Re R J O [2008] VSC 509 (24 November 2008)

2 The matter came before me on 7 November 2008. Pursuant s.37 of the Act, as I was satisfied that it was in the public interest to do so, I ordered that the name of the reviewee not be published.

3 The reviewee did not appear before me and was not legally represented. He had been informed of the date, place and nature of the hearing (more than once) and declined to attend, be represented or make any submission to the Court. Mr O has been attended by legal representatives and a social worker to ensure that he was aware of and understood his right to attend the hearing. On the basis of the evidence of Dr A Brennan, consultant psychiatrist, given before me (referred to further below) and of paragraph 18 of and Appendix 1 to her report of 2 October 2008 tendered before me I was satisfied that it was fair and proper to conduct the review hearing in Mr O's absence on 7 November 2008.

4 Mr O presently is the subject of a custodial supervision order at Thomas Embling Hospital made pursuant to s.26(2)(a)(i) of the Act. A major review under s.35 was conducted by Eames J in September 1998 and by Kellam J in November 2003. In each instance the custodial supervision order was confirmed.

5 At the hearing, counsel appeared for the Director of Public Prosecutions, the Department of Human Services and the Attorney-General. Pursuant to s.38C of the Act notice of the hearing had been given to family members and victims. The daughter of the deceased attended the hearing and made a statutory declaration on 8 October 2008 which was received by the Court. No other responses were received to the s.38C notifications.

6 At the conclusion of the hearing before me on 7 November 2008 I confirmed the custodial supervision order applicable to Mr O. I now publish my reasons therefor.

7 The short history of the matter is as follows, substantially taken from the report dated 2 October 2008 of Mr O's treating psychiatrist, Dr Ann Brennan, which was tendered before me.

(a) Mr O had an established history of paranoid schizophrenia that first became evident in the mid to late 1960ies. He had a number of admissions to psychiatric hospitals between then and the index offence in 1972. The index offence of murder took place on 6 November 1972. Mr O shot a barman outside the Pascoe Vale Hotel having returned to the premises following an earlier dispute with him over the refusal to serve Mr O alcohol. On 7 August 1973, Mr O was found not guilty by a jury of murder on the grounds of insanity. On the same day, the trial judge, Lush J., made an order that Mr O be detained at the Governor's pleasure under s.420 Crimes Act 1958. On 28 August 1973, the Governor ordered that Mr O be detained in custody. At the proclamation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Mr O was deemed to be a forensic patient with a nominal term of 25 years.

(b) Between 1973 and 1995, Mr O was managed in various hospital settings including Mont Park Hospital and Ararat Hospital whilst also spending periods of time in prison. In September 1991 he was transferred to the Forensic Rehabilitation Unit of Mont Park Hospital on a longer term basis. Prior to 1995, there were several notable features of his history. He remained psychiatrically unwell with a range of persecutory and grandiose delusions. His symptoms did (and continue to) involve a belief that psychiatric medication is poisoning him. He threatened to kill staff members during this period and in 1994 he attacked a female staff member threatening to kill her. He also had a history of refusing to take prescribed medication. In 1990, he absconded from Mont Park Hospital and was returned to the hospital by his parents.

(c) In 1995, Mr O commenced treatment with clozapine. This antipsychotic medication can be of significant benefit to schizophrenic patients who have proved difficult to treat. It can also be associated with a reduction in violence. This treatment resulted in a considerable improvement in Mr O's symptoms. It has also been effective in reducing the level of aggression that Mr O displays. As such, Mr O's ongoing treatment with clozapine is the cornerstone of his current and future treatment plan. Unfortunately, he remains dismissive of the need to continue this medication and states his intention to cease it in the future if his custodial situation were to change. The link between treatment with clozapine, symptoms and violence was illustrated late in 1996 when Mr O ceased taking clozapine whilst on overnight leave to his parents' home. His mental state deteriorated rapidly and he quickly became agitated and aggressive.

(d) Over the period from 1996 to 2003, there were no significant clinical effects of concern. Mr O was moved from the Rosanna Forensic Complex to Thomas Embling Hospital and he was permitted some unescorted overnight leave to visit his parents who live in regional Victoria. He maintained compliance with clozapine over that period.

(e) In April and May 2003, Mr O became more unsettled, irritable and guarded. At that time, he made threats against both his current and past treating psychiatrists. He was overheard reciting the phrase "I've killed before and it would be easy to do it again". He was found to have ongoing persecutory beliefs particularly involving current treating staff and was threatening retribution towards various people on the ward. His leave was formally suspended by the Chief Psychiatrist on 7 May 2003.

(f) Mr O has been relatively settled over the course of the last 5 years. He continues to reside on Canning Unit at Thomas Embling Hospital which Unit is a secure, locked ward environment for management of patients who continue to experience ongoing symptoms of illness or behavioural disturbance. It is consistently reported by nursing staff that whilst conversations with Mr O are kept at a superficial level, he is co-operative and pleasant . However, more in depth questioning and exploration of his mental state always leads to irritability and sometimes to anger. His longstanding and underlying delusional system remains intact. There have been infrequent outbreaks of verbal hostility which are usually self-limiting and have not been associated with any violence. It is clear that Mr O is dependent on routine and structure. Any minor change such as moving his leave to a different day can lead to stress and irritability. In September 2008 Mr O became verbally hostile and threatening towards two members of nursing staff. This occurred in the context of discussions about not being able to access leave to participate in ward shopping tasks whilst a staff member was away. Whilst Mr O is dependent on staff, he does not really engage with any member of the treating team and at no point during the course of his hospitalisation has he been agreeable to psychological intervention. He participates in a wide range of activities within the hospital setting and he cooks simple meals in the ward kitchen on a regular basis.

(g) Mr O underwent neuropsychological evaluation in 2006. This was in part indicated due to clinical concerns about his apparent memory impairment. This evaluation indicated a number of deficits including significant impairment on all memory tasks. This is a relatively longstanding deficit and may be explained by a combination of chronic schizophrenia, long term medication effects and long term hospitalisation. It will be necessary in the future to monitor for further cognitive decline.

(h) Mr O is now able to access a variety of escorted leaves into the community. He regularly assists staff with ward shopping tasks at local shopping centres and he visits his family with two staff escorts approximately once a month. There has been no re-introduction of unescorted leave.

(i) Mr O is in relatively good physical health, despite his reluctance to undertake recommended investigations and treatments. He is overweight and has high lipid levels. He refuses to take recommended lipid lowering medication. He is monitored regularly by the ward medical officer for complications of treatment with clozapine and he is able to access a visiting GP and access health professionals in the community whilst on leave. His only medication is clozapine at a dose of 400mg.

8 Prior to the hearing I reviewed all the admissible material pertaining to the index offence and Mr O's personal, institutional and psychiatric history. As I have stated, Mr O has been the subject of two previous major reviews: by Eames J on 30 September 1998 and by Kellam J on 10 November 2003. I have read those judgments and the admissible material underpinning them.

9 Before me, Dr A Brennan, consultant psychiatrist at the Thomas Embling Hospital gave evidence and a report by her dated 2 October 2008 was tendered before me. I was most assisted by Dr Brennan's evidence and report. Dr Brennan is Mr O's treating psychiatrist at Thomas Embling Hospital and has been so since February 2006.

10 Section 35(2) of the Act states that "(t)he purpose of a major review is to determine whether the person subject to the order is able to be released from it". The touchstone is public safety. There is no element of punishment, as the reviewee has not been convicted of a crime. The relevant criterion is stated in s.35(3)(a)(i) as follows:

"(3) On a major review, the court -

(a) if the supervision order is a custodial supervision order -

(i) must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or

(ii) if so satisfied, must confirm the order or vary the place of custody;..."

11 As Mr O is a paranoid schizophrenic in custody who has not attended court and has not been legally represented, it is encumbent upon the court to proceed fairly and carefully and with full regard to the rights of the reviewee and to the basal principle stated in s.39 of the Act and arising also at common law that "restrictions on a person's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community". I so proceed. I have regard to the matters set forth in s.40 of the Act.

12 The evidence of Dr Brennan before me and her report of 2 October 2008 tendered before me establish that Mr O has severe and treatment-resistant paranoid schizophrenia. He has residual symptoms that constitute a risk to others, especially psychiatric staff. There is no doubt that his behavioural disturbance, particularly the propensity to violence, has improved significantly since the introduction of clozapine in 1995. However, Mr O has stated an intention to cease this medication should he be released into the community. A review of his history indicates that cessation of clozapine would almost certainly lead to both a rapid and dangerous deterioration in his mental state with the possibility of associated violence. This deterioration is likely to occur quickly, probably within days. Mr O is also a person with a significant impairment in memory who has a very limited capacity to adjust to change without a hostile response. It is Dr Brennan's opinion that the nature of the very structured and supervised setting within Canning Unit is allowing Mr O to be managed safely given his level of residual symptomatolgy. In this setting Mr O does have access to a range of recreational activities, and is able to use leave into the community and to visit his family on a regular basis.

13 In summary, it is clear on Dr Brennan's evidence before me and by her report of 2 October 2008 and from the admissible historical material on the court file that Mr O has severe and treatment-resistant paranoid schizophrenia. He lacks insight into his illness and the need for its treatment. He would constitute a serious danger to the public should he not remain in his present custodial situation. He has stated that he will cease to take his prescribed medication should he be released into the community. Despite the relatively calm settlement of Mr O's symptoms over the past five years the risks I have stated remains real and demonstrated. In the circumstances I conclude that the custodial supervision order presently applying to Mr O be confirmed.

14 I order that he so remain. The Act provides for appropriate further review. If there are any significant new circumstances before the next review Mr O can come before the Court upon notice to the other parties.