Minister for Mental Health v Paciocco

Supreme Court of NSW|2019-11-13|Before: Fullerton J

Judgment

HER HONOUR: By summons filed 18 September 2019 the NSW Minister for Mental Health ("the Minister") seeks orders with respect to the defendant, Steven Mark Paciocco, pursuant to s 54A and Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act").
By way of final relief, the plaintiff seeks an order under cl 1 of Sch 1 of the MHFP Act that Mr Paciocco be subject to a (further) extension order for a period of 18 months from the date of that order.
On 13 November 2019, a preliminary hearing of the summons was convened at which the Minister sought an interim extension order pursuant to cll 10 and 11 of the MHFP Act, commencing on 13 December 2019, for a period of 3 months.
Preliminary orders pursuant to cl 6(5) of Sch 1 of the MHFP Act were also sought requiring two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of Mr Paciocco and to furnish reports to the Court with the results of those examinations, together with an order that Mr Paciocco attend those examinations.
Clause 10 of Sch 1 provides that the Court may make an order for the interim extension of a person's status as a forensic patient if it appears to the Court: (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
Each of cll 6(5) and 10 direct attention to the requirements of cll 2 and 7 of the MHFP Act set out below.
Mr Paciocco did not oppose the orders sought by the Minister at the preliminary hearing. Neither did he take issue with the evidence or the plaintiff's submissions in support of those orders.
The plaintiff relied on the following evidence:

Affidavit of Tom Benjamin Holcombe, solicitor, of 17 September 2019, together with Exhibit TH-1;

Background

Mr Paciocco is currently detained at the Forensic Hospital. He has been detained in that facility as a forensic patient (as defined in s 42 of the MHFP Act) since November 2017. He has been the subject of ongoing review by the Tribunal pursuant to s 46(1) of the MHFP Act since that time.
The limiting term which established Mr Paciocco's status as a forensic patient was imposed by Jeffreys DCJ on 8 September 2016 after a qualified finding of guilt in respect of one count of reckless wounding and one count of assault police officer in the execution of duty was entered. The offence of reckless wounding occurred in the context of a random attack on a young woman in the street with a knife.
On 8 September 2016, his Honour imposed a limiting term of 2 years and 6 months to date from 20 April 2014. The limiting term expired on 19 October 2016.
On 12 October 2016, the Minister applied to extend Mr Paciocco's status as a forensic patient under cl 1 of Sch 1 of the MHFP Act.
On 16 January 2017, following a series of interim extension orders, Campbell J made an order under s 54A of the MHFP Act extending Mr Paciocco's status as a forensic patient for a period of 14 months ("the first extension") (Minister for Mental Health v Paciocco [2017] NSWSC 4). That extension order expired on 16 March 2018.
On 13 June 2018, Mr Paciocco was the subject of a further extension order ("the second extension order") made by Davies J, also under cl 1 of Sch 1 of the MHFP Act, extending his status as a forensic patient for a period of 18 months (NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866). That extension order is due to expire on 13 December 2019.
Mr Paciocco is next due for review by the Tribunal in December 2019.

Mr Paciocco's background and psychiatric diagnoses in summary

Mr Paciocco is currently aged 47. He is single and has no dependents. He is an Australian citizen. Before entering into custody he was living alone in Department of Housing accommodation in Annandale. He was in receipt of a Disability Support Pension prior to entering custody. He is interested in model-making and enjoys reading and music. He has a close relationship with his mother who resides in Balmain.
Since at least 1994 Mr Paciocco has had multiple psychiatric admissions. He has also attempted suicide on multiple occasions. His most serious suicide attempt was in 1996 when he jumped in front of a train, sustaining injuries which resulted in bilateral lower limb amputations. He currently mobilises by means of a wheelchair.
Mr Paciocco was diagnosed with schizophrenia (or a schizoaffective disorder) in his early 20s. This remains his current diagnosis with an accompanying substance abuse disorder (in remission). The potential for a comorbid personality disorder remains open as a diagnosis. That diagnosis can only be considered after Mr Paciocco is in remission from the chronicity of his psychotic symptoms which impair his personality functioning. His cognitive function is in the borderline range, likely related to his chronic psychotic illness.
Mr Paciocco's history of treatment-resistant schizophrenia is dominated by auditory hallucinations and various persecutory delusions. The expert evidence establishes that schizophrenia is frequently complicated by poor insight and self-awareness, inclusive of the need for treatment. It also classically takes on a relapsing and remitting course, culminating in a lifelong vulnerability requiring treatment under a psychiatrically coordinated regime of antipsychotic and mood stabilising medications.
Mr Paciocco was case managed in the community before he entered custody. He has been closely pharmacologically managed as a forensic patient since that time. He is considered to have very poor insight into his illness or the triggers to adverse behaviours that are the feature of his illness or the need for treatment. He is, however, generally compliant with his treatment regime but continues to be reluctant to accept the diagnosis of schizophrenia.

Legislative provisions

Part 5 of the MHFP Act deals, inter alia, with forensic and correctional patients.
The objects of Part 5 set out in s 40 of the MHFP Act are in the following terms: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.
Section 54A of the MHFP Act provides that a person's status as a forensic patient may be extended in accordance with Sch 1, the relevant clauses of which include the following: 1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order. 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. 7 Determination of application for extension order (1) The Supreme Court may determine an application under this Part for an extension order: (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
Even where an extension order is made, it is not final. It can be revoked or varied at any time pursuant to cl 12 of Sch 1 of the MHFP Act.
The assessment of the risk of causing serious harm as comprehended in cl 2(1)(a) above is by reference to a defendant's past conduct and the seriousness of the possibility of future conduct in the period over which the risk may manifest. That assessment must be based on an absence of protective measures, relevantly on the assumption that a defendant is neither a forensic patient under the MHFP Act, nor an involuntary patient under the Mental Health Act 2007 (NSW) (see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619).
In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76, Wright J analysed the process of assessment of "less restrictive means": [28] Assessing whether the risk [of causing serious harm to others] can be adequately managed by other less restrictive means involves determining: (1) whether the means proposed are less restrictive; and (2) whether the less restrictive means adequately manage the risk. [29] As to the first of those matters, whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96]. [30] The note to cl 2(1) of Sch 1 of the MHFP Act states: "Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007." [31] … [32] As to whether the less restrictive means adequately manage the risk, Garling J said in McGuire (No.2) at [63]: "I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community." [33] Adamson J in Doolan (No. 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing "less restrictive" and "adequacy of management". Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were: "(1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions."

The first and second extension orders

I have read and considered the judgments of Campbell and Davies JJ and the various medical reports and other documents to which their Honours made reference in making orders for the extension of Mr Paciocco's status as a forensic patient in 2017 and 2018. I note that Davies J at [19] acknowledged that the material tendered before Campbell J for the purposes of the Minister's application for the first extension order satisfied both tests in cl 2(1) of Sch 1 to the MHFP Act, as did the evidence tendered before him.
I also note that Davies J's approach to the Minister's application for a second extension order (an approach with which I respectfully agree) focused upon the evidence which detailed the changes in Mr Paciocco's treatment and placement since the making of the first extension order by Campbell J, a focus which facilitated a fresh consideration by his Honour of the statutory preconditions for the making of a further extension order.

The reviews by the Tribunal since June 2018

Since the imposition of the second extension order by Davies J in June 2018, Mr Paciocco has been the subject of three review hearings before the Tribunal pursuant to s 46(1) of the MHFP Act. In the reviews of 13 December 2018 and 29 June 2019, the Tribunal determined that no orders in respect of Mr Paciocco's care, treatment and control were necessary for his protection or the protection of others from serious harm in substitution for those that were in place following the first review hearing on 28 June 2018. I have read each of those reviews.
I have also taken into consideration the reports of Dr Kerri Eagle of 25 April 2018 and Dr Andrew Ellis of 31 May 2018 (each of whom provided reports upon which both Davies and Campbell JJ relied). Those reports satisfy the requirements of cl 10(b) of Sch 1 to the Act, as they do cl 7(2)(c). In the most recent review by the Tribunal in June 2019 access to those expert reports, amongst others, was noted.
A report from Dr Adam Martin, forensic psychiatrist, of 10 May 2019, prepared at the request of the solicitor for the Crown Solicitor in anticipation of the Minister's application for an extension of Mr Paciocco's status as a forensic patient has also been read and considered by me. In that report, Dr Martin addressed particular questions posed for him, namely, whether Mr Paciocco meets the diagnostic criteria for a psychiatric condition, together with the level of chronicity and likely duration of any diagnosed psychiatric condition; and the extent to which any psychiatric condition affects his risk of reoffending, including posing a threat of serious harm to others were he to cease to be a forensic patient. Finally, Dr Martin was asked to address the need for the ongoing management of Mr Paciocco as a forensic patient, inclusive of the least restrictive means of providing that management.
I will consider Dr Martin's report later in this judgment. Before doing so, however, and having regard to the balance of the material tendered for the purposes of the preliminary hearing, inclusive of reports from Mr Paciocco's treating practitioners, Drs Haque and Colquhoun, in the combined psychiatric and nursing report by Dr Ellis, Ms Fairweather and Ms Callagher of 17 June 2019, and their focus on Mr Paciocco's recent conduct and compliance as a forensic patient and his progress between December 2018 through to June 2019, I note the following: Mr Paciocco's mental state has been variable in the past 6 months. Disorganised and aggressive behaviour correlated with low clozapine serum levels. There have been two assaults on the ward registrar (October 2018 and February 2019) and one on nursing staff (April 2019)… He was noted to become highly irritable and delusional with significant deterioration to his mental state… During this period Mr Paciocco swung to punch staff but did not connect. He continued to be verbally aggressive, was restrained and transferred to seclusion. One review later that day, he alternated between "I don't know what happened" and "I just fucking wanted a nurse". Subsequently his clozapine level was found to be low… His behaviour and experience of psychosis improved after April with an increased dose of clozapine and close monitoring. Serum levels returned to the therapeutic range. Mr Paciocco has maintained a mild level of irritability in affect, and openly identifies that he struggles in his interactions with others… The treating team noted that this mental state had improved and he had mild ongoing positive symptoms of psychosis - namely referential and persecutory delusions. He has stated that it is his intention to remain in long term residential care, as he experiences loneliness and feels unable to manage independently in the community. Currently, Mr Paciocco is compliant with his regular medications with limited use of PRN medications…
The earlier nursing report to the Tribunal of 3 December 2018, for the review of 13 December 2018, is also of relevance although it would appear that Mr Paciocco's violent verbal outbursts, inclusive of threats, were potentially, if not highly likely to be the result of his medication falling short of the therapeutic range.
That view is further reinforced in the Tribunal's determination of July 2019 where they noted the evidence given by Dr Ellis, including the following observations: The defendant's impulse control and assaultive behaviour tracks closely with his serum levels, thus the focus is on maintaining the right level of medication. However there are also general issues of impulse control and frustration tolerance, which he can work on individually with the psychologist and is doing so. Provided the Clozapine medication regime is sustained and he continues to be compliant with it, he is likely to experience increased benefit over time and this well controls his positive symptoms. There would also need to be some work done with him on his previous cannabis use and on social skills to address his institutionalisation and previous isolation. Also given his cognitive limitations associated with his illness, it will take time to learn new skills and it can be difficult for him to be "flooded with a lot of social interactions, so it all has to happen in a gradual way". He has also had issues around responding to stress in the past by being aggressive and so he has to learn other ways of coping with stress. … … Mr Paciocco continues to make good steady progress in his recovery and that the treating team have an appropriate treatment regime in place and appropriate planning in relation to his future discharge. The treating team has developed a better understanding of Mr Paciocco's illness and its causal relationship to his assaultive behaviour. The combination of Clozapine and individual and group therapy holds promise of improving his impulsivity and frustration tolerance and his insight into his illness. The plan is to proceed cautiously to accommodate Mr Paciocco's cognitive limitations and his anxiety about being without support.
In granting the second extension order Davies J noted at [64] (with some prescience) the following: Within four months of being transferred to the Forensic Hospital, and after some initial difficulties, the defendant agreed to be put back onto Clozapine. It is clear from the expert evidence, particularly that of Dr Eagle and Dr Ellis, that the beneficial effect of that has already become apparent. However, further time must elapse, perhaps four to six months, before it can be seen whether the defendant's condition can be said to have stabilised on the Clozapine.
At [65]-[69] his Honour went on to consider whether, even if Mr Paciocco were stabilised on Clozapine, a change in his living arrangements by a move from the Forensic Hospital to the community might precipitate an increase in violence and aggression, rendering his management in the community highly problematic and presenting an unacceptable risk of him causing serious harm to others for that reason. His Honour noted that decompensating mood and irritability has frequently occurred whilst Mr Paciocco has been detained as a forensic patient at the Forensic Hospital.
Dr Ellis' evidence before the Tribunal in June 2019 also included the following: The plan of the treating team (whether the defendant is a forensic or civil patient) is to continue his stabilisation on the current Clovelly Ward [at the Forensic Hospital] and then move him to Dee Why Ward and then consider referral to Concord Centre for Mental Health, which is closer to where he lived and where he has previously been treated. The transfer through Concord Hospital is due to the chronicity of his illness and frequent previously lapses over decades.

Discussion of clause 7(2) considerations

The evidence tendered on the application for an interim extension order reveals that, since the making of the second extension order, Mr Paciocco has been consistently assessed as posing a medium to high risk of violent reoffending presenting an appreciable risk to community safety should he cease to be a forensic patient.
In giving close consideration to the question of risk in the instructing letter from the Crown Solicitor earlier referred to, Dr Martin opined as follows: The issue of whether Mr Paciocco poses a risk of causing serious harm to others if he ceased to be a forensic patient is complex. In my opinion, this issue is not so much around his clinical presentation as around systemic factors. In theory, there is no legal reason why treatment under the civil Mental Health Act cannot adequately manage Mr Paciocco's risk of violence. However, as has clearly been discussed and debated in previous legal hearings, there may be some concern that if not treated as a forensic patient, that there might be less legal oversight and mandated supervision…His clinical condition has not particularly changed and the risk of violence remains. In my view, the situation of whether he should continue to be treated as a forensic patient or can be treated as a civil patient has not changed, and the issue is ultimately legal rather than clinical. …As I see it, the forensic system is in the best position in terms of resources to offer him the assertive management he requires. As a forensic patient there would be more legal oversight ensuring that such management occurs and preventing him from being discharged precipitously into a situation which might dramatically increase his risk to others [or himself]. However, practically, I think it is highly unlikely that rapid discharge will occur whether he remains as a forensic patient or is transferred to "civil status". That is, his forensic psychiatric treatment will be unlikely to change in the near future regardless of his legal status. In effect, extension of his forensic status would give control of his management to a legal body rather than relying on clinicians' judgment alone. In the event that he was for some reason discharged rapidly into the community, in my view his risk of violence would increase dramatically…If in the community it would be predictable that he would act violently as he has done before, and as he continues to express an intention to do. It would also be predictable that he would use substances, worsening his mental state. If not in a controlled environment, then it would be foreseeable that he might use a weapon as he has done before. It would be predictable that he would become non-adherent with medication and overall, if he were not to be in his current environment, at least if were not to be in an appropriate secure setting, it would be foreseeable that there would be an adverse event involving either violence or self-harm.
In assessing the adequacy of less restrictive means of management, Dr Martin said: Continuation of forensic patient status …would mean that his care treatment and control would be mandated legally, with oversight of [MHRT] providing a safeguard against an individual clinician making a clinical judgment that could hypothetically result in rapid discharge and an adverse event. A forensic order would mean that his placement would be mandated and that there would be restrictions mandated around for instance his leave. It would allow for control of issues such as substance use. Mr Paciocco has high forensic psychiatric needs because of his risks in relation to violence. Continuation of his forensic status would provide adequate oversight of his management and would reduce the possibility of such needs not being met. Classification as an involuntary patient under the MHA …in theory, there is no reason why his currently level of treatment cannot continue as an involuntary patient in the forensic Hospital where he would still have a high level of monitoring and significant restriction in relation to issues such as access to weapons or substances. A Community Treatment Order …in my view this would not be appropriate. A CTO would not provide enough monitoring and restrictions to adequately contain his risk of violence to self and others. As noted above, if he were placed in the community, even under a CTO, it would be entirely predictable that there would be an adverse outcome involving violence, given his past behaviour, his clinical needs, poor coping skills and intentions to act violently. I would not recommend that he is discharged on a CTO. A Guardianship Order In my view a Guardianship Order would not be the appropriate legal framework for him to be managed under as it would not adequately deal with the issues of safety of others.
Dr Martin ultimately opined: From my perspective, the issue of contention is in relation to whether the mental health system can be relied on to provide adequate forensic management of Mr Paciocco under the Mental Health Act 2007. Certainly, if Mr Paciocco were to be in the community, it would not be surprising if at some stage, his clinical issues might be labelled as 'personality disordered', and it is certainly possible that he might not be afforded the appropriate assertive psychiatric treatment he needs. If this were to be the case, then, it would be predictable that further violence might ensue. If a civilian patient, there would be no legal oversight to prevent such a situation. However, given that he is now firmly ensconced in the Forensic Hospital with the risks having been recognised by all clinicians, where he is in receipt of intensive and assertive management with a high level of restriction and monitoring, it is very unlikely that he will be discharged by an individual clinician to a risky situation.
Dr Ellis did not come to any different view to the views of Dr Martin summarised above in his report of 17 June 2019. Dr Ellis applied the HCR-20 V3 risk assessment tool using combined structured professional and clinical parameters and concluded that in the absence of treatment or supervision Mr Paciocco falls within a group of persons with a moderate to high risk of offending. He went on to explain as follows: Currently [Mr Paciocco] continues to present with ongoing symptoms of mental illness, minimal insight into his mental function and its relationship to prior violence, instability in his affect and problems with supervision (non adherence to clozapine). He has only his mother as a personal support. So far in the forensic hospital Mr Paciocco has only had limited exposure to treatment and rehabilitation to moderate this risk. He is currently showing a good response to pharmacological treatment for schizophrenia - however his compliance has been questionable, and is in the early stages of engaging with psychotherapy and other therapeutic interventions. His insight is poor and there is a significant possibility that he would default from treatment to without supervision, as has occurred in the past. He has chronic suicidal thoughts, and does not consider the consequences of his actions in detail… …in our opinion on the balance of the probabilities the public is likely to be seriously endangered by his unsupervised release. In regard to s 43(b) of the Act in our opinion there is no less restrictive placement option currently available to him that is consistent with safe and effective care.

Consideration

On the whole of the evidence, I am satisfied that in circumstances where the existing extension order posed by Davies J will expire before the proceedings commenced by summons are determined, and where I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, that the interim extension order and the ancillary orders sought by the Minister should be made.
In coming to that determination, I have given consideration to Mr Paciocco's stated lack of confidence in being able to transition at this time into the community to be housed as an involuntary patient under the MHFP Act. I have also taken into account his stated preference for remaining at the Forensic Hospital. While the structure of the MHFP Act does not allow for his wishes to be determinative in considering whether an interim extension order should be made, I consider that it is appropriate that his wishes are noted.

Orders

I make the following orders: 1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW): 1. two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) are to be appointed to conduct separate examinations of Steven Mark Paciocco and to furnish reports to the Supreme Court on the results of those examinations; and 2. Mr Paccioco is directed to attend those examinations. 1. Pursuant to clauses 10 and 11 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Mr Paciocco is subject to an interim extension order for a period of 3 months, commencing on 13 December 2019 and expiring on 13 March 2020. 2. Access to the Court's file in this matter is restricted such that access by a non-party to the proceedings is permitted only by leave of a Judge of the Court and only with prior notice to the parties so as to allow them an opportunity to be heard in respect of any application for access.

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 November 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

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