Re M P (No 2) [2018] VSC 299 (4 June 2018)

2 On 22 June 2011, a jury in the Supreme Court found MP not guilty of her mother's murder due to mental impairment.

3 As a result of the jury's verdict, MP became liable to supervision under Part 5 of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 ('the Act'). Pursuant to s 26 of the Act, a custodial supervision order, with a nominal term of 25 years, was imposed upon her, the order commencing on 22 June 2011.

4 On 9 June 2015, I granted MP extended leave under s 57(1) of the Act,[1] allowing her to be absent from her place of custody, on the basis that I was satisfied on the evidence available that the safety of MP - or members of the public - would not be seriously endangered as a result of MP being allowed extended leave.[2] That grant of extended leave was subject to the following conditions:

(a) [MP] be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate;

(b) [MP] complies with the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;

(c) [MP] complies with such treatment, testing, case management, medical and other appointments recommended by the authorised psychiatrist of the VIFMH or his or her delegate;

(d) [MP] reside at an address approved by the authorised psychiatrist of the VIFMH or his or her delegate;

(e) [MP] not leave the State of Victoria without the permission of the authorised psychiatrist of the VIFMH or his or her delegate;

(f) [MP] abstain from the abuse of alcohol and from the use of illicit drugs.

5 By consent, I made a further order for extended leave on 8 June 2016 on the same conditions.

6 On 5 June 2017, I ordered that the custodial supervision order imposed upon MP be varied to a non-custodial supervision order ('NCSO'),[3] on the basis that I was satisfied that, on the available evidence, the safety of MP or members of the public would not be seriously endangered as a result of MP's release on such an order.[4] That order was made subject to the same conditions as had applied to the grants of extended leave. Further, pursuant to s 32(5) of the Act, I ordered that the matter be brought back to the Court for further review at the end of 12 months, so as to ensure that MP's condition and compliance with the order were monitored. That further review was the subject of today's hearing.

7 Section 33(1) of the Act provides that, upon the review of a NCSO, the Court must either confirm the order; vary the conditions of the order; vary the order to a custodial supervision order; or revoke the order.

8 Counsel for MP submitted that the NCSO should now be revoked. That submission was supported by the Secretary to the Department of Health and Human Services. Counsel for the Attorney-General, on the other hand, submitted that the NCSO ought to be confirmed.[5]

9 For reasons that follow, I am of the view that the NCSO should be revoked, and I will so order.

10 The Court's powers on review of a NCSO are contained in s 33 of the Act, which so far as relevant provides:

1. Variation or revocation of non-custodial supervision orders

(1) On ... a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order -

(a) confirm the order; or

(b) vary the conditions of the order; or

(c) vary the order to a custodial supervision order; or

(d) revoke the order.

(2) Unless the court revokes the order, 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.

(3) A direction may be given under subsection (2) more than once.

11 Section 39(1) of the Act provides that, in deciding whether to make, vary or revoke a supervision order, 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'.[6] Further, s 40(1) provides that in making the decision to vary or revoke an order, 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

(f) any other matters the court thinks relevant.

12 Moreover, under s 40(2), the Court cannot order a person to be released unconditionally - or significantly reduce the degree of supervision to which that person is subject - 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;

(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;

(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be);

(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;[7]

(d) has considered any report of the family members or victims made under section 42;

(da) ...; and

(e) has obtained and considered any other reports the court considers necessary.

13 As is required by s 40(2)(a), I have considered the reports of Dr Rose Clarkson, Psychiatry Registrar, Forensicare; Dr Sanjeewanie Karunaratne, Consultant Psychiatrist, Northern Area Mental Health Service; and Ms Maria Kyvernitakis, Senior Social Worker, Northern Area Mental Health Service. I have also considered the evidence given viva voce by Dr Clarkson and Dr Karunaratne.

14 MP was aged 27 years when she killed her mother. At that time she attracted a diagnosis of chronic paranoid schizophrenia, having become psychotic at the age of 26 years. She is now aged 35 years.[8] MP receives a Disability Support Pension, and lives alone in private accommodation in a north eastern suburb of Melbourne. She is employed in an administrative role for an education and training company three days per week, through her involvement with the 'IntoWork' program, where she has a good relationship with her manager and colleagues. MP is also engaged in an online writing course. She attends her local church on Sundays, having established a good relationship with the pastor and his wife, and also attends a women's group once per week. MP has monthly appointments with her doctor and dietitian.

15 Dr Clarkson is a Psychiatry Registrar employed at the Victorian Institute of Forensic Mental Health ('VIFMH'), Forensicare, and is the supervising registrar on the NCSO Program. That program reviews clients on a three-monthly basis, to assess their adherence to NCSO conditions, their compliance with psychiatric treatment, and to ensure that clients are provided adequate psychiatric services by Area Mental Health Services. In her report, dated 7 May 2018, Dr Clarkson supports revocation of the NCSO, on the basis that it is 'no longer necessary for the maintenance of [MP's] health, nor for her current low risk of future violence to the community'. Her oral evidence was to like effect.

16 According to Dr Clarkson's report, in the 12 months since MP's custodial supervision order was varied to a NCSO, she has been formally reviewed by Dr Grant Lester, Consultant Psychiatrist on the NCSO Program, on 1 August 2017; by her treating team on 17 July 2017, 9 November 2017 and 6 February 2018; by Dr Lester, Ms Mary Macrae, NCSO Clinical Liaison Officer, and Dr Sam Pang, NCSO Psychiatry Registrar, on 15 November 2017; by Mr Daniel Kinston, NCSO Program Co-ordinator, on 16 February 2018; and by Dr Clarkson herself, with Ms Macrae, on 7 May 2018. MP has presented well at each of these reviews.

17 Dr Clarkson's opinion is that, over the past 12 months, MP has presented as a 'low risk to the community', has adhered to the conditions of the order, and has not displayed any psychotic symptoms or other concerning risk behaviour. She is well engaged with her treating team, and has consistently shown a good level of insight into her illness, early warning signs, and need for ongoing mental health treatment. MP's daily medical regime comprises the antipsychotic medication aripiprazole (45 milligrams), and an antidepressant, as well as a medication to manage her elevated cholesterol levels.

18 With respect to MP's risk of future violence, Dr Clarkson notes that MP has no history of violence or other antisocial behaviour, apart from the index 'offence', and that her 'overall risk rating is low'. Whilst this rating would need to be reassessed should MP experience a relapse of her schizophrenia, Dr Clarkson is of the view that MP 'has a good relationship with her treating team, multiple supports in place, and understands her early warning signs, and future deteriorations could be safely managed using the Mental Health Act [2014]'.

19 Moreover, Dr Clarkson had discussed with MP what it would mean for her to come off the NCSO. MP stated that she would feel 'free' and would have fewer restrictions, and that it would allow her to have 'a family one day', this being something MP feels she cannot pursue as a forensic patient. MP also told Dr Clarkson that she found attending court hearings stressful, and that it would be a relief not to have to do this anymore.

20 According to her report, in its three-monthly update on 6 February 2018, the treating team noted its belief that MP could be managed and supported without being on a NCSO, as she had maintained a stable mental state, and had engaged 'extremely well' with the team. The team was confident that they could continue to support and treat MP as a voluntary patient, and that if she was ever to become unwell or non-compliant, there would be a low threshold for her treatment under the Mental Health Act 2014.

21 Dr Karunaratne is part of MP's treating team, and has been MP's psychiatrist since 6 March 2017, seeing her on a monthly basis from April 2017, until a service change resulted in MP being allocated a different consultant psychiatrist, Dr Kishor Sivasankaran, who saw MP on 20 April 2018. In her report, dated 3 May 2018, Dr Karunaratne comments that the treating team supports MP's application for revocation of the NCSO.

22 Her comments on MP's behaviour whilst she has been subject to the NCSO are unequivocally positive. She reports that MP is in 'complete remission'; has not expressed any self-harm or suicidal ideas, nor any evidence of a depressed mood (her religious faith constituting a protective factor against such ideation); has demonstrated a capacity to live independently in the community; and maintains a 'steady level' of participation in community activities. Dr Karunaratne also has no concerns about MP's compliance with her daily medication regime. Moreover, the effect of Dr Karunaratne's evidence is to assure the Court that the treating team will continue to provide the same level of support, monitoring and medical input in order to maintain MP's stability in the community.

23 Ms Kyvernitakis is also part of MP's treating team, and is MP's 'key clinician'. Her report, also dated 3 May 2018, is consistent with the views of Dr Karunaratne. She recounts that MP has engaged well with her treating team and has shown a willingness to continue to engage with the team, attending appointments punctually and independently, and presenting as bright, calm, well-groomed and rational at every review. MP demonstrates good insight into her illness, and complies with her medication regime. Further, Ms Kyvernitakis has 'nil current issues or concerns regarding [MP's] social situation or connections'. Importantly, MP can identify her early warning signs - which include feeling isolated, anxious or paranoid - and that if she starts to experience any symptoms she will contact her treating team to organise an earlier appointment. MP also has access to the team's 24-hour triage service.

24 Moreover, Ms Kyvernitakis' report states that the treating team will continue to work with MP to help her achieve her recovery goals, and monitor her to ensure that she remains well and maintains her social connections.

25 Supervision under the Act is a restriction on liberty and autonomy, and can only be justified where it is found to be necessary. In making the decision to confirm, vary or revoke MP's supervision order, I have endeavoured to 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.[9]

26 When I granted MP extended leave in 2015, the evidence before me tended to establish that she presented a low risk of violent re-offending, and that her positive psychotic symptoms had been in remission for three years by reason of her treatment with the antipsychotic medication, aripiprazole. MP's remission had commenced in May 2010, soon after her treatment with the antipsychotic medication began. She had shown no positive symptoms of schizophrenia since her aripiprazole dosage was increased to 45 milligrams. The expert evidence at the time was that so long as her symptoms remained well-controlled - this likely requiring MP to continue to take antipsychotic medication throughout her life - MP posed a low risk of future violence. Thus, I came to the view that the safety of the community would not be appreciably deleteriously affected by MP being granted extended leave.[10] MP's progress whilst on extended leave led me to conclude that it was appropriate to grant MP a further 12 months' extended leave in 2016.

27 In support of MP's application for variation of a custodial supervision order to the present NCSO in 2017, Dr Syed Masroor Ali - Forensicare Community Integration Program Psychiatry Registrar - was of the opinion that MP's 'offence' in 2010 was 'a direct consequence of untreated illness'; that MP had responded almost immediately to anti-psychotic medication; that she had not relapsed, her mental state remaining stable; that she demonstrated insight into her illness; and that she presented as a 'low' risk of future violence. In my reasons for varying the order to a NCSO, I said:[11]

The offence which led to the applicant's acquittal based on mental impairment was very serious. That said, MP was floridly psychotic at the time. The evidence suggests, however, that almost immediately after she was prescribed aripiprazole, MP's psychotic symptoms went into full remission, and have remained in full remission ever since. Hence, her psychotic symptoms have been in remission for some six years; and the evidence suggests that there will be no relapse so long as MP continues to take the anti-psychotic medication prescribed. I regard that as being a cause for some optimism, and I see nothing in the evidence that would lead me to conclude that MP poses any real risk of endangering herself or others whilst she is appropriately medicated. Indeed, I accept Dr Ali's opinion that she presents a low level of such risk overall.

28 On the evidence before me, MP's supervision under a NCSO is no longer justified. She has been subject to supervision under the Act since 2011, and has exhibited only positive progress since being treated with aripiprazole. Her evidenced commitment to continuing her medical treatment whilst outside of custody; her long-term engagement with her treating team; her strong community supports; and - most significantly - her continuing 'low' risk of violence; lead me to the view that it is consistent with the safety of the community to revoke MP's NCSO. Restrictions on MP's freedom and personal autonomy can no longer be justified.

29 The order of the Court will be that the NCSO made on 5 June 2017 is revoked.

[1] In the Matter of MP [2015] VSC 265.

[3] Re MP [2017] VSC 324.

[5] As is usual practice, apart from demonstrating compliance with s 38C of the Act, the Director of Public Prosecutions took no active part in proceedings.

[6] See NOM v DPP [2012] VSCA 198; (2012) 38 VR 618, 638 [60] (Redlich and Harper JJA and Curtain AJA) ('NOM').

[7] Having regard to the affidavit of Ms Louise Wilkinson, of the Office of Public Prosecutions, sworn 22 May 2018, I am satisfied that MP's family members (who are also the victims of the offence with which she was charged) were, by a letter dated 13 April 2018, given reasonable notice of this hearing and of their entitlement to submit a report for the Court's consideration. No report was received.

[8] Her date of birth is 19 September 1982.

[10] In the Matter of MP [2015] VSC 265, [31].

[11] Re MP [2017] VSC 324, [24].