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[2015] VSC 170
General information, not legal advice.
Supreme Court of Victoria
2015-04-01
CROUCHER J
Original judgment source is linked above.
CRIMINAL LAW - Application for extended leave - Applicant, in 2009, at age 20 and when psychiatrically unwell, killed mother - Applicant found not guilty of murder because of mental impairment - Whether applicant or members of the public will not be seriously endangered if applicant granted extended leave - Two psychiatrists supportive of application - Whether application premature - Application granted - Conditions imposed on extended leave in accordance with leave plan - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 26, 28, 38C, 39, 40, 41, 47, 57, 57A, 75 & 76A.
For the Secretary to Department of Health and Human Services
1 On 31 March 2015, I heard an application by HWJ[1] ("the applicant") for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ("the Act").
2 On 4 March 2009, the applicant, who was then aged 20 and in the grips of a psychotic episode, bashed his mother to death. In particular, the applicant had a delusional belief, resulting from his paranoid schizophrenic illness, that his mother was trying to kill him and his family.
3 In September 2009, at a consent mental impairment hearing, the applicant was found not guilty of murder by reason of mental impairment and ultimately placed on a custodial supervision order.
4 Pursuant to that order, and for the last six years, the applicant has been receiving treatment at Thomas Embling Hospital. The psychiatric evidence is to the effect that his illness is now controlled with medication, that his positive psychotic symptoms have been in remission for about five years, that he has coped well on the more limited forms of leave he has had, that there are satisfactory supports and supervision available in the community, and that it is now safe to allow him to return to the community on extended leave with conditions.
5 The application was supported by the Secretary to Department of Health and Human Services ("the Secretary") but opposed by the Attorney-General for Victoria ("the Attorney"). The Attorney's submission was to the effect that the application was premature and that there were too many potential gaps in the plans for extended leave to meet the statutory test set out in s 57(2) of the Act. The applicant and the Secretary submitted that the evidence of the psychiatrists met those concerns.
6 On the strength of the available evidence, I was satisfied that the safety of the applicant or members of the public would not be seriously endangered as a result of the applicant's being allowed extended leave. Accordingly, on 1 April 2015, I granted the application and made an order for extended leave for 12 months, with conditions.
7 I gave ex tempore reasons for my decision but indicated I would publish detailed written reasons at a later time. These are those reasons.
8 As a teenager, the applicant developed a depressive episode with suicidal ideation. He displayed psychotic symptoms and, in some instances, aggressive behaviour towards others, including his father and his housemate.
9 In December 2008, at the age of 19, the applicant was admitted as an involuntary patient to a psychiatric inpatient unit at a hospital in rural Victoria. Early in January 2009, he was transferred to an inpatient unit at a specialist mental health service for young persons in Melbourne. He was diagnosed with first episode psychosis associated with poly-substance abuse. He had a history of abusing cannabis, LSD and other drugs from a very early age. While in the youth unit, he displayed ongoing psychotic symptoms, including a belief that he was able to read and influence other people's thoughts and that his thoughts could be influenced by others. He also reported a belief that his mother was trying to poison him. He absconded from the unit on three occasions. On one occasion, he surrendered himself to police because, again, he feared his mother was trying to poison him.
Applicant released from hospital on overnight leave
10 On 3 March 2009, having spent over two months at the youth unit, the applicant was assessed by a psychiatrist as suitable for overnight leave with his family, including his mother, at his sister's home. At the time of the assessment, the applicant denied experiencing any psychotic symptoms. The clinical notes showed an improvement in the applicant's condition in the previous fortnight. The psychiatrist was also informed that the applicant had been out of the unit on leave with his mother at least twice in the preceding days, and that there had been no concern about his behaviour at those times.
11 And so it was that the applicant was released into his mother's care at about 4:30 p.m. on 3 March 2009 on the understanding that he would be returned to the unit at 10:00 a.m. the next day.
12 As planned, on the evening of his release, the applicant attended his sister's home in Melbourne, with his mother, for a family function. When the applicant's brother-in-law returned home from work, he found the applicant and his (the applicant's) mother sitting at the dinner table. The applicant was holding a knife. He said he had the knife to protect himself from his mother. The applicant's brother-in-law took the knife and hid it and other knives in the house. The applicant's sister requested that their mother take the applicant back to the unit, but she refused. There were no further incidents that night.
13 The next morning, the applicant's sister and his brother-in-law went to work. The applicant's mother said she would return the applicant to the unit at 10.00am. Later in the day, the applicant's sister discovered that the applicant had failed to return to the unit and that attempts by those at the unit to call her mother had been unsuccessful. She rushed home and found her mother's body lying in a shed. Her death had resulted from extreme head injuries occasioned by multiple blows. The applicant admitted to his sister that he had killed their mother but said he had done so to protect their family.
14 Police attended. When asked by police what had happened, the applicant said he had punched his mother until she was dead. When asked why he had killed her, he said he thought she was trying to kill him and his family. He said she had knives and guns in a car and that she had been looking at knives when walking around the house. These were all delusional beliefs.
15 The applicant was arrested, charged with murder and eventually remanded in custody.
16 On 12 March 2009, the applicant was transferred from the Acute Assessment Unit at Melbourne Assessment Prison to the Atherton Unit of Thomas Embling Hospital. Since then, other than the occasions on which he has been on leave in more recent years, the applicant has been housed in one or other of the units at Thomas Embling Hospital.
17 After being committed for trial, the applicant appeared at a consent mental impairment hearing in this Court before Coghlan J on 7 September 2009.
18 Two forensic psychiatrists - Dr Danny Sullivan and Dr Grant Lester - examined the applicant and provided reports to the Court. Dr Sullivan also gave viva voce evidence. Both psychiatrists opined that, at the time of the killing, the applicant was suffering delusional beliefs associated with his mental illness of paranoid schizophrenia, such that he did not know that the conduct he was engaging in was wrong - that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
19 Counsel for the applicant and counsel for the Director of Public Prosecutions ("the Director") both submitted that the evidence showed that the defence of mental impairment was operative at the time of the killing. Coghlan J agreed. His Honour found the applicant not guilty of murder because of mental impairment[2] and declared him liable to supervision.[3] He added that, although it may be that the use of cannabis and LSD contributed to the applicant's condition, it was not suggested that he was suffering from a drug-induced psychosis at the relevant time.
21 In the course of delivering his reasons for decision, Coghlan J said the following, which remarks bear repetition:
I think it is important to reiterate what I said at the trial. Absolutely no blame attaches to any member of the family for these events. The consequences are terrible, but arise directly out of the wish of the deceased and other members of the family to do the right thing.
22 Now, more than six years after his admission to Thomas Embling Hospital, the applicant applies for extended leave.
23 "Extended leave" is leave for a "forensic patient" (which is the applicant's classification while subject to a custodial supervision order) to be absent from his place of custody for a period, not exceeding 12 months, and subject to conditions fixed by the Court, if any.[6]
24 Before extended leave is contemplated, forensic patients progress through graduated forms of leave, including on-ground leave (i.e. being absent from the hospital but within its surrounds) and limited off-ground leave (i.e. being absent from the hospital for limited periods, including overnight leave for up to three days in any seven-day period).[7] Applications for these categories of leave are determined by the Forensic Leave Panel.[8]
25 Applications for extended leave, by way of contrast, are determined by the court which made the supervision order to which the particular forensic patient or forensic resident is subject.[9]
26 Section 57(2) of the Act provides that a court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant's being allowed extended leave.
27 The notion of serious endangerment, which is employed in other provisions of the Act as well, requires consideration of, inter alia, both the level of risk that a harmful event might occur and the gravity of the harm that might be caused were the risk to materialize. Thus, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[10]
28 In considering the test in s 57(2), the Court also must have regard to the matters set out in ss 39 and 40 of the Act. Section 39(1) provides as follows:
(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.
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to -
(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
30 In NOM v DPP & Ors [2012] VSCA 198 ("NOM"), the Court of Appeal said this of ss 39 and 40:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the [person's] mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge 'must apply' the principle in s 39 or 'have regard to' the factors in s 40.[11]
No burden of proof; but Briginshaw gloss applicable
31 Also in NOM, when dealing with an appeal against a refusal of an application to revoke a non-custodial supervision order, the Court of Appeal held that no party bears an evidential or legal onus of proof on such an application but that the court should make its decision applying the civil standard of proof subject to the gloss in Briginshaw v Briginshaw (1938) 60 CLR 336.[12] All counsel in the present case submitted that the same principles apply to an application for extended leave. I accept those submissions and have approached the matter by applying those principles.
32 At the outset of the application, Ms Wilkinson, who appeared on behalf of the Director, read an affidavit which explained that written notice of the application had been given to some of the applicant's family members, in accordance with s 38C of the Act.[13] It was explained that, while the other family members were not notified in writing (because the Director did not have their contact details), they were aware of the hearing. In accordance with the practice on applications of this type, Ms Wilkinson was then excused, such that the Director took no further part in the hearing.
33 On the hearing of the application, I received evidence from the following sources:
34 First, in accordance with a direction given pursuant to s 76A(2) of the Act, the Director filed a summary of proceedings and facts to which various documents were annexed, including the presentment, the prosecution opening, transcript of the proceedings before Coghlan J, parts of the depositions and the reports of Dr Sullivan and Dr Lester.[14]
35 Secondly, the applicant filed a chronology.[15]
36 Thirdly, I also received the separate reports of, and heard viva voce evidence from, psychiatrists Dr Ria Zergiotis and Dr Ann Brennan.[16] I now turn to those reports and then will come to the psychiatrists' viva voce evidence separately.
37 The report of Dr Zergiotis is very detailed. My summary of its contents will adopt, in part, the report's structure.
38 Dr Zergiotis is a consultant forensic psychiatrist employed by VIFMH, which is also known as Forensicare. She has been the applicant's treating psychiatrist on the Jardine Rehabilitation Unit of Thomas Embling Hospital since 2012.
39 In preparing her report, Dr Zergiotis had regard to, inter alia, her regular clinical interviews with the applicant since June 2012, and her further interviews with him in February and March 2015 conducted specifically for the purposes of the report, as well as numerous documents, including the applicant's Forensicare clinical and legal files, psychological reports, the reports of Dr Sullivan and Dr Lester, and all Forensicare annual reports on the applicant.
40 In addition, Dr Zergiotis had regard to, and agreed with the opinions expressed in, Dr Brennan's report.
Summary of progress of admission to Thomas Embling Hospital
41 Atherton Unit (March to August 2009): The applicant spent the first six months of his admission to Thomas Embling Hospital at the Atherton Unit. During the very early part of that admission, the applicant consistently reported hearing voices and refused to discuss the killing of his mother. He had poor insight into his illness but was accepting of treatment. He was involved in a physical altercation with another male patient. The day after the altercation, he reported he could read other people's thoughts and that they were talking about him. By May 2009, the auditory hallucinations were less intense but his insight was still limited. He continued to engage with a psychologist, mainly for supportive work and to help improve his insight. By June, he was more consistently accepting of the death of his mother and was experiencing grief. The positive symptoms of his psychotic illness were achieving a good level of remission. In July, the applicant developed a mild depressive syndrome. He still had ongoing positive residual symptoms, mainly in the form of auditory hallucinations and thought broadcasting.
42 Bass Unit (September 2009 to May 2011): The applicant spent the next 22 months at the Bass Unit. In September 2009, he was isolative for extended periods and presented as guarded with limited insight. By October 2009, the applicant seemed more relaxed and his psychotic illness appeared to be in remission, but there were also clear indications of a grief reaction to the killing of his mother. In family meetings at the unit in September and December 2009, the applicant's sister and one of his brothers were able to discuss the applicant's early warning signs of relapse. In January 2010, the applicant tested positive for cannabis use (as a result of which his unescorted leave was suspended for a period) but his mental state remained stable. In February 2010, there was an increase in the applicant's suicidal thoughts, which coincided with several other events, including the recent suicide of a friend, his sister being overseas, his mother's birthday, an increase in the intensity of his psychology sessions and improvement in his insight. By later in 2010, there was no evidence of psychotic symptoms or depression, and his overall engagement with the rehabilitative process had improved. All reports of escorted leave to the community were positive and without incident during 2011. After some initial apprehension about the higher level of expectations of him should he move to the Daintree Unit, the applicant ultimately reported he was ready to do so.
43 Daintree Unit (May 2011 to January 2012): The applicant spent the next eight months in the Daintree Unit, where patients need to demonstrate a greater capacity for self-management and motivation. While there, the applicant's mental state remained stable with no evidence of residual psychotic symptoms. He was assessed by an occupational therapist as fully independent with his activities of daily living. He participated in various TAFE programmes, as well as several other groups, including, for example, those concerning symptom management and drugs and alcohol. There were numerous contacts and meetings with his family during this period, which included discussions about early warning signs and a safety plan. He was assessed as engaging well and productively with a range of rehabilitation activities. His escorted and unescorted leaves were without incident.
44 Jardine Rehabilitation Unit (January 2012 to current day): From January 2012 until the present day, the applicant has been housed in the Jardine Unit.
45 (a) 2012: In 2012, the applicant made good progress. While he was noted by staff to have a significantly blunted affect at times, he maintained his illness in full remission and utilized a large amount of unescorted and overnight leave appropriately. From May, his level of disclosure and spontaneous contribution in group discussions increased markedly. In June, he attended a friend's funeral and coped well. He began to look for private rental accommodation in a country town and to consider employment options, both with a view to a possible application for extended leave in the near future.
46 (b) 2013: During 2013, the applicant's illness remained in full remission. In the first half of the year, he had increased overnight leave. However, there were concerns about aspects of the applicant's discharge plan were he to be granted extended leave. For example, Dr Brennan was of the view that the proposed country location would not have the necessary mental health services and community linkages, and that there was a lack of structured activity proposed. In the result, the Community Integration Programme ("CIP") team, which included Dr Brennan, did not support an application for extended leave at that time. Initially, the applicant felt rather down about this state of affairs; but, by later in the year, he became more positive about a possible discharge plan involving his living in Melbourne.
(c) 2014 to early-2015: Throughout 2014 and in 2015, the applicant's mental state remained stable. In February 2014, he obtained transitional accommodation close to his sister's residence in Melbourne. He continued to work in volunteer positions in the community and was hopeful this would lead to paid employment. He also continued to engage positively with the psychologist. He made good progress in the rehabilitation programme. Some of things the applicant achieved in the six months to March 2015 included the following: He completed an advanced group for those close to full-time community living; obtained paid casual employment as a cleaner; developed a good working relationship with a new Co-Health case worker; appropriately utilized his day and overnight leaves in the city and the country; and engaged well with the CIP team.
47 Dr Zergiotis then addressed a number of matters concerning community integration.
48 Leave history and progress: The applicant's leave started as escorted off-ground leave when in the Bass Unit; then progressed to limited unescorted off-ground leave and accompanied off-ground leave with family when in the Daintree Unit; and then to unescorted leave, overnight leave with family and overnight leave in his own residence when in the Jardine Unit. As indicated earlier, Dr Zergiotis is of the view that all leave has been utilized appropriately.
49 Community linkages: Dr Zergiotis reported on several community linkages which she considered to be satisfactory.
50 Accommodation: The applicant's transitional accommodation has worked well. He has come to know and get along with his neighbours.
51 Family support: The applicant's family has been "highly supportive throughout his admission" to the hospital. He visits his father each fortnight in the country. His relationship with his brothers has improved over time. His sister, to whom he is close and upon whom he appears to have placed particular reliance for support, will be going on an extended overseas trip later in the year. The applicant did not consider this to be a concern for him. (I shall return to this issue later.)
52 Employment: The applicant's employer is aware of the applicant's admission to the hospital. He reports that the applicant is doing "extremely well within his role" and that there have been "no concerns".
53 Finances: The applicant receives a disability support pension which is supplemented by his earnings from casual work.
54 Drug and alcohol issues: The applicant completed drug and alcohol work during his time at the hospital. However, he was not accepted for a referral for drug and alcohol counselling in his local area because he has been abstinent for so long and has had no particular craving. Some of the applicant's friends are illicit drug users, but he is aware of the importance of his continuing to abstain. He also appears motivated to do so. He considers that, to do otherwise, would be to dishonour his mother's memory. The only evidence of illicit drug use in the six years he has been at the hospital is when he tested positive for cannabis use in January 2010. He has completed work around a safe alcohol drinking plan.
55 General practitioner ("GP"): The applicant has a local GP in the community.
56 Psychology: The applicant completed a significant amount of individual work with psychologists at the hospital. He reported feeling he has sufficient supports in place not to require psychological assistance but would access counselling or psychological services in the community if required.
57 Community management: The applicant would be under an intensive level of supervision and monitoring by the CIP team for the first three months of any period of extended leave. The details of this supervision are spelt out in Dr Brennan's report, to which I shall come shortly.
58 Future goals: The applicant's long-term goal is to move back to his home town in rural Victoria. Also, he hopes to find alternative employment.
59 HCR-20: Dr Zergiotis applied the Historical Clinical Risk Scale ("HCR-20") to assess the applicant's risk of personal violence. The HCR-20 consists of three subscales of risk factors: historical (past), clinical (present) and risk management (future).
60 Historical: While the historical factors suggested at least moderate risk of future violence in the longer term, this risk was moderated by the clinical and risk management factors.
61 Clinical: Of the five clinical items, only one - problems with insight - was rated as partially/possibly present. While he has a good understanding of his illness, his symptoms and his early-warning signs of relapse, as well as factors that could lead to destabilization of his illness (including substance abuse and isolation from supports), the area of partial insight identified by Dr Zergiotis is the applicant's belief that, were he to become unwell, he would not be capable of serious violence. The applicant believes that the impact of his mother's death, and his and his family's ability to detect any early warning signs of relapse, would avoid the risk of any such incident. Dr Zergiotis opined that the applicant has a "somewhat ... unrealistic expectation that he would maintain insight and have full control over the situation were he to become significantly unwell in the future".
62 Risk management: The only two risk management factors rated as partially present were areas of personal support and the stress of coping with full-time living in the community were he to be granted leave. The only concern as to personal support is that some of the applicant's friends engage in illicit drug use (in particular, cannabis) and may do so in his presence. On the other hand, the applicant maintains that he wishes to remain abstinent and that his friends and family support him in this regard. As to the stress of coping with full-time community living, the applicant has had a tendency to bottle up emotions and his distress is not always observable by others. On the other hand, the psychological work completed in recent years suggests he is now more able to discuss his feelings with others.
63 Assessment: Overall, using the HCR-20 tool, Dr Zergiotis assessed the applicant's risk of violent behaviour within the next six to twelve months as being in the low range. If his psychotic symptoms remain well controlled and he remains abstinent from illicit drug use, he will continue to pose a low risk in the future.
64 Dr Zergiotis concluded as follows: The risk of the applicant causing harm in the future stems from his experiencing positive psychotic symptoms, which in turn would be precipitated by non-compliance with medication and/or illicit drug use. Those symptoms have been in remission for five years with treatment on the antipsychotic medication Olanzapine. If the applicant complies with his medication and abstains from illicit drug use, he will remain well and will continue to present only a low risk to himself or others while on extended leave. He has made significant gains in the rehabilitation programme while on the Jardine Unit. He has made a successful transition to the community setting. Were extended leave to be granted, there would be adequate supervision and monitoring in place to ensure the necessary compliance with medication and abstinence from illicit drug use. Further, if his mental health were to deteriorate, there would be sufficient monitoring and supports in place to ensure the necessary intervention would occur before any harm might be caused.
65 In those circumstances, Dr Zergiotis was supportive of the application for extended leave.
66 Dr Brennan's report is also is very detailed. My summary of the contents of this report also will adopt, in part, the report's structure.
67 Dr Brennan is a consultant forensic psychiatrist within the Community Integration Programme ("CIP") at the Community Forensic Mental Health Service ("CFMHS").
68 As part of her current role, Dr Brennan has interviewed the applicant and members of his family several times since mid-2013. Previously, Dr Brennan was the applicant's treating psychiatrist on the Bass Unit at the hospital. During that period, from 2009, she managed the sub-acute phase of the applicant's illness and met with his family during his court proceedings leading to the orders made by Coghlan J.
69 In preparing her report, Dr Brennan had regard to, inter alia, similar documents to those considered by Dr Zergiotis, including an Intensive Case Review Summary compiled by the Jardine Unit team; a Risk Assessment Update written by Dr Bronwyn McKeon, clinical and forensic psychologist, on 12 February 2015; and a CIP Case Management Summary written by Victoria Cohn, the applicant's case manager, on 6 March 2015.
70 In addition, Dr Brennan had regard to, and agreed with the opinions expressed in, Dr Zergiotis's report.
71 The applicant is currently prescribed Olanzapine (25 mg) and Nexium (40 mg). He has commenced using a dosette box in preparation for taking his medication in this way when residing in the community.
72 The applicant shows no signs of lowered mood or residual or active persecutory delusions. He has a good level of insight into his illness and past triggers of illness. He has a positive view of the contribution that antipsychotic medication has made to his recovery. He understands the link between his illness and past violence. He believes that, if he were to relapse in the future, he would be able to identify his symptoms and seek help. He has positive views about staying engaged with long-term supervision and mental health follow-up.
Community engagement and progress, case management and community linkages
73 Dr Brennan first reviewed the applicant in her role as CIP psychiatrist in July 2013. During that assessment, it became clear that, although the applicant was well and that his mental state was stable, there were significant gaps in his discharge plan. He was planning to live in rural Victoria, yet no local mental health follow-up had been arranged and he had no work or accommodation organized. The view was taken that the applicant would need to reside in Melbourne to facilitate the appropriate level of mental health follow-up and supervision required for extended leave. He was discharged from the CIP at that time, with a view to his returning to that programme when the necessary supports and linkages were in place.
74 Dr Brennan resumed seeing the applicant from May 2014. He has engaged very well with her since that time. Much of her work during that period, with both the applicant alone and with him and his family, has concerned the early warning signs and symptoms he experienced leading up to the killing. He dealt with this process, which would have been distressing, without any resistance or destabilization of his illness.
75 Dr Brennan regards the applicant's insight as good, but, like Dr Zergiotis, she also expressed a concern with respect to his belief that, were he to become unwell, he would be able to recognize and report his symptoms. In her view, it is possible, based on his history, that both his insight and his capacity to report symptoms would reduce.
76 Another component of the work Dr Brennan completed with the applicant and his family is the development of a relapse prevention plan, so that he and those supporting him have a very clear idea of his relapse pattern and the strategies for action should there be any concern about his mental health. The plan has been distributed to the applicant, his family, a close friend and a worker from Co-Health.
77 The applicant's CIP case manager, Ms Cohn, has also completed a crisis plan, which is a document that outlines clinical details and a crisis response for mental health services were the applicant to need urgent assessment and treatment. The plan is distributed to the applicant's GP and the relevant mental health triage services.
78 Dr Brennan is of the view that the applicant appears very motivated to remain free of illicit drugs. She observed that, when discussing this issue, the applicant refers to the impact that any drug use would have on his family and the memory of his mother.
79 The applicant wishes to drink alcohol on social occasions if granted extended leave. He has identified a "safe" level of drinking - which is said to be a maximum of three occasions per week up to a maximum of three or four drinks per occasion. Dr Brennan would have some concerns if he were drinking to this maximum level every week. At the time of writing her report, she intended to discuss this further with the applicant and review the issue regularly as part of her ongoing treatment.
80 Dr Brennan is of the view that the applicant has a very supportive family network. The applicant's sister and his father would be the CIP's primary points of contact within the family.
81 Dr Brennan also noted that the applicant has been seeing his CIP case manager Ms Cohn on a monthly basis, and that he has demonstrated a capacity to engage with her in an open and therapeutic way.
82 Dr Brennan considered it positive that the applicant had obtained paid employment. His employer is aware of the applicant's illness and history. The applicant has consented to Ms Cohn contacting his employer regularly to discuss his progress and any identified concerns. Dr Brennan considers that, were the applicant to seek other employment, this should be supported by an employment consultant.
83 The applicant intends to reside in the transitional housing he has obtained in Melbourne for 12 months if extended leave is granted. His long-term goal is to return to the rural town in which some of his family and friends reside.
84 The applicant has engaged in weekly appointments with his Co-Health mental health support worker, Mr Kennedy, since September 2014. Co-Health is described as a mental health support service provider which utilizes a collaborative recovery model to identify client values, establish goals and support clients in progressing towards achieving these goals. Mr Kennedy would continue to be involved with the applicant if granted extended leave.
85 Dr Brennan's view of the applicant's risk of violence was substantially the same as Dr Zergiotis's.
86 Historical: Dr Brennan opined that, while the historical factors suggest at least a moderate risk of future violence by the applicant, that risk is moderated by the clinical and future risk factors.
87 Clinical: Insight is the only clinical risk factor that Dr Brennan rated as even possibly present. While the applicant has a very good understanding of his early warning signs and symptoms, of the link between his illness and his past violence, and that illicit substance use and non-compliance with medication could destabilize his illness, there remains some concern that he consistently reports a belief that he will be able to identify symptoms of relapse and seek help in order to prevent future violence. Dr Brennan considers that the applicant needs to incorporate his past difficulties in disclosing symptoms into his understanding of illness management. This is a clinical area that would be monitored, and the provision of collateral mental state information also would moderate the risk related to this particular area of insight. Further, Dr Brennan currently has no clinical concerns about the applicant in the area of violent ideation or intent; she has detected no current symptoms of mental illness or evidence of instability of affective, behavioural or cognitive functioning; and he has shown a good overall treatment and supervision response.
88 Future risk: As to future risk factors, Dr Brennan identified the same two - personal support and stress - as Dr Zergiotis identified as possibly being present. In Dr Brennan's view, those factors can be managed by ongoing monitoring and support by family, friends and professionals.
89 In Dr Brennan's opinion, the most likely high risk scenario of future violence would present itself if psychotic symptoms returned. Such symptoms might be paranoid delusions with respect to family or friends; delusions of thought control or witchcraft; appearing fatuous, perplexed, preoccupied or guarded; giggling inappropriately; formal thought disorder; auditory hallucinations; seeing shadows or experiencing nightmares with violent or psychotic themes; absence of insight into the abnormality of experiences; denying the presence of symptoms when unwell; thoughts of self-harm; disorganized suicide attempts; and being at risk of absconding. If the applicant's mental state destabilized, or if he became less compliant with treatment, or if he engaged in illicit substance use, or if he withdrew from personal and professional supports, these would all indicate a potential increased risk of violence. Thus, monitoring of the applicant's mental state and preventing relapse are core components of managing his future risk of violence.
90 Dr Brennan recommended a community supervision plan, which is a key part of the monitoring and support structure she envisaged upon a grant of extended leave. The components of that plan include the following:
91 First, the applicant would be seen by Dr Brennan (or the CIP psychiatry registrar) on a fortnightly basis from the commencement of extended leave. She would review his mental state, risk factors and risk management plan, and his level of engagement, at every review. A major focus of her review would be to detect early warning signs of relapse and/or the development of a potentially high risk scenario. The frequency of psychiatric appointments would be reviewed after three months but would still be held at least monthly thereafter.
92 Secondly, the CIP case manager would review the applicant fortnightly during the first three months of leave but would still see him at least monthly thereafter. Home visits would be included.
93 Thirdly, the CIP case manager would contact the applicant's family for feedback on a fortnightly basis for the first three months and at least quarterly thereafter.
94 Fourthly, the CIP case worker would communicate with the applicant's Co-Health worker and his employer at least monthly during the first three months and reduce the frequency of contact if he remains clinically stable.
95 Fifthly, random urine screens for the use of illicit drugs would occur at least quarterly. Random breathalyser testing for alcohol consumption would also occur.
96 Sixthly, blood testing, and checks with the dispensing pharmacy, would occur periodically to monitor the applicant's compliance with antipsychotic medication. The CIP case worker would also check the applicant's dosette box on home visits.
97 Seventhly, a comprehensive crisis plan would be distributed to clinical services that may be involved in the applicant's care were he to relapse and hospital admission had to be considered.
98 Dr Brennan also annexed to her report a recommended leave plan, as required by s 57A of the Act. The leave plan required that the applicant remain under the supervision of, reside at an address approved by, and comply with the lawful directions of, the authorized psychiatrist of VIFMH; and that he comply with treatment and testing, and attend appointments, as directed by the authorized psychiatrist. The plan also required that the applicant abstain from the use of illicit drugs; that he abstain from the consumption of alcohol other than as agreed with his treating team; and that he not leave Victoria without the written permission of the authorized psychiatrist.
99 Given the foregoing, Dr Brennan was supportive of the application for extended leave.
100 Before the two psychiatrists were called to give viva voce evidence, I ascertained the positions of the parties based on the psychiatric reports and other materials.
101 Ms Evans, counsel for the Secretary, advised that her client supported the application for extended leave, for the full period of 12 months, and submitted that I should include as conditions on that leave the matters set out in the leave plan. Mr Marsh, counsel for the applicant, made the same submission.
102 Ms Blok, counsel for the Attorney, indicated that her client opposed the application. In short, it was submitted that the application was premature in view of what were said to be unresolved potential stressors bearing on the possible destabilization of the applicant's mental health and the consequential risk of harm such destabilization might bring.
103 As is the practice on these applications, the psychiatrists were called as witnesses by counsel for the Secretary. Each witness adopted her report and was cross-examined by counsel for the Attorney and by counsel for the applicant.
104 Counsel raised the Attorney's concerns with both Dr Zergiotis and Dr Brennan in their viva voce evidence. I shall set out the psychiatrists' evidence about some of these matters.
105 Dr Zergiotis was asked whether the frequency and duration of overnight leave the applicant had had was comparable with other patients whose applications for extended leave had been granted. She said that six months would be the minimum period required to observe a patient on overnight leave in order to assess whether transition to community living would be successful. In the applicant's case, he had been on such leave for "a significant period", a longer period than usual, in preparation for extended leave. He had also spent over three years on the Jardine Unit - which requires patients have a high degree of independence in their daily living - whereas most patients would spend 12 to 18 months on the same unit before being granted extended leave.
106 Both psychiatrists were asked about their concerns about the applicant's insight. Dr Zergiotis explained that, "overall", the applicant's "level of insight is very good to excellent". She added that she has "a high level of confidence that any signs of relapse would be picked up fairly early ... and would not progress to the point where [he] was acutely and frankly psychotic". Dr Brennan agreed with Dr Zergiotis. She said, were extended leave granted, she would factor in to her mental state reviews her knowledge of the applicant's level of insight. She was "very confident that [those involved in his care] would be able to detect and manage a relapse".
107 Both witnesses disagreed that there was a need for monitoring by a psychologist were extended leave to be granted. Dr Zergiotis explained that the applicant has had "an extensive amount of psychological work". She also opined that Dr Brennan and others in the CIP team will be able to treat him adequately; but that, were the view to be taken that more psychological treatment was needed, that could be arranged.
108 Both witnesses accepted that it is essential that the applicant not take illicit drugs, but were of the opinion that he has sufficient motivation to abstain and that there would be adequate monitoring to ensure any use would be detected. Dr Zergiotis also pointed out that the applicant had remained drug-free in over two years of extensive community leave, which leave included exposure to drug-using peers.
109 In response to the suggestion that the absence of the applicant's sister - who was going to be overseas for an extended period later this year - would impact on the applicant's ability to cope in the community, Dr Zergiotis accepted that it would be a possible stressor but opined that there were enough supports in place to accommodate that change. She also pointed out that, while his sister's absence was one of a host of factors linked to an increase in suicidal thoughts, that had occurred back in 2010, when the applicant in the sub-acute unit. Dr Brennan added that the CIP have allowed for the applicant's sister's absence in their treatment planning and that the applicant and his sister plan to keep in touch while she is away.
110 Other concerns were raised as well. In summary, both witnesses opined that the Attorney's concerns were not justified in the present case. Rather, both considered that there were sufficient strictures and supports in place to ensure that the applicant's mental health remained good and that, if it were to begin to deteriorate, this would be detected and dealt with as required.
111 Ms Evans, on behalf of the Secretary, submitted that the evidence showed there was not a risk of serious endangerment to the public or the applicant were extended leave to be granted.
112 Counsel addressed the factors listed in s 40(1) and s 57(2). First, while the nature of the applicant's mental impairment (s 40(1)(a)) was one of chronic paranoid schizophrenia, that illness was controlled by medication and had been in remission for five years.
113 Secondly, there was a direct relationship between his impairment and the killing (s 40(1)(b)), as he was suffering the delusion that his mother was going to kill him and his family.
114 Thirdly, the likelihood the applicant, if released, would seriously endanger himself or others because of his mental impairment (ss 40(1)(c) and (d) and 57(2)) is low. While the psychiatrists considered there is a possible concern about the applicant's insight, their opinion was that, overall, his insight was very good to excellent and, in any event, there would be monitoring and supports in place to ensure that any deterioration in his mental state would be detected before it reached the stage of presenting any risk of harm. The applicant is compliant with medication and accepts he will have to take such medication all his life. The applicant's family are well aware of his illness, and the signs of his being unwell, and are engaged in supporting him. The conditions in the leave plan addressed many of the areas of concern raised by the Attorney. For example, the applicant requires approval from the authorized psychiatrist before changing address; he must comply with treatment and testing and attend appointments as directed by the authorized psychiatrist; and he must abstain from the use of illicit drugs. Finally, his gradual community integration through the use of day and overnight leave has been successful.
115 Fourthly, Ms Evans submitted that the evidence shows that there are adequate resources available for the treatment and support of the applicant in the community (s 40(1)(e)). The applicant has housing; access to staff at the CIP; and the support of his family and friends. He will be seeing Dr Brennan and Ms Cohn frequently.
116 Finally, Ms Evans submitted that another relevant consideration (s 40(1)(f)) is that the applicant coped very well with the setback that occurred in 2013, when Dr Brennan and the CIP team did not support the discharge plan. Further, the fact that Dr Brennan and the CIP team were not prepared to support an application for extended leave at that time, but are now (given the revised discharge plan), should give the Court confidence that there are sufficient supports in place to ensure that a grant of extended leave would be successful.
117 Ms Blok submitted that the Court could not, or at least should not, be satisfied that the safety of the applicant or members of the public would not be seriously endangered as a result of the applicant's being allowed extended leave.
118 In particular, it was submitted that, despite the evidence of the psychiatrists, there were "too many risks or potential stressors present" to allow the conclusion that the moderate risk presented by the historical factors is reduced by the clinical and risk management factors to a low level. Ms Blok submitted that several factors - including the concerns about the applicant's insight into his capacity to identify symptoms of relapse, his tendency to bottle up emotions, the absence of his sister for a substantial period, the absence of ongoing psychological support, the fact that he would not be seen daily by mental health professionals or family, the stresses involved in the transition from hospital living to community living, his relative youth, his potential exposure to drug-taking peers, the transitional nature of his housing and the casual nature of his employment - mean that the risk of deterioration in the applicant's mental state is greater than that estimated by the psychiatrists. Further, when regard is had to that higher risk, coupled with the gravity of the harm that might be caused were he to become unwell, the test in s 57(2) was not met. Ms Blok submitted that, even if I accepted the evidence that the risk of relapse was low, those same factors should cause me to conclude that the test in s 57(2) was not met.
119 It was also submitted that a period of six years between the incident and extended leave was not very long when regard is had to the gravity of the incident in this case. Ms Blok referred to another case in which there was a ten-year period of compliance before leave was granted. In her submission, the Court should wait perhaps another year in this case before permitting extended leave, by which time the applicant's employment and housing could have become more stable and his sister - who is an important support to him - will have returned from overseas.
120 Ms Blok accepted that, if I considered that extended leave should be granted, the conditions proposed in the leave plan would be appropriate.
121 Mr Marsh adopted Ms Evans's submissions. In addition, he submitted that all of the concerns raised by the Attorney were answered by Dr Zergiotis and Dr Brennan, and that I should act on their evidence. Further, he submitted that the psychiatrists impressed as careful, systematic and risk-averse in their approach to this case, a fact evidenced by the decision not to support an application for extended leave in 2013, despite the stability of the applicant's mental health at that time, but then to support the current application only once the discharge plan was considered satisfactory.
122 I accept that, given the nature of the incident which gave rise to the custodial supervision order, the gravity of the harm in contemplation in the present case is such that a comparatively modest risk of the occurrence of such harm could still lead to a refusal of the application for extended leave. However, I do not accept the Attorney's submission that the risk of deterioration in the applicant's mental health when in the community is greater than that estimated by the psychiatrists. Nor do I accept the submission that, even if the risk of relapse is low, the so-called gaps in the discharge plan should cause me to conclude that the test in s 57(2) is not met. Rather, I accept the applicant's and the Secretary's submissions that, on the evidence, I should be satisfied that the safety of the applicant or members of the public would not be seriously endangered as a result of the applicant's being allowed extended leave.
123 Part of the difficulty with the Attorney's position is that, while it was submitted that several factors mean that the risk of deterioration in the applicant's mental state when in the community is greater than that estimated by the psychiatrists, no evidence was adduced that contradicted the evidence of those witnesses on that or any other issue.
124 Of course, it is for the Court, not the psychiatrists, to make findings of fact and to determine the application. But judges are not psychiatrists. Yet much of what is in issue on an application of this nature turns on matters of psychiatry. The Court's findings of fact, and its determination, are necessarily very much informed by the opinions of the psychiatrists when those opinions are well reasoned and convincing, come from experienced, well-qualified and responsible professionals who have been involved in the treatment of the applicant for a considerable period of time, and are not contradicted by other evidence.
125 Dr Zergiotis and Dr Brennan were impressive witnesses. Both addressed all issues, including the particular areas of concern raised on behalf of the Attorney, in a considered, forthright and convincing manner. I accept their evidence on all matters, including their responses to the concerns raised on behalf of the Attorney.
126 I am satisfied, to the requisite standard, on all of the available evidence, including the evidence of the psychiatrists, of the following matters: First, the applicant's psychiatric illness is now controlled with medication. Secondly, his positive psychotic symptoms have been in remission for about five years. Thirdly, he has coped well on the graduated forms of leave he has had in the community. Fourthly, provided the applicant maintains compliance with his current regime of medication and abstinence from use of illicit drugs, he will pose only a low risk of harm to himself or others in the future. Fifthly, the applicant will abide by the conditions imposed upon him in the leave plan. In particular, I am confident that he will continue to take his medication and that he will abstain from illicit drug use. Sixthly, there are satisfactory supports and supervision available in the community to ensure that his mental health remains good. Seventhly, those supports and supervision are such that, even if his mental health were to deteriorate significantly, that deterioration would be detected and treated before any risk of harm to the applicant or others materialized.
127 It is impossible to be certain that the applicant's mental health will remain good and that he will pose no risk of harm to himself or anyone else when in the community. But that is not the test.
128 Rather, the ultimate question is whether, on the evidence available, the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant's being allowed extended leave. Having considered the evidence before me, the matters set out in ss 39 and 40, the proposed conditions in the leave plan and the submissions of counsel, for the foregoing reasons, I am satisfied, to the requisite standard, on the evidence available, that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant's being allowed extended leave.
129 It was for these reasons that I made the following orders on 1 April 2015:
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[1] On 1 April 2015, I ordered, pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), that the publication of the following is prohibited: (a) the names and addresses, or former addresses, of the applicant, the deceased and their relatives; and (b) any information which might identify the names and addresses, or former addresses, of the applicant, the deceased and their relatives, except insofar as such information is contained in the written reasons for judgment. These are those written reasons for judgment. Thus, the applicant, the deceased and their family members' names have been anonymized in this judgment, or described only by reference to their familial relationships to each other, and their addresses have been described elliptically. In my view, based on the evidence I heard during the application, it would be preferable for the applicant's rehabilitation and reintegration back into the community, and therefore in the public interest, that his and his family's names and addresses not be published.
[2] See ss 20(1)(b) and 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[3] See s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[4] See ss 41 and 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[5] See ss 26(2)(a)(i) and 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[6] See ss 3(1), 26 and 56 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[7] See ss 48-55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[8] See ss 59-73 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Pursuant to s 54(2), the Panel may grant an application for such leave if satisfied that the proposed leave will contribute to the patient's rehabilitation and the safety of the patient or members of the public will not be seriously endangered as a result of the patient's being on leave.
[9] See s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[10] See In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70 (Eames J) at [56]; cited with approval in NOM v DPP & Ors [2012] VSCA 198 (Redlich and Harper JJA and Curtain AJA) at [63]. (See also NOM at [54]-[65] generally on the notions of endangerment and serious endangerment.)
[11] NOM v DPP & Ors [2012] VSCA 198 at [47] (footnotes omitted).
[12] NOM v DPP & Ors [2012] VSCA 198 at [72]- [124].
[13] Affidavit of Julie Carpenter, solicitor with the Office of Public Prosecutions, sworn 27 March 2015 (which, together with its annexures, became Exhibit 3 on the application).
[14] The summary and its annexures became Exhibit 4 on the application.
[15] The chronology became Exhibit 5 on the application.
[16] The reports of Dr Zergiotis and Dr Brennan became Exhibits 1 and 2 respectively on the application.
[17] As to the reasons for this second order, see footnote 1, above.
(1938) 60 CLR 336