60 Mr. Boulten SC, who appeared for the accused at the hearing, seeks that I exercise my powers under s 39 of the Act to make special orders as to her disposition and treatment. It is not suggested that she be released directly into the community, at least not in the short term, but that there be a gradual process of re-integration, under the joint supervision of Dr. Giuffrida and the her case manager, Ms. Mary Morrow, who is a clinical psychologist. The precise orders which are sought require that Ms Reis accept Dr. Giuffrida or his successor as her treating psychiatrist, and Ms. Morrow (or another person designated by Dr. Giuffrida or his successor) as her case manager. The orders require that she reside initially at the Bunya Unit, and later in such other accommodation as may be approved by her treating psychiatrist in consultation with Ms Reis and her case manager. Various other conditions are specified, including that she accept such treatment and medication as may be prescribed by her treating psychiatrist, that she be of good behaviour, and that she attend Tribunal reviews of her case. I am told that these are the standard types of conditions set by the Tribunal when it orders the conditional release of forensic patients. It should be noted, nevertheless, that I have made some alterations to the orders proposed by the defence. The substance is unchanged, but unnecessary verbiage has been removed.
61 The Crown Prosecutor has no objection to the form of the conditions, other than to suggest an additional condition if I were otherwise minded to accede to the defence submissions. His primary submission is that this is not an appropriate case for ordering the conditional release of Ms Reis under s 39. He points out in very helpful written submissions that her mental condition remains unresolved. She has no insight into her conduct in killing her husband nor into her own mental condition. She has been non-compliant with her medication regime in the past, and is likely to be again in the future. The unresolved nature of her mental condition distinguishes her from other forensic patients who have been conditionally released under s 39, according to this submission.
62 Dr. Giuffrida gave forceful evidence in support of the orders sought by the defence. He assessed the risk currently posed by Ms Reis to other people as virtually non-existent. Quite apart from the limitations of movement caused by her paraplegia, the only violence she ever perpetrated was directed against a person with whom she was in a close relationship and about whom she harboured delusional beliefs. The doctor conceded that Ms Reis is currently at "moderate" risk of self-harm However, as he pointed out, her short term disposition will be identical whatever order I should make. In either case she will return to the Bunya Unit and remain there for some time.
63 The principal reason given by Dr. Giuffrida for seeking the conditional release in Ms Reis's case is to enable flexibility in her treatment and rehabilitation. In the absence of the orders now sought, her treating specialists would need to go through the processes set out in the Mental Health Act in order to obtain permission for Ms Reis to leave Bunya, even for a short time. These processes tend to be cumbersome and frequently involve extensive delays.
64 Dr. Giuffrida regards Ms Reis's mental welfare and physical rehabilitation as being integrally connected. He emphasised the importance of giving her some future hope. While she was at Moorong, he said, she was allowed out on escorted shopping trips. Since she has been back at Bunya, she can only go into the grounds. Ms Reis did not want to return to Bunya. She feared the lack of privacy, particularly as she is susceptible to bowel accidents. Dr. Giuffrida also opposed her return to Bunya. He described it as an inappropriate placement for her, being a locked unit containing some very disturbed people. Given Ms Reis's disability, he said that she is particularly vulnerable in this mixed-gender environment. However until her mental condition stabilises he said that there is no realistic placement for her.
65 Before Ms Reis's suicide attempt in May 2005, she had been accepted for admission into the Lottie Stewart Hospital. This is a hospital for the rehabilitation of people with chronic and disabling illness. It contains a unit for the rehabilitation of spinally injured patients, and according to Dr. Giuffrida it would be a "very suitable" placement for Ms Reis. After her attempted suicide, however, it became clear that her mental condition had not stabilised, and that she was not yet ready for this environment. Nevertheless, her referral to this hospital can be reinvigorated in the future, the doctor said, when her risk of self-harm is assessed as considerably reduced. He estimated that this would probably take between six and twelve months.
66 Since she first went to Moorong, Ms Reis has had a multi-disciplinary team involved in her care. This includes experts in psychiatry, psychology, occupational therapy and nursing, as well as her case manager Ms. Morrow. Dr. Giuffrida said the accused engages well with members of this team. They will be able to continue to collaborate with the staff caring for her at the Lottie Stewart Hospital.
67 It is too early, Dr. Giuffrida said, to say with certainty where Ms Reis will go after the Lottie Stewart Hospital. However he thought the next stage would probably be a supervised hostel type accommodation, within the community, for people suffering from spinal injuries. She will require regular screening, he said, to ensure medication compliance.
68 Whether or not I make the special orders sought by the defence, Ms Reis will return immediately to Bunya and will remain under the supervision of the Tribunal. The Tribunal is bound to meet and review her case at least once every six months. It has the power to make precisely the sorts of decisions as to her disposition and treatment as the special orders envisage will be made by her treating psychiatrist and her case manager. One must therefore ask what advantage is to be achieved through making the orders sought by the defence.
69 Dr. Giuffrida has no criticism whatsoever of the Tribunal. His criticisms relate solely to the operation of the mental health system for forensic patients, particularly in the circumstances faced by Ms Reis. There are two respects, he says, in which her situation would be significantly better under the orders proposed by the defence than under the system established under the Mental Health Act. The first of these relates opportunities for her to have supervised trips away from the institution where she is confined, at present at the Bunya Unit. The second relates to her later disposition, once her mental condition has stabilised so that she can leave the secure environment of Bunya.
70 In relation to the first of these: Ms Reis, as I have said, went out quite regularly into the community when she was at Moorong, always under supervision. This was considered to be an important part of her physical rehabilitation, providing her with the skills and the confidence to resume the sorts of activities (shopping, banking etc) which most of us regard as routine. Almost certainly, in retrospect, it was in breach of the provisions of the Mental Health Act, given that she was a forensic patient at the time and was already absent from Bunya pursuant to leave granted under s 110 of that Act. Moreover, s 110 (which is the only provision of the Mental Health Act which has been referred to as relevant in this issue) permits a forensic patient to be absent from hospital only for the purpose of undergoing "medical investigation or treatment". On the face of it, this would be unlikely to include the type of excursions undertaken by Ms Reis.
71 This is a matter of some significance in the present case, assuming (as the evidence indicates to be the case) that s 110 is the only provision which can practicably be utilised to enable Ms. Reis to be absent from Bunya. Dr Giuffrida has continually emphasised the integral links between Ms Reis's physical rehabilitation and her mental state. On 10 February 2005, in a report to the Tribunal, the doctor commented that her spinal rehabilitation had been slow and protracted, partly because of her continued state of depression which was characterised by poor motivation and emotional fragility. Dr Giuffrida considers it most important that she should be free to take escorted trips outside the secure environment of Bunya. He regards this as a significant part of her mental and physical rehabilitation, and thinks it important that her treating practitioners should have the flexibility to arrange these excursions. If the matter is left to the Tribunal, extensive delays are likely to occur. This is because the Tribunal has no power to order the disposition of a forensic patient. It can only make recommendations to the Minister. According to Dr Giuffrida, this process can be extremely protracted. Sometimes twelve to eighteen months can elapse before the Tribunal's recommendations are adopted, even in relation to routine and uncontroversial matters. This is clearly a matter of considerable frustration to the doctor. In the case of Ms Reis, a significant delay before being allowed out into the community would, he said, inevitably lead to "a certain despondency" in someone who is already fragile and depressed. Given that her psychological state to a great extent determines her motivation to be involved in her physical rehabilitation, Dr. Giuffrida regards it as "crucial" that she have the flexibility of movement which the special orders sought by the defence would permit.
72 As to Ms. Reis's disposition after she is well enough to leave Bunya, Dr Giuffrida points again to the substantial delays which often occur before the Tribunal's recommendations for conditional release can be implemented. Until Ms. Reis's mental condition stabilises, he says, there is no realistic alternative to her remaining at Bunya, notwithstanding the highly unsatisfactory nature of this setting in her case. The inappropriateness of Bunya to her situation makes it all the more imperative, in the doctor's view, that there be no unnecessary delays in moving her onto the next stage of her rehabilitation process when her mental condition permits it.
73 It should be noted that the Tribunal will retain its normal supervisory role in relation to Ms. Reis's disposition if, as I propose to do, I make the orders sought by the defence. The Tribunal will be able to make its own recommendations in the event of any breach by Ms. Reis of the conditions set by the Court. There is, I acknowledge, a lacuna in the mental health legislation in that the enforcement procedures provided in s 93 of the Mental Health Act are not available in relation to breaches of conditions imposed by the Court under s 39. This is clearly a matter which needs to be addressed by the legislature. In many cases this difficulty will no doubt provide a powerful argument for the Court to decline to order the conditional release of a forensic patient under s 39. However in the extraordinary circumstances of this case, particularly relating to Ms. Reis's paraplegia and the obvious restrictions of movement which this condition imposes, I think it is most unlikely that these procedures would be required in any event. I therefore do not propose to treat this as a significant feature in this case.
74 I accept the force of the Crown Prosecutor's submission as to the inappropriateness, in the normal course of events, of ordering the conditional release of a forensic patient whose mental condition has not yet stabilised. In normal circumstances, the fact that a person still has a "moderate" risk of self-harm would make conditional release an unacceptable option. There are two matters which distinguish the present case. First, the special orders suggested by the defence do not in fact provide for Ms. Reis's "release", at least not in the short term. She will return to the Bunya Unit whether or not I make these orders. Only after her mental condition has stabilised will the question of her "release" arise. Accordingly, the orders proposed by the defence are not strictly "conditional release" orders, although they envisage her release in the future.
75 The other matter which distinguishes this case from virtually all others is Ms. Reis's physical condition. Her paraplegia is of relatively recent origin, occurring only in July last year. Her physical rehabilitation still has a long way to go. It is inextricably linked with her mental state, and the converse is also the case. It is clear that Ms. Reis has a highly competent and committed team of professionals caring for her mental health, under the leadership of Dr Giuffrida. I should indicate, for the record, that I was extremely impressed with Dr Giuffrida, and have complete confidence in this judgment as to Ms. Reis's future disposition. But so long as her physical rehabilitation is held back because of her status as a forensic patient, her mental condition is also likely to suffer, and the converse also applies.
76 The power to make "other orders" under s 39 is a discretionary one. In the extraordinary circumstances of this case, I consider that good grounds have been shown for making the orders sought by the defence. I also propose to make the additional order suggested by the Crown. These orders are set out in Schedule 1 to these reasons.