NSW Minister for Mental Health v Paciocco

Legislative provisions

1. Part 5 of the MHFP Act deals with forensic and correctional patients. Section 40 (within Pt 5) sets out the objects of Pt 5, and those objects include the protection of the safety of members of the public.
2. Clause 2 of Schedule 1 to the Act provides: 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. Note. 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.
3. Clause 7(2) of Schedule 1 sets out the matters to which regard must be had by the Court in determining whether or not to make an extension order. Clause 7(2) provides: (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. The words "to a high degree of probability" in cl 2 indicate something more than the civil standard of the balance of probabilities but something less than the criminal standard of proof beyond reasonable doubt: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
5. On 15 March 2018 Latham J made an interim extension order from 15 March 2018 for a period of 28 days. The order has subsequently been extended on two occasions to expire on 7 June 2018. On the day of the hearing before me I made a further interim extension order until 14 June 2018.
6. Latham J also ordered the appointment of two psychiatrists to examine the defendant and provide reports. There are two reports in evidence from the independent psychiatrists, being a report from Associate Professor John Basson, undated but filed 26 April 2018 and a report from Dr Jonathan Adams dated 3 May 2018.
7. The defendant did not concede that he was an unacceptable risk of serious harm to others if the limiting term was not extended. However, no submissions were made by the defendant against that proposition. Rather it was submitted only that the plaintiff bore the burden of proving to a high degree of probability that he did pose such an unacceptable risk.
8. The defendant's principal submission was that he could be managed as an involuntary civil patient in the forensic hospital for an unrestricted period of time subject to the provisions of the Mental Health Act 2007 (NSW) being fulfilled. In that way the defendant submitted that the second requirement in cl 2 of Schedule 1 was not made out; namely, that the risk could not be adequately managed by other less restrictive means. The defendant submitted that managing him as an involuntary civil patient was management by less restrictive means.
9. As I noted when I set out the background to the present application, Campbell J made an extension order in respect of the defendant for a period of 13 months commencing 17 January 2017 and expiring on 16 March 2018. I have read his Honour's judgment and the various medical reports and other documents to which his Honour has made reference. The material his Honour referred to has been placed before me on the present application. I respectfully agree with his Honour's determination that both tests in clause 2(1) of Schedule 1 to the Act were then made out.
10. The evidence in the present matter details the changes in the defendant's treatment and placement since his Honour's judgment. It is not necessary in the circumstances to consider in any detail the medical reports and other documents that predate his Honour's judgment, except for the purpose of assessing whether and to what extent there has been a change in the situation of the defendant for the purpose of considering the two requirements of cl 2(1). I note in that regard that Dr Eagle, Dr Adams and Dr Ellis were doctors who provided reports upon which Campbell J relied, and each of them has provided a report or reports in 2018 that enable a comparison to be drawn between the defendant's position at the time of Campbell J's judgment and at the present time.
11. The reports of Dr Eagle and Dr Ellis are reports which satisfy cl 5(b) of Schedule 1 to the MHFP Act, and therefore cl 7(2)(c). In addition, I have had regard to a report of Dr Daria Korobanova, a psychologist, of 29 June 2017: cl 7(2)(d). I have read the reports of the Mental Health Review Tribunal of 2 March 2017, 6 July 2017 and 11 January 2018: cl 7(2)(e). I have read the Remarks on Sentence by Judge Jeffreys when he imposed the limiting term on the defendant, and the judgment of Campbell J when he made an Extension Order: cl 7(2)(h). The matters to be considered under cl 7(2)(a) and (g) are expressly dealt with in the reports of the various psychiatrists, particularly Dr Eagle and Dr Ellis.

Clause 2(1)(a) - unacceptable risk of serious harm

1. The unacceptable risk must be evaluated on the assumption that the defendant was not a forensic patient or an involuntary patient: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [49].
2. The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J's formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words "unacceptable risk" should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn v State of New South Wales [2016] NSWCA 57 at [58] (noting that the reference in Lynn to [38] in Thomas appears to be a transcription error).
3. In the course of his judgment, Campbell J set out a summary of the defendant's acts of violence in the community and whilst he has been in custody as follows: [27] Notwithstanding treatment for his schizophrenia, and quite apart from the index offending in April 2014, he has a history of aggressiveness and violence in the community as follows: (a) On 22 February 2006 he attempt to a punch a post office employee when he experienced difficulty withdrawing money; (b) On 5 March 2006 he threatened to kill a service station attendant when his credit card was declined, punching him in the eye; (c) On 15 April 2007 he punched a shop assistant who confronted him about shoplifting; (d) On 8 May 2008 he assaulted his mother's neighbour, punching the neighbour two or three times and biting the victim. This occurred because the neighbour was unable to say where the defendant's mother had gone; (e) On 22 March 2011 he behaved offensively and swearing and lashing out at police; (f) On 6 September 2012 he was arrested for abusing a 12 year old, poking his crutch at the child; (g) On 21 November 2012 he threw a glass bottle and kitchen pot at a neighbour's window while yelling abuse. When police arrived he was ranting incoherently; (h) On the same date when admitted to Royal Prince Alfred Hospital he assaulted an emergency department doctor and nursing staff in the psychiatric unit; (i) In February 2014 when approached by police for using offensive language he punched out at a police officer. [28] After his arrest for the index offending and whilst he has been in custody the following events have been documented: (a) On or about 22 April 2014 he assaulted a correctional officer; (b) On 27 April 2014 he exposed himself to correctional staff; (c) On 29 April 2014 he described himself to medical staff as "a danger to others due to his temper, becoming easily frustrated with others and as a result of command auditory hallucinations to harm himself and others." (d) On 7 May 2014 he was observed by correctional staff to be hostile and aggressive, throwing food at staff; (e) In February 2016 he was found attempting to harm himself by tampering with a TV power cord and inserting objects into a power point; (f) On 7 May 2016 he again exhibited hostility towards staff and other inmates; (g) On 19 October 2016 he elbowed a correctional officer on the chin and kicked out at others; (h) On 11 November 2016 he swung punches at one correctional officer and punched another in the upper back and head.
4. Those matters are of some historical interest, and I note that the doctors who provided reports that were before Campbell J were aware of these incidents. Of greater significance is what those doctors, and Professor Basson, say about the defendant's risk of serious harm to others at the present time.
5. In her report of 25 April 2018 Dr Eagle said this: 4. In my opinion, on the basis of a structured professional judgment risk assessment approach, Mr Paciocco remains in a category of persons at a substantially increased risk of violence and therefore serious harm to others in a less restrictive environment. … 44. Mr Paciocco has continued to have a high loading of clinical risk factors for violence. Over the last six months he has demonstrated problems with his insight into his offending behaviour and has limited understanding of his illness in particular his symptomatology; he has continued to demonstrate considerable affective, behaviour and cognitive instability including overtly aggressive behaviours; he has ongoing symptoms of major mental disorder including thought disorder, delusions and referential ideation; he has had a poor treatment response, although he has recently commenced on clozapine and is already showing improvements in his mental state. 45. In Mr Paciocco's case, the risk management factors remain particularly relevant given that on the basis of historical and clinical factors, Mr Paciocco falls within a group of persons at a substantially elevated risk of ongoing violence in the short to medium and longer term. However, this risk appears to be adequately managed in the high secure Forensic Hospital.
6. In his joint report of 13 March 2018 with his Registrar, Dr Kirsty McDonald, Dr Andrew Ellis said this, when asked to give his assessment of the defendant's risk of serious harm to others: Mr Paciocco has a number of historical factors, which predispose him to violence in the longer term. These include a history of personal violence, a history of general offending, a lack of stable family and intimate relationships evidenced by frequent social isolation and dislocation plus a conflicted relationship with his mother. He has displayed employment problems and poor prior engagement with rehabilitation. There is evidence of impulsivity, historical substance use, personality dysfunction and a diagnosis of major mental illness (with evidence of symptoms motivating and disinhibiting assaultive behaviour). He has a number of current dynamic factors which increase his chance of violence. He has 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. He continues to have negative attitudes towards his offences and authority. The current professional services provided to him moderate this risk.
7. In a further joint report of 31 May 2018, Dr McDonald and Dr Ellis said this, in relation to the risk of serious harm to other people: Mr Paciocco has a number of factors which put him at risk of violence in the future. The historical factors include his past history of violence, his treatment-refractory mental illness (schizophrenia), his past history of substance use and employment problems. In addition to this, he has a history of problems with relationships, including a difficult relationship with his mother, who is his only main support. In the past, Mr Paciocco has not engaged in a therapeutic treatment with treating teams. Mr Paciocco has a number of dynamic factors which add to his increased risk of violence. He suffers from ongoing symptoms of mental illness, characterised by auditory hallucinations and persecutory beliefs and continues to have very poor insight into his illness. He continues to display personality vulnerabilities such as impulsivity and affective instability. These vulnerabilities may relate to a personality disorder that developed before his schizophrenia, or having developed schizophrenia at a young age, the disorder impacted on personality maturity. Given Mr Paciocco's past offences have been impulsive, unprovoked and violent in nature, he remains at risk of further violence without clinical intervention given these factors remain prominent in his current clinical presentation.
8. In his report, Associate Professor Basson identified the following matters relevant to the unacceptable risk of causing serious harm to others: 1. He seriously assaulted a stranger causing physical and psychological trauma. 2. He admitted premeditation. 3. He wanted to be locked up. 4. He has behaved in a way that has put others at risk in the forensic hospital which is high secure and with staff having specific skills not widely held in general units. This puts him in a different category. 5. He has a history of difficult to treat mental illness, … 6. He has long standing prejudicial beliefs which may not respond to the medication as they might be part of longstanding personality traits.
9. In his report of 3 May 2018 Dr Adams, who had previously examined the defendant in November 2016, said this: My appraisal of Mr Paciocco's violence risk remains largely unchanged On the basis of my psychiatric interview, review of the information provided and the use of a structured professional judgement instrument (the HCR-20 version 3) it is my opinion that Mr Paciocco continues to manifest a significant loading of historical violence risk factors a significant loading of clinical/current violence risk factors, and a significant loading of future violence risk factors As a consequence, Mr Paciocco falls into a category of people who pose a significant risk of engaging in future violent behaviour, particularly if his risk management and treatment needs are not appropriately managed. Mr Paciocco's violence risk derives out of the admixture of his longstanding severe mental illness, namely schizophrenia major depression severe substance use disorder cognitive difficulties, and maladaptive coping strategies It is possible that he has an underlying cognitive impairment, which would compound these issues. In my opinion his risk management and treatment needs would best be managed by Forensic Mental Health Services, who have expertise in managing his challenging clinical presentation I remain of the opinion that his treatment needs would best be met in a therapeutic security level of high security, i.e. the Forensic Hospital
10. On the basis of that material I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

Clause 2(1)(b) - risk cannot be adequately managed by less restrictive means

1. In Attorney General of NSW v McGuire (No. 2) [2014] NSWSC 288 Garling J said 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.
2. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 Adamson J said at [96]: In my view, the principal issue in the proceedings is whether the defendant's risk cannot be managed by less restrictive means. Such "less restrictive means", as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as "less restrictive means", I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. I consider that the question 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.
3. Justice Adamson also analysed at [97] - [129] in some detail the differences between management under the MHFP Act and under the Mental Health Act 2007 (NSW). That analysis was summarised by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 as follows: [61] For present purposes, four particular differences should be noted. The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]). [62] The second difference relates to release. Her Honour noted that with a forensic patient the Tribunal may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]). [63] The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient "to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan" (Doolan No 2 at [115]). [64] The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118]). [65] Broadly, her Honour also noted (at [121]) that "[g]enerally speaking the onus in the [MHFP Act] is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted." Her Honour then stated that "[b]y contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted."

Expert evidence

1. The doctors who were more inclined to consider that the defendant might possibly be able to be managed as a civil patient under the provisions of the Mental Health Act were Dr Eagle and Dr Ellis. It is necessary to give close attention to their evidence.
2. In her report of 5 September 2017 Dr Eagle said this: Mr Paciocco remains in a category of persons at a substantially increased risk of violence and therefore at serious harm to others. Continuation of his status as a forensic patient would likely be of benefit in managing his ongoing risk of harm to others and it is likely that, in the circumstances, Mr Paciocco's risk of serious harm to others would be adequately managed by less restrictive means than a continuation of his forensic order.
3. Although Campbell J had expressed the strong view in his judgment that the defendant should be admitted to the Forensic Hospital (see at [13] and [45]) the defendant was not in fact admitted to the Forensic Hospital until 29 November 2017. It is apparent from Dr Eagle's report and from the clinical notes that, after the move, there were initially a number of problems that resulted in acts of violence and aggression by the defendant towards staff and other patients. However, when he was reviewed by the Mental Health Review Tribunal on 11 January 2018, the Tribunal reported that the defendant's move to the forensic hospital "has been beneficial so far". The Tribunal noted that Dr Ellis thought that, whilst there was an element of disorder in his thoughts, that had been less so since he had been on fortnightly clopixol depot medication.
4. Thereafter, on 6 March 2018 the defendant agreed to re-commence Clozapine, an antipsychotic medication for treatment-resistant schizophrenia.
5. All of this appears to have led Dr Eagle to modify her approach to his management. In her report of 25 April 2018 she said this: 4. In my opinion, on the basis of a structured professional judgment risk assessment approach, Mr Paciocco remains in a category of persons at a substantially increased risk of violence and therefore serious harm to others in a less restrictive environment, Since his transfer to the Forensic Hospital, he has received assertive multidiscipiinary psychiatric care including treatment with clozapine and this already appears to have resulted in a significant improvement in his mental state. In the Forensic Hospital, I am of the view that his illness and risk can be managed as an involuntary patient under the Mental Health Act 2007 (NSW). Whether his risk of violence could be managed as an involuntary patient following discharge from the Forensic Hospital is, in my view, more complex but possible. Please see the opinion section of the report for further discussion. … I have been instructed to provide a report that addresses the following matters: a. Any changes in my opinion in relation to: … ii my current opinion as to the need for ongoing management of Mr Paciocco as a forensic patient and, if relevant, the reasons why the risk of Mr Paciocco causing serious harm to others could not be adequately managed by other less restrictive means. I remain of the view that Mr Paciocco requires ongoing treatment and management in a high secure forensic hospital setting. Given his current placement in the forensic hospital, this treatment could be the same whether he was a forensic patient or involuntary patient. Specifically, his management requires the input and oversight of a multidisciplinary team with forensic skills and experience. The combination of a severe mental illness, possible dysfunctional personality traits, cognitive impairment and a substance use disorder giving rise to problematic behaviours including aggression, reinforce the need for specialised forensic care in a contained setting. This level of care is required in the shorter term to stabilise Mr Paciocco's mental state and behaviours; ameliorate his other risk factors (where possible) and develop a comprehensive risk management plan that can facilitate a gradual safe transition back into the community with adequate ongoing supports in place. Following the stabilisation of his mental state and the development of a comprehensive risk management plan and prior to release into the community, Mr Paciocco would require transition to a less restrictive environment, such as a medium secure facility or a locked psychiatric rehabilitation facility (such as Castlereagh Unit at Bloomfield), so that his ability to safely comply with leave or access to the community could be tested. A gradual integration from the high secure environment to a medium secure or locked psychiatric unit and then into the community would ensure that Mr Paciocco's ability to tolerate increasing exposure to destabilising factors (such as access to illicit substances; unsupervised contact with the public; and other stressors associated with the community) would be closely monitored and managed accordingly. Given his background, in order to manage his risk of violence, he is likely to require ongoing support and monitoring following release into the community such as urinary drug testing, case management, supported accommodation, mandated clinical reviews and supervised medication. If Mr Paciocco were an involuntary patient, he could be managed appropriately in the Forensic Hospital (subject to his treating team's assessment and opinion); and transferred to a locked civil psychiatric facility such as Castlereagh Unit where his transition into the community (as discussed above) could be continued. The Castlereagh Unit has accepted and successfully managed other mentally ill patients from the Forensic Hospital who were in a similar category of risk for future violence as Mr Paciocco. Upon discharge into the community, Mr Paciocco could be subject to a community treatment order and provided with assertive case management under the Mental Health Act 2007 (NSW). Mr Paciocco appears to have been assertively managed in the community for many years previously with a community treatment order and a case manager. He was trialled on clozapine and had multiple admissions to psychiatric units for treatment. It is difficult to ascertain whether with the benefit of Mr Paciocco's current planned treatment and rehabilitation pathway, his risks would be better able to be managed under the Mental Health Act 2007 (NSW) in future, although it is possible. As previously discussed, the primary difference between being a forensic patient or an involuntary patient, relevant to Mr Paciocco's management, comes down to the level and nature of the oversight, and in particular, who has the power to release or detain Mr Paciocco. As an involuntary patient a medical practitioner could decide when or whether Mr Paciocco be released from a declared mental health facility; would determine whether to apply for a community treatment order; and could determine whether Mr Paciocco were to be readmitted to a mental health facility. That decision would be made on the basis of the least restrictive care available. As a forensic patient, the MHRT would be responsible for providing oversight of Mr Paciocco's care and in particular would decide, inter alia, where Mr Paciocco should be placed (hospital or otherwise), when he could be released, when he should be returned to hospital or otherwise detained and any conditions that ought to be associated with his release. It is my understanding that the MHRT would have consideration to the safety of the public in addition to the availability of least restrictive care in making its decision. e. My understanding of the practical implications and hospital administration procedures (with particular reference to the Forensic Hospital procedures) for a patient to change status from being a forensic patient under an extension order to an involuntary patient under the MHA. In the Forensic Hospital, there are not necessarily any practical implications in terms of treatment or management within the hospital if a patient changes status from being a forensic patient to an involuntary patient. Forensic medium secure facilities are generally, in my experience, only available to forensic patients. If Mr Paciocco were an involuntary patient rather than a forensic patient, he would be unlikely to be accepted at a forensic medium secure facility. In order to step down to a less restrictive facility (as discussed above), he would need to be accepted by the Castlereagh Unit (a locked rehabilitation unit at Bloomfield Hospital, Orange) or by another civil locked involuntary unit (for instance at Concord Centre for Mental Health) in order to transition into the community as recommended. In the Forensic Hospital, the different threshold for involuntary patients to that of forensic patients can be considered (for instance, to identify the least restrictive form of care) subject to individual opinion and involuntary patients are generally not routinely expected to follow the standard pathway of forensic patients within the hospital (for instance, to progress through multiple wards of lesser restrictions within the hospital). In practical terms, for an involuntary patient it is accepted that a pathway to a less restrictive setting for safe and effective care could be explored relatively early in their admission and this is appropriate in my view. f. Whether this change in legal status could affect or impact on the effectiveness of Mr Paciocco's treatment and care or his response to that treatment and care. The change in legal status would not in my view affect or impact on the effectiveness of Mr Paciocco's treatment and care within the Forensic Hospital. It would impact on the availability of medium secure facilities to Mr Paciocco following discharge from the Forensic Hospital. It would impact on the nature of the oversight of Mr Paciocco's treatment and management once he is discharged into the community (as discussed above). (emphasis added)
6. In her oral evidence Dr Eagle was asked about medium secure units for civil patients such as the Concord Centre for Mental Health. She said that in part of that Centre, the McKay Unit, one could have similar levels of restriction but there would not be a forensic approach to security. She said that the needs of people in the civil mental health service are different from those in the forensic mental health service. In the latter, crimonogenic needs and risks were significant. A relevant example related to urine drug testing for persons in such a unit that went out on leave. That testing would not normally be done in a civil mental health unit but, even if it was, the mechanisms are not available to take appropriate action if it is ascertained that the person has been using drugs. A breach of a restriction such as using drugs is more readily dealt with by bringing a forensic patient back to the hospital so that the breach can be properly addressed.
7. She agreed that under a conditional release order (for a forensic patient) there is a greater ability to implement appropriate strategies. There is the further safeguard of the requirement for a review by the Mental Health Review Tribunal every six to twelve months. In such circumstances the Tribunal requires a report from the clinician as to how the patient is being managed and any problems with their management.
8. Dr Eagle agreed that at the time she saw the defendant there was evidence that the Clozapine was working. Although he still had symptoms of psychosis, his level of distress had reduced, and he was cooperative and less aggressive. Dr Eagle said that the full effect can take up to six months to be demonstrated so that ideally a doctor would want to see the defendant on Clozapine for at least six months to see how stable his illness was. For that reason she said she would expect that he would probably need to stay in the forensic hospital for six to twelve months, subsequent to which a further twelve months might be needed to transition him through a medium secure locked facility into the community.
9. Dr Eagle described his risks as follows: In terms of his risks, though, I guess his risks are difficult to predict specifically, but he has a number. The ability to manage his risk of violence is subject to a number of factors, one of them being the ability to maintain the stability of his illness as he progresses in future, and there are a number of I suppose characteristics or risk factors in relation to Mr Paciocco that need to be addressed in order to manage the stability of his illness or to optimise the stability of his illness. He would need to remain abstinent from illicit substances, his mental state would need to be monitored for signs of deterioration, his compliance would need to be actively monitored, his compliance with antipsychotic medications, and he would need to be gradually exposed to less restrictive environments to see that he was able to comply with the restrictions of those environments and not engage in aggressive behaviours towards others.
10. She said that his illness was still not stable. When it became stable he would need to be gradually transitioned into less restrictive environments. At the same time it would be necessary to manage his access to drugs and his exposure to other destabilising factors to see that his aggression would not continue in other less restrictive environments.
11. Dr Eagle saw a difficulty because of the defendant's often expressed desire to remain in the forensic hospital. She said that although that view of his fluctuated, it was going to make it difficult to have a clear management plan in stepping him down into a less restrictive environment. It would desirable to have some form of mandatory orders in place to do that.
12. Dr Ellis, who became the defendant's treating psychiatrist in December 2017 after the defendant moved to the Forensic Hospital, gave evidence before Latham J on the application for the interim extension order. He made clear, as Dr Eagle had done in her report of 25 April 2018, that whether the defendant remained as a forensic patient or was treated within the forensic hospital as an involuntary patient under the Mental Health Act, his treatment would be the same and he would be under the same security conditions.
13. Dr Ellis did not envisage that the defendant would simply be discharged from the forensic hospital if his condition improved as an involuntary patient. Rather, Dr Ellis anticipated that he would go to another hospital first and at some stage thereafter might be discharged under a community treatment order. He agreed that the powers of recall were more rapid for a forensic patient who breached some condition in the community than if he were under a community treatment order as an involuntary patient. He accepted that there was a greater level of control if the patient is in the community under a forensic order.
14. In his report with Dr McDonald of 31 May 2018 Dr Ellis said this: In regards to whether his risk of violence be adequately managed as a civil patient under the Mental Health Act 2007 (NSW), Mr Paciocco will receive these therapies as a Forensic or civil patient within the Forensic Hospital. It is important to consider the limitations of both the civil and Forensic Health Provisions Act. Both Acts require least restrictive treatment for safe and effective care. The treating team is of the opinion that Mr Paciocco should remain within the Forensic Hospital for ongoing treatment of his mental illness, as this is a specialised service which is familiar with the complex inter-play between mental illness and violent behaviour. This is currently the least restrictive environment for his care. His immediate care is not impacted by status as a forensic patient or an involuntary patient. The differences are apparent once discharged to community settings. In those settings as a forensic patient he can be recalled on deterioration of mental state or breach of conditions. As an involuntary patient he can be recalled based on deterioration of mental state. The oversight of each scheme is different, although the clinical care provide can be the same. With his current progress, risk would be adequately managed from a clinical point of view by the 'civil' scheme of the Mental Health Act 2007.
15. In his oral evidence before me, Dr Ellis said that there were additional safeguards in the use of a forensic order in general. The first was the oversight of the Mental Health Review Tribunal over discharge decisions. The second was that conditional release under the MHFP Act could be revoked more readily when necessary than a community treatment order under the Mental Health Act.
16. Dr Ellis agreed that the safeguards provided if the defendant were a forensic patient would be more apparent once he leaves the forensic hospital. He considered that once the defendant had been in the forensic hospital for a period of time and had further rehabilitation addressing the areas from where his risk stems, his risk was likely to be smaller than it is now and certainly than it was in 2016. He went on to say: [C]ertainly in the medium to medium/long term he will pose some sort of risk and will require management at the very minimum under the Mental Health Act and I think the question now arises as to whether the additional safeguards of the Forensic Provisions Act make that risk acceptable as opposed to unacceptable. And, in Mr Paciocco's individual case, there would be many patients with similar risk profiles managed under the Mental Health Act alone. But I think that the judgment of acceptable and unacceptable is not one that psychiatry can make.
17. Dr Ellis accepted that the defendant had received varied care as an involuntary patient under the Mental Health Act in the past and that this was a factor that operated periodically in terms of his risk of harm to others. He said that reviews undertaken when a patient is a forensic patient: A. …tend to be more extensive reviews by the Tribunal. They require more written documentation from the treating team. The Tribunal usually sits with its full panel of members, as opposed to a single member of the Tribunal. They tend, as a rule, to be longer hearings and more exacting than - than under the Mental Health Act. Q. And would you agree the collation of the information is more comprehensive when someone is managed under a forensic order than they may be by an individual clinician? A. In general, yes.
18. Dr Ellis thought that the legal order surrounding a forensic patient provided a framework to support their clinical care. When I asked him how the framework could improve the clinical care Dr Ellis said: A. I think it does it by - well, it could potentially do it by focusing the mind of the clinician because they know that they have to make a report to the Tribunal about the patient's progress and they know that the person is a forensic patient and they - because it would be exactly the same person managing him, most likely, in a public mental health service. And so there is a potential that having a forensic order may focus the mind of the - and, you know - and it may focus the mind of the service in general, you know, for when that clinician goes on leave, that they ensure that someone is replacing them and that the patient gets seen and, yeah, so --- Q. So because they are answerable to somebody, that is, the Mental Health Review Tribunal? A. There's a potential that that can enhance the clinical care. …
19. Professor Basson considered that the defendant was still suffering from delusions, ideas of reference and hallucination and was partially treated. He said, however, that until the defendant was fully treated and had gained as much improvement in his mental state as he could from the Clozapine at a stable dose, it was difficult to comment on his risk. He said other therapeutic work by psychology and occupational therapy would help but those matters would take time. He was of the opinion that the defendant should remain a forensic patient. That was partly due to his history of a difficult-to-treat mental illness, and longstanding beliefs which might have their root in longstanding personality traits. He also observed that a civil patient had less monitoring on leaving hospital.
20. Dr Adams concluded that his mental state examination findings were consistent with his assessment on 23 November 2016. He noted vague ideas expressed by the defendant which were suggestive of continuing delusions and hallucinations. Like the other doctors, he thought that the defendant's level of insight was minimal.
21. Dr Adams thought that in the short term the same risk management and treatment plan could be offered to the defendant whether he was a forensic patient or an involuntary patient under the Mental Health Act if he remained in the Forensic Hospital. However, he thought that a change to being an involuntary patient might impact on his progress in the medium to long term. He went on to say: In the longer term, however there might well be differences practically between a patient who is classified as forensic patient, compared to a patient classified as an involuntary patient. It is my understanding that ongoing status as a forensic patient would ensure Mr Paciocco's treatment and monitoring is met by Forensic Mental Health Services, as he transitions down levels of hospital security and ultimately to the community. Additionally his legal classification as a forensic patient offers further safeguards, including regular review by the forensic division of the Mental Health Review Tribunal. If he remains a forensic patient, the safety of members of the public would be considered specifically under the Mental Health (Forensic Provisions) Act 1990. For a patient to be discharged from their forensic patient status, my understanding is that an independent risk assessment is required by the Mental Health Review Tribunal, which adds an additional layer of oversight. As a forensic patient, the conditions of care and treatment in the community can be more stringent and comprehensive, as compared to the civil community treatment orders. As an involuntary patient an authorised medical officer is able to discharge a patient as soon as they consider the patient not to be a 'mentally ill person', and then must inform the Tribunal. This is different to the forensic patient pathway.
22. Dr Adams thought that he would require assertive input from forensic mental health services in the medium to long term, and that it was not inappropriate to consider that the treatment and monitoring would last for several years.

Submissions

1. Counsel for the defendant submitted that the expert evidence agreed that the defendant would be treated the same way whilst he was in the Forensic Hospital, whether he was a forensic patient or a civil patient. Counsel submitted that Dr Ellis' evidence was that when the defendant was stabilised on Clozapine, which he said would not occur "any time soon", he would be transferred to a medium secure unit. Thereafter, when he was discharged from that unit as a civil patient into the community, it would likely be under a community treatment order. At that point his risk would be smaller than it is now.
2. Counsel pointed to the evidence from Dr Ellis that people with similar risk profiles to the defendant had been adequately managed as civil patients. Counsel pointed to the evidence from Professor Basson that there was no limit to the number of times that a community treatment order could be sought.
3. Counsel submitted that civil patients such as the defendant who were considered at high risk could be referred to the Complex Needs Committee to assist in finding him a bed in a medium secure unit, notwithstanding that he was not a forensic patient. Counsel submitted that, in any event, the defendant could be transferred to the Concord Centre where there was now a forensic psychiatrist available to assist in managing patients such as the defendant.
4. Counsel also pointed to the support that the defendant would be able to obtain from the National Disability Insurance Scheme (NDIS) to assist him in adjusting to his release into the community at the appropriate time. Counsel pointed to Professor Basson's evidence of what he had experienced in relation to the assistance from the NDIS for various patients with mental health issues.
5. Counsel for the defendant submitted that the Court should distinguish between what would be the optimum basis upon which the defendant could ultimately be released into the community and what could adequately manage his unacceptable risk of serious harm to others by the least restrictive means. She submitted that Dr Ellis's evidence provided support for the defendant's current progress and risk being adequately managed from a clinical point of view by the civil scheme of the Mental Health Act.
6. Finally, counsel for the defendant submitted that if an extension order was to be made, consideration should be given to the fact that Campbell J in 2017 imposed a 14 month period, which was less than the three year period sought then by the Minister.

Consideration

1. I noted earlier that Campbell J in his judgment of 16 January 2017 had expressed the strong view that the defendant should be admitted to the Forensic Hospital. It seems to me on the whole of the evidence that the failure to transfer the defendant to the Forensic Hospital for a further ten months has to a large extent delayed the stabilisation of the defendant's condition. Since the defendant has been in the Forensic Hospital he has told each of the psychiatrists who interviewed him that he wished to remain in the Forensic Hospital and did not want to be transferred elsewhere, either back to Long Bay Correctional Centre or to any other mental health facility. Further, he did not want to be released into the community. He said to some doctors that, if he was released, he would offend again so that he would be returned to custody.
2. 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.
3. In the light of Mr Paciocco's troubled history of mental health problems, which do not appear to have been adequately stabilised at any time, I am 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. There are a number of reasons for that conclusion.
4. First, the doctors agree that before anything further can happen, including release from the forensic hospital, the defendant must be stabilised on Clozapine. That will take a further four to six months. I accept that the doctors could effectively deal with this aspect of his treatment with no increase in the risk whilst he remains in the Forensic Hospital. However, it is what happens thereafter that raises sufficient concern to justify his remaining as a forensic patient.
5. Secondly, when he is sufficiently stabilised on Clozapine he will need to be stepped down to some lesser form of security. Given his strongly expressed desire to remain in the Forensic Hospital, problems may well arise at that time as the doctors acknowledge. Subject to some extent to his being stabilised on Clozapine, a change in his living arrangements may well bring about an increase in violence and aggression on his part, as has occurred on many occasions in the past even whilst he has been at the Forensic Hospital. He will need a period of time to adjust to the new arrangements and become settled.
6. Thirdly, at some suitable time after those arrangements are changed, the defendant will be released into the community. At that point a particular risk arises because of his past use of cannabis and his intention, expressed to some of the doctors, to use cannabis again if he is able to obtain it. In my opinion it is essential at that point that there be the facility available for drug testing with a means of enforcement if breaches are found. The defendant's past history demonstrates that the use of cannabis in particular, but perhaps alcohol as well, has been related to his offending and to his aggression generally.
7. I cannot be satisfied that he is likely to be adequately managed whilst he is in the community unless he is a forensic patient. The evidence of Dr Ellis was that the minds of the clinicians are likely to be better focused by the legal framework that surrounds a forensic patient. There are the reports which must be made to the Mental Health Review Tribunal and the reviews which it conducts. There is limited enforcement of the drug testing regime if the defendant is a civil patient. The care as a civil patient generally is likely to be more variable as the defendant's history has shown. That variability was said by Dr Ellis to have contributed to the defendant's problems.
8. Fourthly, although suggestions were made that, when the defendant was to be transitioned or stepped down to a less secure facility than the Forensic Hospital, he would be eligible for a bed in a medium secure unit used for forensic patients, such as the Castlereagh Unit at Bloomfield, even if he was a civil patient, the evidence from the doctors was clear that the problem is bed availability. The doctors said that there were not enough beds for forensic patients so that the likelihood of the defendant, as a civil patient, being able to transition to a medium secure facility was poor. I note, particularly, the evidence of Dr Eagle highlighted in the extract from her report of 25 April 2018 at [39] above.
9. Fifthly, whilst I accept the evidence, particularly of Professor Basson, that the defendant would qualify for assistance under the NDIS, the evidence about that assistance was provided at a high level of generality, as counsel for the defendant accepted. Given that some period of time would have to elapse before the defendant was ready to move into the community, which would be the crucial time for such assistance as the NDIS could provide, it seems likely that specific evidence about the nature of that assistance could not be provided at this stage. Without such specific evidence, the NDIS is not a consideration that assists the submissions that the defendant can be adequately managed as a civil patient.
10. The evidence demonstrates that any change of the defendant's status to that of 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 effected 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 have 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. I reject the submission on behalf of the defendant that such a course represents an optimum pathway, and that he could be adequately managed as a civil patient.

The length of any order

1. The Minister sought an extension of the defendant's status as a forensic patient for three years and submitted that the evidence of Dr Ellis and Dr Eagle provided support for that period. The Minister submitted that, taking into account the need to stabilise the defendant on Clozapine, Dr Eagle considered he should remain in the Forensic Hospital for about a 12 month period, and thereafter a further 12 month period would be needed to transition him to a less secure facility and then into the community.
2. Counsel for the defendant submitted only that, if any order was to be made, it should be made for the period that it continues to be the least restrictive means necessary to manage the defendant's risk. However, attention was directed to Campbell J's order for a 14 month period notwithstanding what the Minister had then sought.
3. Both Dr Ellis and Dr Eagle thought that a period of four to six months was needed to stabilise the defendant on Clozapine. By that time the Defendant will have been at the Forensic Hospital for about 12 months. I note that Dr Ellis considers that the defendant could be managed effectively in a medium secure unit at the present time. Dr Ellis has been the defendant's treating psychiatrist since November 2017 and had the advantage of having examined him in November 2016.
4. I note the high standard of proof set out in cl 2 of the Schedule and that the aim is to manage the patient as far as possible by the least restrictive means. I could not be satisfied to that standard that the defendant should be managed as a forensic patient for any period longer than 18 months. I consider on the evidence that such a period will be sufficient to transition the defendant ultimately into the community in such a way that the risk of serious harm to others ceases to be an unacceptable risk.

Restricting the court file

1. The Minister seeks an ancillary order that would restrict access to the court file to a non-party only by leave of a judge of the court and with prior notice to the parties. Counsel for the defendant consented to that order.
2. Given the nature of the case and the evidence adduced in the proceedings, I consider that such an order should be made.

Conclusion

1. Accordingly, I make the following orders: 1. Order pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that the status of the defendant as a forensic patient be extended up to and including 13 December 2019. 2. Order that access to the court file by a non-party to the proceedings be permitted only with the leave of a judge of the Court and only with prior notice to the parties.

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: 13 June 2018