Minister for Mental Health v Paciocco

Mental Health (Forensic Provisions) Act

1. Schedule 1 to the MHFPA provides a scheme for the extension of the status of a person as a forensic patient. Clause 1 confers on the Court the power to make an order for the extension of a person's status as a forensic patient where an application is made in accordance with cl 2. Clause 2 provides as follows: 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.
2. Division 1 of Part 2 of Schedule 1 deals with applications for an extension order. Clause 3 empowers the Minister to apply for an order. Clause 4(1) provides that the application may be made in respect of a forensic patient, only if the forensic patient is subject to either a limiting term or an existing extension order. As I will explain, it is satisfied in relation to Mr Paciocco. Clause 5 deals with the material that must accompany such an application. In light of Fullerton J's decision in Paciocco (No 5), it is not necessary to address that further other than to state that it was clearly satisfied.
3. Clause 7(1) confers on the Court the power to determine an application for an extension order by making the order or dismissing the application. Clause 7(2) specifies the criteria to which regard is to be had in determining whether or not to make an extension order. It relevantly provides: 7(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.
4. Clause 8 deals with the term of such an order. Such an order cannot exceed a term of five years.

Status as a Forensic Patient

1. On 18 October 2016, I heard and granted an application for an interim extension of Mr Paciocco's then status as a forensic patient for a period of twenty-eight days (Minister for Health v Paciocco [2016] NSWSC 1530; "Paciocco (No 1)"). As at that date, Mr Paciocco had the status of a forensic patient as a consequence of an order made under s 14 of the MHFPA by Jeffreys DCJ as a consequence of a finding by his Honour under s 22(1) that, on the limited evidence available, Mr Paciocco had committed the offence of reckless wounding and assaulting an officer in the execution of his duty. I summarised the matters found by his Honour in Paciocco (No 1) as follows: "26 … His Honour summarised the facts as found by his Honour on the evidence available about what occurred on 20 April 2014 as follows: 'On the special hearing I found that on 20 April 2014 Rachel Ghan and Dominic Tan were on their way to the airport and walked across the road towards the 7-Eleven service station located at the corner of Parramatta Road and Pyrmont Bridge Road, Camperdown. While waiting for a taxi Rachel noticed a male, the accused, at her right side. The accused approached her and Dominic Tan and asked where they were going. Dominic Tan replied that they were going to the airport. The accused replied, 'I need a lift, I need a lift, I have money, I have money.' He opened his jacket and was rummaging through his jacket and then Rachel Ghan said: "Just then he pulled out something, I'm not sure what it was. He then reached out with his left hand extended his arm and hit my right shoulder. I felt something sharp in my right shoulder and I immediately felt pain." I am satisfied beyond reasonable doubt that the offender used a Swiss army knife which he was found to have in his possession when he was arrested and that with that knife… caused the wound to Rachel Ghan. Rachel Ghan said, 'As I felt pain my right shoulder the male was laughing at me.' Rachel Ghan then ran away and she noticed as she ran that the male had gone after Dominic Tan. Dominic Tan then went towards the 7-Eleven store. The male then began walking in Rachel Ghan's direction and then she ran to Dominic Tan and they both ran into the 7-Eleven store. When they were inside the 7-Eleven store the doors were locked and Rachel Ghan looked outside and she could see the accused standing close to the glass. 27 In his judgment, Judge Jeffreys said that on examination of Ms Ghan she was found to have an injury which was a laceration to the top of her right shoulder. The laceration was about one centimetre long and three centimetres deep, travelling down and back. His Honour noted that there was no evidence of damage to deep vascular or nerve structures, or of a wound puncturing into the chest cavity. His Honour noted when the accused was spoken to by the police he stated, 'I stabbed the bitch.' According to his Honour, at some point while being spoken to by the police, the accused, who, as I will explain, had both legs amputated from the knee down, had his prosthetic legs and was using crutches. The police officer said that he saw the accused holding a Swiss army knife in his right hand as he left the front door. He was requested to drop the knife. After a period he did drop the knife. However, at some point the defendant swung his right crutch in an upward motion against the police officer's face. 28 Three other matters should be noted about the circumstances relating to these offences. The first is that, in the material that was tendered for this application, there is evidence that the defendant had stated to his mother on the morning of the offence that 'I think I will kill someone today'. 29 Second, there is evidence that when he was later interviewed by the police and asked why he was at the police station the defendant stated, 'Coz I stabbed a woman coz she's Asian and shouldn't be going out with a white guy. I tried to kill her. I want to go to a gaol'. 30 Third, in his remarks delivered when he imposed the limiting term, Judge Jeffreys briefly described the accused's background as follows: 'It is quite clear that the accused has been known to the Mental Health Services of Sydney from his late teens. The primary diagnosis was paranoid schizophrenia. The accused has a history of poor impulse control with low frustration tolerance levels. He is prone to aggressive outburst, often with little provocation directed at both himself and others. He has great difficulty in reasonably and rationally dealing with matters and at times his mind is greatly impaired. According to the material before me his condition is chronic in nature.'"
2. Following Paciocco (No 1), on 16 January 2017 Campbell J made a (final) extension order for a period of fourteen months (Minister for Mental Health v Paciocco [2017] NSWSC 4; "Paciocco (No 2)"). That order was due to expire on 16 March 2018, however on 8 March 2018 Fullerton J made an interim extension order (Minister for Mental Health v Paciocco [2018] NSWSC 277; "Paciocco (No 3)"). On 13 June 2018, Davies J made a second (final) extension order, that one being for a period of eighteen months (NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866; "Paciocco (No 4)"). It was that order that was due to expire before Fullerton J determined Paciocco (No 5). I have reviewed the terms and the findings made in each of those judgments.

Mental Health and Background

1. In Paciocco (No 5) at [17] to [21], Fullerton J summarised the relevant background and psychiatric history of Mr Paciocco in the following terms: "17 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. 18 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. 19 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. 20 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. 21 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."
2. I have reviewed the material tendered in this matter. It amply supports her Honour's description.

Reports Under Clause 6(b)

1. Clause 7(2) of Schedule 1 obliges this Court to consider the reports received from the persons appointed under cl 6(5) to conduct examinations of a forensic patient, that is, Mr Paciocco. To that end, and consistent with the orders made by Fullerton J in Paciocco (No 5), reports from Dr Kerri Eagle dated 6 February 2020 and Associate Professor John Vincent Basson of the same date were tendered.
2. In her report, Dr Eagle provided a diagnosis of Mr Paciocco's mental conditions in terms that were similar to the history extracted by Fullerton J in Paciocco (No 5). In particular, Dr Eagle stated: "Mr Paciocco has a diagnosis of schizophrenia and schizoaffective disorder. These diagnoses are both chronic psychotic disorders and are considered neurodevelopment disorders. Schizophrenia is characterised by relapses of psychosis, negative symptoms and functional decline. Schizoaffective disorder gives rise to episodes of severe mood disturbance in the context of relapses of psychosis. At the time of interview he displayed symptoms consistent with persistent psychosis including attenuated persecutory ideas, delusions of reference (hearing his name spoken on the television) and thought disorder. He exhibited ambivalence, affective blunting and disorganisation which were consistent with negative symptoms of schizophrenia. He demonstrated inflexible thinking processes, social cognitive deficits and impaired abstract reasoning all of which have been associated with schizophrenia. His presentation appears to have improved overall since the commencement of clozapine, an antipsychotic medication for treatment for persistent schizophrenia, although his mental state and behaviour has fluctuated in the context of reduced clozapine levels, possibly due to non-compliance."
3. Dr Eagle also noted that Mr Paciocco had a cannabis use disorder but described that as being "in remission in a controlled environment", specifically while being detained as a forensic patient.
4. Dr Eagle's report addressed the various matters and factors relevant to an assessment of the criteria for the making of an extension order in cl 2 of Schedule 1. Dr Eagle summarised her opinion as follows: "On the basis of a structured professional judgment risk assessment approach Mr Paciocco remained in a category of persons at a substantially increased risk of violence of serious harm to others in a less restrictive environment. Since his transfer to the Forensic Hospital, Mr Paciocco's received assertive multidisciplinary psychiatric care, including treatment with clozapine, and although this appears to have resulted in an improvement in his mental state, his recovery has been slow and complicated by possible non-compliance. He has continued to engage in aggressive behaviours towards staff in the high secure environment. Although in the Forensic Hospital Mr Paciocco's illness and risk can potentially be adequately managed as an involuntary patient under the Mental Health Act 2007 (NSW). Safe discharge planning and Mr Paciocco's management following discharge from the forensic hospital could potentially be compromised if Mr Paciocco were no longer a forensic patient."
5. In relation to the last part of this summary, Dr Eagle addressed, in detail, the relative advantages and disadvantages so far as risk management is concerned of a comparison between Mr Paciocco continuing as a forensic patient and Mr Paciocco continuing as an involuntary patient admitted under the MHFPA.
6. Dr Eagle's overall conclusion was that, "[i]n order to effectively manage his risk he requires the oversight of the MHRT [Mental Health Review Tribunal] in his ongoing care and the benefit of the forensic pathway with appropriate forensic input". Dr Eagle contrasted that with a position if responsibility for Mr Paciocco's treatment and risk management fell to an individual clinician as an involuntary patient under the Mental Health Act 2007.
7. So far as the period of any appropriate order might be concerned Dr Eagle's opinion is that Mr Paciocco "is likely to require considerable further time to progress through the high secure Forensic Hospital before it would be suitable or safe to facilitate a transition to a less secure hospital environment".
8. Associate Professor Basson's diagnosis of Mr Paciocco's mental state was not relevantly different to that of Dr Eagle. Associate Professor Basson described Mr Paciocco as having shown a "good response to pharmacological treatment for schizophrenia", but added that when he was "non-compliant this interacts with the historical risk to raise the frequency of impulsive violent acts". Associate Professor Basson described Mr Paciocco as falling "into a group of persons with a risk of offending that is moderate to high".
9. Like Dr Eagle, Associate Professor Basson addressed the relative advantages and disadvantages of Mr Paciocco continuing as a forensic patient compared to him being an involuntary patient. In short, Associate Professor Basson considered that the more rigorous and secure structure of the forensic provisions would better manage the risk posed by Mr Paciocco than if he was an involuntary patient. In particular, he noted that the "MHRT assessments of him would be less rigorous if it is a civil order".

Clause 7(2)(d) - "Other Reports"

1. Clause 7(2)(d) of the MHFPA requires this Court to consider "any other report of a qualified psychiatrist" or relevant medical practitioner concerning Mr Paciocco. To that end a number of other reports were placed before the Court addressing Mr Paciocco's mental state, progress and risk profile. I have reviewed them all and, subject to what follows, they are not materially different to the reports of Dr Eagle and Associate Professor Basson.
2. I note that one of the reports is from Dr Adam Martin dated 10 May 2019. Dr Martin concluded that the effect of all Mr Paciocco's conditions is that he is "at significant risk of re-offending violently". This opinion was formed after having undertaken an assessment that used, amongst other matters, "the HCR 20 Version 3 … judgment tool".
3. In relation to whether the risk posed by Mr Paciocco could be adequately managed by him being scheduled as an involuntary patient or continuing as a forensic patient, Dr Martin stated: "My opinion is that there is no legal or clinical reason that Mr Paciocco's needs in relation to risk cannot be managed adequately as an involuntary patient under the Mental Health Act 2007."
4. This conclusion needs to be seen in a context whereby Dr Martin considered that clinically there should be no difference in the management of the patient such as Mr Paciocco either as a forensic patient or an involuntary patient. However, earlier in his report Dr Martin acknowledged that "systemic issues" justified a difference in relation to risk management in that a "continuation of his forensic status provide adequate oversight of his management and would reduce the possibility of such needs not being met", whereas the same could not be said for the range of options available for Mr Paciocco as an involuntary patient. This difference in an assessment of risk management under the two regimes reflects the effect of the relevant authorities concerning the means by which the criteria in cl 2(1)(b) of Schedule 1 is to be assessed (see, for example, Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107, at [109]; "Doolan").
5. Another report that needs particular mention is that provided by Dr Ellis and Dr Singer to the MHRT, dated 28 November 2019. It comprehensively reviewed Mr Paciocco's psychiatric condition, as well as documenting in detail his progression in the Forensic Hospital since his admission as a forensic patient in November 2017. The report notes that Mr Paciocco progressed to the Clovelly unit of the Forensic Hospital in October 2018 and that there were some positive signs. However, in relation to the period from July to November 2019, the report states: "Mr Paciocco has continued to reside in the Clovelly unit of the Forensic Hospital. He continued to demonstrate positive symptoms of psychosis including delusional thought content with paranoid and grandiose themes. He also continued to demonstrate poor impulse control when frustrated. Additionally Mr Paciocco continued to threaten suicide and harm to others if released from the forensic hospital".
6. Their overall conclusion was that Mr Paciocco has a "continuing condition that is likely to worsen without supervision and treatment" and that there are reasonable grounds for concluding that "care, treatment and control of Mr Paciocco is necessary for the protection of himself and others from serious harm".

Order or Decision of the Tribunal - Clause 7(2)(e)

1. Clause 7(2)(e) of Schedule 1 obliges this Court to consider any order or decision made by the MHRT with respect to Mr Paciocco that is relevant to the application.
2. Over the last 18 months Mr Paciocco has been the subject of a number of reviews and consequential orders made by the MHRT, specifically on 10 July 2018, 19 December 2018, 11 January 2019, and 9 January 2020.
3. In its report dated 9 January 2020, the MHRT noted material suggesting that Mr Paciocco told the relevant staff that he "wants more treatment and he would harm himself and be a threat to others if released into the community", that he "felt safer in hospital", but also he could imagine being at other hospitals and living in particular suburbs. Their report noted a concern by Mr Paciocco about the possibility of "suddenly being discharged into the community".
4. The MHRT's conclusion was as follows: "Mr Paciocco is very anxious about what would happen if he found himself suddenly in the community and fears going back to prison. It was interesting that he was able to clarify what he means about not wanting to be in the community. In his view a supported boarding house would be acceptable because he would not be on his own in the community. It is clear that Mr Paciocco continues to experience positive and negative symptoms of his mental illness and further work is needed to optimise his medication. In other respects Mr Paciocco is progressing well and engaged openly with the Tribunal and happily reported on his model building and other activities."

Level of Compliance as a Forensic Patient - Clause 7(2)(g)

1. Clause 7(2)(g) of the Schedule 1 requires the Court to consider the level of the forensic patient's compliance with any obligations to which he has been subject to while as a forensic patient. This topic is addressed in the reports to which I have referred. In short, the most important determinate concerning Mr Paciocco's behaviour appears to be his compliance with his medication regime.
2. At the hearing of the summons, counsel for the plaintiff took the Court to various entries in the case notes of Mr Paciocco's time in the Forensic Hospital which showed, even over recent months, repeated instances of aggressive and paranoid behaviour on his part. This included acts of violence. They appear to be especially directed to staff of Asian descent. There is also in the material reason to believe that progress could be made if, as I have said, Mr Paciocco is compliant with his medication regime.
3. It is suffice to state that, at this point, if Mr Paciocco was to be released into the community, in the short-term it is extremely unlikely that he would have such self-sufficiency to enable him to be sufficiently compliant with his medication regime for there to be any confidence that the risk he poses could be managed.

Views of the Court that Impose the Limiting Term - Clause 7(2)(h)

1. I have reviewed the decision of Davies J in Paciocco (No 4). His Honour reached conclusions in relation to Mr Paciocco which was consistent with those expressed in the other decisions to which I have referred. In particular, his Honour found that he was satisfied to a high degree of probability that "the unacceptable risk of his causing serious harm to others cannot be adequately managed by less restrictive means than a further extension order" (at [65]).
2. His Honour nominated a number of reasons for that conclusion, including that before his release Mr Paciocco would have to be stabilised on Clozapine and that would take a considerable time; that when he is sufficiently stabilised on Clozapine Mr Paciocco would need to be stepped down to some lesser form of security; that thereafter there is the possibility that he might be released into the community, but then his risk associated with cannabis and other drug use would have to be addressed; and the evidence was unclear about his ability to access the NDIS (at [66] to [71]).
3. Accordingly, Davies J concluded as follows (at [72]): "The evidence demonstrates that any change to the defendant's status to that as a civil patient is premature. He needs to be stabilised on Clozapine and it needs to be seen if transition, first to a less secure facility, and then into the community can be affected without a recurrence of the aggression, violence and drug‑taking that have characterised the defendant before he first went into custody. The unacceptable risk which I earlier found can only be managed by the defendant remaining a forensic patient until he has been released into the community without a recurrence of the matters mentioned."

Other Information About Risk to Others - Clause 7(2)(i)

1. As is usual in these matters a significant amount of other material, including case and progress notes, were placed before the Court. This material is potentially relevant to the criteria in cl 2(a) and (b) of Schedule 1. I have already outlined the effect of this material when referring to counsel's submissions, specifically that it discloses instances of aggressive and violent behaviour. It also shows some instances where Mr Paciocco has displayed insight into his condition and has taken the step of requesting medication before more drastic action is required.

Unacceptable Risk and Less Restrictive Means

1. The assessment of unacceptable risk required by cl 2(1)(a) of Schedule 1 needs to be undertaken based upon the absence of any protective measures, that is, on the assumption that Mr Paciocco is neither a forensic patient or even an involuntary patient but is instead released into the community unsupervised (see Attorney General for New South Wales v Kapeen by his tutor Jennifer Thompson (Preliminary) [2018] NSWSC 619). Having regard to Mr Paciocco's past conduct, his diagnosis and the effect of the expert opinion, which is uniform in this respect, I have no doubt that cl 2(1)(a) is clearly satisfied.
2. In relation to cl 2(1)(b), I have already referred to the decision in Doolan and I addressed the approach to assessing less restrictive means in Paciocco (No 1) at [56] to [72]. I will not repeat that discussion. It suffices to state that the analysis undertaken there of Mr Paciocco's circumstances and the difference in the legal regimes between the forensic patient provisions and the involuntary patient provisions are still apposite at present, even allowing for the fact that Mr Paciocco has been in the Forensic Hospital since the end of 2017. That analysis is reflected in the reports of Dr Eagle and Associate Professor Basson, as well as the report of Dr Martin. I otherwise agree with the conclusion of Davies J in Paciocco (No 4) at [72], to which I have referred.
3. Accordingly, I am satisfied that the risk of causing serious harm as posed by Mr Paciocco cannot be adequately managed by less restrictive means than a continuation of his status as a forensic patient.
4. There remains to consider the term of the order. As noted, the parties have proposed a period of three years. As I understand it, from the plaintiff's perspective that reflects its assessment that the various instances of aggressive behaviour by Mr Paciocco, and his overall diagnosis, suggest that there is a relatively bleak prospect of him sufficiently progressing within a short period of time to warrant his release into the community. Conversely, as I understand it, the defendant's position is that there is in the material enough to indicate that at times he shows insight and that he otherwise has aspirations for eventual community release.
5. Bearing in mind both those matters, I consider that a period of three years is appropriate. This is especially so because the material indicates that, even as a forensic patient, there is still some scope for flexibility in the level of supervision of Mr Paciocco and his living arrangements. It follows that I will make the order proposed in relation to prayer 3.

Orders

1. Prayer 4 of the summons seeks an order restricting access to the Court's file in the matter such that access by a non-party to the proceedings would only be permitted 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.
2. As I understand it, Fullerton J has already made an order to that effect. I am being asked to renew it, as it were, on a final basis. Although I do not think it is necessary for one judge to put conditions on which another judge may grant leave, given that the order has already been made by Fullerton J, I am content to make that order on a final basis.
3. Accordingly, the court orders as follows: (1) Pursuant to clauses 1 and 7(1)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990, the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from 13 March 2020. (2) Access to the Court file by any non-party to the proceedings be 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: 09 March 2020