1 The appellant is currently subject to a non-custodial supervision order ('NCSO'). On 12 December 2013, the appellant applied to the Supreme Court of Victoria for a revocation of the NCSO. The Court dismissed the application and confirmed the NCSO. Pursuant to s 34(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('CMIA'), the appellant appeals against that decision in this Court.

2 The appellant appeals on the following grounds:[2]

Ground 1: That [the primary judge] misdirected herself as to the application of sections 39 and 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in that she took the view that it was not appropriate to consider whether another Act of Parliament, being the Mental Health Act 1986 or the Guardianship and Administration Act 1986 would be available to ensure the appellant would not endanger anyone.

Ground 2: That [the primary judge] erred in failing to take into account a material consideration, being the regimes under the Mental Health Act 1986 or the Guardianship and Administration Act 1986.

3 Although the appellant disclaimed any suggestion during the appeal that it was not open to the judge to refuse to revoke the NCSO, there was a broader dimension to the appellant's submissions that underlay much of her argument; namely that given that the compulsory treatment regime (a Community Treatment Order ('CTO')) administered under the Mental Health Act 1986 ('MHA') was said to be an equally effective and less onerous alternative to the NCSO, the continuation of the NCSO could not be justified. In the course of her submissions, the appellant argued that all relevant medical interventions and supervision were provided under cover of the CTO, rather than the NCSO. This, it was said, provided a sound basis for the revocation of the NCSO by the Court. That submission was at the forefront of the argument before the primary judge. It is therefore necessary to also consider the broader question of the interaction of an NCSO under the CMIA and a CTO under the MHA.

4 The primary judge summarised the background to and circumstances of the index offence as follows:

[T]he [appellant] separated from her husband in 1991, when she was aged 41. Her psychiatric history appeared to commence approximately two years prior to the index offence when she commenced experiencing multiple physical symptoms, such as paraethesia, weakness and paralysis of the limbs, back pains and migraines.

The [appellant] had purchased a house in Diggers Rest in 1992, subsequent to her separation and had come to develop the belief that evil spirits were haunting her and the house, and her behaviour became increasingly erratic. She would leave the children in her ex-husband's care for periods of days and up to weeks, often without prior arrangement, and he had formed the belief that there was increasing alcohol use. The [appellant] had become, as a result of these problems, engaged with [the Department of Human Services ('DHS')] prior to the index offence occurring, the children were about to [be] removed from her care. She had sold the property at Diggers Rest and returned to Melbourne. She had previously reported loss of appetite, poor sleep, poor memory and concentration. She was described as having prominent psychotic symptoms including a belief that Satan was controlling her body and that spiders were crawling inside her. On the day before the index offence, DHS had decided to remove the children from her primary care, but on that day, the [appellant] had taken her six year old daughter to the house at Diggers Rest, which was still vacant and without power. The [appellant] felt compelled to seek refuge in the bath which she filled with water and she and her daughter, both still fully clothed, entered into the bath. The [appellant] described being of the view that she should kill both herself and her daughter and put both their heads under water. She then raised hers but put her hands on her daughter's head in order to keep it submerged until she drowned. She drove herself the next day to her mother-in-law's house and reported what had happened.

She was arrested for the offence of murder and admitted to Fairlea Women's Prison, being transferred to the Rosanna Forensic Psychiatric Centre on 5 May 2004.[3]

5 On 27 February 1995, the appellant was found not guilty by reason of mental impairment, and she was subsequently detained at the Governor's pleasure. Upon commencement of the CMIA in 1998, the appellant was deemed subject to a custodial supervision order with a nominal term of 25 years. She remained at the Rosanna Forensic Psychiatric Centre and was later transferred to Thomas Embling hospital. She made an initial application for extended leave in 2002, which was rejected. She was granted extended leave on 31 January 2003 after a second application, and a further period of extended leave was granted in January 2004. On 23 November 2004, the Court granted an application under s 31 of the CMIA to vary the appellant's custodial supervision order to an NCSO. On 23 November 2007, a court-directed review of the appellant's NCSO was heard pursuant to s 27(2) of the CMIA. The Court confirmed the NCSO.

6 On 26 April 2013, the appellant applied for a revocation of the NCSO. In the decision from which she now appeals, the Court dismissed the application and confirmed the NSCO.

7 It is convenient again to extract the primary judge's summary of the appellant's medical history:

The [appellant] was the second child of eight, suffering psychological and physical abuse during her childhood; left school at Year 10 as a result of family financial problems; and worked in a drapery store. She became pregnant with her eldest daughter ... in 1973 and began training as a state enrolled nurse when she was in her mid-20s in 1974/5. She married in 1982 and had two further children ... Her father was an alcoholic and two of her brothers committed suicide aged 24 and 30. Apart from the psychotic state in which the [appellant] was, there was also a history of significant alcohol, Diazepam and Codeine use prior to the offending for several years.

At the time of the offending, the [appellant] was floridly psychotic displaying a range of symptoms including persecutory, religious delusions, somatic passivity, command, auditory, visual and somatic hallucinations, and formal thought disorder. In the previous months she had developed depressive features including insomnia, poor appetite, loss of weight and suicidal ideation.

The [appellant] was admitted to Rosanna Forensic Psychiatric Centre and treated with an antipsychotic and antidepressant medication and returned to Fairlea Women's Prison between June and August of 1994, then re-admitted to Rosanna for eight days, before again being returned to prison.

In December 1994, she was re-admitted to hospital with symptoms of depression. It took some period of time for the psychotic symptoms as well as depressed mood to come under what can only be described as relative control, although they do reappear from time-to-time. All of the reports indicate, however, that there has been poor insight into the illness which has persisted throughout her time in custody as well as in the community. The [appellant] has consistently sought analgesics and sedating medication from any medical source that she could and there have been ongoing problems at times in establishing trusting therapeutic relationships. The [appellant] commenced overnight leave in late 2000 and progressed to three nights of overnight leave by mid-2001. The [appellant] maintained a unit in the Heidelberg area from July 2001 until she was admitted to the Austin Psychiatric Unit in 2010/2011.

Initially within the community, [the appellant] managed reasonably well, despite poor ongoing insight, residual symptoms and concerns about prescribed medication misuse.

In May 2005, the antipsychotic medication she was prescribed began to be reduced with a plan to switch to a newer antipsychotic medication, Risperdone, which had a lower rate of associated problems. The [appellant] unfortunately suffered an acute intestinal obstruction which required the creation of a colostomy bag and around this time there was a deterioration in her mental state, becoming preoccupied with religious matters and believing her daughter to have been killed by the devil rather than by her.

In October 2005, she was re-admitted to Thomas Embling under s 12 of the Mental Health Act. During 2005 the [appellant] was also involved in doctor shopping for Diazepam products.

During 2006, a condition of hyperthyroidism was diagnosed and treated resulting in an overall improvement in the health of the [appellant].

In 2007, the [appellant] revealed that she did not believe that she had an illness but that she was possessed by the devil. She believed the killing of her daughter to be the subject of her possession by the devil which she stated had been the true situation from the time she'd been born, but that the prayers of her fellow church members had delivered her from that demon.

She continued to deteriorate, and in December 2007, a two week admission to the Austin Hospital was arranged. She was admitted twice for several weeks in 2008, and managed by the CATT Team in the community in April during another relapse.

During 2009, despite returning to the community there was evidence of intermittent symptoms of reduced intensity and ongoing poor insight. Despite this, she maintained a reasonable quality of life. She continued to hold a belief in the concept of demonic possession.

In 2009, the [appellant] was referred to the North East Area Mental Health Service (NEAMHS) and was transferred to the NCSO Program in early 2010. In mid to late 2010 there was a profound deterioration in the [appellant's] physical and mental health, despite ongoing case management and treatment with depot antipsychotic medication. There was a noticeable worsening of her presentation, with increasingly poor self care, significant weight loss and deteriorating cognitive capacity, at times appearing to be quite sedated.

The [appellant] was noted to be wandering in a dishevelled state and with poor oral intake. She was suspicious, guarded and her mental state was difficult to assess. She was being prescribed narcotic analgesics and benzodiazepines via a surgeon who was treating her for her back pain and she was unable to maintain independent living.

The [appellant] was admitted to the Austin Psychiatric Unit in November of 2010. Neurocognitive testing indicated problems in memory and executive function. She stayed for five months, prior to discharge to a supported residential service, which unfortunately failed due to her wandering and putting herself at risk. The [appellant] was returned to hospital and unfortunately during this time lost the flat that she had had in Heidelberg for almost 10 years. A guardian and financial administrator was appointed to manage her affairs. The anti-psychotic medication, Clozapine, was commenced and improved slowly to the extent that she was transferred to another supported residential service in Essendon in December 2012.

The [appellant] became unhappy subsequently with that supported residential service and has moved to another supported residential service, Corandirk House, in June of 2013, but remains supervised by the Inner West Mental Health Service where she was referred in February of 2012.[4]

8 The appellant is now aged 63 and, since December 2013, has resided in an aged care facility.

9 Some 18 months before the hearing at first instance, the appellant was placed upon a CTO under the auspices of the MHA. There was no adequate explanation before this Court, and there does not appear to have been such before the judge below, as to how the appellant came to be on the CTO. The granting of the CTO appears to coincide with the appellant's discharge from hospital to supported accommodation in early 2012. She appears to have been discharged from a guardianship order in June 2012. The evidence from Dr Mark Ryan, the appellant's supervising psychiatrist at the Victorian Institute of Forensic Mental Health ('Forensicare'), was that the appellant is 'well managed by assertive case management in the community on a CTO' and that, in his view, her treatment needs and any future risk of noncompliance could be met under the MHA.

10 The Director of Public Prosecutions ('Director') seeks to make substantive submissions before this Court. At first instance, counsel for the Director made an appearance for the limited purpose of fulfilling his notification obligations under the CMIA, and took no substantive position on the merits. Ordinarily a party that has not sought to be heard as to particular issues at first instance may not do so for the first time on appeal. The Director however now seeks to address certain matters which arise from the judge's reasons and the parties' submissions on appeal that could not have been foreseen and are of general public importance. In the circumstances, I would allow the Director leave to make substantive submissions.

11 It is convenient to consider the two grounds together. There is no dispute about the facts found by the judge below. In particular, it is uncontested that the appellant's mental illness is controlled by medication and that a compulsory regime has always been and continues to be necessary. For the reasons that follow, the submission that the primary judge did not take into account the operation of the CTO regime under the MHA in the treatment and management of the appellant cannot be sustained. Further, as the present appeal demonstrates, even though there is an effective compulsory treatment regime that is being implemented and managed pursuant to the MHA, there may remain compelling reasons why supervision under an NCSO should be maintained.

12 Both grounds of appeal make reference to the Guardianship and Administration Act 1986. Before the primary judge that Act was referred to as a possible further alternative avenue by which supervision of the appellant could be instigated. However, on appeal the appellant's submission was confined to the argument that it was the MHA which should have been taken into account. The Guardianship and Administration Act may put to one side.

13 I now turn to the appellant's submissions in relation to the MHA.

14 The appellant contends that the primary judge failed to consider the availability of the MHA in making her decision. In particular, the appellant submitted below, and maintains here, that the MHA regime provided adequate resources for the treatment and support of the appellant in the community were the NCSO to be revoked. She produced, inter alia, a report by Dr Ryan which states that the appellant was being managed on a CTO and that her treatment needs could be met under the MHA. She relied upon the principle of parsimony in s 39 of the CMIA as explained by this Court in NOM v Director of Public Prosecutions (Vic).[5] The appellant submits that the existence of the MHA regime was thus a relevant consideration, which the judge below ought to have taken into account when considering the factors laid out in s 40(1) of the CMIA.

15 The argument rests upon a reading in isolation of the italicised words from the following paragraph in the judge's reasons:

The key issue is whether the condition and supervision of [the appellant] should be managed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or whether it should be managed under the Mental Health Act. If it is to be managed under the Mental Health Act and that is an appropriate course, then the effectiveness of the Act would not be relevant. If, however, it is this Act that guides her treatment as a forensic patient then the Mental Health Act would have no application at this time to the decision that I have to make. I am of the view that the future and appropriate treatment of the [appellant], as she has committed an offence whilst mentally unwell, must be determined by reference to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 rather than what is available to control and compel the [appellant] under the Mental Health Act at this time. If, when the order is revoked and the [appellant] is finally released from the controls and treatment prescribed by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, then the Mental Health Act, would have application to her as a member of the community who may at some stage have mental health issues that arise. However, at the moment she is a person on a non-custodial supervision order and what I have to determine is whether it is appropriate under this Act to have that non-custodial supervision order which currently supervises the [appellant], revoked. It is, in my opinion, not appropriate to say that there is another Act of Parliament that can compel the [appellant] to take her medication, and if the court releases her, that will be available to ensure she does not become a danger to herself or anyone else.[6]

16 The appellant submits that, given the requirement in s 40(1)(e) that the Court take into account whether there are adequate resources for the treatment and support of the appellant in the community, the judge erred in holding that the MHA had 'no application at this time to the decision that I have to make'.

17 When the impugned passage is read in conjunction with what immediately follows, it is evident that the primary judge was identifying the Act which must govern her decision as to whether the NCSO is to be revoked - not whether the CTO regime was relevant to her decision. That conclusion is reinforced by consideration of the submissions which had been made to her Honour and which she was seeking to address in this passage.

18 At the initial application, the appellant had urged the primary judge to find that the CTO was an equally effective and less onerous alternative to the NCSO. The submission was maintained on appeal as a means of supporting the contention that the primary judge could not have taken the MHA regime into account.

19 The impugned passage was part of the primary judge's response to the parties' submissions as to which legal regime ought govern the supervision and treatment of the appellant. That the impugned passage should be so understood can be further seen from the party's submissions before the primary judge. Counsel for the appellant had argued that 'the [appellant] can be managed through the [MHA] without the necessity of using the [CMIA]'.[7] Counsel for the Attorney-General on appeal submitted that the Attorney-General's position before the primary judge was that, if a coercive regime was needed, it should be managed under the CMIA. The judge was responding to the parties' submissions as to which Act should have primacy for the purpose of supervision of the coercive treatment regime.

20 The CMIA provides that 'restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community'.[8] The primary judge recognised the objective that persons under supervision should, where possible, eventually be returned to the community through a graduated process of reduced supervision as appropriate.[9]

21 It should not be thought that the MHA and CMIA operate independently. They operate concurrently. Where a person is found not guilty because of mental impairment, the Court may declare that the person is liable to supervision under pt 5 of the CMIA.[10] The supervisory role in relation to the resulting supervision order lies with Forensicare. However, as explained in the Secretary's submissions, in practice an area mental health service ('AMHS'), whose operations are conducted under the aegis of the MHA, is responsible for the day-to-day implementation of the person's ongoing treatment, and it exercises powers under the MHA for those purposes and to respond to acute crises. In this way, the treatment plan for a person under an NCSO and a CTO may be the same, and the staff responsible for treatment may be identical. However, where a person is subject to an NCSO, there is an additional layer of supervision by an authorised psychiatrist at Forensicare and by the courts.

22 The concurrent operation of the schemes is emphasised by the fact, submitted by the Secretary, that approximately 25 per cent of the 76 persons subject to an NCSO in Victoria at the time of the hearing of the appeal were also subject to a CTO. Where that is so, the treatment plan devised by the treating staff will have two separate and specific legal bases.

23 Despite this interdependence, there are material distinctions between the MHA and CMIA regimes. Most saliently, a person on an NCSO is subject to the ultimate supervision of the Court, and the NCSO has an indefinite term (subject to regular reviews) and can be varied or revoked only by the Court. While the creation and implementation of a treatment plan may in practice be delegated by Forensicare to an AMHS, there must be consultation with Forensicare every three months, and Forensicare may intervene if it is considered necessary. Under an NCSO, the person is subject to annual written reports to the Court. Upon any breach of the NCSO, an immediate application to the Court may be made to vary an order, and a person is liable to being arrested, restrained and detained if there is a reasonable belief of non-compliance and serious endangerment.

24 The appellant points to features of the MHA which are said to mirror the protective features of the NCSO regime. In particular, the appellant observed that a treating psychiatrist could compel a person to take medication and could involuntarily commit a person to hospital.[11] Leaving aside any relevant distinctions between the coercive powers available under the two Acts, it is important to note that the decision to place a person on a CTO is a decision of a psychiatrist with oversight by the Mental Health Review Board, rather than a court. Further, a CTO has a maximum term of 12 months and must be affirmatively renewed.[12]

25 The distinct purposes of the two Acts must also be kept in mind. As the Attorney-General submits, the CMIA is specifically designed to supervise the treatment of a person found unfit to stand trial or not guilty by reason of mental impairment. The methods by which the Act ensures the protection of the person and the community - including, among other features, the term of the supervision order, the means of its revocation and the fact that the supervisory body is the Court - are more stringent than the generally applicable provisions of the MHA, which are not tied to any specific prior offending.

26 In some circumstances the availability of the MHA regime will support the revocation of a supervision order. In NOM,[13] this Court recognised that, when assessing whether a person should be released from a supervision order, the entire regime provided for by the MHA is a relevant consideration. In that case, there was no longer a need for a coercive order, and the existence of the MHA supported a finding that revocation of the supervision order did not pose a danger to the community. Thus, in Re NR,[14] Kellam J held that an important consideration supporting the revocation of an order was that the applicant would continue to have the same treating doctors under the MHA as he had under the CMIA.

27 The effect of the above is that the fact that a person has successfully received and been managed for a sustained period of treatment under the MHA does not necessarily provide grounds for the removal of an NCSO. Where coercive treatment continues to be required, the NCSO may take on more importance.

28 Each application for revocation should, of course, be evaluated on its own merits in accordance with the criteria set out in s 40(1) of the CMIA. One consideration will be the fact that the person is subject to a treatment order under the MHA. But management of the person's and the community's safety from day to day by a treatment order under the MHA does not mean that an NCSO should not be retained. Whether the additional protections provided for under the NCSO regime are necessary will depend upon the circumstances of the particular case.[15]

29 Returning to the impugned passage, the entirety of the primary judge's reasons shows very plainly that the impugned passage is not to be understood in the way the appellant suggests. The judge found that the existence of the NCSO, even while operating in parallel with the CTO, contributed to the sense of compulsion felt by the appellant in relation to her medication:

The [appellant] takes the medication because the [appellant] understands she is compelled to take that medication. She is obviously aware that she is under an order from Forensicare as well as a community treatment order. It is the Forensicare order that she seeks to have lifted in discussions, as it would appear she does believe, correctly, that the Forensicare order compels her to take her medication and stay in supported residential accommodation in which she is currently located. Whilst not each treater who gave evidence is totally confident that she knows precisely which of the orders compels her, it is clear that her requests are continually to have the Forensicare order removed, so that she does not have to take her medication. I am satisfied she does see a causal connection between the two, however limited it may be.[16]

The appellant does not challenge this finding by the judge.

30 The primary judge then dealt with the particular criteria enumerated in s 40(1) as follows:

Accordingly, s 40 details the considerations that I must take into account in making that determination.

(a) Firstly, the nature of the person's mental impairment or other condition or disability: In relation to that matter, the [appellant] suffers from paranoid schizophrenia which is predominantly in remission as far as those treating her are able to tell. Her lack of full cooperation makes it difficult to assess with any degree of accuracy.

(b) The relationship between the impairment condition or disability in the offending conduct; the relationship is that at the time of the offending conduct the [appellant] was in a psychotic state as a result of her paranoid schizophrenia which was the cause of the offending conduct.

(c) Whether the person is or would, if released, be likely to endanger themselves another person or other people generally because of his or her mental impairment: In relation to this matter, the [appellant] has no real insight into her illness and does not understand the link between her medication and her offending. She is desirous of ceasing the taking of all antipsychotic medication and takes her medication only because she understands she is compelled to take the medication and would in all likelihood be returned to Thomas Embling if she did not comply with the direction to take her medication. The view is, if she does not take her medication, she is most likely to become psychotic and the evidence is that she has been of danger to herself in the past few years, when falling into any form of psychosis, even of a relatively minor level. Whilst she becomes suspicious of others around her this has not descended to any harm or threat of harm of others, and I find no risk of endangerment to other persons within the community but there is, in my view a real risk or likelihood, at this stage, that if she is released from this order, which compels her to take her medication, that she is likely to refuse and become a danger to herself.

(d) The need to protect people from such danger: At this stage I believe there is still a need to protect the [appellant] from herself. A period of time showing a steady, managed compliance with her medication at her new supported residential service may be sufficient in time to alleviate that concern, such that the court can have confidence that she will not be able to refuse the medication or fail to actually swallow the medication as was she was able to do in recent times. At the moment I hold a substantial concern that without the compulsion attached to the Non Custodial Supervision Order she may become a danger to herself.

(e) whether there are adequate resources available for the treatment and support of the person in the community: whilst there are adequate resources available for the treatment and support of this person within the community, I am concerned that without the compulsion of a NCSO the [appellant] may take the view that she is not required to reside at her supported residential service, even though a CTO does require her to follow and obey the orders of her treating psychiatrist.

(f) any other matters the court thinks relevant: there was some material raised that there may be a psychological benefit to the [appellant] in having the non-custodial supervision order removed as it may be a reminder of the death of her child which causes her great grief. In terms of that, the evidence from those involved in treating her was that this was just a possibility that they had considered, rather than something they were of the view would in fact occur.[17]

31 The appellant argues that the judge's application of the s 40(1) criteria was irrevocably tainted by the judge's earlier finding that the MHA has no application. To the contrary, the judge's application of the criteria set out in s 40(1) demonstrate that she did in fact take into account the fact that the appellant was subject to the CTO regime under the MHA. In paragraph (e), the judge explicitly found that, notwithstanding the CTO, in the absence of the NCSO the appellant may form the view that she was no longer required to reside in the nominated location. In paragraph (d), the judge found that in the absence of the NCSO the appellant may refuse to take her medication and so pose a danger to herself.

32 The appellant also submits that the judge failed to take into account the coercive powers that are available under the CTO regime. For example, under that regime she may be compelled to live in a particular place or to take her medication. This submission must be rejected. The primary judge clearly recognised the compulsory powers associated with the MHA regime. Her Honour's principal reason for refusing to revoke the NCSO was her finding that that the compulsion of the NCSO was necessary to ensure compliance with her medication. Importantly, the judge's findings make clear that, leaving aside the functional differences between the schemes, the appellant's perception of the compulsory nature of the regimes appeared to differ. That was an important consideration when the issue is compliance, and particularly so when the patient suffers a lack of insight. This was also reflected in the further order that the Court re-examine the application in 12 months' time to determine whether the current treatment regime, which is provided

pursuant to the CTO, will have 'increased the likelihood of the [appellant] being compliant with her medication regime, without the necessity of a NCSO'.[18]

33 The appellant was at risk and demonstrated a disposition towards non-compliance. The primary judge considered the additional protections available under the NCSO together with the perception of the appellant that the NCSO obliged her to remain compliant furnished an ample basis for the conclusion that the NCSO should not be revoked.

34 After the hearing of the appeal, the MHA was repealed and replaced by the Mental Health Act 2014 ('MHA 2014'), which commenced on 1 July 2014. In these reasons, references to the MHA are references to the 1986 Act. The MHA 2014 has introduced a new supervision regime. In particular, pt 3 of div 2 of the MHA, under which CTOs could be imposed, has been functionally replaced by pt 4 of the MHA 2014, entitled 'Compulsory Patients', providing for a new taxonomy of treatment orders. Although there is a different treatment regime in place under the MHA 2014, those new provisions do not alter the judge's task when reviewing supervision orders under the CMIA.

[1] To ensure that there is no possibility of identification of the appellant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] A third ground was not maintained by the appellant.

[3] Re [Fowler] [2013] VSC 678R, [6]-[8] ('Reasons').

[5] [2012] VSCA 198, [56] ('NOM').

[13] [2012] VSCA 198, [56].

[14] [2004] VSC 2R, [27]. See also Re PL (No 4) [2004] VSC 21R, [53] (Kaye J).

[15] See, eg, Buchanan (A Pseudonym) v The Secretary to the Department of Health [2014] VSCA 176, [49]-[52].