Khoury (by his tutor, Georgette Khoury) v Mental Health Review Tribunal

Supreme Court of NSW|2012-05-07|Before: Harrison J

Judgment 1HIS HONOUR: By his amended summons filed on 23 April 2012, the plaintiff seeks leave to appeal from a determination of the Mental Health Review Tribunal published on 20 October 2011. The first question that arises for consideration is whether or not the plaintiff is or was ever a forensic patient as defined in s 42 of the Mental Health (Forensic Provisions) Act 1990. That status is a prerequisite to the commencement of these proceedings. The plaintiff contends that he is a forensic patient, that leave to appeal should be granted, that his appeal should be upheld, and that the matter should be remitted to the Tribunal to be dealt with according to law. The Attorney General contends that the plaintiff was never a forensic patient and has no standing to commence the proceedings, but in any event submits that leave to appeal should be refused, or if granted, that the plaintiff's appeal should be dismissed. Despite some initial reservations about whether or not the plaintiff's status as a forensic patient was the only, or at least the only significant, issue arising for determination in these proceedings, I am now of the view that it is the only question thrown up for consideration in this case. This is explained in the reasons that follow.

Background 2The plaintiff was indicted on at least two counts of wounding with intent to cause grievous bodily harm arising out of incidents alleged to have occurred at Liverpool on 17 May 2008. On 20 September 2010 his Honour Coorey DCJ determined that the plaintiff was unfit to stand trial by reason of his mental illness and accordingly referred the matter to the Tribunal. On 21 December 2010 the Tribunal determined that the plaintiff would not, during the period of 12 months following the finding of unfitness, become fit to be tried by jury. 3At a Special Hearing before his Honour Robison DCJ that commenced on 23 May 2011 at Penrith in accordance with the provisions of the Act, his Honour determined, on 27 May 2011, that on the available evidence, the plaintiff committed the offences concerned. On 11 August 2011 his Honour imposed concurrent "limiting terms" of 5 years for each offence. His Honour did not direct the plaintiff to be taken into custody at that time. Instead, his Honour referred the matter to the Tribunal in accordance with s 24 of the Act but deferred consideration of the question of the plaintiff's detention pending the Tribunal's determination of whether the plaintiff suffered from mental illness. 4Section 24 of the Act is as follows: "24 Consequences of nomination of limiting term (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness, or (b) the person is suffering from a mental condition for which treatment is available in a mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person." 5At page 12 of his remarks delivered at the time, his Honour said this: "...but when one reads s 24 of the Mental Health (Forensic Provisions) Act it is clear that pursuant to subs (1) there is indeed a discretion pursuant to subs (1)(b) where the Court may make such order with respect to the custody of the person as the Court considers appropriate..." 6The matter then came before the Tribunal on 16 September 2011. On 20 October 2011 it made the following determination: "DETERMINATION SECTION 24 The case of Mr Khoury, having been referred to the Tribunal by the Court pursuant to section 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990, the Tribunal determines, pursuant to section 24(2) of the Act, that this person is suffering from a mental illness". 7The plaintiff asked the Tribunal to make a recommendation as to an appropriate place of treatment and/or detention for him. The Tribunal declined to do so. It limited its findings to the single question of whether the plaintiff suffered from mental illness. In the course of delivering its decision, the Tribunal passed the following remarks: "CONCLUSION Despite submissions made by Mr Fraser as to the nature of he Tribunal's determination under section 24 of the Act, the Tribunal considers that its only permissible function (where a finding is made that a person suffers with a mental illness) is to inform the Court of that finding. The Tribunal does not have any further role and is not empowered under the legislation to give an indication or recommendation as to the placement of any individual in the prison system or mental health facility or, indeed, whether or not release to the community is appropriate. It is a matter for the Court to determine whether or not (following the Tribunal's determination and advice) Mr Khoury will be detained. The Tribunal notes that Mr Khoury appears to have the good support of his large family who appear to be attuned to his illness and the need for ongoing monitoring and psychiatric reviews. The Tribunal also note[s] Dr Coffey's view that Mr Khoury can be appropriately managed in a community setting and that he is co-operative with treatment. Should Mr Khoury not be detained following notification of the Tribunal's determination it is clear that under the Act Mr Khoury will not be a forensic patient and that the Tribunal will have no role in reviewing him. He would only become a forensic patient should he be detained under the provisions of section 27. Accordingly, the Tribunal advises the Court that based on the totality of the written material and oral evidence given to the Tribunal that Mr Khoury is a person who suffers with a mental illness." 8The matter returned to the District Court on 21 October 2011. Precisely what occurred on that day is unclear from the evidence before me. It seems that the District Court proceedings may have been adjourned in order to allow the plaintiff to consider his position. The original summons seeking leave to appeal to this Court was then filed on 16 November 2011. Although the details of it are also not clear to me, it would appear that subsequently on 27 January 2012 an order may have been made staying or suspending the operation of the Tribunal's determination made on 20 October 2011 that the plaintiff was a person suffering from a mental illness under s 24(2) of the Act, pending the disposition of the plaintiff's application for leave to appeal to this Court. 9At the very heart of the plaintiff's concerns at all times has been the fear that he will suffer severe, damaging and potentially irreparable psychiatric harm if he is dealt with in any way involving detention in a mental health facility or indeed detention anywhere, or if he is dealt with in any way other than by being permitted to remain at large in the community in the care of his family and subject to his usual ongoing medical treatment from Dr Coffey.

Appeals to this Court 10Section 77A of the Act is in the following relevant terms: "77A Appeals against Tribunal decisions (1) A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (4)." 11The definition of forensic patients is to be found in s 42 of the Act. It is in these terms: "42 Forensic patients For the purposes of this Act, the following persons are 'forensic patients': (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or (ii) section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), (b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section."

Discussion 12The plaintiff contends that he became a forensic patient by no later than 11 August 2011 when Robison DCJ referred him to the Tribunal pursuant to s 24(1) of the Act. The plaintiff argued that because he had been granted, and remained on, bail shortly after he was charged with the offences that ultimately attracted the imposition of the limiting terms, he was and continued after Robison DCJ referred him to the Tribunal to be a "forensic patient" being a person falling within the definition in s 42 of the Act who was "released from custody, subject to conditions, pursuant to an order under...section...24" of the Act. Although the plaintiff's argument was formulated in several ways, none was any more or less than an eloquent restatement of this single fundamental proposition. 13The Attorney General contended that even if it is accepted that orders varying bail conditions effectively release a person from lawful custody, such orders do not fall within the terms of s 42(a) of the Act. This is because the words "released from custody subject to conditions", when read in the context of the Act as a whole, bear a special meaning. They do not refer to any release from custody, including release on bail, but refer only to orders for release made under s 25 or s 39 of the Act, following a finding of "not guilty by reason of mental illness". This argument was developed in the following way. 14Although s 42(a)(i) of the Act refers to orders "under" s 25, the Attorney General submitted that s 25 merely refers to, but does not itself provide, a source of power to make orders following a finding of "not guilty by reason of mental illness". The relevant source of power is said to be found in s 39(1) of the Act which provides as follows: "39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate." [Emphasis added] 15Of all of the provisions referred to in s 42(a)(i) of the Act, s 39 is unique in using the words "release from custody subject to conditions". Of the other provisions referred to in ss 42(a)(i), 17 and 27 do not provide for release from custody at all. Whereas ss 14 and 24 anticipate some sort of release from custody, the language is different. Section 14(b)(ii) refers to the Court "granting bail in accordance with the Bail Act 1978" and s 24 refers to the Court "making such order with respect to the custody of the person as the Court considers appropriate". 16The Attorney General also submitted, in support of this line of reasoning, that the other instances in which the words "released from custody subject to conditions" are used throughout the Act suggest that those words are intended to refer to orders made under s 39. For example, s 44 of the Act provides as follows: "44 Persons found not guilty by reason of mental illness-initial review (1) The Tribunal must review a person's case as soon as practicable after the person is found not guilty of an offence by reason of mental illness, after a special hearing, a trial or on an appeal, and ordered to be detained in a mental health facility or other place or to be released from custody subject to conditions. Note: Relevant orders may be made under this Act (including sections 25 and 39) and under section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act). (2) The Tribunal must, after reviewing a person's case, make an order: (a) as to the person's care, detention or treatment, or (b) as to the person's release (either unconditionally or subject to conditions). (3) This section does not apply if a person ceases to be a forensic patient." [Emphasis added] 17The Attorney General contended that, having regard to the reference to a finding of "not guilty by reason of mental illness" in s 44(1), the italicised words can only refer, out of all of the orders listed in s 42(a)(i), to an order made under either s 25 or s 39. 18Moreover, the Attorney General emphasised that the same language appears in s 51(1)(b) of the Act: "51 Termination of classification as forensic patient on unconditional release (1) A forensic patient ceases to be a forensic patient if any of the following events occurs: (a) the person is released unconditionally in accordance with an order by the Tribunal under this Part or under section 29 or by order of a court, (b) if the person has been released in accordance with such an order subject to conditions- the time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with expires." [Emphasis added] 19The Attorney General submitted that the object or aim of s 51 is to ensure that a person who is at liberty ceases to be a "forensic patient" and is no longer subject to the Tribunal's review. As with s 44, the italicised words can only refer, out of all of the orders listed in s 42(a)(i), to an order made under either s 25 or s 39. It was submitted that "it would not make sense" for those words to refer to an order for release on bail, as bail is granted pending a person's return to court. A person is never released on bail with a view to that person being at liberty upon the expiration of the time for compliance with one or other of the conditions to which the grant of bail has been made subject. The section does not in terms contemplate bail conditions at all. 20In summary, the Attorney General argued that the words "released from custody subject to conditions" in s 42 refer only to release pursuant to s 25 or s 39 of the Act. They do not refer to or contemplate release on bail pursuant to s 14 or s 24. For orders under either of those sections to trigger "forensic patient" status, they must provide for detention at a mental health facility, correctional centre or other place. 21However, the Attorney General's submissions went even further. It was submitted that the foregoing interpretation was consistent with the other provisions of Part 5 of the Act, which assume that a person the subject of Tribunal review is held in detention. For example, s 43 provides that the Tribunal "must not make an order for the release of a forensic patient unless...". Section 46(2) provides that the Tribunal must review the case of a forensic patient where, among other things, "the medical superintendent of the mental health facility in which the patient is detained" has requested a review. Section 46(3) provides that the Tribunal must review the case of each forensic patient "who is subject to a community treatment order, and who is detained in a correctional centre, every 3 months". Section 47(1) provides that, after reviewing a person's case under s 46, the Tribunal may make an order as to "(a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place" or "(b) the patient's release (either unconditionally or subject to conditions)". Finally, s 47(2) provides that, where a person has been remanded in custody pending the person's return to court, the Tribunal may only make a "recommendation to the court" (but not an order) regarding the person's release. 22In summary it was contended that Part 5 of the Act does not envisage or contemplate any role for the Tribunal in circumstances where the person is not in detention. The only exceptions to this are s 46(3), which provides for review following the making of a community treatment order, and s 44, which provides for a review where a person has been "released from custody subject to conditions". As emphasised earlier, the Attorney General's position is that s 44 is clearly and only directed to or concerned with cases where a person has been released under s 39 following a "finding of not guilty by reason of mental illness". It does not envisage a case where a person has been released on bail. 23The Attorney General's argument, however, also emphasised the following. It was submitted that the legislative history of s 42 itself supported the interpretation that "released from custody subject to conditions" does not refer to release on bail: s 34(1)(a) of the Interpretation Act 1987. This argument proceeded as follows. 24Until 2007, the definition of "forensic patient" was found in Sch 1 to the Mental Health Act 1990. At that stage, the equivalent to Part 2 of the Act lay in the Mental Health (Criminal Procedure) Act 1990. The definition in Sch 1 to the Mental Health Act provided as follows: "forensic patient means: (a) a person who is detained in a hospital, prison or other place, or released from custody subject to conditions, pursuant to an order under section 10(3)(c), 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA(5) of that Act), or (b) a person who is detained in a hospital pending the person's committal for trial for an offence or pending the person's trial for an offence, or (c) a person who has been transferred to a hospital while serving a sentence of imprisonment and who has not been classified by the Tribunal as a continued treatment patient, or (d) a person who is granted bail pursuant to section 14(b)(ii) or 17(2) of the Mental Health (Criminal Procedure) Act 1990." 25Sections 10, 14, 17, 25, 27 and 39 of the Mental Health (Criminal Procedure) Act (referred to in par (a) of the definition) were relevantly similar to the current ss 10, 14, 17, 25, 27 and 39 of the Act. There are three key differences between the above definition and the current definition under s 42. First, unlike s 42, the above definition made no reference to orders under s 24. Secondly, unlike s 42, the definition made reference to orders under s 10(3)(c). Thirdly, and most relevantly for present purposes, the definition made explicit reference (at par (d)) to persons granted bail pursuant to s 14(b)(ii) or s 17(2) of the Mental Health (Criminal Procedure) Act. 26In 2007, that definition was removed from the Mental Health Act (with some modifications) and inserted as s 3 of the Mental Health (Criminal Procedure) Act (see Mental Health Act 2007, Sch 7.7 [1]): "forensic patient means a person: (a) who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order: (i) under section 10(3)(c), 14, 17(3), 25, 27 or 39, or (ii) under section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA(5) of that Act), or (b) who is granted bail pursuant to section 14(b)(ii) or 17(2), or (c) who is detained in a mental health facility pending the person's committal for trial for an offence or pending the person's trial for an offence, or (d) who has been transferred to a mental health facility while serving a sentence of imprisonment and who has not been classified by the Tribunal as an involuntary patient." 27Again, unlike s 42, that definition made explicit reference (at par (b)) to persons granted bail pursuant to s 14(b)(ii) or s 17(2) of the Mental Health (Criminal Procedure) Act. In 2008, that Act was renamed the Mental Health (Forensic Provisions) Act and the definition above was replaced by the current definition: see Mental Health Legislation Amendment (Forensic Provisions) Act 2008, Sch 1 [2] and [4] respectively. 28In accordance with the rule that the expression of one thing is the exclusion of another, the Attorney General submitted that where, under the previous definitions, explicit reference had been made to release on bail, such orders were excluded from the meaning of "released from custody subject to conditions" in par (a). The omission of the reference to release on bail in the current s 42, in the absence of any indication that "released from custody subject to conditions" was to take on an expanded meaning, suggests that those words do not encompass orders for release on bail. 29The fact that "released from custody subject to conditions" was not intended to take on an expanded meaning is suggested by the fact that the reference to s 17(2) in par (b), having been omitted by the 2008 amendments, was not inserted into s 42(a)(i) of the Act. In its current form, s 42(a)(i) refers only to s 17(3) of the Act (which provides for detention in a mental health facility or other place). 30Similarly, the immediate predecessor to s 45 of the Act (s 42 of the Mental Health (Criminal Procedure) Act) relevantly provided as follows: "(1) The Tribunal must review a person's case as soon as practicable after: (a) the person is granted bail under section 17(2) or an order is made under section 17(3) in relation to the person, or (b) an order is made under section 27 in relation to the person. (2) On a review, the Tribunal must determine whether, in its opinion: (a) the person has become fit to be tried for an offence, and (b) the safety of any person or any member of the public will be seriously endangered by the person's release." 31In its current form, s 45(1)(a) refers only to orders made under s 17(3). 32The fact that the 2008 amendments were intended to exclude from the definition of "forensic patient" those persons who are released on bail is confirmed by the explanatory note to the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008. In explaining the amendments to Part 5 of the Mental Health (Criminal Procedure) Act, the note states (at 3): "(d) persons who are remanded in custody for a short period after the question of a person's fitness to be tried is raised and before an inquiry into the person's fitness is held, or who are released on bail after a court inquiry finds them unfit to be tried for an offence or the Tribunal determines that they are likely to become fit to be tried within 12 months, will no longer be forensic patients subject to review by the Tribunal (proposed section 42)." 33The first part of that quote refers to the removal from the definition of "forensic patient" of any reference to s 10(3)(c). The italicised words refer to the removal from the definition of orders for release on bail made under s 14(b)(ii) (following a finding of unfitness) and s 17(2) (following a determination that the person is likely to become fit to be tried within 12 months). This is said to confirm that the intended effect of the amendment was that the words "released from custody subject to conditions" in s 42(a) were not intended to capture orders for release on bail.

Consideration 34In my opinion, the plaintiff is not a forensic patient as defined in the Act. 35The Attorney General's analysis proceeds upon the basis that the words "with respect to the custody of the person" in s 24(1)(b) of the Act do not contemplate a person who is "released from custody subject to conditions" for the purposes of s 42 of the Act. The Attorney General says these words only pick up the corresponding expression in parentheses in s 39(1) of the Act. I agree. 36In the present case it is clear that the plaintiff was not "detained in a mental health facility, correctional centre or other place" within that expression in s 42 of the Act. On 11 August 2011 Robison DCJ imposed concurrent "limiting terms" upon the plaintiff of 5 years for each offence. As already observed, his Honour did not direct the plaintiff to be taken into custody at that time. Instead, his Honour referred the matter to the Tribunal in accordance with s 24 of the Act but deferred further consideration, including it would seem consideration of the question of the plaintiff's detention, pending the Tribunal's determination of whether he was suffering from a mental illness. In due course the Tribunal determined that he was and notified the court accordingly. 37By the commencement of these proceedings it seems to me that the plaintiff is attempting, so far as it may be possible, to avoid the (on one view) limited range of circumstances or outcomes that might apply following the Tribunal's notification to the court pursuant to s 24(3). The terms of s 27 make the reason for this concern clear: "27 Orders Court may make following determination of Tribunal after limiting term is imposed If a Court is notified by the Tribunal of its determination in respect of a person under section 24 (3), the Court may: (a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility-order that the person be taken to and detained in a mental health facility, or (b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility-order that the person be detained in a place other than a mental health facility." 38In the present case, the Tribunal determined that the plaintiff was a person who suffered from a mental illness and it notified the District Court of its determination, as it was required to do, pursuant to the mandatory terms of s 24(3) of the Act. This would in the ordinary course have operated to bring the matter back to the District Court for consideration pursuant to s 27 of the Act. However, the plaintiff and his family fear what may be the consequences for him of being detained in either a mental health facility or in a place other than a mental health facility. Subject to one matter referred to below, those possibilities appear to have been the only alternatives available to be considered by the District Court when the matter was ultimately to return there. It seems to me with respect to his Honour that he was entirely alive to the dilemma facing the plaintiff, and the plaintiff's family, which is arguably reflected in his decision on 21 October 2011 to adjourn the proceedings before him to give the plaintiff an opportunity to consider his position. 39In its original decision the Tribunal expressed the opinion that it did not have any further role to play once it had made its determination pursuant to s 24(2), other than to notify the court of that determination. It also expressly disavowed the suggestion that it had any power under the legislation to give an indication or a recommendation as to the placement of any individual in the prison system or a mental health facility or whether or not release to the community was appropriate. The plaintiff's original complaints were pointedly directed to these comments. In particular, the plaintiff effectively complained in his summons about the correctness of the Tribunal's stated position that should he not be detained following notification of its determination, it was clear that he would not be a forensic patient and the Tribunal would then have no role in reviewing him. The plaintiff also raised concern about the correctness of the Tribunal's stated opinion that he would only become a forensic patient if he were detained under the provisions of s 27 of the Act. 40I should indicate that none of these complaints appears to me to be amenable in any event to the relief sought by the plaintiff in his amended summons, even if he were a forensic patient and entitled to bring the present appeal. The Tribunal's expressions of opinion about which the plaintiff has raised his concerns were no more than that. He does not seek to challenge the Tribunal's fundamental conclusion that he is a person suffering from a mental illness, and the views expressed by the Tribunal are patently wholly collateral to that finding. I can only assume that the Tribunal politely included these remarks in its conclusion, explaining its understanding of the extent of its powers under s 24, in response to arguments raised before it on behalf of the plaintiff on 16 September 2011. 41The one matter to which I referred at [38] follows from both a reading of s 27 and the Tribunal's comments to which the plaintiff perhaps somewhat peremptorily took exception. It seems to me that the precise operation and effect of s 27 is by no means clear. If the plaintiff were concerned that detention of some sort was an inevitability from a referral to the court pursuant to s 24(3), that concern may be ill-founded. To start with the section speaks in terms of what the court "may" do; its terms are not mandatory. What the court may otherwise do if detention of some sort is not ordered is neither clearly specified nor otherwise indicated. Nor are the court's choices expressly constrained. 42Section 27 has been described by the learned authors of Crime and Mental Health Law in New South Wales, 2nd Edition (2010) LexisNexis Butterwoths at 250 as "the source of some difficulty". See generally Mailes v Director of Public Prosecutions [2006] NSWSC 267 and AN (No 2) v R [2006] NSWCCA 218; (2006) 66 NSWLR 523. It seems relatively clear, at least implicitly, that the Tribunal's comments in its concluding remarks in the plaintiff's case (see [5] above) favour, or are at least not inconsistent with, the idea that detention of some sort is not an inevitability following a s 24(3) notification by the Tribunal to the court. In the context of the decision that I have arrived at in these proceedings, however, that matter does not call for or require a final decision by me. 43The scheme of the Act does not in my view support the contention that the plaintiff is a person who has been released from custody subject to conditions within the meaning of that expression in s 42. In particular, I find the deletion of the former reference to bail from the current definition of forensic patient to be highly persuasive on this point.

Conclusion and orders 44It will be clear from what I have said that in my opinion the plaintiff is not a forensic patient. Accordingly I would refuse his application for leave to appeal. 45Following an indication that I elicited from counsel at the hearing before me, I took it to be the view of both sides that whatever the result of my deliberations, there should be no order as to costs. In those circumstances I will make no order with respect to the costs of the proceedings before me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2012

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