there might be less emphasis given to management of his risk.
Dr Ellis explained what he called the seeming paradox in his report where he was suggesting that there was no difference in the efficacy of treating Mr Skerry as a forensic patient or a civil patient but that if an extension order were to be made it should be for the maximum period of five years. The first issue was a matter dependent upon the Court's decision. He also agreed with Dr Roberts that a period of two years could be appropriate, after which time he envisaged that Mr Skerry would then be made the subject of a CTO.

Consideration

There was no real contest about the first issue - both of Dr Roberts and Dr Ellis were of the opinion that Mr Skerry poses a risk of causing serious harm to others if he ceases to be a forensic patient. I am satisfied to a high degree of probability that there is such a risk and that it is one that is unacceptable. Counsel for Mr Skerry accepted that this was so (T18.40).
Counsel for the plaintiff characterised the real issue in practical terms: whether the power to order conditional release and the power to recall a forensic patient should be available (in the sense of whether it is necessary from a risk management perspective) in respect of Mr Skerry (T16.5).
It seems to be accepted that while Mr Skerry is being kept at Bloomfield, there is no practical difference in terms of risk management whether he is a forensic patient or an involuntary civil patient. The issue has practical significance at the time discharge is to be considered.
Counsel for the plaintiff submitted that Mr Skerry should remain as a forensic patient until such time as he has transitioned into the community and has demonstrated a sufficiently stable period of living.
Counsel for Mr Skerry referred to s 76B(1) of the Act which applies the principles set out in s 68 of the Mental Health Act to the administration of Part 5 of the Act. Part 5 of the Act includes s 54A which provides that a person's status as a forensic patient may be extended in accordance with Sch 1. Section 68 of the Mental Health Act sets out principles to be given effect in relation to the care and treatment of people with a mental illness or disorder. They include reference to the care and treatment being provided "in the least restrictive environment"; it being designed to assist such people "to live, work and participate in the community"; and "any restriction on the liberty of patients and … any interference with their rights, dignity and self-respect" being "kept to the minimum necessary".
The second limb of the test in cl 2 of Sch 1 itself requires a consideration of whether there is available adequate management by other less restrictive means. Moreover, it is necessary to bear in mind the precept in cl 7(2)(a) that the Court must have regard to "the safety of the community". And, as counsel for the plaintiff pointed out in her reply submissions, regard must be had to the objects of Part 5 of the Act which are set out in s 40 of the Act as set out above (at [15]).
Counsel for Mr Skerry referred to statements made by him to the experts to the effect that he would prefer to be not taking Clozapine because of its side effects. However, she submitted that what he said indicated an acceptance of the advice he was receiving and a preparedness to follow that advice. She referred to the improvement that he had exhibited in the past three years since being on Clozapine and also to the fact that Mr Skerry had served a three year limiting term and then a three year extension order. Now, with a degree of speculation involved as to whether or not treatment as a civil patient would be adequate, the plaintiff was seeking a further period of five years. Counsel put that this was becoming punitive in circumstances where there was a less restrictive regime that could adequately manage the risk.
Counsel for the plaintiff responded to the last-mentioned submission by pointing out that the current application for a five year extension order on top of the three-year extension order made in 2015 could only be seen as excessive if it is seen as part of a sentence or as a form of punishment which, of course, it is not.
It was also submitted by counsel for Mr Skerry that one could infer that those responsible for his care and treatment at Bloomfield would be well aware of his case and, if he were to become a civil patient, he would not be discharged without appropriate consideration of whether he is fit for release and of the circumstances in which he would live in the community. Reference was also made to the assistance Mr Skerry might receive with reintegration in the community from the NDIS or organisations such as the Community Justice Program. Counsel for the plaintiff responded that this was speculative; there was no evidence that Mr Skerry will in fact receive such assistance.
It was also submitted that the past failures to comply with CTOs should not now be regarded as significant given the time that has elapsed and the fact that Mr Skerry is now being far more successfully treated than then.
Questions of whether the present application is "excessive" or, if successful, would be "punitive" are a distraction. The criteria for the granting of an application for an extension order are those set out in cl 2. The parameters by which they are to be considered (including, for example, the matters listed in cl 7(2)) are set out in Sch 1.
I am not persuaded that the risk everyone accepts Mr Skerry poses can be adequately managed by means that are less restrictive than him continuing to be a forensic patient. I accept that there has been considerable improvement since the extension order of three years was made by Adams J in 2015. However, it has not been a complete success and the prospect of Mr Skerry deciding that he no longer wishes to comply with advice that he should be taking Clozapine is quite concerning.
I note that Dr Ellis said: "He has had exposure to treatment and rehabilitation to moderate this risk [of causing serious harm to others]. This has been limited as he is only partially responsive to pharmacological treatment and psychosocial rehabilitation. His insight is marginal, and there is a significant possibility that he would default from what treatment he has responded to without supervision, due to his impaired insight." (Report p14)
I am mindful of what Mr Skerry said to each of the experts about his current treatment and medication regime. There is a consistency in Mr Skerry saying that he experiences side effects from Clozapine and would prefer to be taking something else. He told Dr Roberts he would eventually wean himself off and "live a drug-free life" and "be responsible". It appears he is taking the Clozapine, not with a realisation of a necessity to do so but with acknowledgement of a need to comply with medical advice. It appears that he has the same attitude to the medication he is taking to reduce his libido.
Dr Roberts regarded what Mr Skerry was saying as "indicating the limit of his insight into the nature of his condition and the need for enduring treatment". Dr Roberts considered that "there remains concern that in the absence of potential consequence or at least supervision, enduring compliance would be tenuous". Dr Ellis was of a similar view.
A further indication of concern is that the apparent success of Clozapine is only partial in that Mr Skerry has reported the recent delusional thoughts of females coming into his room at night to have intercourse with him.
Mr Skerry is in need of oversight by the Mental Health Review Tribunal if he is to be considered for release into the community and for his supervision whilst there. The level of risk is such that the safety of the community would be best assured by the powers of the Tribunal being available to quickly and decisively deal with any relapse of Mr Skerry's condition or his commitment to maintaining his prescribed treatment and medication.
The extension order should be made. A period of three years seems a reasonable comprise of the differing views expressed by Dr Roberts and Dr Ellis. Dr Roberts seems to have suggested two years as the least period, all going well, whereas Dr Ellis seems to have suggested five years on a considerably more pessimistic basis.

Orders

The following orders are made: 1. Pursuant to cl 1 and cl 7(1)(a) of Schedule 1 to the Act the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from the date on which the order commences. 2. An order restricting access to the Court's file in the matter such that access by a non-party to the proceedings would be permitted only by leave of a judge of the Court, and only with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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: 14 November 2018

Mental Health (Forensic Provisions) Act 1990(NSW)s 54A, 76B, Pt

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)

Cited By (11)