plaintiff. An interim extension order was made for three months from 27 January 2021; two psychiatrists were appointed to examine Vakapora and report by 12 February 2021, and he was directed to attend....
Key principles
For an interim extension order under cl 10 of Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), the Court considers whether the limiting term will expire before...
On the material before Davies J, the alleged facts and expert evidence, if proved, would justify an extension order because they supported a high-degree-of-probability finding of...
Issues before the court
Whether the material, if proved at the final hearing, would justify an extension order under cl 2 of Sch 1 to the MHFPA.
Whether an interim extension order could be made before the limiting term expired.
Whether the risk could be adequately managed by less restrictive means.
Cited legislation
5 cited instruments linked from this judgment.
Plain English Summary
The Court was not deciding whether Vakapora should ultimately remain detained or whether a final extension order should be made. It was deciding whether the evidence, if established at the later hearing, could justify extending his forensic-patient status, and whether an interim order was needed because his limiting term would expire first. Davies J considered that the evidence could meet the statutory requirements, made a three-month interim order, and directed further psychiatric reports before the final hearing.
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Deep Dive
2,067 words · generated 28/09/2026
What happened
The Attorney General of New South Wales applied under Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA) for an extension order concerning Tutaua Vakapora. The judgment is preliminary. Davies J was not deciding whether to make a final extension order, but whether an interim order was justified while the application awaited its final hearing.
The application followed Vakapora's conviction process for two offences. On 1 August 2016 he was arrested and charged with recklessly causing grievous bodily harm and intimidation. The grievous bodily harm offence involved an unprovoked attack on a 61-year-old man. Vakapora punched him to the face, knocked him down and kicked him repeatedly while wearing boots. The victim sustained multiple facial fractures. The intimidation charge arose when another person attempted to intervene.
Vakapora was found unfit to plead in June 2018 and referred to the Mental Health Review Tribunal. After a special hearing, he was found to have committed the offences. In December 2019 the District Court imposed a limiting term of two years and six months for the grievous bodily harm offence, running from 28 July 2018 to 27 January 2021. A shorter limiting term for the intimidation offence had expired earlier.
The medical material described chronic, treatment-resistant schizophrenia and substance use disorder involving cannabis and methylamphetamine. Reports also recorded psychotic symptoms, impaired judgement and insight, episodes of aggression, and difficulty complying with treatment outside structured settings. The Tribunal confirmed the then-current care, treatment and detention arrangements at the Forensic Hospital. It considered those arrangements necessary and sufficient for protection from serious harm.
With the limiting term due to expire before the final hearing, the Attorney General sought an interim extension and psychiatric examinations. The defendant did not oppose the preliminary orders, but expressly remained free to argue at the final hearing that no extension order should be made. The Court ordered examinations by two psychiatrists, an interim extension commencing 27 January 2021 for three months, restrictions on non-party access to the Court file, and a final hearing date of 1 March 2021.
Why the court decided this way
The statutory framework has two related stages. Under cl 2 of Sch 1, a final extension order requires the Court to be satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if they cease being a forensic patient, and that the risk cannot be adequately managed by less restrictive means. The provision states that the risk need not be more likely than not. Clause 10 separately permits an interim extension where the existing limiting term will expire before the proceedings are determined and the supporting matters, if proved, would justify an extension order.
Davies J treated the interim question as a preliminary assessment, not a prediction of the final result. The judgment says the task was to ask whether the material, if proved at the final hearing, would justify an extension order. It referred to the test as similar to the prima facie test applied in committal proceedings, citing Attorney General for New South Wales v Tillman, State of New South Wales v Thomas (Preliminary) and Attorney General for New South Wales v Boyce.
On unacceptable risk, the Court considered the index assault, the criminal history and the psychiatric evidence. It noted that the attack was severe, that it was not the first violence in Vakapora's history, and that prior incidents had involved both family members and strangers. The Court also referred to Vakapora's explanation that he wrongly believed the victim had taken his bong. Davies J considered the connection between mental illness, substance use and offending to be clear.
The expert evidence was important to the preliminary assessment. Dr O'Dea considered that release into the community without supervision would create a significant risk of deterioration and further violent offending. Dr White's risk assessment was described as consistent with that opinion. Davies J identified poor insight into mental illness, substance use and past non-compliance with prescribed medication in the community as factors increasing the likelihood of further violence. The Court applied the ordinary meaning of “unacceptable risk”, citing State of New South Wales v Thomas (Final) and Lynn v State of New South Wales.
On less restrictive means, the judgment considered whether risk could be managed under arrangements less restrictive than forensic-patient status. It referred to Attorney General of NSW v McGuire (No. 2) on the meaning of “adequately managed”, and to Doolan (No. 2) and Minister for Mental Health v Paciocco on differences between forensic-patient and involuntary-patient arrangements. Those differences included the powers over detention and release, the conditions that may apply in the community, and oversight and recall.
The immediate evidence favoured continued structured care. Dr O'Dea said no less restrictive care was then consistent with safe and effective treatment. Dr White considered treatment with Clozapine and a later step-down assessment relevant to future planning. The Tribunal had confirmed the existing arrangements. Davies J therefore considered that, on the evidence then before the Court, the risk could not be adequately managed by less restrictive means.
The judgment did not make a final finding on the application. Its conclusion was that the evidence, if proved, could support the final statutory findings. Because the limiting term would expire before the listed final hearing, an interim extension was made.
Before and after state of the law
The judgment describes the relevant statutory position rather than announcing a broad change in the law. Before the preliminary decision, Vakapora was subject to a limiting term due to expire on 27 January 2021 and was being treated and detained in the Forensic Hospital. The Attorney General's final extension application had not yet been determined.
Clause 2 of Sch 1 sets the substantive test for a final extension. The Court must be satisfied to a high degree of probability of both unacceptable serious-harm risk and the inadequacy of less restrictive management. The statutory note expressly includes involuntary detention or treatment under the Mental Health Act 2007 (NSW) as possible less restrictive means. The judgment also notes that the Court need not find that serious harm is more likely than not.
Clause 10 supplies the interim mechanism. It addresses the gap that could arise if a limiting term or existing extension expired before the extension proceedings were decided. The interim threshold is whether the asserted matters, if proved, would justify a final order. This preliminary decision applied that statutory test to the evidence before Davies J.
The Court placed the MHFPA within the broader context of high-risk-offender jurisprudence. It stated that learning under the Crimes (High Risk Offenders) Act 2006 (NSW) could appropriately inform interpretation of Sch 1, while also accepting that the MHFPA's focus is wider in one respect: its language concerns “serious harm to others”, rather than the defined serious sexual or violence offences considered under that other legislation. The judgment noted that grievous bodily harm was involved in the index offence.
The “after” position in this case was procedural and temporary. Vakapora's status was extended on an interim basis for three months, and reports and a final hearing were ordered. The Court did not determine the duration of any final order, decide whether Vakapora would remain in secure detention after the interim period, or resolve the final application. Nor did it decide that a particular community arrangement would be suitable.
Key passages with plain-English translation
The Court stated: “My task on an application for an interim order is to consider whether if the material provided to me was proved at a final hearing that would justify the making of an extension order.” In plain English, the Court was testing the potential sufficiency of the case, not deciding whether every allegation or opinion had been finally established.
On risk, Davies J said the evidence, if proved, demonstrated to a high degree of probability that Vakapora would pose an unacceptable risk of serious harm if he did not remain a forensic patient. This conclusion drew on the index offence, other violence, psychiatric reports and concerns about insight, substance use and treatment compliance. It remained part of the interim assessment.
On alternatives, the Court said: “At the present time, and on the evidence that I have, I consider that the risk of serious harm to others cannot be adequately managed by other less restrictive means.” The words “at the present time” matter. The Court assessed the treatment and risk-management options then supported by the evidence; it did not rule out a later step-down or other less restrictive arrangement if circumstances and evidence changed.
The Court also clarified that its task was not to choose between detention and community supervision following an extension. It said the question was whether an extension order should be made to maintain the forensic-patient designation. The Mental Health Review Tribunal would determine what arrangements followed, including whether the person remained in the Forensic Hospital or moved to another treatment option.
What fact patterns trigger this precedent
The decision is most relevant to an interim extension application where a forensic patient's limiting term or existing extension order is due to expire before the final extension proceedings can be determined. Clause 10's timing requirement was directly engaged because the limiting term was to expire on 27 January 2021, while the final hearing was listed for 1 March 2021.
The case also illustrates the kind of evidence the Court considered material to the preliminary merits question: a serious index offence involving violence; a history of other violent incidents; expert evidence connecting offending with mental illness and substance use; concerns about the person's insight and medication compliance; and evidence about whether less restrictive care could manage the risk at that time.
The judgment does not establish that any one of those features, alone, is enough. Its reasoning combined the circumstances of the offence, criminal history, clinical assessments, the Tribunal's determination and available-care evidence. The Court's test also requires consideration of less restrictive means, not merely proof of a serious offence or a diagnosis.
It is a preliminary decision, so it should not be read as resolving what evidence will suffice at a final hearing in another case. Nor does it determine that a forensic-patient designation must result in continued secure detention. The judgment expressly separates the extension question from the Tribunal's later decisions about care, treatment, detention or conditional release.
How later courts have treated it
The supplied judgment does not identify any later court decisions considering Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701. It therefore provides no basis to describe whether later courts have followed, distinguished, limited or otherwise treated this decision.
The authorities Davies J cited are discussed as sources for the principles applied in this preliminary ruling. The judgment relied on high-risk-offender cases for the preliminary nature of the inquiry, referred to Thomas (Final) and Lynn on the ordinary meaning of “unacceptable risk”, and considered authorities on what counts as adequate management by less restrictive means. Those authorities are precedents relied on by Davies J, not later treatment of Vakapora itself.
For research purposes, the decision's procedural label and limited disposition are significant: it records an interim order pending a final hearing, not a final extension determination after the evidence was tested at that hearing. The provided text does not include the later hearing outcome.
Still-open questions
The final extension application remained unresolved. The judgment does not establish whether the final hearing proceeded as listed, whether the Court ultimately made an extension order, or what duration or conditions might have applied.
The evidence also left treatment and management questions for later consideration. Dr O'Dea discussed Clozapine, possible step-down to a medium-secure facility, conditional release, and the potential role of a community treatment order. Davies J did not select among these possibilities. The judgment states that the Tribunal would determine what flowed from an extension order and whether alternative treatments could be implemented.
The decision also does not settle how the risk assessment might change with treatment progress, improved insight, reduced substance use, sustained compliance or a different community support plan. It records the evidence available at the preliminary stage and assesses less restrictive options as inadequate “at the present time”.
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This is an application made under Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFPA") for an extension order in respect of the defendant. Such an application may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order: cl 4(1).
On 1 August 2016 the defendant was arrested and charged with two offences:
(a) recklessly cause grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW): and
(b) act of intimidation with intent to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). (the index offences)
The offence of recklessly cause grievous bodily harm was a sudden, unprovoked attack on a male victim aged 61. He was punched to the face and knocked down by the defendant. He was then kicked to the face numerous times by the defendant whilst the defendant was wearing boots. The victim suffered multiple left sided facial bone fractures involving his left eye, sinus, nasal bone and septum, and there was a suspected focus of blood collection inside the right anterior skull cavity.
The offence of intimidation occurred because another person attempted to intervene to prevent the assault on the victim of the defendant's attack.
On 25 June 2018 Judge English in the District Court found that the defendant was unfit to plead. Her Honour noted that the defendant had a long history of psychotic illness and polysubstance abuse. Her Honour referred the defendant to the Mental Health Review Tribunal (the "Tribunal") for assessment.
Subsequently a special hearing took place on 4 November 2019 where the defendant was found to have committed the offences charged. On 10 December 2019 Judge English imposed a limiting term for the offence of recklessly cause grievous bodily harm for a period of two years and six months commencing 28 July 2018 and expiring 27 January 2021. She imposed a limiting term of three months for the offence of stalk and intimidate commencing 24 July 2018 and expiring 23 October 2018.
At the time Judge English imposed the limiting term, she had a report of Dr Richard Furst of 1 December 2019. Dr Furst diagnosed the defendant as suffering from the following diagnoses:
• schizophrenia, chronic and treatment resistant;
• substance use disorder (cannabis, methylamphetamine).
It is in the circumstances of the imminent expiry of the limiting term on 27 January 2021 that the Attorney General now seeks an order that the defendant be subject to an interim extension order under the Act, and for the appointment of two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the defendant and to furnish reports to the Court.
The orders are not opposed by the defendant, but without prejudice to the defendant to argue at the final hearing that an extension order should not be made.
[3]
Legal principles
Clause 2 of the MHFPA 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.
Clause 10 of Sch 1 provides:
10 Interim extension order
The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:
(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
Clause 11 provides that an interim extension order commences on the day fixed in the order for its commencement and expires at the end of such period not exceeding three months from the day on which it commences as is specified in the order: cf. ss10C(1)(a) and 18C(1)(a) Crimes (High Risk Offenders) Act 2006 (NSW) ("CHROA").
Because the defendant is the subject of a limiting term and was detained in custody pursuant to an order under s 24 of the MHFPA he is a "forensic patient" within the meaning of the definition of that term in s 42 of the MHFPA.. Section 54A gives power to the Court to extend a person's status as a forensic patient in accordance with Schedule 1 to the Act.
Section 40 sets out the objects of Pt 5 of the Act which deals with forensic patients. The first of such objects is the protection of the safety of members of the public. The remaining four objects are directed towards the care and rehabilitation of the forensic patient.
[4]
Evidence
The defendant was born in the Cook Islands in 1990. He moved to Sydney when he was 17. Shortly after the move his mother said that he became unwell. He was diagnosed with schizophrenia at the age of 20. He had auditory hallucinations and was paranoid about other people's intentions towards him.
In 2011 he was admitted to Liverpool Hospital following a suicide attempt. At about the same time he cut off his left index finger to "stop spirits marking my right arm".
Dr Furst in a report date 4 March 2017 recorded that the defendant used cannabis from the age of 7 years, and up to 7gms per day in his teenage years. In a later report by Dr Anderson (see [25] below), Dr Anderson said his cannabis use started when he was 11. This only tends to highlight what other doctors had noted, that the defendant was a poor historian. In 2014 he started taking methamphetamine which resulted in a significant deterioration of his precarious mental state.
In his report of 1 December 2019, Dr Furst said:
Mr Vakapora remains severely impaired by virtue of his chronic and treatment resistant schizophrenic illness, lacks insight into his illness, operates at a low level of cognitive function, and is prone to a variety of psychotic symptoms and mood disturbance, including hallucinations, paranoid delusions, thought disorder, mania, and irrational/aggressive behaviour as a consequence of those symptoms. I note [he] cut his left index finger off several years ago in response to delusions about 'spirits'.
Mr Vakapora (sic) schizophrenic illness is classified as chronic and treatment resistant schizophrenia.
Given the severity of his treatment resistant schizophrenia and related impairment in cognition and function, I remain of the opinion that longer-term treatment in a supervised hospital setting is indicated, as an involuntary patient within the meaning of the Mental Health Act, in order for proper care, treatment and supervision to be provided.
It is concerning that he reported discontinuing Clozapine around September, most likely due to non-compliance with medication or adverse side-effects. The available history indicates other medications are ineffective in managing his severe mental illness, making it even more important for Mr Vakapora to have adequate support and treatment in a hospital setting over at least the next 6 months.
I remain of the opinion that current community-based accommodation options are not feasible or adequate in the short-term.
[5]
Determination
The test in cl 2 of Sch 1 is twofold. At a final hearing the Court must be satisfied to a high degree of probability that:
(a) the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and
(b) the risk cannot be adequately managed by other less restrictive means.
My task on an application for an interim order is to consider whether if the material provided to me was proved at a final hearing that would justify the making of an extension order, noting that the Court at a final hearing must be satisfied to a high degree of probability of the two matters identified. At a final hearing the Court must have regard to the matters set out in cl 7(2).
As to the question of whether the defendant is an unacceptable risk of causing serious harm to others, I consider that the Court must have regard to the principal index offence. That arises because two of the considerations in cl 7(2) are the safety of the community and the views of the court which imposed the limiting term. A further relevant matter is the defendant's criminal history.
The victim of the index offence involving grievous bodily harm was brutally attacked because the defendant wrongly believed (as he subsequently told Dr O'Dea) that the victim had taken his bong. The interaction between the defendant's mental illness and his Substance Use Disorder is clear.
I have further concerns arising from the level of the violence inflicted on the victim. The offence of recklessly causing grievous bodily harm was not the first offence of violence on the defendant's record but it is certainly the most serious. There have been a number of other offences including assault occasioning actual bodily harm, common assault, and stalk/intimidate. These were directed both to family members (offences of 7 February 2011 and 10 December 2015) and to strangers (the index offences and the offence of 16 March 2016).
Dr O'Dea said that if he was to be released into the community without supervision there would be a significant risk that his condition would deteriorate, that he would pose a risk of causing serious harm to others, and in particular would engage further violent offending behaviours. That is entirely consistent with what Dr White said when he carried out his risk assessment.
The likelihood of further offences of violence is increased by the defendant's lack of insight into his mental condition, his substance use, and his non-compliance with his prescribed medication regime when in the community. Those matters make the risk of serious harm to others unacceptable, noting that the words "unacceptable risk" should be given their everyday meaning in the context of the provision in which they appear: 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].
[6]
Conclusion
In those circumstances, the following orders should be made:
Pursuant to cl 6(5) of Sch. 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW):
a. That two qualified psychiatrists be appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 12 February 2021; and
b. That the defendant is directed to attend those examinations.
That the Defendant be subject to an interim extension order commencing from 27 January 2021 for a period of three months.
That access to the Court's file not be granted to a non-party to the proceedings without prior leave of a Judge of the Court without prior notice provided to the parties to allow them the opportunity to be heard in respect of the application for access.
That the matter be listed for final hearing on 1 March 2021 for an estimate of one day.
The parties have liberty to approach the list judge for further directions.
.**********
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Decision last updated: 03 December 2020
Parties
Applicant/Plaintiff:
Attorney General of New South Wales
Respondent/Defendant:
Vakapora
Legislation Cited (5)
Mental Health (Forensic Provisions) Act 1990(NSW)ss 40, 42, 54A, Sch
An interim extension order was made for three months from 27 January 2021; two psychiatrists were appointed to examine Vakapora and report by 12 February 2021, and he was directed to attend. Non-party file access requires prior leave and notice to the parties; the matter was listed for final hearing on 1 March 2021, with liberty to seek further directions.
In Attorney General of New South Wales v McGuire [2013] NSWSC 1862, I said that the learning that has grown up in relation to the CHROA should be appropriately applied to Sch 1 of the MHFPA. However, in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 I accepted that the net is cast wider for forensic patients particularly because the unacceptable risk for a forensic patient is "causing serious harm to others" whereas under the CHROA the unacceptable risk was committing either a serious sex offence or a serious violence offence, both of which are defined in that Act. In relation to a serious violence offence, at a minimum, grievous bodily harm is required. In the present case, the offence in respect of which a limiting term was ultimately imposed was one that involved grievous bodily harm.
The term "serious harm" is not defined in the MHFPA or Sch 1 but its meaning was discussed by White J (as his Honour then was) in Re J (No. 2) [2011] NSWSC 1224 in the context of s 14 of the Mental Health Act 2007 (NSW).
As with applications under the CHROA, the task of the Court when dealing with an application under Sch 1 of the MHFPA is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; Attorney General for New South Wales v Boyce [2017] NSWSC 144 at [10].
In a report prepared for the Mental Health Review Tribunal, Dr Andrew White on 17 July 2020 said that there was no doubt the defendant suffered from a severe and persistent mental illness. He said the only question was whether his diagnosis was schizophrenia or schizoaffective disorder. He said the defendant's illness had been complicated by severe and persistent substance use, but the illness had persisted throughout lengthy incarcerations and hospitalisations. In that way, Dr White did not think that drug induced psychosis was a possible diagnosis. He said although there was a significant history of adult antisocial behaviour, in the presence of severe mental illness and in the absence of significant evidence of juvenile conduct disorder, he would not make a diagnosis of antisocial personality disorder.
Dr White said that it was the opinion of the treating team that the defendant required admission to a forensic rehabilitation facility for thorough assessment of his needs and the development of a comprehensive management plan. His long history of behavioural disturbance in hospital would strongly suggest that he needed, at least initially, to be treated in an environment of high therapeutic security.
In a report dated 13 October 2020 for the Mental Health Review Tribunal, Dr Reece Anderson echoed Dr White's diagnosis of a severe and persistent mental illness with some uncertainty as to whether it was schizophrenia or schizoaffective disorder. He was not prepared to diagnose antisocial personality disorder for the same reasons as Dr White.
Of some significance, Dr Anderson carried out a risk assessment under the HCR-20 Protocol. He said this:
Mr Vakapora has a high loading of historical risk factors. He has clear evidence for the presence of most historical factors. There is a history of problems with violence (as evidenced by past episodes of assault on members of the public, mental health staff and family) and other antisocial behaviour (evidenced by his history of convictions for driving offences and drug offences, disorderly conduct offences and breech (sic) of orders which received s33 diversions). There is also evidence for problems with both intimate and non-intimate relationships, as evidenced by Mr Vakapora's history of violence toward his mother and poor relationship with past intimate partners. Mr Vakapora has a history of difficulties in employment, only having worked very briefly in setting up marquees and stacking shelves. He also has had clear longstanding difficulties with substance use and major mental disorder; including THC age 11 from his uncle, and a diagnosis of schizophrenia age 20 years. His history of early, repeated and sustained rule breaking and disregard for others' right (sic) demonstrates likely evidence for a diagnosis of antisocial personality disorder. Mr Vakapora denied significant trauma in his youth and characterological violent attitudes. There is clear problems with treatment or supervision response, evidenced by Mr Vakapora's history of non-compliance necessitating use of coercive treatment including CTOs, as well as the treatment-refractory nature of his illness.
In terms of clinical factors, there is evidence that in the past six months Mr Vakapora has experienced problems in three of the five assessed domains. He has demonstrated clear problems with insight, symptoms of major mental disorder and treatment or supervision response. Clinical assessment suggest that Mr Vakapora continues to experience persecutory delusions. There is no clear evidence of current problems with instability or violent ideation.
The HCR next considers risk management items, which involves consideration of problems Mr Vakapora may face in the next six months. This was assessed based on the assumption that Mr Vakapora will be remaining in the high secure setting of the Forensic Hospital over this period. It is anticipated that Mr Yassien (sic) will not experience problems with professional services or plans nor problems with his living situation. He may experience problems with personal support given his limited social supports. It is also anticipated that he may experience problems with stress or coping, as Mr Vakapora appears to have limited adaptive coping strategies. It is anticipated that he will experience ongoing problems with treatment or supervision response, given his ongoing poor insight and propensity to minimise and deny ongoing symptoms, which limits his capacity to engage in meaningful discussion and treatment for his illness.
Mr Vakapora has a history of reactive, impulsive aggression, coloured by signs of his treatment resistant mental illness, overlaid with chronic substance use issues and diminished intellectual capacity. The episodes of violence have occurred in an unprovoked manner, against both strangers in the public domain, family members and acquaintances. They appear to be psychotically driven in nature, in the context of acute and florid experiences frequently exacerbated by illicit substance use. (emphasis in original)
Dr Anderson considered that the defendant had some insight in that he took medication most of the time and accepted that he has a mental illness. Dr Anderson said, however, that the defendant had a very limited understanding of his illness, the symptoms associated with his illness and the impact of his substance use on his illness.
The defendant was reviewed by the Tribunal on 5 November 2020. It issued its determination on 16 November 2020.
The Tribunal noted that the defendant's illness had persisted throughout lengthy incarcerations and hospitalisation since being taken into custody on the day of the index offence. It referred to Dr Anderson's report where he said that the defendant's illness had been complicated by a variety of factors, including severe and persistent substance use, non-compliance with medication and poor engagement with treatment clinicians. The Tribunal noted that the defendant had settled well since being admitted to the Forensic Hospital. He had been compliant with medication, following staff directions and managing well with other patients in the Unit. The defendant through his solicitor informed the Tribunal that he was glad to be in the Forensic Hospital receiving treatment.
In relation to risk assessment the Tribunal said that the defendant had a high loading of historical risk factors. He had a history of violence and other antisocial behaviour. Over the prior six months the defendant had experienced problems with insight, symptoms of a major mental disorder, and treatment or supervision responses. He continued to experience persecutory delusions. Although he denied hallucinations, staff observations tended to the view that the defendant did experience hallucinations.
The Tribunal said the defendant appeared to have limited adaptive coping strategies. It was anticipated by the treating team that he would experience ongoing problems with treatment and/or supervision, given his poor insight and his propensity to minimise and deny ongoing symptoms, which limited his capacity to engage in meaningful discussion and treatment for his illness.
The Tribunal concluded as follows:
The Tribunal is satisfied that there are reasonable grounds for believing that the present arrangements for care, treatment and control of Mr Vakapora are necessary and sufficient for the protection of Mr Vakapora from serious harm and/or for the protection of others from serious harm.
The Tribunal made an order confirming the current arrangements for care, treatment and detention at the Forensic Hospital.
The Attorney General engaged Dr Jeremy O'Dea to prepare a report for the purpose of the present application. Dr O'Dea saw the defendant on 28 September 2020 and prepared his report on 22 October 2020.
Dr O'Dea's conclusions were these:
62. On the basis the documents made available to me, and my clinical assessment on 28 September 2020, I diagnosed Mr Vakapora as suffering from a severe chronic treatment resistant schizophrenic Illness, complicated by a significant and ongoing Substance Use Disorder.
63. Mr Vakapora's severe chronic treatment resistant schizophrenic illness has been characterised by a number of positive symptoms of schizophrenia, including a history of hallucinations, paranoid delusions, marked disorder in the form and content of his thinking, an elevated and irritable affect, disorganised and disinhibited behavior; and a number of negative signs of schizophrenia and associated cognitive impairment, including problems with judgement, insight and compliance; and significant associated problems with anger, aggression and violence.
64. At our interview on 28 September 2020, Mr Vakapora presented with ongoing positive symptoms of schizophrenia, including marked disorder in the form and content of his thinking, a fatuous affect, disorganised behavior; and significant cognitive impairment (including poor insight and judgement, and poverty of content of thought), despite his history of assertive treatment under the civil arm of the New South Wales Mental Health Act 2007, in community psychiatric hospitals and in the general community over the past 10 years, and in custody over the past 5 years.
65. I note that Mr Vakapora's Substance Use Disorder has included at least ongoing Cannabis Use Disorder and Amphetamine Use Disorder, as well as likely Alcohol Use Disorder.
66. Mr Vakapora's offending behaviour, in particular his violent offending behaviour, including the index offences, is likely to be best understood in the context of his schizophrenic illness, substance abuse and lifestyle.
67. In Mr Vakapora's case, both his Schizophrenic Disorder and his Substance Use Disorder are likely to be chronic long term conditions requiring long term, assertive, structured and supervised psychiatric treatment, monitoring and supervision.
68. On the basis of Mr Vakapora's current mental state and response to treatment to date, he requires ongoing structured and supervised psychiatric treatment in a secure psychiatric facility at the present time, in order to bring his schizophrenic illness under adequate control, and in order to adequately and appropriately manage the significant risk of him causing serious harm to others.
69. Furthermore, I do not consider that there is currently other care of a less restrictive kind, that is consistent with safe and effective care, and that is appropriate and reasonably available to Mr Vakapora or that Mr Vakapora does not require care at this stage.
70. I would consider that, if Mr Vakapora were to cease to be a forensic patient, and were to be released into the community without supervision, then there is a significant risk that he his overall condition would deteriorate further, and that he would pose a risk of causing serious harm to others, in particular of engaging in further violent offending behaviours, related to his history of having engaged in such behaviours in the past, and his problems with his moods, thinking, judgement, behavioural control and substance abuse.
71. I note that it is planned that Mr Vakapora be admitted to the Forensic Hospital when a bed becomes available. I would consider this the most appropriate course of action at this stage from a psychiatric risk treatment and management perspective
72. That being said, on the basis of Mr Vakapora's active and ongoing symptoms and signs of his severe chronic treatment resistant schizophrenic illness, I would consider that Mr Vakapora currently suffers from a "mental illness" and is a "mentally ill person" under the meaning of the New South Wales Mental Health Act 2007.
73. However, I note the ongoing problems in the past in treating and managing Mr Vakapora in general psychiatric hospitals and in the community under the provisions of the civil arm of the New South Wales Mental Health Act 2007; and his unsuccessful referral to Bloomfield Hospital rehabilitation services, that may have offered more medium secure psychiatric rehabilitation options,
74. Whilst I would be cautious as to the rate and extent of Mr Vakapora's likely improvement with assertive treatment in the Forensic Hospital; with improvement in his mental state, that may be best afforded by a re-trial of Clozapine (the oral antipsychotic medication indicated for treatment resistant schizophrenia), in conjunction with depot antipsychotic medication that is likely to be indicated due to likely ongoing clinical issues with compliance; progression from the Forensic Hospital to a step down medium secure psychiatric facility may be considered, dependent on his progress at the Forensic Hospital.
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77. Whilst eventual discharge to the general community would be the ultimate goal of Mr Vakapora's ongoing psychiatric treatment, the ultimate success of such a venture would be dependent on Mr Vakapora's response to treatment in hospital and the ability to provide adequate, appropriate and structured psychiatric treatment and supervision in the community.
78. Conditional Release into the community as a Forensic Patient, as opposed to discharge into the community on a Community Treatment Order (CTO) under the provisions of the New South Wales Mental Health Act 2007, would allow for more prescriptive and proscriptive conditions of such a community risk management program, and therefore allow for more adequate and appropriate risk management in Mr Vakapora's case, as the conditions that can be put in place under a CTO are limited.
79. Whilst a CTO may be a less restrictive alternative to conditional release, it is likely to prove insufficient in prescribing and proscribing, and therefore affording, the framework to provide adequate risk management of Mr Vakapora's overall forensic psychiatric treatment needs under such circumstances. Furthermore, Conditional Release may have the added benefit of improving Mr Vakapora's likelihood of successfully transitioning into the community and remaining in the community.
80. Mr Vakapora's psychiatric treatment and risk management needs are long term and likely to be of at least 5 years duration.
81. Therefore extension of his forensic order should be long term, and of at least 5 years duration, with the conditions of the order regularly reviewed and altered dependent on Mr Vakapora's progress.
I note, in terms of paragraph 71 of Dr O'Dea's report that the defendant was admitted to the Forensic Hospital on 29 September 2020, the day after Dr O'Dea saw the defendant.
In my opinion, the evidence, if proved, demonstrates clearly and to a high degree of probability that if the defendant does not remain a forensic patient he is an unacceptable risk of causing serious harm to others.
The second issue is whether the risk can be adequately managed by less restrictive means.
In Attorney General of NSW v McGuire (No. 2) [2014] NSWSC 288 Garling J said at [63]:
I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community.
In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 Adamson J said at [96]:
In my view, the principal issue in the proceedings is whether the defendant's risk cannot be managed by less restrictive means. Such "less restrictive means", as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as "less restrictive means", I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. I consider that the question whether "means" are more or less restrictive is to 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.
Justice Adamson also analysed at [97] - [129] in some detail the differences between management under the MHFPA and under the Mental Health Act 2007 (NSW). That analysis was summarised by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 as follows:
[61] For present purposes, four particular differences should be noted. The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]).
[62] The second difference relates to release. Her Honour noted that with a forensic patient the Tribunal may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]).
[63] The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient "to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan" (Doolan No 2 at [115]).
[64] The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118]).
[65] Broadly, her Honour also noted (at [121]) that "[g]enerally speaking the onus in the [MHFP Act] is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted." Her Honour then stated that "[b]y contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted."
Dr O'Dea was clear in his report (at paragraph 69) that he did not consider that there was currently care of a less restrictive kind that was consistent with safe and effective care. He said that the defendant required ongoing structured and supervised psychiatric treatment in a secure psychiatric facility at the present time to bring his schizophrenic illness under adequate control and in order to manage adequately and appropriately the significant risk of the defendant causing serious harm to others.
In October 2020, shortly after the defendant went to the Forensic Hospital, Dr White was concerned to ensure that the treatment with Clozapine was established before he could recommend a step-down approach and consider his referral for assessment in a less intensive unit. The Tribunal agreed with that assessment, saying that the present arrangements with the defendant at the Forensic Hospital were necessary and sufficient to protect both the defendant and others from serious harm.
At the present time, and on the evidence that I have, I consider that the risk of serious harm to others cannot be adequately managed by other less restrictive means.
The issue for the Court under the MHFPA is not, however, to determine whether any order made is one for detention or one for supervision within the community. The question is only whether an extension order should be made for the defendant's designation as a forensic patient. It is for the Mental Health Review Tribunal to determine what flows from the making of an order, and that will determine whether the defendant remains in the Forensic Hospital or whether some of the alternative treatments available identified in paragraphs 78 and 79 of Dr O'Dea's report should be implemented by way of a step-down.