In the Matter of M P [2015] VSC 265 (12 June 2015)

1 During the course of an acute psychotic episode, in the morning of 20 May 2010, 'MP' stabbed her mother to death in the family home in Oak Park.

2 Following her subsequent trial for murder, on 22 June 2011 she was found not guilty on the basis of mental impairment. By virtue of s 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act'), she became liable to supervision under Part 5.

3 In the event, on 22 June 2011, Bell J made a supervision order concerning MP under s 26 of the Act. A nominal term of 25 years was declared, commencing that day.

4 MP made application for extended leave under s 57(1) of the Act. I granted the application and made orders on 9 June 2015. These are my reasons for doing so.

5 Pursuant to s 57(2) of the Act, the court may grant an application under subsection (1) for extended leave 'if satisfied on the evidence available the safety of a forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave'.

6 On the basis of the evidence of Consultant Psychiatrists Dr Ria Zergiotis and Dr Leon Turnbull, and of Senior Nurse, Ms Eniola Akintola - constituted by the contents of their exhibited reports and their oral evidence - I am satisfied that MP presently does not present a serious danger to members of the public or to herself.

7 Additionally, I am required to have regard to s 39 of the Act, which provides that in deciding whether to grant extended leave, 'the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community'.

8 Section 40 also spells out a number of matters to which the court must have regard. They include the nature of the person's mental impairment or other condition or disability; the relationship between the impairment, condition or disability and the offending conduct; 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; and the need to protect people from such danger.

9 Section 42 requires me to take into account a report provided by a family member of a victim. Although I am satisfied on the basis of an affidavit of Louise Wilkinson, an officer employed by the Office of Public Prosecutions, sworn 2 June 2015, that relevant victims have been notified, no victim reports have been received.

10 The Secretary supported the application, but it was opposed by the Attorney-General.

11 As I understood her submissions, counsel for the Attorney-General advanced seven principal reasons why the application ought to be refused:

• First, it is only five years since the commission of the 'index offence' - which was very grave - the nominal term being 25 years.

• Secondly, the applicant had stabbed another person soon after her incarceration for the index offence.

• Thirdly - this seemingly given a deal of prominence in the cross-examination of the consultant psychiatrists - MP still feels pressure in her scalp or head.

• Fourthly, MP has 'substantial professional supports' in the Jardine Unit of Thomas Embling Hospital, where she is currently resident; and, although she will have supports in the community, 'it is not the same', since there will not be 'the level of intensity of contact supervision and interface that's available to her currently at Thomas Embling'.

• Fifthly, there is a 'paucity of social and emotional supports for the applicant in the community at the time'. Thus, there is no evidence that there is 'anybody of significance to her' who is 'able to keep watch on her' and 'be alert to any early warning signs of relapse' into psychosis.

• Sixthly, the applicant's employment situation is uncertain.

• Seventhly, it has been reported that MP has only 'partial insight' into her psychiatric illness.

12 MP was born 19 September 1982. She was aged 27 years when her mother died, and is now aged 32 years. It appears that she became psychotic at the age of 26 years, and, at the time that she stabbed her mother, fitted the diagnosis of chronic paranoid schizophrenia.

13 I need not recount the circumstances of the killing. They were contained in a Summary of Proceedings and Facts of the Case filed by the Solicitor for Public Prosecutions and dated 18 May 2013. I have, as might be expected, read and had regard to the contents of that document.

14 Putting to one side her depression and anxiety, the applicant has had a history of mental illness from about the age of 26 years. She suffers from paranoid schizophrenia, and killed her mother in the course of an acute psychotic episode, characterised by persecutory delusions, delusions of reference, and auditory and olfactory hallucinations. Her mental state, past and present, was the subject of three expert reports provided to the Court. Each expert supported MP's application for extended leave.

15 Chronologically, the first report, dated 5 May 2015, was that of Ms Eniola Akintola, Senior Nurse, Community Integration Program ('CIP'), Victorian Institute of Forensic Mental Health ('Forensicare') (Exhibit C); the second, dated 6 May 2015, was that of Dr Leon Turnbull, Consultant Psychiatrist, Forensicare (Exhibit B); and the third, was that of Dr Ria Zergiotis, dated 18 May 2015, Consultant Forensic Psychiatrist, Forensicare (Exhibit A).

16 Doctor Zergiotis applied a structured risk assessment tool, commonly used to assess the risk of violence in forensic psychiatric patients, the Historical Clinical Risk Scale (HCR-20). According to Dr Zergiotis, MP's historical risk factors suggest at least moderate risk of violence in the long term, but this risk is moderated by the clinical and risk management factors which suggest a lower risk of re-offending in the short to long term.[1] When the historical, clinical and risk management factors are taken together, MP's risk of violent behaviour within the next six months to a year is in the low range. Her positive psychotic symptoms have been in remission in the last three years with treatment on the anti-psychotic medication, aripiprazole.

17 It was made plain by Dr Zergiotis that the applicant's remission commenced soon after she commenced to take her anti-psychotic medication (which seems to have been May 2010), and her 'positive psychotic symptoms' were in 'full remission'. Indeed, since her dosage of aripiprazole was increased to 45 milligrams, the applicant has shown no positive symptoms of schizophrenia.

18 Doctor Zergiotis gave evidence that MP had been self-administering her medication for about 18 months while in the Jardine Unit. When asked by counsel for the Secretary about how long it would take for MP to become unwell should she stop taking her medication, Dr Zergiotis said that in her opinion it would take probably weeks for a frank psychotic episode to emerge. She went on to say:

[T]here would be a significant lead-in time between her becoming non-compliant ... fully non-compliant versus partially non-compliant with medication and a frank psychotic relapse.

19 Further, Dr Zergiotis offered the view that MP's risk of future violence is directly related to psychotic symptoms, most likely preceded by non-compliance with medication or psycho-social stressors. If her symptoms are well controlled, MP would continue to pose a low risk of future violence. As I have mentioned, in common with the other experts, Dr Zergiotis was supportive of MP's application for extended leave. She said:

In my opinion, if the current conditions are maintained with good control of individual dynamic risk factors, such as medication compliance, social supports, and stress levels, [MP's] risk to herself or others if granted Extended Leave would be low, in the short term over the next 6 to 12 months.

20 With respect to MP continuing to feel of 'pressure in her head', Dr Zergiotis said that it 'is it a residual symptom of some sort, [but] whether it is a residual symptom of schizophrenia in terms of a psychotic symptom or a more obsessional type of symptom, is a little bit unclear'. No matter how it is to be characterised, however, 'it does not increase her risk of violence in the future', although 'it does need to be monitored'. When cross-examined about the 'pressured feeling in her head', Dr Zergiotis said:

[E]ven if this was a residual psychotic symptom, I could say, rather than her being in full remission of her schizophrenic illness, she's in near full remission, which would still, in my mind, translate overall into a low risk of violence. That particular residual symptom, psychotic or not, does not directly relate to a risk of violence in the future.

Indeed, Dr Zergiotis thought that the symptom was more related to anxiety than psychosis.

21 Doctor Turnbull reported that MP's offence was a direct consequence of her untreated illness, schizophrenia. Her illness, he said, achieved remission - without significant complication - with antipsychotic monotherapy. Doctor Turnbull gave evidence that schizophrenia is 'lifelong illness', for which there is 'no cure'. It is possible, however, to 'maintain remission of the symptoms', although MP likely 'will require anti-psychotic medication for life'.

22 Of importance, Dr Turnbull noted that the CIP team have worked closely with the applicant. He said:

If she is granted extended leave, it is my opinion that her low risk to herself or others will not change significantly. As such I support [MP's] application for extended leave.

23 Ms Akintola is a Senior Registered Psychiatric Nurse with the Forensicare CIP. She was appointed as the applicant's case manager on 29 May 2014, and has had direct engagement with the applicant since then. In a very thorough report, Ms Akintola discussed various aspects of MP's situation, under the headings Background; Accommodation; Finance; Education and Employment; Recreational Activities; Substance and Alcohol Use; Physical Health; Family Relationship; interaction with Other Agencies; and Mental State as at 27 April 2015. She described MP as a 31 year old single woman with a diagnosis of paranoid schizophrenia in remission. As at the date of her report, MP was not experiencing auditory or visual hallucination, denied feeling paranoid or fearful, and displayed no evidence of thought disorder. Ms Akintola noted that the applicant had been receiving treatment at Thomas Embling Hospital since May 2010, and had progressed through there 'reasonably well'. MP has 'responded well to antipsychotic medication and currently has no active psychotic symptoms except for residual feeling of feeling pressure on her scalp' (a matter noted by others). According to Ms Akintola, the applicant had participated well in rehabilitative programs, in preparation for reintegration into the community. Ms Akintola also set out how CIP workers will engage with MP during her extended leave.

24 Counsel for the Attorney-General cross-examined Ms Akintola on various aspects of her report, but by and large her core opinions remained unshaken.

25 It might be acknowledged that the offence which led to the applicant's acquittal based on mental impairment was serious, in that its consequences were grave. But the applicant bears little (if any) moral culpability for the killing of her mother, she having been floridly psychotic at the time. Her psychotic symptoms are now in remission, and will remain so as long as she continues to take the prescribed anti-psychotic medication at an appropriate dosage. Although, on one view, it has been only five years since she killed her mother, I prefer to think that MP has spent a number of years with her paranoid schizophrenia under control. Such an extended period of remission is a cause for optimism, rather than pessimism.

26 Moreover, although the applicant stabbed another individual soon after she was taken into custody, she was at that time still in the grip of florid psychosis. The uncontradicted evidence is that, within about three weeks of being prescribed aripiprazole, her psychotic symptoms went into full (or, at least, almost full) remission, and have remained in full remission ever since.

27 Nothing in the evidence leads me to the conclusion that MP poses any appreciable risk of endangering herself or others whilst she is appropriately medicated. Indeed, the burden of the expert opinion is that she poses a low risk of endangering herself or others. Even were it to be concluded that the pressure that MP reports feeling in her head were a residual psychotic symptom, rather than an obsessional feeling or one borne of anxiety, I accept the evidence of Dr Zergiotis that it does not increase the risk posed by the applicant. It would be, in my view, capricious to reject the evidence of the experts - who, in some ways, are better placed than is the court to make an assessment - that MP relatively poses a low risk.

28 True it is that MP will not have the same intensity of support in the community as it might be expected that she has in the Jardine Unit. The whole purpose of her being in the Jardine Unit, however, is to prepare her for supervised release. Furthermore, although the level of support might not be the same, the applicant will not be bereft of support upon release. Indeed, alternate weekly contact with Dr Turnbull and Ms Akintola will likely reveal any slide by the applicant into psychosis. In any event, that alternate weekly contact will not occur in a vacuum, since there will be regular team meetings where risk assessments are performed and MP's progress will be discussed. Were MP's condition to be observed to be deteriorating, of course, she would, so the evidence suggests, be dealt with accordingly.

29 MP is, so the evidence reveals, a somewhat shy and introverted individual, and one who is relatively isolated socially. She does, however, have contact with others at church and in craft workshops. Further, she has a boyfriend, and she performs some clerical work (with efforts afoot to obtain more substantial paid employment for her). I do not think that the fact that she does not have a large group of friends who might observe her backsliding creates any appreciable added risk. In my view, it is the weekly contact with mental health professionals that is far more important than social contacts with lay persons.

30 Finally, in my view it is fair to say, based principally on the evidence of Dr Zergiotis, that MP has quite well-developed insight into her condition. I do not ignore that Ms Akintola described the applicant's insight as 'partial', but what she meant by that was adequately explained when under cross-examination. But were her evidence in conflict with that of Dr Zergiotis - and I do not think it is - by dint of her training and experience, and by reason of her longstanding relationship with MP, I would prefer the evidence of Dr Zergiotis.

31 In my opinion, having regard to the evidence, MP's paranoid schizophrenia is amenable to control by anti-psychotic medication, and, indeed, her psychosis has been in complete remission for an extended period of years. She poses a low risk of endangering herself or others if released into the community, so long as she maintains an appropriate dosage of medication. I am satisfied by the evidence that, in the community, she will have such supervision as will adequately monitor her condition, and as will provide a proper measure of protection to the community were MP to begin to relapse into florid mental illness. According to the evidence, there is no more that the professionals at Thomas Embling Hospital can do to improve her condition and to further prepare her for release into the community. The safety of the community will not be appreciably deleteriously affected by MP being given the 'freedom and personal autonomy' afforded by the making of the orders sought.

32 Having regard to all of those matters, and being satisfied as required by s 57(2) of the Act, in my view it is appropriate to make an order granting extended leave to MP until 8 June 2016.

33 It is appropriate to make orders in the following terms:

1. [MP] be granted extended leave that she be absent from her place of custody up to and including 8 June 2016, subject to the following conditions, that:

(a) She be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate;

(b) She complies with the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;

(c) She complies with such treatment, testing, case management, medical and other appointments recommended by the authorised psychiatrist of the VIFMH or his or her delegate;

(d) She reside at an address approved by the authorised psychiatrist of the VIFMH or his or her delegate;

(e) She not leave the State of Victoria without the permission of the authorised psychiatrist of the VIFMH or his or her delegate;

(f) She abstain from the abuse of alcohol and from the use of illicit drugs.

1. Pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, it is ordered that any information that might enable the applicant to be identified must not be published.
2. Reserve liberty to apply.

[1] In her oral evidence, Dr Zergiotis explained that where the index offence is homicide, the baseline risk assessment is automatically raised to moderate.