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[2026] ACAT 11
ACT Civil and Administrative Tribunal
2026-02-17
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF RONALD (Mental Health) [2026] ACAT 11 MH 309/2025 Catchwords: MENTAL HEALTH – referral by Supreme Court under section 319 of the Crimes Act 1900 – review of detention under section 180 of the Mental Health Act 2015 – statutory requirement that detention in custody is a last resort and to be ordered only in exceptional circumstances – meaning of ‘last resort’ and ‘exceptional circumstances’ – legislation to be interpreted consistently with Human Rights Act 2004 Elderly person charged with historical sexual offences – unfit to plead at criminal trial by reason of mental impairment – neurocognitive disorder, dementia - low risk of immediate harm to others – increased risk as cognition declines No suitable accommodation in the ACT - interstate transfer to previous residential care facility – limited oversight by ACT once residing interstate - conditional release order – six monthly review by ACAT for seven year limiting period – disclosure obligations – provision of information from treating doctor to assist with review of conditions and compliance with order Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39 Crimes Act 1900 ss 300, 301, 316, 319, 334 Human Rights Act 2004 ss 13, 18, 19, 28, 30 Legislation Act 2001 ss 39, 40 Mental Health Act 2015 ss 180, 181, 182, 183 Mental Health (Treatment and Care) Act 1994 s 72 Mental Health (Treatment and Care) Amendment Act 2014 Subordinate Legislation cited: Explanatory Memoranda to Human Rights Amendment Bill 2007 Cases cited: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23 Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4 Eastman v Chief Executive, Department of Justice and Community Safety [2011] ACTSC 33 F v P [1997] QCA 98 In the matter of MH 289 of 2009 [2024] ACAT 21 Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Or [2023] HCA 37 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 R v SCU [2017] QCA 198 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Texts cited: Macquarie Dictionary, (online)
Tribunal: Presidential Member H Robinson Senior Member E Morrison Senior Member R Davies
Date of Orders: [redacted] Date of Reasons for Decision: 10 February 2026 Date of Publication: 17 February 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) MH 309/2025
IN THE MATTER OF RONALD
TRIBUNAL: Presidential Member H Robinson Senior Member E Morrison Senior Member R Davies DATE: [redacted]
ORDER After hearing from the parties, the Tribunal orders:
Short term residence and transport
Upon release, the Subject Person is to be collected from the Alexander Maconochie Centre by [redacted] and is to be transported to her home at [redacted] ACT.
The Subject Person is to reside with [redacted] from the time of release until he departs for [redacted] in accordance with Orders 4 and 5.
On Thursday [redacted], the Subject Person is to be transported to Canberra Airport by [redacted] for the purpose of him boarding a flight to [redacted].
On Thursday [redacted] the Subject Person is to travel by air from Canberra Airport to [redacted].
The Subject Person is to be collected from [redacted] Airport by [redacted] and is to be transported to his home at [redacted] on the same day.
Ongoing residence
From [redacted], the Subject Person is to reside at [redacted] and must stay there overnight.
The Subject Person (or his son, [redacted] or other representative) must inform the Tribunal as soon as possible if he does not, or anticipates that he will not, reside at [redacted] on any night, the reason and the estimated time of return.
Information disclosure
(a) published decision in [redacted] ACTSC [redacted];
(b) assessment report prepared by ACT Forensic Consultation and Intervention Service, dated [redacted];
(c) this Conditional Release Order; and
(d) the Tribunal's reasons in this matter (when published).
The Subject Person must provide written confirmation to the Tribunal that he has complied with the disclosure requirements in Order 9, by [redacted].
The Subject Person must provide a copy of the following documents to the relevant health practitioner before an assessment is conducted pursuant to Orders 14 or 15: (a) assessment report prepared by ACT Forensic Consultation and Intervention Service, dated [redacted];
(b) this Conditional Release Order; and
(c) the Tribunal's published reasons in this matter.
Behaviours
Assessment 14. The Subject Person must undergo an assessment by a suitably qualified geriatrician or other health practitioner with expertise in forensic and/or older persons mental health, and give a copy of the assessment report to the Tribunal, by 13 April 2026. The report is to include: (a) a mental state examination;
(b) the nature and extent of the Subject Person's mental disorder or mental illness (if any), including the effect it is likely to have on their behaviour in the following 12 months;
(c) whether or not the Subject Person's residence [redacted] or is likely to pose, a substantial risk to his health or safety and if so, provide details;
(d) whether or not the Subject Person's residence at [redacted] poses, or is likely to pose, a risk of serious harm to others and if so, provide details;
(e) any recommended supports or arrangements to mitigate any risks identified in paragraphs (c) and/or (d);
(f) whether the considerations in paragraphs (a) and (e) are likely to change over the following 12 months; and
(g) any other assessment that is recommended to assist the Tribunal in considering the above matters.
(a) request this matter be relisted for an urgent directions hearing, by telephoning or emailing the Tribunal's registry; and
(b) obtain a report from his general practitioner that addresses the considerations in Order 14 to the extent possible, and give a copy of that report to the Tribunal within 2 days of receipt.
Review 16. The application will be reviewed by the Tribunal at hearing on a date to be advised (but not later than [redacted]), subject to any earlier application received.
Suppression and pseudonym Order
Paragraph 4 of the order made on [redacted] is revoked.
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, and until further order of the Tribunal, except as necessary to respond to or to take procedural or other necessary action in relation to this application, or to comply with the Conditional Release Order:
(a) the subject person's name, personal and contact details are not to be published or disclosed by any person or entity who is not a party to these proceeding and unless otherwise authorised by law;
(b) subject person is to be known as "MH 2025 309";
(c) there is to be no disclosure or publication by any party or any other person of any document or information, or of any detail or matter contained in any document filed with the Tribunal or received in evidence by the Tribunal in relation to this application, except that the Tribunal may publish written reasons for its decision;
(d) any listing of the application is to be conducted in private;
(e) there is to be no public access to the file and the audio and written records of proceedings.
The Tribunal notes:
A. Email correspondence to the Tribunal should be sent to acatmentalhealth@act.gov.au
B. These conditions of release from custody have been made by the Tribunal after considering the provisions of section 180 of the Mental Health Act 2015. C. Pursuant to sections 181 and 182 of the Mental Health Act 2015, if a person released from detention breaches a condition of release, the Tribunal will review the conditions of release and may order that the person be detained in custody until the Tribunal orders otherwise. In this case, that is likely to involve the Subject Person relocating to the ACT for detention.
D. These orders and conditions may be reviewed before [redacted] on application or otherwise in accordance with the Mental Health Act 2015.
E. The limiting period of this order ends on [redacted].
F. A copy of this order will be sent to the Subject Person, Legal Aid ACT, the Chief Psychiatrist, the Public Advocate and the Victims of Crime Commissioner.
G. The listing notice for the next hearing will be sent to the Subject Person, Legal Aid ACT, the Chief Psychiatrist, the Public Advocate and the Victims of Crime Commissioner.
H. If the Subject Person intends to appoint [redacted], or another person, as his representative at the next hearing, the representative is to give the Tribunal a properly executed Authority to Act for an Individual Form (available on the ACAT website).
……………Signed………… Presidential Member H Robinson For and on behalf of the Tribunal REASONS FOR DECISION 1. This matter concerns a review of a detention and the making of a conditional release order under section 180 of the Mental Health Act 2015 (the MH Act).
Background, key issues, and summary of decision 3. Ronald is an elderly man. Some time ago, he was charged with a series of historic child sex offences. At that time, he was living in a retirement village in another state. He was extradited to the ACT to stand trial.
The ACT Supreme Court found Ronald unfit to plead. The basis for that decision was Ronald’s age-related cognitive impairment. Accordingly, Ronald was subject to a special hearing under s 316 of Crimes Act 1900 (ACT) (the Crimes Act) by judge alone pursuant to an election filed on his behalf by the Guardian appointed when Ronald was determined unfit to plead.
At the conclusion of the trial, a judge of the Supreme Court was satisfied beyond reasonable doubt that the offences had occurred. The Supreme Court also found that the five offences with which Ronald was charged are ‘serious offences’ within the meaning of s 300(1) of the Crimes Act.
Accordingly, the Supreme Court made an order that Ronald be detained in 1 custody for immediate review by the ACAT under s 180 of the MH Act.
1 Under section 319(1)(a) of the Crimes Act 7. The Supreme Court nominated terms of between two and seven years for each of the offences, to be served consecutively. In practical terms, this meant Ronald’s 2 ‘nominated term’ was a total of seven years.
At the time of the Supreme Court’s decision, Ronald was detained in custody at the Alexander Maconochie Centre in the ACT (the AMC), where he had resided for the duration of his criminal trial. The issue for the Tribunal was whether Ronald should be released from custody, on conditions or otherwise, pursuant to section 180 of the MH Act.
A key consideration in making our decision was the statutory requirement that continued detention in custody must be regarded as a ‘last resort’ and only in 3 ‘exceptional circumstances’.
The consensus for all parties involved, including Ronald, his lawyers, the Public Advocate, and the Victims of Crime Commissioner (VoCC) (albeit with some concerns) was that release from custody was appropriate and necessary. However, there was concern over where Ronald would live and what supervision arrangements should (and could reasonably) be put in place. As detailed below, suitable accommodation could not be found for Ronald in the ACT.
The medical evidence, which we detail below, is that Ronald is generally quite well for a man of his age, and has no significant mental illness, but he is suffering from a neurocognitive disorder (formerly dementia), a degenerative condition. The forensic evidence suggested that Ronald currently presents a low risk of reoffending. However, his specific history, coupled with evidence that males with a neurocognitive disorder are at an increased risk of sexually disinhibited behaviour, compared to those without such a disorder, raised some concerns about his risk to others in the medium to long term. In other words, at the time of the final ACAT hearing, there was no evidence of further cognitive deterioration and no immediate risk to others but there was general acceptance by Ronald’s
2 The ‘nominated term’ is the term of imprisonment which the Supreme Court estimates it would have considered appropriate had Ronald been convicted in normal criminal proceedings: Crimes Act 1900, s 301 3 Mental Health Act 2015, s 180(3)(a) lawyers, the Public Advocate and VoCC that that risk level could change over time.
The Tribunal has a role under the MH Act in the management of persons on conditional release orders, including to conduct regular reviews at least every six months for the period of the nominated term, or until released unconditionally. The legislative framework does not deal with the situation, such as Ronald’s, where the subject person is released interstate and the Tribunal’s ongoing management is limited in practical terms.
Ultimately, we made orders to release Ronald to his prior interstate residence, subject to conditions that sought to address those competing issues.
The parties’ positions
All parties agreed that Ronald should not continue to be detained in the AMC and that there was alternative accommodation available to him that met the requirements of the MH Act (albeit interstate).
Ronald was represented by Legal Aid throughout the proceedings. He submitted that the Tribunal should make an order that he be released from custody so that he can return to live in the same residential care facility interstate that he had been living at when charged (the residential care facility).
Ronald has been a resident of the facility for over eight years. He lived in a one bedroom fully self-contained apartment. The facility advised Legal Aid that Ronald was welcome to return to his home when needed. The management advised that: a manager resides onsite and facilitates emergency access for police, fire, and ambulance services. We maintain a dedicated emergency phone and provide accommodation and meals for residents receiving aged and disability pensions. Many residents also engage external agencies for additional support as needed.
It is an independent living facility with an onsite manager and some degree of supervision. It is familiar to Ronald as it had been his home for several years prior to the charges being laid. Family members with whom he is in contact live nearby and Ronald has a regular GP who practices nearby. These factors, Ronald submitted, were protective and would offer him the best opportunity to live comfortably and safely.
Although Ronald’s lawyers had initially sought an unconditional release, at the time of the final hearing there appeared to be an acceptance, or at least acquiescence, that a conditional release order with conditions that he reside at the facility and accept supports from his GP and My Aged Care would not be inappropriate.
The Public Advocate (the PA) supported conditional release on the ground that there are no ‘exceptional circumstances’ that would justify Ronald’s continuing detention in the AMC. The PA was of the view that if there was no suitable accommodation in the ACT then the Tribunal had no option but to order Ronald’s release on the condition that he reside at the retirement facility interstate.
The VoCC broadly supported the PA’s position, albeit with concerns, particularly about how Ronald’s risks to himself and others could be managed, particularly in a situation where he was to move interstate.
Summary of the legislation
Court referral to ACAT under the Crimes Act
In general terms, the Crimes Act establishes a process whereby the Supreme Court may refer an accused person to ACAT for review under the Mental Health Act, where the court determines that person to be unfit to plead by reason of 4 mental disorder or impairment.
Section 319 relevantly provides: Non-acquittal at special hearing—serious offence (1) This section applies if— (a) an accused is charged with a serious offence; and (b) at a special hearing that is a trial— (i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an 4 See Crimes Act, Divisions 13.2 and 13.3 alternative offence, if not satisfied in relation to the offence charged); or (ii) by jury—the jury advises the court under section 317 (1). (2) The Supreme Court must— (a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015 , section 180; or (b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
Section 308 sets out a list of matters the Supreme Court must take into account in making a decision that could include an order for detention of a person who has a mental impairment. Section 308 provides: 308 Criteria for detention For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria: (a) the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future; (b) whether or not, if released— (i) the accused’s health and safety is likely to be substantially impaired; or (ii) the accused is likely to be a danger to the community; (c) the nature and circumstances of the offence with which the accused is charged; (d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available; (e) any recommendation made by the ACAT about how the accused should be dealt with. Review by ACAT under the Mental Health Act
Chapter 10 of the MH Act establishes the ACAT’s powers to review certain matters referred to it by the courts.
Relevantly, section 180 establishes the process for review following a court order made under section 319(2)(a). Section 180 provides (bold emphasis added):
180 Review of detention under court order (1) This section applies if, under the Crimes Act, part 13, a court orders that a person be detained in custody for immediate review by the ACAT. (2) The ACAT must review the detention and consider the release of the person— (a) as soon as practicable, and not later than 7 days after the day of the order; and (b) if the ACAT does not order the release of the person—at least monthly while the detention continues. Note Under s 188, the ACAT must give notice of the hearing to certain people and may give notice to anyone else it considers appropriate. (3) In reviewing the detention and considering the release of a person, the ACAT must have regard to the following: (a) that detention in custody is to be regarded as a last resort and ordered only in exceptional circumstances; (b) the nature and extent of the person’s mental disorder or mental illness, including the effect it is likely to have on the person’s behaviour in the future; (c) whether or not, if released— (i) the person’s health or safety would be, or would be likely to be, substantially at risk; or (ii) the person would be likely to do serious harm to others; (d) if there is a registered affected person in relation to the person— (i) any statement by the registered affected person; and (ii) the views of the victims of crime commissioner; (e) if the court nominated a term under the Crimes Act, part 13—the nominated term; (f) any information the chief psychiatrist or director-general has given to the ACAT about the treatment, care or support the person requires, including that the person be admitted to a particular approved mental health facility or approved community care facility. (4) An order for the release of a person may be made subject to the conditions (if any) the ACAT considers appropriate, including a requirement to comply with a particular mental health order or forensic mental health order as in force from time to time. (5) If, on a review, the ACAT does not order the release of a person, the ACAT may— (a) make mental health orders (including additional orders) in relation to the person; or (b) make forensic mental health orders (including additional orders) in relation to the person; or (c) vary or revoke any of the mental health orders or forensic mental health orders in force in relation to the person. (6) If, on a review, the ACAT does not order the release of a person, the ACAT must tell the following that the detention continues: (a) the person; (b) the chief psychiatrist; (c) if the person is a child— (i) each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility); and (ii) the CYP director-general; (d) the public advocate; (e) the human rights commission; (f) if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian; (g) if the person has an attorney under the Powers of Attorney Act 2006—the attorney; (h) if the person has a nominated person—the nominated person; (i) if a health attorney is involved in the treatment, care or support of the person—the health attorney; (j) if the person is detained in a correctional centre—the corrections director-general; (k) if the person is detained in a detention place—the CYP director-general.
‘Release’ for the purpose of section 180(2) does not necessarily mean release into the community. It involves release from incarceration in the criminal justice system (such as release from the AMC). The subject person may still be required, pursuant to conditions imposed by ACAT on the release order, to live and stay in another facility, such as a secure mental health facility.
Broadly speaking, there are two possible outcomes following the tribunal’s review – make an order for the release of the person from custody (which may be unconditional or subject to conditions), or decline to make an order for the release of the person in which case the person is required to remain in custody (in which case, the tribunal may make other orders under the MH Act such as a mental health order or forensic mental health order).
In making its decision, the tribunal must consider the factors in section 180(3), which relevantly include: (a) the requirement that detention in custody be regarded as a last resort and ordered only in exceptional circumstances;
(b) the nature of the person’s mental disorder or mental illness, including the likely effect on their future behaviour; and
(c) the level of risk to the health and safety of the person, and of harm to others.
If the tribunal makes an order requiring the person to remain in custody, the maximum custodial period or ‘limiting period’ is the nominated term imposed 5 by the court.
If an order is made to release the person subject to conditions, those conditions must be reviewed by the tribunal within 72 hours after receiving written notice 6 from the Chief Psychiatrist of non-compliance and otherwise at least every six 7 months while the order is in place . Where the subject person has failed to comply with a condition, the tribunal may order they be detained in custody until further 8 order.
Consultation and notification requirements apply to the tribunal’s decision-making processes.
Conditional release orders
5 Mental Health Act 2015, s 183 6 Mental Health Act 2015, ss 181, 182(2) 7 Mental Health Act 2015, s182(1) 8 Mental Health Act 2015, s 182(6) 9 Noting this language not used in the MH Act.
The tribunal’s current approach is to apply the limiting period to the conditions imposed under a CRO, such that the conditional nature of the order ends at the end of that period after which time the person is released unconditionally.
There is no guidance in the MH Act as to what kinds of conditions the tribunal may consider “appropriate”. The tribunal is, when imposing conditions, invariably guided by any advice from the Chief Psychiatrist and the treating teams as to what may be appropriate, having regard to the subject person’s particular circumstances and the review considerations in section 180(3), and in particular the requirement that a person be released from detention unless there is no alternative – this is discussed further below.
The imposition of conditions of release will typically be intended to address and mitigate any risks to the health and safety of the person and the risk of any harm to others that may otherwise prevent release from custody. For example, it is not unusual for a person released under section 180 to be required, as a condition of release, to reside for some time in a secure environment where they can obtain treatment and care that is considered by their treating team to be necessary and appropriate to manage and/or limit the relevant risks to themselves and others. Other conditions may include refraining from drugs and alcohol, accepting treatment and care, and provisions about leave.
Importantly, however, while section 180 allows the tribunal to impose conditions on a person’s release from custody, it does not give the tribunal the power to authorise staff at a facility to detain a person involuntarily or otherwise take steps to enforce the release conditions. The obligation is on the person subject to the CRO to comply with the conditions imposed upon them, with the risk that the CRO may be revoked by the tribunal should they fail to do so. If this happens, the subject person may be ordered to return to detention. How the return to 10 custody is affected is an ongoing issue that may require legislative amendment, but thus far parties to orders have generally cooperated where breaches have occurred.
10 In the matter of MH 289 of 2009 [2024] ACAT 21
In this regard, it bears repeating that the purpose of a CRO is the protection of the person and the community from serious risks. It is not intended to be punitive or meet the other considerations of sentencing under the criminal law, and the circumstances under which an order may be varied or revoked reflect this.
This is not to suggest that compulsory treatment is never an option. In some circumstances, the tribunal may also make certain mental health orders or forensic mental health orders that can authorise staff with the appropriate delegations or authorisation from the Chief Psychiatrist to both detain a person in a secure mental health facility and impose certain treatment and care upon them. These orders can only be made when the criteria in Chapter 5 or Chapter 7 of the MH Act is satisfied, including that it is the least restrictive option.
In the present case, there was no evidence before the Tribunal that Ronald would meet the requirements for a mental health order. Indeed, the evidence was that he does not meet those requirements, and that any such order would be both beyond the power of the Tribunal and of little purpose. There was also no suggestion that the CRO itself should address Ronald’s treatment in circumstances where no relevant requirements were indicated.
As such, the question for the Tribunal is this case was, rather unusually in the context of the MH Act, not whether the Ronald required ongoing treatment and care, but rather: (a) whether Ronald’s health or safety would be, or would be likely to be, substantially at risk; and/or (b) whether Ronald was likely to do serious harm to others upon release,
and if so, what could be done, including what supports could be provided, to mitigate those risks so as to best facilitate his release from detention.
What is meant by “detention in custody is to be regarded as a last resort and ordered only in “exceptional circumstances”?
The principles regarding statutory construction are usefully summarised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14], as adopted by the ACT Court of Appeal in Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 at [25]-[28] (footnotes omitted): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its wildest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if is ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
In the ACT, the role which consideration of the purpose of a provision is to play is governed by sections 139 and 140 of the Legislation Act 2001 (the Legislation Act) which provides: 139 Interpretation best achieving Act’s purpose (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act. Note The Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws. 140 Legislative context In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
Stated succinctly, this means that as a starting point, the text of section 180 must be construed so that it is consistent with the language and purpose of the MH Act, interpreted as a whole: see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]-[71].
The words ‘last resort’ and ‘exceptional circumstances’ are ordinary words of plain meaning as should be interpreted as such.
As per the Macquarie Dictionary (online edition), ‘last resort’ is defined to mean: the expedient to which one turns when all others have failed.
We accept this meaning. However, for completeness, we also note that the term ‘last resort’ has been subject to considerable judicial commentary, particularly in the context of sentencing. For example, in F v P [1997] QCA 98, in the context of the sentencing of a child offender, Davies JA of the Queensland Court of Appeal observed: The Juvenile Justice Act 1992 speaks of detention (as does the Penalties and Sentences Act of imprisonment) “as a last resort”. I take that to mean that, before it is resorted to, there must be no other appropriate but more moderate form of sentence available.
Similarly, in R v SCU [2017] QCA 198 at [57], when considering provisions of the Youth Justice Act 1992 (Qld) which express stated that a child should be detained in custody only as a last resort, Sofronoff P observed: The wide liberty for a court to fashion conditions for this purpose, as “an option instead of detention of a child”, conferred by the terms of a statute which enjoins courts to order actual detention of a child “only as a last resort” casts a heavy burden upon a court, by a process of exhaustive reasoning, to eliminate all the options offered by the Act before making a detention order. Correlatively, the Act also casts a burden upon the party advocating for a detention order to demonstrate, by comprehensive argument dealing with all relevant materials, why the last resort constitutes the only possible option.
Hence, we are satisfied that for the purposes of section 180 of the MH Act, a ‘last resort’ requires the consideration, and elimination, of all possible alternatives.
Turning to “exceptional circumstances”, in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, Campbell JA (with whom Tobias JA and Handley AJA agreed) provided a useful analysis of the ordinary meaning of the phrase (citations omitted): Another question of construction concerned “exceptional circumstances” in r 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259, I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of r 31.18(4). (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case Importantly, in the context of the current appeal it may be observed that in The Queen v Duncan, the Court of Criminal Appeal determined that when considering whether “exceptional circumstances” arise: “[T]he whole of the circumstances of the particular case must be considered. The “mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances” for the purpose of the legislation. Although individual factors may not be exceptional, the relevant factors, considered in combination, may amount to exceptional circumstances. Whilst reasons should be given for the exercise of the discretion, the exercise remains part of the overall instinctual synthesis that is undertaken by the sentencing Judge” [35] For the purposes of the present case, exceptional circumstances means individual factors which, when considered in combination, are such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.
The statutory context reinforces the plain and ordinary meaning of these words, as well as the strict interpretation given to them in the context of sentencing generally set out above.
The purpose of the MH Act is clearly established in the objects and principles of the Act, contained in sections 5 and 6 respectively. Broadly stated, the objects are to ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that promotes recovery and that is least restrictive or intrusive to them. The language in section 180 promotes these objects by requiring, in all but exceptional cases, that a person who has been acquitted of a crime by reason of mental impairment be released from the criminal justice system so that they can be given appropriate treatment and care in a therapeutic environment that promotes their recovery.
As such, it is plain that the starting position is the Tribunal should order the release of the person, and that it is only where there are exceptional circumstances and ‘all other options have failed’ that detention should be continued.
Interpretation to be consistent with the Human Rights Act 2004
In addition, the provisions of section 180 must as far as possible be construed in accordance with the principles in section 30 of the Human Rights Act 2004 (the HR Act) and the rights established therein. As the Explanatory Memorandum to the Human Rights Amendment Bill 2007 makes clear: This means that unless a law is intended to operate in a way that is inconsistent with the right in question the interpretation that is most consistent with human rights must prevail.
There is considerable case law on the interpretation of section 30 of the HR Act, 11 including in the context of deprivations of liberty by way of detention. Neither party addressed the Tribunal on this point, but the principles are well established. What is required by the HR Act is that the Tribunal, where possible, adopt an interpretation that is consistent with the HR Act and the protection of the rights therein. If the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should 12 give them whichever of those meanings best accords with human rights .
The detention of a person in a correctional facility where there is no conviction threatens a number of human rights protected by the HR Act, including certainly section 13 – Freedom of movement. Other rights may well be affected – particularly the right in section 19 to be treated with humanity and with respect for the inherent dignity of the human person when deprived of liberty, and perhaps also certain rights in section 18.
11 For example, Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 (Islam No. 1) at [[86]; Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 (16 December 2015) at [26] 12 See Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [194]
‘Engagement’ does not necessarily mean a breach of those rights. Whether a right 13 is actually breached will be a matter of fact or degree . The Tribunal does not have comprehensive submissions on any of these points, and nor has time allowed for extensive research, but, even acknowledging that there is likely an 14 ‘unavoidable level of suffering’ inherent in detention of any kind , one would certainly have to acknowledge that the subject person’s right to freedom of movement and right to privacy will be compromised by his continued detention without conviction.
As such, we accept that a refusal to release a person under section 180 does limit one or more human rights. However, rights may be subject to “reasonable limits , set by laws that can be demonstrably justified in a free and democratic society” as per section 28 of the HR Act and the factors set out therein. Considerations of 15 proportionality are a part of this test.
Section 180 in its current form was introduced as section 72 of the Mental Health (Treatment and Care) Act 1994 by way of the substituted Mental Health (Treatment and Care) Amendment Act 2014 (MHT&C Amendment Act). The MHT&C Amendment Act was passed after the HR Act, and the Explanatory Memorandum for the preceding Bill expressly considers human rights. It provides: Amendments to section 72 will improve the rights focus of existing provision without compromising public safety. The arbitrary deprivation of the right to liberty, as set out in section 18 of the Human Rights Act 2004 2004, is limited to the principle, which respects the person’s human dignity. The immediate detention of the person ordered by the court ensures safety to the individual, as well as immediate safety to the public. The provision calls for an immediate review of the orders of detention to ensure that it is not arbitrary. The Tribunal is to not only review the order, but to also consider the release of the person. The Tribunal is to have regard to the principle of last resort,
13 Eastman v Chief Executive, Department of Justice and Community Safety [2011] ACTSC 33 at [71]; Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 (Islam No. 1) at [[86]; Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 at [26]; 14 Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; at [86] 15 Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 at [45] noting that the order of detention is to be ordered in exceptional circumstances, taking into consideration the nature, extent and the likely effect of the mental illness or mental disorder on the person, and the likelihood of the person causing harm to themselves, or to others. A key safeguard to protect a person’s right against arbitrary deprivation of liberty is the new requirement for the ACAT to review detention under this section on a monthly basis. This ensures that any changes in the person’s mental health during that period can properly be assessed and considered to determine whether ongoing detention is appropriate. Immediate and subsequent monthly review will also give the ACAT an active role in the review of people with a mental impairment detained in custody. This role can include monitoring the establishment or availability of appropriate treatment and care options for the detained person. The chief psychiatrist or the care coordinator will be responsible for the treatment, care and support of a person in relation to whom a mental health order or forensic mental health order has been made and remains in detention. In these circumstances, the ACAT will look to these office holders for advice and assistance on appropriate arrangements. The person’s rights not to be arbitrarily detained has been addressed in case law. A view that the detention of a person divorced from the criminal process is necessarily unjustifiable draws support from a statement by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration at 27-8[162].
While noting the concerns about the lawfulness of indefinite unlawful detention outside a criminal context, the drafters of the Bill explicitly considered human rights in drafting the amendment to section 72 of the Mental Health (Treatment and Care) Act 1994, being the section which preceded the current 180 of the MH Act. The Bill introduced a significant change to the section 72, to introduce the 16 limiting factors of ‘exceptional circumstances’ and ‘last resort’ . The purpose of section 180 is to permit continued detention only in limited, exceptional circumstances, connected to their treatment and care, and where all other options are exhausted. It expressly takes account of, and balances, rights.
As such, in terms of an interpretation of section 180 that complies with the HR Act, we would conclude that: (a) Section 180 engages human rights, and may limit those rights, having regard to its interpretation and their scope;
16 We note here, without comment, the further discussion on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Or [2023] HCA 37 (NZYQ) (b) Those limits are reasonable and justifiable having regard to the factors in section 28 of the HR Act being: (i) The nature of the right – the right to freedom of movement or humane treatment; (ii) The importance of the limitation – being a limitation to protect a health or safety, both the affected person and others’; (iii) The extent of the limitation – being continued detention subject to monthly review; (c) The clear relationship between the limitation and its purpose, the limitation being to protect the person and the community from a risk of harm; and (d) The fact that any less restrictive means will likely have to be eliminated as an option before detention can continue.
The Tribunal adopts an interpretation most compatible with human rights by ensuring that any ‘exceptional circumstances’ that are considered are reasonable and proportionate limitations on human rights, in accordance with section 28 of the HR Act and are considered only when there is no alternative, less restrictive option for the subject person’s care.
Similarly, the power provided by section 180(4) of the MH Act to impose conditions on any release must be read in a way that ensures that any conditions are aimed at ensuring that the criteria in section 180(3) are met, and the protected person and the community are protected from harm. Any conditions imposed should not be wider or more restrictive than the least restrictive option for achieving these goals.
The jurisdictional issue
17 Mental Health Act 2007 (NSW), Mental Health and Related Services Act 1998 (NT), Mental Health Act 2016 (Qld), Mental Health Act 2009 (SA), Mental Health Act 2013 (Tas); Mental Health Act 2014 (Western Australia) no national or centralised authority for the administration of mental health orders, nor are there nationwide information-sharing provisions.
The MH Act is ACT legislation that applies to persons ordinarily resident in the ACT. While it has some extraterritorial application in relation to mental health 18 orders , it does not generally apply to persons outside the Territory.
There are some provisions in the MH Act which recognise that a person may move between jurisdictions, but they limited in scope and are of no assistance in the present case.
For example, section 249 deals with the transfer of people who are subject to psychiatric treatment orders (PTO), forensic treatment orders (FTO), or community care orders, from the ACT to another jurisdiction. For this provision to apply, the person must also be an inpatient or resident of a community care facility. Section 249 does not apply to persons who are only on a CRO.
Nor do these provisions deal with what happens when a person who is on a PTO, FTO, or who is otherwise subject to an order under the MH Act (such as a CRO, or an assessment order), and who is not receiving treatment as an inpatient, breaches that order. This means there is currently no legislative means under which the tribunal can make orders to transfer the supervision and/or management of a person released on a CRO in the ACT to the relevant tribunal, health service or authority in another jurisdiction.
This presents something of a dilemma for the Tribunal in the present case. The Tribunal could, as a condition of release, require Ronald to reside in the ACT where the tribunal has power to require reports from his treatment team as part of the section 182 review process and deal with any contravention as part of that process. However, as we consider below, there is apparently no suitable facility for Ronald in the ACT. Any requirement for Ronald to remain in the ACT where there is no appropriate accommodation for him would be unreasonable and
18 See Mental Health Act s. 256; s3, dictionary where “mental health order” is defined to mean a psychiatric treatment order, a community care order or a restriction order. tantamount to requiring that he remain detained in the AMC. Such a condition should only be imposed in exceptional circumstances and as a last resort.
The real issue before the Tribunal - no evidence of any current risk of ‘serious harm’ to others
This is an unusual case, as while Ronald had a mental impairment for the purposes of the Crimes Act, meaning that he could not plea to the charges against him, the mental impairment does not appear to be directly relevant to the offending conduct. Indeed, it was acknowledged by those involved in these proceedings that it is likely that Ronald did not have a relevant mental impairment at the time of his offending conduct. However, he does have an impairment now.
Ronald has been diagnosed with a mental disorder, being neurocognitive disorder, formerly dementia. He also had a mental illness, namely persistent depressive disorder, but it was not significant and was appropriately treated by way of medication. The evidence of the Chief Psychiatrist was that he did not currently have a mental illness or mental disorder that required treatment, care or support under the MH Act. As such, the tribunal could not make a mental health order and Ronald did not require ongoing care through ACT Health’s mental health system.
The most recent and relevant evidence about Ronald’s mental state was in a report prepared by Dr Joey Le, psychiatrist and Ms Angie Mosely, psychologist, from ACT Forensic Mental Health, at the request of the Tribunal (the FOCIS Report).
The report contained a detailed background of Ronald’s mental health and medical history. It noted that Ronald had, within the past 12 months, been diagnosed with neurocognitive disorder (previously referred to as dementia). He has some medical conditions consistent with age, including type 2 diabetes mellitus, chronic pain, anxiety and depression, hearing loss and poor vision. He mobilises with a walker. He considered himself ’actually in quite good nick’ for his age, and the report is consistent with that belief.
The report noted that under mental state examination, Ronald was “hostile and difficult to engage” and “cantankerous and intimidating in his personal style”, which made the exploration of some issues, including his insight into his offending, difficult. He maintained that the allegations before the Supreme Court were “mostly untrue.” The report noted there was no evidence of perceptual disturbance or delusional content and he was oriented to space and time.
The report opined that Ronald had a history of symptoms of a depressive disorder, including hospital admissions, but there was no evidence of a psychopathic disorder, problems with substance use or abuse or sexually violent ideation, outside of the intra-familial sexual abuse, and no history of problems with anti-social attitudes.
Ultimately, Ronald was deemed to be at “low risk” of sexual violence in the short to medium term, compared to the average offender, based on his assessment and presentation at the time the report was prepared. He had lived in the community for nearly 50 years since the offending conduct without any record (as known to the authors) of further sexual violence. The FOCIS report stated that “it is generally acknowledged that intra-familial sex offenders are at the lowest risk for future offending” and Ronald’s age also supports a lower risk.
However, the report did identify that the level of risk may increase, as Ronald’s cognition declines over time (citations omitted): There was evidence to support a history of risk factors associated with problems with psychological adjustment, mental health and social adjustment however there were minimal risk factors considered relevant to future risk management. Risk factors considered relevant to future risk management included [Ronald]’s recent mental health concerns specifically symptoms associated with a neurocognitive disorder and problems with stress or coping associated with psychosocial stressors. As it stands the, the likelihood of [Ronald] engaging in imminent sexual violence is low. It is considered that with future cognitive decline associated with the existing neurocognitive disorder, in the medium to longer term [Ronald] may present with an increase in disinhibited behaviour and impaired executive functioning in coming years. Although there was no evidence for recent concerns, there was partial historical evidence for problems with sexual deviance and sexual health. It is unknown whether these historical risk factors will become more of a concern with disinhibition associated with cognitive decline. Research suggests that older individuals convicted for the first time for sexual offences are most commonly presenting with a neurocognitive disorder, and older males with a neurocognitive disorder such as dementia are at an increased risk of sexually disinhibited behaviour compared to males without a neurocognitive disorder
The Report went on to describe particular “warning signs” that may indicate an escalation in Ronald’s risk of harm to others: (a) disengagement with supports including health care and family supports; (b) signs of advancing neurocognitive disorder including increasing executive dysfunction, loss of memory, or a significant change in behaviour; (c) increasing pre-occupation with sex or sexual content; (d) increase in alcohol consumption; (e) increase in disinhibited or offensive behaviour generally; (f) onset of sexually suggestive, inappropriate or sexually disinhibited behaviour; (g) evidence for creating opportunities to sexually offend or engage with vulnerable people who are unable to consent to sexual behaviour, including children and other vulnerable individuals; (h) evidence for concerns associated with sexual deviance or sexual health; (i) increased disinhibition, decreased impulse control, decreased decision making and other symptoms associated with neurocognitive disorder; (j) acute delirium may precipitate disorganised impulsive sexual behaviour.
The report also considered the level of current and future oversight and monitoring. Whilst in custody at the AMC, Ronald’s ongoing functioning could be monitored by Justice Health Services and ACT Corrective Services. However, if released from custody into the community, Ronald’s family supports and GP would be better placed to monitor any specific warning signs, future change in his presentation or treatment needs and could respond accordingly if he experienced further cognitive decline, physical or mental ill-health. They could also advocate for further assessment of his needs as he declined or if concerns are identified. If there was an observed decline in his functioning in future, it was recommended that Ronald’s treating team and supports advocate for review and updated assessment of his needs for support for living and daily activities.
In summary therefore, the evidence before the Tribunal was that: (a) Due to the assessed low level of risk, Ronald does not currently require any specific supervision or monitoring. (b) The level of assessed risk may increase as his condition progresses. (c) There are identifiable warning signs that may indicate a deterioration in Ronald’s condition and an escalation in Ronald’s risk of violence or harm to others – Ronald’s family, GP and a suitably qualified geriatrician or other health practitioner with expertise in forensic and/or older persons mental health are best placed to monitor those signs. (d) If there is an observed decline in his functioning in future, it was recommended that Ronald’s treating team and supports advocate for review and updated assessment of his needs for support for living and daily activities through government services such as My Aged Care. (e) Monitoring techniques can include Ronald talking with supportive family members, engaging with his GP and talking to other social contacts. If he remained in ACT and was released from custody under a Conditional Release Order, standard procedures for monitoring and review of the CRO conditions by ACAT could occur, but if he were to be released interstate, this will need to be through family, his GP or government services. Absence of suitable accommodation in the ACT
Having regard to the medium to long term risks identified in the FOCIS Report, the Tribunal asked the parties to consider whether there was any accommodation available for Ronald in the ACT, where he could be monitored by ACAT and the ACT Health under the MH Act, consistent with the referral made to ACAT by the Supreme Court.
Following the Tribunal’s request, Legal Aid made attempts to find Ronald suitable accommodation in the ACT. Ronald’s Legal Aid lawyers filed a statement setting out in some detail their attempts to find him an appropriate placement. Their attempts to make suitable alternative arrangements is summarised as follows: (a) Justice Housing – Ronald assessed as unsuitable. (b) OneLink - Contacted for support in identifying accommodation options for the client with no option identified before the final hearing. (c) Amberfield ACT - Ronald assessed as unsuitable. (d) Royal Freemasons Benevolent Society - Ronald assessed as unsuitable. (e) Uniting Aged Care and Respite - Ronald assessed as unsuitable. (f) ADACAS - Contacted for advocacy and assistance in locating suitable accommodation with no option identified before the final hearing. (g) Havelock House - Ronald assessed as unsuitable due to the nature of the accommodation including other residents and publicity - it was deemed unsuitable by the Community Liaison officers due to potential risk to Ronald himself. (h) Burrangiri Aged Care Respite Centre - Sent a pre-admission questionnaire for short-term respite care only. If deemed suitable, the next placement for Ronald would not be available for over two months. (i) Baptist Care - No current respite availability. Facility operating at approximately 90% capacity for aged care placement but unable to provide an estimated wait time if the client was deemed suitable. Not considered as a viable option. (j) Canberra Aged Care Facility - Ronald considered possibly suitable with estimated wait time of six to nine months. (k) Goodwin House - Ronald may be suitable but with no current availability and an unknown wait time. Not considered a viable option. (l) Southern Cross Care Campbell Residential Aged Care – Approximately one year wait time. Not considered a viable option. (m) Calvary Haydon Aged Care and Retirement Living - Deemed as possibly suitable but with a four to five month wait. Not considered a viable option.
Further, in relation to respite-care only: (a) Burrangiri Aged Care Respite Centre (short-term respite) – as above; (b) BaptistCare Respite - Currently at capacity and with no timeframe available.
Additionally, Legal Aid advised the Tribunal that there were serious impediments in relation to all the above options in so far as: (a) Ronald’s My Aged Care assessment had not been completed and would need to be finalised before he could be accepted into any aged care service. This could result in a further period of custodial detention; (b) Ronald had limited next of kin support in the ACT to co-ordinate the implementation of such care. His son and other close supports lived interstate and closer to the location of his previous residential facility; and (c) Ronald required support in completing documentation and communicating with aged care providers, which was problematic given his limited family supports in the ACT.
As such, we determined that there was no suitable alternative accommodation available in the ACT for Ronald at the time of the final hearing, or for many months following the hearing. This left the Tribunal with a decision to either release Ronald to live interstate, or decline to release him at all with the effect that he would remain in custody at the AMC.
Consideration of risk and mitigation strategies
In relation to risk to Ronald’s health and/or safety, we were satisfied on the evidence that Ronald’s cognitive deficits were not of such severity that they would compromise his ability to reside safely in the residential care facility with which he is (or at least, was) familiar, with appropriate supports. Protective factors included the on-call manager at his facility and the close proximity of family and his regular GP. The Tribunal was given medical evidence that Ronald was fit to travel.
In relation to the risk of harm to others, Legal Aid submitted that there was no realistic suggestion that Ronald presented an ongoing risk to the community at large or to the victim of the prior offending. To the extent that Ronald may present a risk to others in the community, it was submitted with respect that these are matters solely linked to his medical status (such as his previous instance of aggression was in the context of acute delirium), and the references in the FOCIS Report in relation to possible future decompensation were in the context of the worsening of his dementia.
We accept that Ronald had lived in facility for eight years before being charged and that there was no evidence before us of concerns or complaints about his behaviour related to his prior offending. However, we did not fully agree with Legal Aid’s submission. While not criminally liable, Ronald has been found, beyond reasonable doubt, to have engaged in a historic child sexual offence against a relative. His insight into his offending has not been fully assessed and he appears to continue to dispute at least some element of the charges. This means we do not fully understand the causes of his offending, or the risk of recurrence.
The FOCIS Report suggested if there was future cognitive decline associated with the existing neurocognitive disorder, then in the medium to longer term Ronald may present with an increase in disinhibited behaviour and impaired executive functioning in coming years. There was partial historical evidence for problems with sexual deviance and sexual health and these may inform behaviour change if his cognition declined further.
We considered that although Ronald was elderly, he is “in good nick”. If he was to return to live in a residential care facility, he may have contact with other elderly, aged and frail people, care workers, persons at his GP clinic and possibly children (such as those visiting other residents). While acknowledging that Ronald’s previous offending was intra-familial and many decades ago, we were concerned about the ongoing risk that increased disinhibition may lead to further offending behaviours. That risk would need to be reviewed by the Tribunal for the nominated period of seven years, or until satisfied that an unconditional order was warranted, which all parties agreed it is not now.
Hence, we accepted the findings in the FOCIS Report that Ronald presented a low risk of offending in the short to medium term and did not require any current specific supervision or monitoring. However, if there is an observed decline in Ronald’s functioning in the future, there will need to be an updated assessment of his needs, and any CRO must reflect that.
If the Tribunal were to release Ronald to live interstate, then the role of monitoring his health and watching for deterioration would fall to his relatives and community service providers in that jurisdiction. As stated above, the Tribunal has no power to make orders binding any third-party such as a family member or Ronald’s GP, and has limited capacity to exchange information with them except via orders requiring Ronald to do so himself.
Legal Aid had helpfully given some thought to how to best manage that risk. Legal Aid sought agreement from Ronald’s regular GP to continue to engage with him, returning to monthly medical reviews as had been the practice prior to Ronald’s arrest. His GP had also agreed to provide medical reports to the Tribunal and arrange specialist review and/or treatment as required.
Legal Aid also confirmed with the residential care facility that it would be prepared to provide any information to the Tribunal (via Ronald) that might assist with its review of the CRO.
In addition, Ronald’s son, Matthew (a pseudonym), attended the final hearing. Matthew confirmed that he lived within driving distance of the residential accommodation facility and would maintain regular contact with Ronald. He was agreeable to assist Ronald to participate in six monthly reviews of the CRO at the Tribunal by way of video link.
Our observation of Matthew was that he did not fully accept the outcome of the Supreme Court proceedings, and as such may not truly appreciate the risk his father may present to others should Ronald’s condition deteriorate. However, we were satisfied that Matthew understood the importance of complying with the Orders of the Tribunal and the terms of the CRO, and the consequences if his father does not do so (which may include revocation), and that Matthew was committed to assisting Ronald to comply.
In summary, despite the potential increase in risk in the medium to longer term, it was apparent from the evidence that a stable living environment, with increased family support and regular engagement with a GP who knows Ronald would serve as protective factors, and it would be in the interests of Ronald and the community that these protective factors be maximised. As long as Ronald remains under regular medical review, as he was previously, lives in accommodation with a degree of daily oversight, and has the benefit of engagement with family and friends, the Tribunal can have some confidence that any acute deterioration in his medical and/or mental state will be promptly identified and actioned. The Tribunal can have some confidence that those arrangements can be put in place at the interstate residential facility. They cannot be put in place in the ACT at present, unless Ronald remains in the AMC, as there is no other suitable facility in which he may reside.
Having regard to the above, the Tribunal was satisfied that there was an alternative to keeping Ronald in detention, which was to release him to live interstate, subject to conditions that reflect the mitigation strategies proposed by Legal Aid and the concerns of VoCC. While the situation was not ideal, it was the only suitable option available to the Tribunal at the time of the final hearing, and having regard to the terms of section 180 of the MH Act and the factors to be considered in making its decision, the Tribunal could not continue to detain Ronald so long as that alternative remains feasible.
Conditions
The Tribunal considered the following conditions to be the minimum necessary to protect Ronald from substantial risks to his health and safety, and others from any serious risks he is likely to pose to them.
The Tribunal was satisfied that Ronald should return to live at the residential care facility. He must stay there overnight.
As neither ACAT nor ACT Mental Health can monitor Ronald, that obligation must fall to his family. His son agreed to advise the Tribunal as soon as possible if Ronald does not, or it is anticipated that he will not, reside at the facility even for one night. We made an order to that effect.
For as long as Ronald resides in a private facility, and is monitored by a private GP, the usual information sharing provisions that would apply to the Tribunal and to ACT Health will no longer apply. Accordingly, the Tribunal made orders to ensure that both Ronald’s GP, the practitioner’s practice and the retirement facility have the necessary information to be aware of the nature of Ronald’s offending conduct, the signs of increasing risk, and the conditions of this order.
Again, as the Tribunal will not be able to request a report from the Chief Psychiatrist, we have required Ronald to himself organise an appropriate review by a health practitioner with appropriate experience or expertise to address his mental state. The report must also address the question of whether his continued residence at the facility poses a substantial risk to his health or safety, or a risk of harm to any other person. If a risk is identified, the report must also identify what steps, if any, can be taken to mitigate those risks.
……………………………….. Presidential Member H Robinson For and on behalf of the Tribunal