//
[2016] VSC 701
General information, not legal advice.
Supreme Court of Victoria
2016-12-01
Bell J
Original judgment source is linked above.
CRIMES MENTAL IMPAIRMENT - application for variation of custodial supervision order to non-custodial supervision order - whether release of applicant on non-custodial supervision order would seriously endanger safety of applicant or members of the public - whether applicant has completed a period of 12 months extended leave and complied with the conditions of that leave - whether it was too soon to place applicant on a non-custodial supervision order - whether a further period of extended leave under a custodial supervision order was preferable - whether granting application would be consistent with principle that applicant's freedom and personal autonomy should be kept to minimum consistent with safety of community - whether applicant would be likely to endanger himself or any other person or people generally - whether court has obtained and considered reports of medical practitioner and person having supervision of the applicant - Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 (Vic) ss 32(2)-(3), 39(1), 40(1), (2)(a) and (ab).
1 HP makes application pursuant to s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) for an order varying his custodial supervision order ('CSO') to a non-custodial supervision order ('NCSO'). In the alternative, he applies for a further grant of extended leave pursuant to s 57. The Secretary to the Department of Health and Human Services ('the Secretary") supports the application for variation of the CSO to a NCSO. The Attorney-General opposes that application but supports the application for a further grant of extended leave.
2 The events surrounding the index offence are set out in a summary filed by the Director of Public Prosecutions ('the Director') on 24 November 2014. The index offence occurred on 11 March 2004 when the applicant killed his aged mother while impaired by paranoid schizophrenic disorder against a background of polysubstance abuse. He had been non-compliant with his medication for five days prior to the offence and held the psychotic belief that his mother was the 'devil'.
3 On 27 June 2005, HP was found not guilty of murder by reason of mental impairment, and was declared liable to supervision under a CSO pursuant to s 26(2)(a)(i) of the Act for a nominal term of 25 years from 12 March 2004. Pursuant to that order, HP spent the next decade under the care of Forensicare at Thomas Embling Hospital.
4 HP was first granted extended leave for 12 months by Bongiorno JA in December 2014 after progressing through a rehabilitative regime at Thomas Embling Hospital. Further extended leave of the same duration was granted on 30 November 2015 by J Forrest J. In terms of s 32(3)(a) (see below), HP has therefore successfully completed a period of extended leave for a period of at least 12 months. The extended leave was subject to conditions. In terms of s 32(3)(b) (see below), he has complied with the conditions of that leave.
5 The current application for variation of the CSO was filed on 16 September 2016. In accordance with s 38C of the Act, the Director has given notification of this hearing to the relevant family members. The Director has also notified them of the opportunity to make a report on the conduct of the applicant and its impact on them. No reports have been received.
6 Consideration of HP's application is governed by s 32, which provides:
(1) On an application under section 31 for variation of a custodial supervision order ... the Court must, by order -
(c) subject to this section, vary the order to a non-custodial supervision order.
(2) The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3) In the case of a forensic patient or forensic resident -
(a) the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
7 As to his alternative application for further extended leave, s 57(2) provides:
(2) The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
8 Sections 39 and 40 specify a principle that must be applied and mandatory considerations that must be taken into account in the determination of applications for variation of a CSO.
(1) In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
11 As to the considerations that must be taken into account, s 40(1) specifies these:
(a) the nature of the person's mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
12 These mandatory considerations need not be given equal weight.[3] Ultimately a decision on an application of this nature is discretionary, provided that the principle set out at s 39 is applied and the considerations specified in s 40(1)(a)-(f) are taken into account. The weight to be attributed to the individual considerations will depend on the facts of the case.
13 In addition, s 40(2) provides that the court cannot vary a CSO to a NCSO unless it:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on -
(i) the person's mental condition; and
(ii) the possible effect of the proposed order on the person's behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) in the case of an application for extended leave - has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the court considers necessary.
14 Section 40(2)(a), (ab) and (c) apply in this case. The court has received the reports of Dr Shannon Reid dated 2 November 2016 and of Ms Eniola Akintola dated 14 October 2016 which satisfy the requirements under s 40(2)(a) and (ab) respectively. Dr Reid is HP's current treating psychiatrist at the Community Forensic Mental Health Service ('CFMHS'), and Ms Akintola is a registered nurse and his Case Manager.
15 On the evidence submitted by the Director, I am satisfied that notice has been given under s 40(2)(c) and that no family member or victim wishes to participate in the hearing.
16 HP is a 51-year-old single man with schizophrenia which is currently in remission. Records show some history of contact with psychiatric services when he was a child. He was seen by a psychiatrist at the age of nine and again during his adolescence. He was first diagnosed with schizophrenia at the age of 24.
17 HP had a number of admissions to public hospitals in the 1990s and a number of contacts with psychiatric services through the private psychiatric system. However, his treatment was compromised by poor compliance.
18 In January 2004, HP was admitted to the Alfred Psychiatry Unit with persecutory delusions and increasingly aggressive behaviour towards his family. He was placed on antipsychotic medication and mood stabiliser before being discharged on a Community Treatment Order to a supported accommodation. Unfortunately he did not comply with his treatment in the period leading up to the index offence.
19 Following his arrest and disposition for the index offence, he was admitted to the Thomas Embling Hospital in July 2005, with persecutory ideas and anxiety regarding his fellow patients. He was physically assaulted by a co-patient in 2005 which led to a period of deterioration in 2006 in which he reported auditory hallucinations and thought insertion that he believed to be the actions of the devil.
20 He made steady clinical progress after an uncertain start, progressing through the Canning and Daintree Units and was admitted to the pre-release Jardine Unit in December 2012 where he was able to engage in a range of community-based activities.
21 In May 2014, HP commenced a gradual transition to Austin Community Recovery Program ('Austin CRP'). He settled successfully into the program and managed conflict well whilst in the program.
22 He was officially discharged from Thomas Embling Hospital on 4 December 2014 after being granted extended leave. He was able to establish a healthy routine at Austin CRP which included attending the gym, socialising with a friend and participating in a cooking group. There has been no reports of drug use or significant adverse incidents during his stay at Austin CRP.
23 HP was successfully transitioned to independent living in Heidelberg on 3 August 2016. There was no evidence of mental deterioration during this transition.
24 Overall, he has remained free of positive psychotic symptoms, abstinent from illicit substances and alcohol, has been fully compliant with medication, and has developed positive and ongoing therapeutic relationships with those involved in his treatment.
25 HP has now been the subject of a grant of extended leave for almost two years. The evidence of his progress over the last 12 months has been summarised in two reports dated 2 November 2016 and 14 October 2016, which were respectively prepared by Dr Reid and Ms Akintola.
26 In his report, Dr Reid recites HP's psychiatric history. That history includes a well-established diagnosis of schizophrenia and obsessive compulsive personality features and anxiety in social situations, as well as a history of substance abuse.
27 Dr Reid observes that over the period of extended leave HP has maintained a good level of mental stability and compliance with his treatment and supervision. He has shown no evidence of relapse into psychosis or any positive symptoms of psychiatric illness for many years.
28 Dr Reid also observes that HP has developed a good level of insight into his mental illness despite experiencing ongoing challenges with understanding his interpersonal difficulties.
29 During his review with Dr Reid, HP presented with settled behaviour and exhibited no disorder of thought content or perception. Dr Reid observed a high level of precision and detail in HP's discourse but noted that it is within socially acceptable limits and that HP is able to engage well in conversation in general. Dr Reid notes that HP understands that he has schizophrenia which requires long-term treatment and supervision.
30 Dr Reid notes that HP is currently treated with Clozapine twice a day, 100mg in the morning and 550mg at night, as well as Sodium Valproate, 400mg twice daily, and antihypertensive Enalapril, 5mg a day. He has a history of epilepsy from early childhood. The records indicate that his seizures ceased in 1989 after commencement of Sodium Valproate save for one recent occurrence in September 2016. He has not experienced any further seizures since the dosage was subsequently increased.
31 Dr Reid also notes that HP has successfully transitioned to an independent flat in Heidelberg despite HP expressing concerns and feelings of anxiety about the move. An increased level of supervision was provided by his treating team and there has been no reports of deterioration during this transition. According to Dr Reid, HP has been able to adjust to his new living situation over the last six to eight months and it is likely that the situation will be stable for the foreseeable future.
32 Dr Reid observes that if the CSO were to be varied to a NCSO, it is expected that HP will have the advantage of a close degree of professional supervision and treatment. It is not expected that his attitudes to supervision or treatment will change in the near future, given his proclivity for maintenance of a rigid routine.
33 If a NCSO were to be imposed, HP would continue to see his case worker from the North East Area Mobile Support and Treatment Service, in addition to his treating psychiatrist or registrar. However, it is expected that this service would hand over his case management to the North East Area Mental Health Service.
34 HP would also transition from Forensicare's Community Integration Program team ('CIP') to its NCSO team. The role of the NCSO team would be to oversee his treatment and management by the North East Area Mental Health Service team and to provide specialist forensic input as required.
35 The level of supervision of HP's mental health would remain largely the same under a NCSO as it has been under extended leave on a CSO. The main difference would be the point of contact within his crisis management plan. Instead of contacting his CIP team at Forensicare during times of crisis, HP or others involved in his case would contact his treating team at North East Area Mental Health Service. If there were to be ongoing significant mental health concerns, any breaches of the conditions of the NCSO or a significant increase in his risk profile, his local treating team together with his NCSO team could apply to vary his NCSO to a CSO and re-admit HP back into Thomas Embling Hospital.
36 Dr Reid expressed the opinion that, with the assistance of these services, the risk of harm to others and to HP would be low and that the risk of clinical deterioration would also remain low.
37 Dr Reid concluded that overall the risk of harm to HP and others is considered to be low and it is likely this would not change in the medium to long-term if HP's clinical stability is maintained. Dr Reid confirmed that he and the CIP team supported HP's application for variation from a CSO to a NCSO.
38 As noted, Ms Akintola is HP's case manager. She has been supervising him since June 2013 and conducts reviews on a regular basis. She reports that HP has attended all case management meetings promptly and usually volunteers information relating to his transition in the community and engages well in all discussions with regards to his treatment.
39 Ms Akintola describes HP's mental state as remaining stable. She notes that, despite experiencing higher levels of anxiety during his transition from Austin CRP and requiring an intensified level of support from his treating services, HP has successfully transitioned to independent living. She also confirms that there was no evidence of relapse of psychotic symptoms throughout the transitioning process, adding that HP appeared to have adjusted to independent living and has demonstrated improved confidence in managing the challenge of living by himself.
40 Ms Akintola notes positively that HP has abstained from all drugs and alcohol whilst being on extended leave. He remains compliant with medication and is responsible for following up with monthly blood tests. He has maintained a good level of engagement with all services and there has been no concerns expressed by those with whom HP has most contact about breaching of any conditions of his order.
41 Ms Akintola confirms that HP had been accepted for case management at North East Mobile Support and Treatment Service prior to exiting Austin CRP. Currently staff from that service attend his flat three times a week. Since HP has demonstrated competency in managing his medication administration and there is no concerns about compliance, plans are in place to cease these visits. If HP's CSO is varied to a NCSO, he will continue to attend weekly reviews at that service with his key clinician, Mr Rowan Chipchase, and monthly Clozapine review with his consultant psychiatrist at that service.
42 As noted, the Secretary supports the application for conversion of the CSO into a NCSO but the Attorney-General does not. Counsel for the Attorney-General submitted that it would be too soon for HP to transfer to a NCSO as he has only recently moved into independent living, this move will involve changes to his treating arrangements and likely cause increased anxiety and therefore increased risk, which should be managed with a further period of extended leave.
43 While I appreciate the nature of these concerns, I think they were clearly addressed by the oral evidence given by Dr Reid and Ms Akintola, who were cross-examined by counsel for the Attorney-General.
44 Dr Reid stated that HP's move into a private flat has been carefully managed. Preparation began with transport training and continued into other areas. He moved into rented accommodation on 3 August 2016 and wants to stay there as long as possible The transition has been very smooth. While independent living as such is new to HP, in his previous supported accommodation he had his own room and came and went as he pleased. While his level of contact with Thomas Embling Hospital medical staff will be reduced and he will no longer access social programs at Austin CRP, he will receive a very good level of community care. That care will be supervised by the Forensicare NCSO team. HP was been managing his own medication very well and there has been no evidence of non-compliance.
45 Dr Reid agreed that HP has few supports outside his professional supports. He kept to himself. He did now have some contact with siblings. The change in his treating arrangements will be something for him to manage, but he should be able comfortably to do so. He was at low risk of interpersonal violence when clinically stable, which he was now and was expected to remain so. He experiences anxiety, but that should be well managed with the support that he will receive. There will be no significantly greater risk of harm to others or relapse if he were to transfer to a NCSO.
46 Dr Reid referred to a recent episode of epilepsy on the part of HP. This was a serious episode but was not related to his mental illness or any failure to take medication. HP managed it well. It did not place him at increased risk of deterioration of his mental health and does not mean that he is at greater risk of harming others.
47 Dr Reid commented favourably on HP's move to independent living and the medical and social support that he was receiving and would receive. He knew when to seek help and used support services very well. He was ready for the transition and there was no service provided by Forensicare that could not be provided in the community. Transferring to a NCSO rather than continuing with extended leave would not increase the risk of harm to others or of non-compliance with medication.
48 Ms Akintola's oral evidence was to the same effect from her point of view as HP's case-managing nurse since 2013. HP coped well with the epilepsy episode. If he went to a NCSO, she would no longer be his case manager, but he would be supported by Mr Chipchase from the Northeast Mobile Support and Treatment Service, who was present in court with HP. Mr Chipchase would be HP's key clinician. In Mr Akintola's opinion, transferring to a NCSO would have no impact on HP's behavioural compliance and would not affect his risk of harming others.
49 This testing of the evidence of Dr Reid and Ms Akintola has operated to confirm my view that HP's application for conversion of the CSO into a NCSO should be granted. I think he is well ready for that step and the statutory conditions have been satisfied.
50 HP suffers from schizophrenia in which condition he committed the index offence for which he was found not guilty on grounds of mental impairment. His schizophrenia has been in full remission since at least 2006 and he has been fully compliant with treatment since his discharge from Thomas Embling Hospital. In particular, his delusions about his mother and other family members and his audio hallucinations have not re-emerged in any form.
51 HP has a good level of insight into his illness and the need for long-term treatment, and there are adequate resources available for the treatment and supervision of the applicant in the community.
52 Both Dr Reid (his psychiatrist) and Ms Akintola (his case managing nurse) note that HP has progressed satisfactorily during extended leave despite experiencing ongoing anxiety and that his treating team supports his application for variation.
53 From a practical point of view, HP's care and supervision as provided by the local mental health service will remain unchanged if his CSO is converted to a NCSO. An additional level of supervision will be provided by Forensicare's NCSO team.
54 The Secretary supports the application for variation of the CSO to a NCSO. The Attorney-General wants to see further time pass on extended leave. The evidence supports the position taken by the Secretary.
55 On that evidence, I am satisfied that varying the applicant's CSO to a NCSO would not seriously endanger the safety of the applicant or members of the public as specified in s 32(2).
56 As required by s 32(3)(a), the applicant has completed a period of at least 12 months extended leave (in fact, two years). As required by s 32(3)(b), I have taken into account that the applicant has complied with the conditions of that leave.
57 As required by s 40(2)(a), I have obtained and considered the report of a registered medical practitioner, Dr Reid, in relation to the applicant. As required by s 40(2)(ab), I have obtained and considered the report of the person having the supervision of the applicant, Ms Akintola. Both support the application for conversion of the CSO into a NCSO.
58 In my view, the variation would be consistent with the application of the principle that restrictions on HP's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, as specified in s 39(1). In so concluding, I have had regard to the considerations specified in s 40(1)(a)-(b), and in particular that, under para (c), varying the CSO to a NCSO would not be likely to endanger the safety of HP, any other person or members of the public generally.
59 It was for these reasons that on 22 November 2016 I ordered that HP's CSO be varied to a NCSO. The orders that I made were as follows:
[1] [2012] VSCA 198 (24 August 2012) (Redlich and Harper JJA and Curtain AJA) ('NOM').
[3] NOM [2012] VSCA 198 (24 August 2012) [49] (Redlich and Harper JJA and Curtain AJA); see also Minister for Immigration and Citizenship v Khadgi and Anor [2010] FCAFC 145; [2010] 274 ALR 438, 458-9 [60]-[65] (Stone, Foster and Nicholas JJ); R v AB (No. 2) [2008] VSCA 39; (2008) 18 VR 391, 405 [45] (Warren CJ, Maxwell P and Redlich JA).
(2008) 18 VR 391