R v Adams

• 30 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Criminal

Judgment 1 His Honour: The offender, Debbie Marie Adams, was found to be unfit to be tried pursuant to s14 of the Mental Health (Criminal Procedure) Act 1990. 2 Following a special hearing pursuant to s19 of the Act, I found, pursuant to s22, that, on the limited evidence available, the offender had committed the offence of malicious wounding with intent to cause grievous bodily harm and the offence of manslaughter. 3 On 23 November 2001, pursuant to s23(1)(b), I fixed a limiting term of one year in respect of the first offence and a cumulative limiting term of five years in relation to the second offence. Pursuant to s24, I referred the offender to the Mental Health Review Tribunal and ordered that the offender be held in strict custody. 4 The following is an extract from my remarks published on 23 November 2001 (R v Adams [2001] NSWSC 1042): [1] The offender was born on 11 August 1982. On 25 January 1999, at the age of 16, she stabbed her mother with a knife causing serious injury. The offender was taken into custody on 26 January 1999 and was detained at the Yasmar Juvenile Justice Centre, where she attended the Sunning Hill School within the centre precincts. On 23 July 1999, when not yet 17 years of age, she stabbed a teacher with a knife during a cooking class at the school, killing him. [2] The offender was found unfit to be tried. She is of low intelligence and suffers from a severe personality disorder. At a special hearing conducted before me without a jury, I found, pursuant to s19(1) of the Mental Health (Criminal Procedure) Act 1990 (hereafter "the Act"), that, on the limited evidence available the offender committed the offence of malicious wounding with intent to cause grievous bodily harm in relation to the first episode, and the offence of manslaughter in relation to the second episode. Those findings were made in a judgment delivered by me on 12 September 2001. I directed the entry of verdicts accordingly. The verdicts constitute a qualified finding of guilt and do not constitute a basis in law for a conviction: the Act, s22(3). [3] The finding of manslaughter in relation to the second episode was made pursuant to s23A of the Crimes Act 1900. The offender was charged with murder, but I found that the offender's capacity to control herself was substantially impaired by an abnormality of mind arising from the personality disorder. I reduced what would otherwise have been a finding of murder to manslaughter on that account. … [11] As to the offender's mental state, Dr Westmore described her personality disorder as "extreme" and "severe", and her consequent behavioural disturbances as "extreme". Behavioural disturbances included "her impulsivity, her lack of judgment, her lack of boundaries, the uncontained aggression". Dr Wilcox and Dr Brown agreed with Dr Westmore's diagnosis. I accept that evidence. It is reviewed in detail in my judgment of 12 September 2001. [12] As found in my judgment of 12 September 2001, the offender had a pathological fascination for knives and other sharp objects. There was a history of incidents involving violence and the threat of violence. The offender had limited capacity to control her behaviour in this respect. On the day of the homicide, as found in my earlier judgment, the offender was in a highly aroused state, initiated by access to and handling of a knife or knives. Her tendency to violent behaviour, the availability of a knife, her highly aroused state and her inability to control her impulses combined to produce the tragic consequence. [13] Dr Brown is a visiting medical officer, attached to Mulawa Correctional Centre, Silverwater. Her other professional appointments include clinical lecturer in psychiatry at the University of Sydney and Royal North Shore Hospital. She has been the offender's treating psychiatrist since July 1999, that is, since shortly after the offender's major offence. I have mentioned her opinion concerning the offender's mental state. In recent months, there had been some calming effect from prescribed medication. Prison staff were supportive in maintaining access to treatment for her. [14] Dr Brown was seeing the offender every month or two. In private practice, Dr Brown said, the offender would be seen on a weekly basis. Dr Brown also said she would prefer the offender to be accommodated in a secure facility with hospital staff, but no such facility exists for women prisoners in this state. Accommodation in the general prison population had not been considered as a reasonable possibility. [15] Whether the offender would ever overcome her aggressive, impulsive tendencies was uncertain. According to Dr Brown, that could occur with maturity, in her late twenties or thirties. The prospect was, however, reduced by not being able to provide the offender with intensive psychotherapy due to the limited resources available in the prison system. [16] The opinion of the three psychiatrists who gave evidence was unanimous that, in her current mental state, the offender posed a serious threat to herself and to others, and that secure confinement with close supervision was required. 5 As at 23 November 2001, the offender was detained at the Mulawa Correctional Centre, a prison for women. I continued my remarks as follows: [17] Evidence was also given by Ms N Jess, a senior correctional officer, stationed at Mulawa. She had been the offender's case officer since the offender's transfer to Mulawa in July 1999. She saw her daily and reviewed her status monthly. [18] When first transferred to Mulawa, in July 1999, the offender was accommodated in the Mum Shirl Unit for about a year. She was then transferred to the segregation section of the Multi-Purpose Unit, which was staffed 24 hours a day. Freedom of movement within that section was more restricted than in other parts of the gaol. The offender was confined to her cell from 5 pm to 8 am and from 12 noon to 2 pm. That was some three and a half hours per day longer than for inmates in the general prison population. [19] The Mum Shirl Unit is for psychiatric inmates. The offender attended the Unit for educational and recreational activities, including music lessons and pottery, Monday to Friday, and sports activity on Sundays. The offender also attended group therapy sessions there, conducted by a staff psychologist, and periodic one to one sessions with the psychologist. The offender was allowed contact with the main gaol population in the Sacred Garden at the prison. She had been assisted greatly by having a mentor from the main gaol population who visited her daily. The offender assisted in the wing laundry and did some grounds maintenance under supervision. She had contact with a special needs teacher who was addressing literacy and numeracy. [20] The offender had goals: to be housed in the main population of the gaol and to work with the main gaol population. Although the offender's aggressive behaviour had diminished in incidence and severity over the time she had been at Mulawa, Ms Jess did not suggest that such goals were likely to be achieved in the foreseeable future. 6 I concluded my remarks of 23 November 2001 as follows: [31] Counsel agree that the appropriate order pursuant to s24(1)(b) is that the offender be kept in strict custody. That order would operate pending any further order of the Court in response to a determination by the Tribunal. The offender is presently accommodated at Mulawa Correctional Centre under conditions which are unsuitable and inhumane. She should, on the evidence before me, be accommodated in a secure psychiatric hospital ward, receiving appropriate treatment which is not available to her in prison. However, on the evidence before me, no such facility exists in New South Wales for females in this offender's mental condition. The situation may require more thorough examination by the Court when the Tribunal has made its determination. Meanwhile, as an interim measure, I make the order proposed by counsel. I order, pursuant to s24(1)(b), that the offender be held in strict custody. 7 The Crown appealed against my determination of 23 November 2001. On 15 November 2002, the Court of Criminal Appeal allowed the appeal, substituting limiting terms of three years and 10 years respectively (cumulative): Regina v Debbie Marie Adams [2002] NSWCCA 448. The orders referring the offender to the Mental Health Review Tribunal and that the offender be held in strict custody were confirmed. Ipp JA and Bell J agreed with the reasons for decision given in the judgment of Smart AJ. 8 At the time of the appeal, the offender was housed at the Parklea Correctional Centre, a prison for male offenders. The circumstances in which this came about were reviewed as follows by Smart AJ: [56] According to Mr Aboud's affidavit whilst she was at Mulawa Correctional Centre the offender was given two hours of exercise per day. She had no direct contact with other inmates. Due to her unpredictable and violent behaviour towards staff members and other inmates several attempts to place her in a "buddy system" proved unsuccessful. Her condition also precluded her from working (and being given the opportunity to work), undertaking full time education and participating in structural programmes within the gaol. [57] Mr Aboud stated that the offender's behaviour is sporadic. It rapidly changes from well behaved to threatening and assaulting staff and others. She is influenced and easily manipulated by other inmates. She is fixated by knives, sexual objects and anything related to death. She had been fixated on a particular staff member whom she believed was a reincarnation of the man she killed. Pictures and photographs including those of those women on fire, guns, knives and people being shot have been confiscated from her cell. [58] On 12 February 2002 an incident occurred at Mulawa. She had requested a mop and bucket. As that was being provided she assaulted two officers by hitting and punching. She was overpowered and returned to her cell. Her solicitor stated that on this day she self-harmed by embedding a piece of glass in her wrist. On 18 February 2002 she was transferred from Mulawa for the good and discipline of that Centre and for security reasons placed in a segregated unit at Parklea Correctional Centre. She is being held in that unit with one other female inmate and five other male inmates. She is kept apart from the male inmates. She is allowed out of her cell into her exercise yard between 9 am and 11.20 am and 12.15 pm and 3 pm. [59] The solicitor for the appellant has stated that the offender was angry and confused about the Crown appealing. The Notice of Appeal is dated 7 December 2001. It was served on her personally in prison in accordance with the usual practice but the date of service does not appear from the papers. It was suggested that the appeal may have been the cause of the deterioration in the offender's behaviour at Mulawa. The evidence does not establish this but it is a possibility. It was probably one of a number of contributing factors. 9 Further evidence by the offender's solicitor was reviewed by Smart AJ as follows: [60] The offender's solicitor visited her at Parklea on 9 April 2002. He said that her cell had an open barred addition some 3m by 5m outside it, that the addition was like a cage and faced west. There was a high wall in close proximity and an armed guard visible in the tower attached to the wall. The solicitor heard female voices shouting to each other through the bars. A number of males were sitting or standing in the barred cages outside the cells. The males speak to the female inmates by shouting when in the adjacent cages. The offender showed her solicitor an unsigned letter from her foster parents that they would not or could not have any further contact with her. He understood that they have had no further contact with the offender and that she has had no natural family contact since stabbing her mother. Thus she receives no personal visitors save for people associated with her legal and custodial affairs. [61] The solicitor stated that the prison authorities have consistently treated the offender as extremely dangerous and quarantined her from access to other inmates and prison officers. She is accompanied by other officers wherever she goes. [62] The solicitor started acting for the offender about 12 February 2001. He said that he had observed a significant improvement in her behaviour over the period he had known her. She presents to him reasonably and is not threatening. Her speech is no longer characterised by violent images and she shows a measure of insight into her predicament that had previously been lacking. [63] The solicitor, from his wide experience since 1996, of prison conditions including those in segregated prison environments, has stated that by comparison the offender has to date and will in the future apparently serve her limiting terms in harsher conditions than the average prisoner and in harsher conditions that he had observed in any male prison. 10 Further reports by Dr Brown were tendered on the hearing of the appeal. These and a report by the Serious Offenders Review Council were reviewed by Smart AJ as follows: [64] In her report of 21 January 2002 Dr L V Brown, the visiting psychiatrist at Mulawa stated that the offender's current placement was of concern, being limiting and not conducive to rehabilitation both socially and educationally and that she remained a high risk for further serious violent behaviour. Dr Brown wrote of the offender: "She remains pre-occupied with violent thoughts towards her mother but also hears 'voices' telling her to harm staff and other inmates here. She herself has expressed concern about whether she would be able to manage a unit where knives were more easily accessible. Her fantasies of violence are graphic and detailed. Although she shows some awareness that the consequences might be lengthy incarceration, her impulsiveness and degree of anger may well override any disincentive." [65] In her report of 3 June 2002 to the Serious Offenders Review Council Dr Brown reported that she had that day visited the offender in Parklea. Dr Brown wrote: "Debbie presented as much more settled and appropriate in her interactions. She expressed satisfaction with her transfer to Parklea. Although housed there in the segregation unit, she has more 'time out' from her cell and gets along much more peaceably with the officers. ... She complains of intermittent feelings of depression associated with suicidal ideation, however, she denied any intent or plans to self harm. She acknowledged ongoing thoughts of violence to others, but without specifying any individual thoughts. The main problem for her currently would appear to be that of boredom. She can't read well and apart from television and time out of her cell she has little to occupy herself with. ... Debbie has expressed a wish to stay on at Parklea rather than return to Mulawa. This seems to be a reasonable option at present excepting to say there seems to be little in the way of any type of therapeutic programme or educational opportunities." In an addendum of 24 June 2002, Dr Brown wrote: "With respect to Ms Adams' current condition ... she is not currently suffering with a recognisable mental illness. She does qualify for a diagnosis of a mental condition, namely, a severe personality disorder of an anti-social type, however, she is unlikely to receive any benefit from any form of psychiatric hospitalisation." [66] On 4 July 2002 the Serious Offenders Review Council dealt with an application of 15 May 2002 by Ms Adams seeking that her segregation be brought to an end and that she be allowed to return to the main section at Mulawa. This seemed to run counter to what she told Dr Brown on 3 June 2002. In the reasons for its decision the Council canvassed the history of the offender and the proceedings involving her, noting the remarks of Sperling J that she should be accommodated in a secure psychiatric hospital ward. [67] These remarks do not sit readily with Dr Brown's most recent opinion that Ms Adams is unlikely to benefit from any form of psychiatric hospitalisation. [68] There are no segregation yards attached to the units at Mulawa and that makes it very difficult to comply with the legislative requirements as to exercise and the like in respect of segregated inmates. The offender remains an extreme high security risk inmate, having been so designated by the Commissioner. She would not be kept in the main section of Mulawa and allowed to mix freely with other prisoners. That was her primary desire. If she has to be segregated, Parklea is better for her than Mulawa. [69] On 7 March 2000 she made statements threatening to stab someone, amounting to death threats. On 24 April 2002 she made a statement in effect inviting the tower officer to shoot her. She said that she wanted to see her blood and intestines. [70] There was no other place but Parklea at which the offender could be suitably housed. The Council determined that the offender remain at Parklea. 11 The Court of Criminal Appeal also had evidence from a psychologist, Dr CJ Lennings. Smart AJ reviewed his evidence as follows: [71] Dr C J Lennings, a highly qualified and experienced psychologist, has provided a detailed report dated 30 July 2002. He had access to a substantial volume of relevant material including psychiatric reports. He also had a telephone conversation with the welfare worker at Parklea and a short interview (about 20 minutes) with the offender because of her known intolerance for psychological examination. [72] Dr Lennings noted that Dr Brown thought that since her transfer to Parklea the offender had settled and that the welfare worker had reported that the offender had no equipment, organised activity or interaction in which to become interested and was completely socially isolated. Dr Lennings also noted that the offender was not receiving any specific psychotherapeutic treatment. Her primary treatment appeared to be an amalgam of confinement and medication. [73] Dr Lennings wrote: "Although Debbie has numerous diagnoses the diagnosis of most concern appears to be her personality disorder. Severe personality disorder probably underlies the perception of risk of dangerousness in Debbie. I note that psychiatric reports indicating that treatment is not available for this condition. Although the view is held that severe personality disorders are recalcitrant to treatment, over the last decade treatment programs for severe personality disorders have been developed, in particular for borderline personality disorder. The problem is that such programs require therapeutic hospital settings, are long (take at least 2 years), require both individual and group treatment processes, and are limited in their effectiveness in cases of comorbid presentations (more than one psychological disorder in the person's make-up). Generally, the effect of comorbidity is to both lengthen the course of treatment, and reduce the expectations for treatment gains. It appears that in our current public (mental) health system, such treatment programs are not available." and "Research in the child protection and forensic areas, however, suggests that the kinds of personality disorders of the dimensions revealed by Debbie are unlikely to alter much simply as a function of age until late in the 4th decade of life. Even then it is not known whether age related change alone will be sufficient to moderate her risk to others or to herself. It appears imperative that if Debbie is not to be held in gaol for the next 30 years or more, a dedicated treatment plan needs to be considered. ... Debbie is a young woman suffering from a range of severe and complex disorders that vastly limit her capacity to function. Her morbid pre-occupation with knives, the absence of any reasonable levels of pre-morbid functioning, and her long history of aggressive and destructive impulses signal a young woman who is both very disturbed and quite dangerous. ... It is most unlikely her level of disturbance will spontaneously resolve simply as a function of incarceration, and any amelioration of her risk (as well as any humane considerations that might be considered) will only take place if she is placed in an intensive, in-patient therapeutic setting. There is, I am informed, no opportunity for such a placement at this time ... In the interim, if Debbie is to remain in Parklea, consideration of her vulnerability and developmental needs has to be taken into account. Debbie is a young woman, still developing her identity. She has a need for exercise and an opportunity to get her weight gain under control. She requires opportunities for (safe) social interaction, and clearly has a major requirement for treatment. It is not possible for adequate treatment to be given to Debbie whilst in Parklea. The kinds of treatment Debbie needs are a mix of individual and group based strategies, and no group exists in Parklea that would be suitable for her. None the less, some beginnings of appropriate therapeutic contact should occur. This might ideally take the form of treatments modelled on the work of Linehan and Beck in managing severe and destructive personality disorders, and parallelled by a continuing monitoring of her relevant medication needs. If prison personnel are to be used for this purpose, an arrangement should occur such that the prison personal (sic) receive some supervision and debriefing in their therapy with experienced practitioners from Cumberland, or whatever other appropriate therapeutic venue she may eventually be transferred to. Ideally, transfer to some therapeutic venue will be considered, and to prepare for that, treatment from that setting should begin whilst she is in Parklea. This will enable a bridge into the next phase of her management, whilst security needs are managed." 12 Smart AJ recognised the difficulties posed by the case. He said, before proposing the orders which became the orders of the court: [75] This case poses problems of much difficulty. It is not easy to reconcile all the competing considerations or to make an even moderately accurate forecast of what is likely to happen in the future. 13 On 15 October 2002, the Mental Health Review Tribunal made a determination pursuant to s24(2) of the Mental Health (Criminal Procedure) Act 1990. The subsection provides as follows: 24(2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness, or (b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital. 14 The determination was as follows: The case of Ms Adams, having been referred to the Tribunal by the Court pursuant to section 24(1)(a) of the Mental Health (Criminal Procedure) Act 1990 , the Tribunal determines, pursuant to section 24(2) of the Act, that this person: (a) is not suffering from a mental illness; nor (b) a mental condition for which treatment is available in a hospital. 15 The Tribunal gave the following reasons for the determination: From the evidence presented to a hearing of this matter on 15 October 2002, the Tribunal is of the opinion that Ms Adams suffers from a borderline personality disorder with transient psychoses. At the present time there are no existing places in a hospital within the jurisdiction for the treatment of this mental condition. It is likely that the most beneficial situation for Ms Adams, given the high risk of violence she presents, is the development for her of a specific, humane and structured programme of containment within the correctional system. The Tribunal also recommends that Ms Adams should continue to be subject to psychiatric assessment and supervision.

In a cover letter, the Tribunal advised that a more detailed statement of reasons would follow, in conjunction with a contemporaneous review being conducted under s82 of the Mental Health Act 1990. The reasons for the delay in providing the determination were mentioned in the cover letter and were amply apparent from the further report when it came to hand. 16 The further report of the Mental Health Review Tribunal is dated 27 November 2002. It is appended to this judgment. I would summarise the main points in the Tribunal's report of 27 November 2002 as follows, before coming to the Tribunal's concluding observations:

(a) The offender is held in solitary confinement for 23 hours a day, being permitted to exercise outside her cell for about one hour; she has no contact with other prisoners; she has no contact with anyone outside the prison except her lawyer.

(b) Dr Brown, the offender's treating psychiatrist, had not seen her for a number of months following the offender's transfer to Parklea in February 2002. Dr J O'Dea was the offender's designated treating psychiatrist at Parklea. The frequency of attendances by him on the offender was not recorded in the Tribunal's report. The offender continued to suffer from troubling visual hallucinations and from auditory hallucinations telling her to do evil things to people. She was clearly depressed and had engaged in acts of self harm including slashing herself. She said she would like to go to a hospital and be treated for her illness.

(c) The offender had not seen an education officer for a long time and had had no access to other vocational programmes.

(d) According to Dr Brown, since the move to Parklea, Ms Adams had become much more settled. (This opinion must have been based on information from others.) Treatment for the offender's condition was very difficult. It would require a long period of extensive psychotherapy and there were no available resources for that kind of treatment in this state either within the public hospital system or within the prison system. According to Dr Brown, placing the offender where she would have greater contact with other prisoners was not feasible because of the high risk of violence. Because the offender seemed to do well in a structured situation such as at Parklea, Dr Brown thought the present arrangements were more beneficial than a therapeutic environment would be. According to Dr Brown, there was a possibility that the offender would mature out of her condition but that might be in 10 to 15 years time.

(e) The offender was not suffering from mental illness as defined in the Mental Health Act 1990 but from a severe personality disorder of an antisocial and borderline nature. 17 I then quote the following passage from the Tribunal's report, which embodies the Tribunal's overview of the case: Regrettably, resource and related constraints precluded the Tribunal from calling other expert testimony concerning the treatment options available to Ms Adams within either the mental health system or the correctional system of New South Wales. However, from the Tribunal's own knowledge of these treatment facilities there is nothing which would cast any doubt on the correctness of the views expressed by Dr Brown. It is nonetheless a somewhat damning indictment of the existing mental health and corrections systems that between them the best option that they can currently offer to Ms Adams is confinement in a male prison under conditions which can only be described as degrading and inhumane. Ms Adams may well require a structured environment where she can be detained in a way which minimises the risks of both self harm and harm to others. That environment is not one, however, which should require her containment for up to twenty three hours in a prison cell without the benefit of educational and other rehabilitative programs, even if psychotherapy is not readily available. In regard to education it seems quite likely that Ms Adams possesses the capacity for a higher level of intellectual functioning than some earlier assessments of her suggest. The development of a specific, humane and structured program of containment for Ms Adams represents a significant challenge given the high risk of violence she presents. It is still a challenge which should be accepted by both the health and correctional systems. Ms Adams will undoubtedly require ongoing psychiatric assessment and treatment as well as other forms of occupational and educational opportunities. Within New South Wales at the present time these types of opportunities are probably best provided within a corrections institution rather than a forensic hospital. Planning is underway for the construction of a new forensic hospital but this facility will not become available for a number of years. It should also be mentioned that Victoria does possess an excellent and modern forensic hospital which would almost certainly have available within its confines the types of therapeutic and allied programs currently lacking in New South Wales. Consideration might therefore be given to transferring Ms Adams to this Victorian facility if she were agreeable, and the appropriate agreements could be reached between the relevant authorities in Victoria and New South Wales. 18 The Tribunal went on to express the tentative view that, until such time as an order was made under s27 of the Mental Health (Criminal Procedure) Act 1990, the offender was not a forensic patient and, accordingly, the Tribunal was not mandated to review her case on a regular basis under the provisions of the Mental Health Act 1990. 19 The Tribunal was not on notice of the decision of the Court of Criminal Appeal given on 15 November 2002 when the report of 27 November 2002 was prepared. In a cover letter which accompanied the report, the President of the Tribunal said: Since preparing this decision I understand that the Court of Criminal Appeal has set a much longer limiting term for Ms Adams. I have not as yet had an opportunity to read this decision but felt that in the circumstances it would not affect anything that the Tribunal had determined in regard to its obligations under section 24 of the Mental Health (Criminal Procedure) Act. However, the nature of this extended limiting term makes it even more imperative that a plan be formulated to ensure Ms Adams' humane containment within a system which seems ill prepared to manage such a disturbed and dangerous inmate. 20 The next step to be undertaken is specified by s27 of the Mental Health (Criminal Procedure) Act 1900, which provides as follows 27 If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24(3), the Court may: (a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital - order that the person be taken to and detained in a hospital, or (b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital - order that the person be detained in a place other than a hospital. 21 It is unfortunate that something over four months has elapsed since the detailed reasons of the Tribunal were received by the Court. It would serve no purpose to review how this has come about. The reasons include the intervention of the annual Court vacation. The matter came before me on the 28 February 2003. Mr T. Hoyle SC appeared for the Crown and Mr L. Adamson, solicitor, for the offender. 22 I sought submissions as to the scope of the Court's function under s27 in the events that have occurred. Mr Hoyle SC submitted that, in view of the Tribunal's determination, I should make an order pursuant to s27(d), either in general terms that the offender be detained in a place other than a hospital or in more specific terms that she be detained at Parklea Correctional Centre. He submitted that it was not the function of the Court pursuant to s27 to do more than that. He submitted that it would be preferable to make the order in general terms, leaving it to the Tribunal to make further recommendations as it thought appropriate concerning where the offender should be detained at any future time. 23 Mr Adamson supported an alternative approach which was one I had proposed for consideration, namely, that I should, in effect, hold my own enquiry as to whether more adequate medical treatment could be provided for the offender and as to whether she could be accommodated under better conditions, including the possible transfer to a more suitable facility in Victoria. 24 Section 82 of the Mental Health Act (1990) provides, so far as is relevant, as follows: 82(1) The Tribunal may, at any time, and must, at least once every 6 months, review the case of each forensic patient and make a recommendation to the Minister: (a) as to the patient's continued detention, care or treatment in a hospital, prison or other place, or (b) in the case of a patient subject to a determination that the patient is unfit to be tried for an offence, as to the fitness of the patient to be tried for an offence, or (c) as to the patient's release (either unconditionally or subject to conditions). … … … (4) The Tribunal may not recommend the release of a forensic patient unless it is satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered by the person's release. (I mention below how this offender becomes a forensic patient, if she is not already one.) 25 On consideration, it seems to me that the scheme of the legislation is to invest the Tribunal with the primary responsibility of investigating and making recommendations as to the management of the offender in a case such as this. It is the Tribunal which is to make the determination as to whether the offender is suffering from mental illness or from a mental condition for which treatment is available in a hospital. If the Tribunal so determines, the Court may, pursuant to s27, order that the person be detained in a hospital; and, if the person is not suffering from such a mental state, then in a place other than a hospital. When a determination is made by the Court pursuant to s27, the offender is a forensic patient within the meaning of the Mental Health Act 1990 (by operation of the dictionary of terms in Schedule 1 of the Mental Health Act 1990). Section 82 of that Act then requires the Tribunal to review the case of a forensic patient periodically and to make recommendations to the Minister as to the offender's continued detention, care or treatment in a hospital, prison or other place, including any recommendation for the offender's release before expiry of the limiting term set by the Court. 26 In this scheme, the function of the Court pursuant to s27 of the Mental Health (Criminal Procedure) Act 1990 is a limited one, namely, to specify whether the offender should be held in a hospital or otherwise, having regard to the determination of the Tribunal as to whether the offender is suffering from a mental illness or from a mental condition for which treatment is available in a hospital and having regard to the Tribunal's reasons for that determination. Thereafter, any such determination by the Court may be varied by the Minister pursuant to a recommendation made by the Tribunal on subsequent periodic review. 27 In these circumstances, s27 of the Mental Health (Criminal Procedure) Act 1990 is the provision under which supervision of the case passes from the Court to the Tribunal, the Court taking into consideration the prior determination of the Tribunal pursuant to s24 and its reasons for that determination and the Court having the opportunity, in exercising its function pursuant to s27, of making such recommendations for the further management of the offender as the Court might wish to offer. 28 Having regard to these considerations, I do not regard s27 as requiring the Court to hold its own enquiry in order to discharge its functions. It may be that the Court is impliedly authorised to do so and that it would do so in an exceptional case for special cause. 29 Is this such a case? Ordinarily, a determination that the offender is suffering from a mental condition amenable to hospital treatment would lead the Tribunal to determine that the person is suffering from a mental condition for which treatment is available in a hospital. This case is exceptional in that, although the offender requires hospital treatment for a mental condition, no treatment is available for her in a hospital in New South Wales. The Tribunal has determined that the offender is not suffering from a mental condition for which treatment is available in a hospital because there is no available hospital, not because she is not suffering from a mental illness or a mental condition requiring hospital treatment. The present case is exceptional in that respect. However, this Court is in no better position than the Tribunal to investigate and to make appropriate recommendations for the management of the offender in these circumstances. Indeed, the Tribunal is far better qualified than the Court to perform that function. 30 There is accordingly no special reason for the Court to hold its own enquiry arising from the exceptional nature of this case as outlined above. 31 The Court might not be obliged to make any order at all. The section says "may" not "shall". But however that may be, it is necessary to do so in this case in order to ensure that the offender is a forensic patient within the meaning of the Mental Health Act 1990 and hence the subject of periodic review by the Tribunal. 32 Having regard to the determination of the Tribunal pursuant to s24 and the Tribunal's reasons for that determination, I propose to order that the offender be detained in a place other than a hospital situated in New South Wales. 33 I refrain from further specifying the place where the offender is to be detained. That is for two reasons. First, the least unsuitable place in New South Wales would appear to be the Parklea Correctional Centre. The conditions under which the offender is detained there are, however, inhumane in the extreme. I intentionally refrain from making an order which might be construed as approving the present arrangements. 34 Secondly, I note the Tribunal's reference to a facility in Victoria. I repeat that part of the Tribunal's report of 27 November 2002: It should also be mentioned that Victoria does possess an excellent and modern forensic hospital which would almost certainly have available within its confines the types of therapeutic and allied programs currently lacking in New South Wales. Consideration might therefore be given to transferring Ms Adams to this Victorian facility if she were agreeable, and the appropriate agreements could be reached between the relevant authorities in Victoria and New South Wales. 35 I have used the phrase "a hospital situated in New South Wales" in the proposed order to avoid any possibility that the order may be construed as precluding transfer to that facility or to any other suitable hospital in another state. 36 This Court would not have the power under s27 of the Mental Health (Criminal Procedure) Act 1990 to order that an offender be detained in a place outside New South Wales. So the prospect that the Victorian facility may, on investigation, prove to be suitable for the management of this offender is not a reason for this Court to conduct an enquiry of its own into that prospect. 37 The present conditions under which this offender is detained are effectively conditions of solitary confinement under the additional stress of a disturbing mental disorder which goes untreated. This cannot be allowed to continue if there is some way of improving the situation. 38 It is the understanding of Mr Adamson, solicitor for the offender, that at least one forensic patient, initially detained in New South Wales, has been transferred to the facility in Victoria under an arrangement between the states. The observation by the Tribunal that the Victorian facility would "almost certainly" be suitable requires that the prospect of a transfer to that facility be investigated, that this be done promptly and that a transfer be made promptly if the suitability of the facility is confirmed. 39 Meanwhile, everything possible should be done to improve the conditions under which the offender is presently detained. In that regard, I refer the authorities to the recommendations of Dr Lennings quoted in Smart AJ's judgment, at [73], which is reproduced earlier in this judgment at at [11]. 40 I make the following order:

Order, pursuant to s27 of the Mental Health (Criminal Procedure) Act 1990, that Debbie Marie Adams be detained in a place other than a hospital situated in New South Wales.

Reasons for Determination of the Mental Health Review Tribunal

FORENSIC REVIEW: ADAMS, Debbie Marie SECTION 24 OF MENTAL HEALTH (CRIMINAL PROCEDURE) ACT 1990 F692 - 2nd Review

TRIBUNAL: D Chappell President J Ellard Psychiatrist L Houlahan Other Member

The case of Ms Adams, having been referred to the Tribunal by the Court pursuant to section 24(1)(a) of the Mental Health (Criminal Procedure) Act 1990, the Tribunal determines, pursuant to section 24(2) of the Act, that this person:

(a) is not suffering from a mental illness; nor (b) a mental condition for which treatment is available in a hospital.

Ms Debbie Adams, who is now twenty (20) years of age, has been referred to the Tribunal by the Supreme Court in accordance with the terms of section 24(1) of the Mental Health (Criminal Procedure) Act 1990. This referral was made on 23 November 2001 by Mr Justice Sperling. On 12 September 2001, Justice Sperling, at a special hearing conducted before him without a jury, had found pursuant to section 19(1) of the Mental Health (Criminal Procedure) Act that on the limited evidence available Ms Adams had committed the offence of malicious wounding with intent to cause grievous bodily harm, and the offence of manslaughter. In accord with section 23 of the Act, Justice Sperling then went on to nominate a limiting term of one year commencing on 26 January 1999 and expiring on 25 January 2000 for the malicious wounding offence, and a limiting term of five years commencing on 26 January 2000 and expiring on 25 January 2005 in relation to the offence of manslaughter. Then, as required by section 24 of the Act, Justice Sperling referred the matter to the Tribunal while ordering that Ms Adams be held in strict custody at the Mulawa Correctional Centre under a warrant of commitment under section 62 of the Crimes (Sentencing Procedure) Act 1999.

Section 24(2) of the Act requires the Tribunal, upon receiving a referral of this nature, to determine whether or not:

"a) The person is suffering from mental illness; or b) a person is suffering from a mental condition for which treatment is available in the hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital. c) The Tribunal must notify the court which referred the person to it of its determination with respect to the person".

For reasons which will be explained in more detail below it was not possible for the Tribunal to notify the Court of its determination with respect to Ms Adams until 15 October 2002, when the Court was informed that: The case of Ms Adams, having been referred to the Tribunal by the Court pursuant to section 24(1)(a) of the Mental Health (Criminal Procedure) Act 1990 , the Tribunal determines, pursuant to section 24(2) of the Act, that this person:

(c) is not suffering from a mental illness; nor (d) a mental condition for which treatment is available in a hospital.

In an accompanying letter to Mr Justice Sperling the President of the Tribunal, Professor Duncan Chappell, indicated that more detailed reasons would be provided shortly to him in regard to the Tribunal's determination. These reasons follow.

The Tribunal conducted a formal hearing at Parklea Prison on 15 October 2002 to receive evidence concerning the issues to be determined under the provisions of section 24(2) of the Act. The Tribunal comprised the President, Dr John Ellard (psychiatrist member) and Ms Lynn Houlahan (other member). Ms Adams, who was represented by Mr Luke Adamson, appeared in person at the Tribunal. In addition to the documentary evidence listed in attachment 1 the Tribunal also heard personal testimony from Ms Adams, Mr Reardon, a chaplain at Parklea Prison and from Dr Lisa Brown, Ms Adams' treating psychiatrist.

At the commencement of the hearing the Tribunal outlined the reasons for the delay which had taken place in conducting its inquiry. The matter had initially been listed for hearing in January 2002 but at the request of Ms Adams then legal advisers, the Mental Health Advocacy Service, a postponement took place until February. A further postponement then occurred because Ms Adams expressed a wish to have the same legal representative who had conducted her Supreme Court proceedings deal with the present matter. At the time of granting this request the Tribunal was also informed by the Mental Health Advocacy Service that it was believed that the Director of Public Prosecutions was intending to appeal the limiting term set by Justice Sperling and that this could affect the Tribunal's own proceedings. The Tribunal indicated that it would await advice about such an appeal and its affect but that meanwhile it would wish to have fresh reports about Ms Adams' mental state from her treating psychiatrists which addressed the specific issues referred to in section 24(2) of the Act.

A fresh hearing date was eventually arranged in August 2002 at Parklea Prison where Ms Adams had been transferred from Mulawa Correctional Centre. On the listed date the Tribunal attended at Parklea and Ms Adams also appeared in person. However, her legal representative failed to appear and the matter had to be adjourned without hearing any evidence. A new hearing date was then set in September but immediately prior to this rescheduled hearing the Tribunal was informed by the Department of Corrections that Ms Adams had been taken to hospital after an act of self harm. As noted, the Tribunal was able finally to conduct its hearing in October. Speaking on behalf of Ms Adams, Mr Luke Adamson confirmed that the Court of Criminal Appeal had reserved its decision in relation to an appeal brought by the Crown against the decision of Mr Justice Sperling. He expressed his regret for what had been a misunderstanding on his part concerning the earlier hearing date.

Ms Adams told the Tribunal that she was being held in solitary confinement for up to twenty three (23) hours a day, only being permitted to exercise outside her cell for about one hour. She had no contact with other prisoners. There was one other female in Parklea but she was not housed next door to her cell. She had no contact with anyone outside the prison except her lawyer. She was trying to make contact with her sisters but her mother was not co-operating with her. Dr Brown still remained her treating psychiatrist but she had not seen her for some time.

The Tribunal questioned Ms Adams about her mental state and in particular whether she was continuing to have any troubling visual hallucinations of faces. Ms Adams said that she was still having such hallucinations and hearing voices but they were not as evident when she was taking Risperdal. The voices were telling her to do evil things to people. She was feeling depressed and had engaged in acts of self harm including slashing herself. She would like to go to a hospital and be treated for her illness.

Chaplain Reardon said that he had contact with Ms Adams on a periodic basis. He had probably seen her about half a dozen times since she had come to Parklea. Her accommodation was highly unsatisfactory. She had almost no contact with other people. Correspondence was very difficult with any outside contacts because of the monitoring system that applied within the correctional system. She was not able to speak with anyone else except by yelling and all of the cells adjacent to hers were occupied by males. There was no privacy in that sense. She had not seen an education officer in a long time nor had she had access to other types of vocational programs within the correctional system.

Dr Lisa Brown, a visiting medical officer and psychiatrist at Mulawa Correctional Centre gave personal testimony to the Tribunal by phone. Dr Brown referred to the most recent of a number of reports that she had prepared about Ms Adams since she came into her care at Mulawa Correctional Centre in July 1999. Dr Brown said that she had last seen Ms Adams about six weeks earlier when she was taken from Parklea to Mulawa Correctional Centre for an assessment by her. Technically, Dr Jeremy O'Dea was her designated treating psychiatrist while she was at Parklea but he too, like her, was only a visiting medical officer within the correctional system.

Dr Brown said that at the time she wrote her report of 3 June 2002, she had not seen Ms Adams for a number of months following her transfer to Parklea in February 2002. The transfer had been organised by the corrections authorities based on perceived difficulties in managing Ms Adams' behavioural problems and aggression within the Mulawa correctional setting.

Dr Brown said that she felt that since the move to Parklea, Ms Adams had become much more settled. So far as her medication was concerned there had been a trial period with her on Risperdal and this had been useful. However, she had suggested a trial of non-medication to re-assess Ms Adams' mental state free of psychotropic drugs. Dr Brown said that this trial would require the authorisation of Dr O'Dea and it had not as yet occurred.

Dr Brown said that she did not think that Ms Adams' current condition was one which amounted to a recognisable mental illness. She did have a mental disorder which was a severe anti-social personality disorder with transitory psychotic symptoms comprising auditory hallucinations but which were not of a form which could be described as a schizophrenic illness.

Given this diagnosis, treatment was very difficult. It would require a long period of intensive psychotherapy and there were simply no resources to conduct this either within existing hospital or correctional facilities. She had considered the possibility of the Bunya Unit at Cumberland Hospital but this unit was not resourced to deal with violent behaviour of the type exhibited by Ms Adams. Until such time as a new forensic hospital was built there was no health facility within NSW that could take Ms Adams. Indeed, even if a new hospital was in existence it would be unlikely to have the resources required to deal with Ms Adams' particular problems.

Questioned by the Tribunal about the possibility of placing Ms Adams in a setting where she would have greater contact with other prisoners, Dr Brown thought that this would not be a feasible approach. She had exhibited a high risk of violence and this would represent a significant threat whether she was housed in either a hospital or a prison. She had certainly done better at Parklea then at Mulawa and she also seemed to do well in a structured situation. Parklea was structured and she understood the rules and appeared to comply with them. This was more beneficial at the present time than a therapeutic environment could be. There was a possibility that Ms Adams would mature out of her condition but this might be ten (10) to fifteen (15) years away.

The initial question which must be considered by the Tribunal is whether or not Ms Adams is suffering from a mental illness. The views of Dr Lisa Brown concerning this issue have been set out above. It is significant that Dr Brown has been Ms Adams' treating psychiatrist since the time that she was received into custody at Mulawa Correctional Centre in July 1999. Dr Brown, unlike the other psychiatrists who have also made assessments of Ms Adams during the progress of her case through the criminal justice system, has had the benefit of both observing and treating Ms Adams on an almost continuous basis for more than three years. Given this situation the Tribunal places substantial weight on her assessment that Ms Adams' current mental condition is one which does not amount to a recognisable mental illness within the terms of the Mental Health Act 1990. However, according to Dr Brown, Ms Adams has a mental condition which is a severe antisocial personality disorder with transitory psychotic symptoms.

It should be indicated that Dr Brown expressed a similar view at the time that she gave testimony to the Supreme Court in the course of a special hearing conducted under the provisions of the Mental Health (Criminal Procedure) Act 1990 (see Regina v Debbie Marie Adams, Supreme Court of New South Wales, Criminal Division, 12 September 2001; MHRT exhibit 17). At that special hearing psychiatric evidence was also received from Dr Bruce Westmore, who had assessed Ms Adams on behalf of the Crown, and Dr Rosalie Wilcox, who assessed Ms Adams on behalf of the Defence. Both of these psychiatric experts also expressed views consistent with those of Dr Brown although Dr Westmore did suggest that Ms Adams had "a possible psychotic illness" (report of 23 July 2001; MHRT exhibit 25:5).

Having given careful consideration to this expert psychiatric evidence the Tribunal is satisfied that Ms Adams is not suffering from mental illness within the context of the definition of that term contained in the Mental Health Act 1990. The psychiatric evidence does suggest that Ms Adams may still be experiencing transitory symptoms of a psychotic condition, including hallucinations, but the most appropriate and convincing diagnosis is that Ms Adams is suffering from a severe personality disorder of an antisocial and borderline nature.

Having reached this conclusion about the nature of Ms Adams' mental condition the Tribunal must next consider whether it is a condition "for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital" (section 24(2)(b)).

As noted, Ms Adams is not currently being detained in a hospital. Justice Sperling's original order was that Ms Adams should be held in strict custody at the Mulawa Correctional Centre which caters exclusively for female inmates. More recently, for apparent safety and security reasons, Ms Adams has been transferred to an all male prison at Parklea.

In the course of her personal testimony to the Tribunal Ms Adams made it quite apparent that she wished to be both detained and treated at a hospital rather than a prison. Thus the real question which requires consideration is whether any treatment is available in a hospital for Ms Adams' mental condition.

Dr Brown was asked specifically by the Tribunal about her views on the availability of treatment for Ms Adams, either in a hospital or in a prison within New South Wales. Dr Brown was quite explicit in her response. She felt that providing any form of treatment was extremely difficult and would require intensive psychotherapy. There were no resources to undertake any such psychotherapy in either a hospital or a correctional facility within the jurisdiction. Dr Brown also pointed to the problems associated with housing Ms Adams in contact with other inmates because of her predilection to behave in a violent and dangerous manner. It was this behaviour which had led to her being housed at Parklea rather than Mulawa. At Parklea a structured environment was available for Ms Adams even though it was also an environment that isolated her from most types of programs and contacts with fellow inmates.

Regrettably, resource and related constraints precluded the Tribunal from calling other expert testimony concerning the treatment options available to Ms Adams within either the mental health system or the correctional system of New South Wales. However, from the Tribunal's own knowledge of these treatment facilities there is nothing which would cast any doubt on the correctness of the views expressed by Dr Brown. It is nonetheless a somewhat damning indictment of the existing mental health and corrections systems that between them the best option that they can currently offer to Ms Adams is confinement in a male prison under conditions which can only be described as degrading and inhumane. Ms Adams may well require a structured environment where she can be detained in a way which minimises the risks of both self harm and harm to others. That environment is not one, however, which should require her containment for up to twenty three hours in a prison cell without the benefit of educational and other rehabilitative programs, even if psychotherapy is not readily available. In regard to education it seems quite likely that Ms Adams possesses the capacity for a higher level of intellectual functioning than some earlier assessments of her suggest.

The development of a specific, humane and structured program of containment for Ms Adams represents a significant challenge given the high risk of violence she presents. It is still a challenge which should be accepted by both the health and correctional systems. Ms Adams will undoubtedly require ongoing psychiatric assessment and treatment as well as other forms of occupational and educational opportunities. Within New South Wales at the present time these types of opportunities are probably best provided within a corrections institution rather than a forensic hospital. Planning is underway for the construction of a new forensic hospital but this facility will not become available for a number of years. It should also be mentioned that Victoria does possess an excellent and modern forensic hospital which would almost certainly have available within its confines the types of therapeutic and allied programs currently lacking in New South Wales. Consideration might therefore be given to transferring Ms Adams to this Victorian facility if she were agreeable, and the appropriate agreements could be reached between the relevant authorities in Victoria and New South Wales.

One final matter which requires consideration by the Tribunal is the nature of Ms Adams' current status as a person detained at Parklea Correctional Centre and, more particularly, whether that status is one of a forensic patient. Ms Adams is in Parklea, a prison, after the original order made by Justice Sperling under section 24 (1)(b) of the Mental Health (Criminal Procedure) Act 1990 that she be held at Mulawa Correctional Centre, a prison for female inmates only. The transfer to Parklea was an internal decision made by the correctional authorities.

The issue of whether or not Ms Adams is a forensic patient is only of relevance to the Tribunal because of its statutory obligation, at least once every six months, to review the case of each forensic patient and to make a recommendation to the Minister:

"(a) as to the patients continued detention, care or treatment in a hospital, prison or other place, or (b) in the case of a patient subject to a determination that the patient is unfit to be tried for an offence, as to the fitness of the patient to be tried for an offence, or (c) as to the patients release (either unconditionally or subject to conditions)". (section 82, Mental Health Act 1990)

A forensic patient is defined within the context of the Mental Health Act 1990 as

"(a) a person who is detained in a hospital, prison or other place pursuant to an order under section 10(3)(c), 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act…)" [Schedule 1 Mental Health Act 1990].

In the present situation Ms Adams does not fall within any of these provisions of the Mental Health (Criminal Procedure) Act 1990 or the Criminal Appeal Act 1912, her order for detention as already mentioned being under section 24(1)(b) of the Mental Health (Criminal Procedure) Act 1990. Accordingly, it can be contended that Ms Adams is not in a technical sense a forensic patient even though she was originally referred to the Tribunal under section 14 of the same Act for a determination by the Tribunal as to her fitness to be tried. It may well be that there is a lacuna in the provisions of the relevant legislation which results in the termination of a person's forensic status once a limiting term is set and the provisions of section 24 come into play until such time as the relevant court has made an order under section 27. Such an order, which is discretionary, follows notification by the Tribunal of its determination in respect of a person under section 24(3) of the Act. Uncertainty would, however, continue if a court were to decide not to make an order under section 27, as has occurred in several recent cases known to the Tribunal.

The question of Ms Adams' status as a forensic patient was not raised at the time of the Tribunal's hearing on 15 October 2002 and it would be a breach of due process to adopt a pre-emptory position on this issue without first hearing submissions from the relevant parties. Nonetheless, the Tribunal expresses the tentative view that until such time as an order is made under section 27 of the Act Ms Adams is not a forensic patient and, accordingly, the Tribunal is not mandated to review her case on a regular basis under the provisions of the Mental Health Act mentioned earlier. Pending an authoritative ruling on this matter the Tribunal is forwarding copy of its reasons in this case to the Minister for Health but without making any recommendation to the Minister about Ms Adams' "continued detention, care or treatment" since any such recommendation would obviously impinge upon the powers and responsibilities already vested in the Supreme Court under the provisions of section 27 of the Mental Health (Criminal Procedure) Act. -o0o-

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