Attorney-General (NSW) v XY
[2014] NSWCA 466
•24 December 2014
Court of Appeal
New South Wales
Case Title: Attorney General for the State of New South Wales v XY Medium Neutral Citation: [2014] NSWCA 466 Hearing Date(s): 5 December 2014 Decision Date: 24 December 2014 Before: Beazley P at [1];
McColl JA at [111];
Basten JA at [120]Decision: (1) Affirm the decision of the Mental Health Review Tribunal delivered on 10 September 2014.
(2) Otherwise dismiss the appeal.
(3) Order that the Attorney pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: MENTAL HEALTH - forensic patient - release - order for unconditional release upon transfer to a medium security mental health unit in Queensland - test of serious endangerment of public - whether care of a less restrictive kind available upon release - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43(a) and (b), s 47
MENTAL HEALTH - forensic patient - transfer - whether transfer of a forensic patient permitted under a corresponding law of Queensland - transferee ceasing to be forensic patient in New South Wales - Mental Health Act 2007 (NSW), s 176
STATUTORY INTERPRETATION - resolving inconsistency between provisions in a single statute - provisions introduced contemporaneously - reading statute as a whole - giving each provision work to do - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43, s 47(3)
WORDS AND PHRASES - "corresponding law" - "seriously endangered" - "care of a less restrictive kind" - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43Legislation Cited: Acts Interpretation Act 1954 (Qld), ss 12, 14H
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 74, 76E, 77A; Pt 5
Mental Health Act 2007 (NSW), ss 68, 109, 170, 174, 176; Ch 8, Pt 2
Mental Health Act 2000 (Qld), ss 183, 185, 507, 508
Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW)
Mental Health Regulation 2013 (NSW), cll 23, 26, 27; Pt 8, Div 3
Mental Health Regulation 2002 (Qld)Cases Cited: Australia Gaslight Co v Valuer-General (NSW) (1940) 40 SR(NSW) 126
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
In the Matters of Major Reviews of Percy, Farrell and RJO (1998) VSC 70
Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448
Life Insurance Co of Australia Ltd v Phillips [1925] 36 CLR 60
NOM v Director of Public Prosecutions [2012] VSCA 198; 38 VR 618
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509
People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253
Re VAS [2010] VSC 411Texts Cited: Macquarie Dictionary (online edition, 2014)
Oxford English Dictionary (online edition, 2014)Category: Principal judgment Parties: Attorney General for the State of New South Wales (Appellant)
XY (First Respondent)
Mental Health Review Tribunal (Second Respondent)Representation - Counsel: Counsel:
D T Kell; T Phillips (Appellant)
M J Ierace SC; K Stares (First Respondent)
Submitting Appearance (Second Respondent)- Solicitors: Solicitors:
Crown Solicitor (Appellant)
Legal Aid NSW (First Respondent)
Crown Solicitor (Second Respondent)File Number(s): CA 2014/294225 Decision Under Appeal - Before: Mental Health Review TribunalP Staunton AM, Deputy President; U Bardulis, Psychiatrist; D Bell, Member - Date of Decision: 10 September 2014 - Court File Number(s): F1691
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent suffers from schizophrenia. In November 2006 in Queensland he struck a person in the head with a sledgehammer, causing him serious injury. On 16 August 2007 a judge in Queensland found him to be of unsound mind and made a "forensic order" pursuant to which he was detained in a mental health facility in Caboolture. In 2009 he left Queensland without permission and travelled to Sydney, where he lived for a period with his uncle. In August 2009 he killed his uncle with a knife. He was charged with murder but found not guilty by reason of mental illness. He then became a forensic patient in New South Wales.
As a forensic patient, the respondent was subject to six monthly reviews by the Mental Health Review Tribunal. He remained subject to the Queensland forensic order. In September 2014 the Tribunal accepted psychiatric evidence that the respondent would benefit from transfer to Caboolture, where he would be closer to his family. The Tribunal made an order that he be unconditionally released upon notification of his admission to the Caboolture medium secure forensic unit in Queensland. Upon unconditional release in New South Wales, he ceased to be a forensic patient in this State.
On 8 October 2014, the day upon which his release took effect, the Attorney General lodged an appeal against the order of the Tribunal. The Attorney's purpose was not to have the respondent returned to New South Wales, but to maintain his status as a forensic patient in this State.
The Attorney General exercised his right to appeal from a determination of the Tribunal to release a person, pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Forensic Provisions Act"), s 77A(6).
The following issues arose on the appeal:
(i) whether the Tribunal erred in law in construing s 43(a) of the Forensic Provisions Act;
(ii) if the Tribunal was in error, whether the error was material to its determination;
(iii) whether the Tribunal erred in law in construing s 43(b) of the Forensic Provisions Act
(iv) the respondent having been transferred to Queensland, whether his status as a forensic patient was in any event terminated pursuant to s 176(2) of the Mental Health Act 2007 (NSW)
(v) whether the court should continue the non-publication order.The Court held, dismissing the appeal:
(1) Section 43 required that the Tribunal must not make an order for release of a forensic patient unless satisfied that the safety of the public will not be seriously endangered by the patient's release: s 43(a). The statement of the Tribunal that the "risk" must be "more than merely possible and can be characterised as very high" involved error, as was conceded on behalf of the respondent: at [51] (Beazley P, McColl JA agreeing); [168] (Basten JA, McColl JA agreeing).
(2) The error in the construction of s 43(a), although rendering the Tribunal's reasoning erroneous, did not affect the outcome: at [110] (Beazley P, McColl JA agreeing). Based on the findings of fact made by the Tribunal, the Tribunal would have come to the same decision absent the error of interpretation, which was therefore immaterial: at [172] (Basten JA, McColl JA agreeing).
(3) The approach set out above assumed the relevance of s 43(a) to the making of an order for release under s 47(1) of the Forensic Provisions Act. Section 47(3) stated that "[a]n order for release under this section may be made despite any other provisions of this Act". Section 47(3) does not override the requirements of s 43: at [90] (Beazley P); Basten JA contra but not finally deciding at [153] and [155].
(4) Section 43(b) requires that, before making an order for release, the Tribunal must be satisfied that other care of a less restrictive kind is appropriate and reasonable available. The evidence demonstrated that one consequence of the transfer to Queensland would be that the respondent would be subject to closer constraints whilst he was assessed at Caboolture. Nevertheless, it was open to the Tribunal to be satisfied that, in the longer term, the respondent would be subject to less restrictive conditions of care. Accordingly the Tribunal did not err in law in reaching a state of satisfaction with respect to that condition: at [76] (Beazley P, McColl JA agreeing); [175] (Basten JA, McColl JA agreeing).
(5) The transfer of the respondent to Queensland did not mean that he ceased to be a forensic patient in New South Wales pursuant to s 176(2) of the Mental Health Act, because the transfer required that there be a "corresponding law" in Queensland. The relevant law, s 183 of the Mental Health Act 2000 (Qld), did not apply to patients detained in New South Wales under the Forensic Provisions Act: at [105] (Beazley P) and [179] (Basten JA).
(6) The return of the respondent to Queensland was probably permitted and authorised by ss 507 and 508 of the Mental Health Act (Qld). On that view, the status of forensic patient may have ceased pursuant to s 176(2); the declaration to the contrary sought by the Attorney should not be made: at [180] and [182] (Basten JA).
(7) The Mental Health Act 2007, s 162 prohibits publication of the name of a person involved in proceedings before the Tribunal without the consent of the Tribunal. Accordingly, the respondent's name has not been used in this judgment. There is no need for any other non-publication order and the orders in force should be revoked: at [185]-[187] (Basten JA, McColl JA agreeing).
JUDGMENT
BEAZLEY P: On 2 July 2010, the first respondent (XY) became a forensic patient in New South Wales under the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), s 39, after having been found not guilty of a charge of murder by reason of mental illness. Since that time, XY has been the subject of regular reviews by the Mental Health Review Tribunal (the Tribunal), pursuant to s 44 in respect of his initial review and thereafter pursuant to s 46 of the Act. From April 2012, he was an inmate of Bloomfield Hospital, Orange, in New South Wales. In May 2014, XY's treating psychiatrist, Dr Burns, lodged a notice of intent with the Tribunal indicating that an unconditional release order would be sought on his behalf so that he:
"... may be admitted to the Caboolture Medium Secure Forensic Unit in Queensland as a 'forensic patient' under Queensland jurisdiction."
On 26 August 2014, the Tribunal conducted a review, being the thirteenth review of XY, pursuant to s 46 of the Act. The Attorney General, who was notified of the proposed application for XY's release, appeared before the Tribunal and opposed the making of the order on three bases. Those bases, as recorded by the Tribunal at (4) of its reasons, were: first, that the Tribunal, could not, as a matter of law, form the state of satisfaction required by s 43 of the Act that XY be unconditionally released; secondly, that even if the Tribunal was empowered to make an order for unconditional release under s 43, it would be inappropriate to do so as a matter of discretion; and thirdly, that the Tribunal was not empowered by the Mental Health Act 2007 (NSW), s 176(1) to order that XY be transferred to Queensland.
On 10 September 2014, the Tribunal determined that XY be unconditionally released upon notification of his admission to the Caboolture Medium Secure Forensic Unit in Queensland (Caboolture). On 8 October 2014, XY was escorted from Bloomfield Hospital to Queensland and was admitted to Caboolture. Upon his admission, the Tribunal made an order for his unconditional release pursuant to s 47(1) of the Act.
The Attorney General has a right of appeal on a question of law pursuant to s 77A(6) of the Act. In his amended notice of appeal filed on 20 October 2014, the Attorney General raised the following two questions of law:
"1. [The Tribunal] erred in law in construing the expression 'seriously endangered' as it appears in s 43(a) of [the Act].
a. The Tribunal erred in finding that s 43(1) precludes the Tribunal from making an order for release only where it is satisfied on the evidence available to it that the probability of a risk of danger materialising is very high.
b. the Tribunal erred in finding that the critical consideration in determining whether the precondition for release in s 43(a) is fulfilled is the likelihood of the risk materialising without reference to the gravity of harm that may eventuate if it does.
2. The Tribunal erred in law in construing the phrase 'other care of a less restrictive kind' as it appears in s 43(b) of [the Act].
a. The Tribunal erred in failing to find that the phrase 'other care of a less restrictive kind' requires a comparison to be made between the existing restrictions on a forensic patient's liberty and the restrictions on the patient's liberty under the posited 'other care' regime that is found to be both consistent with safe and effective care and appropriate and reasonably available to the patient.
b. The Tribunal erred in failing to conduct such a comparison, on the facts before it, for the purpose of being satisfied (or not) of the precondition for release in the first limb of s 43(b) of [the Act]."
The Attorney General sought orders that the appeal be allowed, that the Tribunal's decision dated 10 September 2014 be set aside and that the matter be remitted to the Tribunal for rehearing in accordance with the decision and reasons of the Court. The Attorney General also sought a declaration that the respondent is, and has been at all relevant times since 2 July 2010, a forensic patient of New South Wales within the meaning of Pt 5 of the Act.
The Tribunal filed a submitting appearance.
XY conceded ground 1 of the amended notice of appeal. However, he did not concede certain of the Attorney General's submissions in support of that ground. XY opposes the Attorney General's second ground of appeal and submitted that the Tribunal did not err in law in its construction or application of s 43(b) of the Act.
It should be noted that the Attorney General did not seek a stay of the Tribunal's determination prior to XY's move from New South Wales, nor does he seek XY's return. The practical utility of the Attorney General's appeal is therefore questionable. Nonetheless, the Attorney General insisted on proceeding with the appeal, stating that it was important that the Tribunal's errors for which he contended be corrected.
Statutory scheme
Mental Health (Forensic Provisions) Act
Pursuant to s 39 of the Act, if a "special verdict" that the accused is not guilty by reason of mental illness is returned by a jury on a person's trial for an offence, the court may order that the person be detained in such place and manner as the court thinks fit until released by due process of law. Upon a person being detained pursuant to s 39, the person becomes a "forensic patient".
Part 5 of the Act makes provision, relevantly, for forensic patients: s 42. Section 40 states the objects of Pt 5 to be:
"(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care."
Section 43 provides the criteria for release of a forensic patient as follows:
"43 Criteria for release and matters to be considered by Tribunal
The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that:
(a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and
(b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care."
After a forensic patient's initial review under s 44, the Tribunal must review the case of each forensic patient every 6 months, but may review the case of any forensic patient at any time. Section 46 provides, relevantly:
"46 Further reviews by Tribunal of forensic patients
(1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time.
...
(4) The period within which a particular review under this section (other than a review of the case of a forensic patient who is subject to an extension order) must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months.
...."
Section 47 provides:
"47 Orders and recommendations on further Tribunal reviews
(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to:
(a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or
(b) the patient's release (either unconditionally or subject to conditions).
(2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release.
(2A) The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order.
(3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act.
(4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence.
(5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person:
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence."
Section 74, which appears in Pt 5, Div 7, "Tribunal functions", provides:
"74 Matters for consideration
Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part:
(a) whether the person is suffering from a mental illness or other mental condition,
(b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm,
(c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration,
(d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release,
(e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody."
I have already referred to s 77A(6), which provides for a right of appeal at the instance of the Attorney General on a question of law from a decision of the Tribunal. Section 77A further provides:
"(9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question:
(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.
(10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal.
...
(13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing.
..."
The Mental Health Act, s 68(a)-(c), (f) and (g) and s 176 are also relevant to the issues raised on the appeal. Those sections provide as follows:
"68 Principles for care and treatment
It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder:
(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,
(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,
(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community ...
...
(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
(g) the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised ...
...
176 Transfer of patients from this State
(1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations.
(2) A person who is transferred to a mental health facility in another State under this section ceases to be an involuntary patient or forensic patient on admission to the facility.
(3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.
(4) The regulations may make provision for or with respect to the following matters:
(a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer,
(b) criteria for authorising the transfer of a patient under this section,
(c) the handing over of custody of any such patient by persons in this State,
(d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section,
(e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section.
..."
Background
XY, who is aged 31, is of Iranian Kurdish background, having arrived in Australia from Indonesia in 2002. His father had arrived in 1999. XY was granted a Temporary Protection Visa eight months after his arrival in Australia and went to live with an uncle in suburban Sydney. He was first diagnosed with schizophrenia at about that time and had a number of admissions to mental health facilities. In 2005, XY moved to live with his father in Queensland. After his move to Queensland, XY ceased taking his prescribed medication.
Sometime in 2006, whilst living in Queensland, XY struck a workmate of his father's, causing him severe injuries. He was reportedly delusional at the time. XY was charged with assault in respect of this incident. XY subsequently received mental health treatment in Queensland. In August 2007, the Queensland Mental Health Court determined that XY was of unsound mind at the time of committing the alleged offence of assault occasioning bodily harm. The Queensland Mental Health Court made a Forensic Order pursuant to the Mental Health Act2000 (Qld). XY thereby became a forensic patient under that Act.
The Forensic Order made by the Queensland Mental Health Court required XY to be detained in Caboolture, but approved limited community treatment at the discretion of the treating psychiatrist on certain conditions, including residency requirements and abstinence from alcohol and illicit substances.
XY had a poor history of compliance with the conditions of the Forensic Order and in 2009, in contravention of the Forensic Order, he travelled to Sydney and lived with his uncle. In the following months, he did not seek or receive medical treatment and his delusions intensified. On 27 August 2009, XY killed his uncle in his uncle's home unit.
In mid-September 2009, an Interstate Apprehension Order was issued by the Queensland authorities seeking XY's return to Caboolture.
XY was found not guilty of the murder of his uncle on the grounds of mental illness. On 10 June 2010, R A Hulme J, pursuant to s 39(1) of the Act, ordered that XY be detained at Long Bay Prison Hospital or at such other place as may be determined by the Tribunal until released by due process of law. As a consequence of that order, XY became a Forensic Patient pursuant to s 42(a)(i). In April 2012, XY was transferred to the Macquarie Unit, a medium secure forensic unit at Bloomfield Hospital, Orange, where he was continuously detained and treated under the Act until his recent return to Caboolture.
Throughout his detention in New South Wales, XY was the subject of ongoing reviews every six months by the Tribunal pursuant to s 46(1) of the Act. At his review in November 2013, XY's treating team reported that his mental condition had remained consistently stable, that he was engaging well with staff and patients, that he had successfully undertaken some work and study, and that visits with his family had gone well. He had also engaged in community work with the Salvation Army. XY's treating team considered it desirable that XY return to Queensland to be near to his family as part of his ongoing treatment and rehabilitation. The treating team also reported that XY had expressed a wish to be near to his family and his family were reported to be keen for him to return to Brisbane.
Notwithstanding that XY has been a Forensic Patient in New South Wales since 10 June 2010, he has remained subject to the Queensland Forensic Order. In April 2014, the Queensland Tribunal confirmed the Queensland Forensic Order and approved conditions including the following:
"[L]imited community treatment is approved for [XY] subject to the following conditions:
1. The patient may undertake treatment or rehabilitation in the community by way of:*
a) Escorted absences from the authorised mental health service limited to: the grounds of Caboolture Hospital
b) Escorted absences from the authorise mental health service
*[The limited community treatment is to be progressed on a staged graduated basis to be managed at the discretion of the treating psychiatrist]
2. On escorted absences, the patient is to be accompanied by a health service staff member or members and shall obey their lawful instructions."
Evidence before the Tribunal
At the hearing before the Tribunal in August 2014, XY's psychiatrist, Dr Burns, in his report dated 10 June 2014, explained that the reason for the request for transfer was:
"... to enable his care and management to be transferred to the jurisdiction of Queensland Forensic Mental Health, with placement in a medium secure facility in Caboolture. This will enable [XY] to be closer to his family, to help rebuild their relationship after prolonged separation and to continue important family psychoeducation and therapy. Given that [XY's] family have previously not supported his retention in ongoing mental health follow-up, it will be important to develop better family insight and improve his support network approaching reintegration into the community.
The treating team is of the opinion that this transfer could be safely managed and would present a low risk for both [XY] and the wider community."
In his oral evidence, Dr Burns stressed the "crucial importance" of XY's family to XY's ongoing rehabilitation, which was not possible with XY being in New South Wales and their residing in Queensland. Dr Burns provided a detailed transfer plan to the Tribunal should it order XY's release. This involved a period of conditional release, in the company of trained staff, for the purposes of travelling to Queensland and admission into the Caboolture facility. The intention was that once the Tribunal was notified that this had occurred, an order for unconditional release under the New South Wales Act would be effected.
The treating team at Caboolture was supportive of XY's return to their care. Ms Litster, a clinical nurse specialist in forensic mental health at Caboolture, gave evidence. She had been involved with XY and his family since his first admission to Caboolture. The Tribunal, at (49), summarised her evidence as follows:
"By engaging with the family in psycho-education during [XY's] detention in New South Wales, Ms Litster stated that considerable progress had been made in assisting the family to develop insight into [XY's] mental illness and the need for continued monitoring and treatment compliance. Nevertheless, she said, there was 'still a little way to go with that process'. Comparing her involvement with [XY] from his time in the Caboolture Mental Health Unit and her current knowledge of his engagement with his treating team at the Macquarie unit, Ms Litster said [XY's] insight 'had improved enormously'."
The Tribunal also referred to Ms Litster's evidence as to the proposed programme for XY should he return to Queensland:
"... when [XY] was returned to the Caboolture unit, he would initially have no outside leave privileges for about four weeks so that a proper risk assessment could be undertaken by the treating team and to give [XY] time to settle into the unit. After that initial period, the intention of the treating team would be to return [XY] gradually to the level of community activities he had been undertaking at Macquarie, such as TAFE and working with the Salvation Army or like organisation. It was also intended to link [XY] with appropriate multicultural contacts as part of his ongoing community reintegration."
An independent report from Dr Kavanagh, Consultant Forensic Psychiatrist, and Ms Zingirlis, Forensic Psychologist, was supportive of the treating team's application. Their overall assessment was that XY did "not pose an imminent risk of reactive aggression", but that given his vulnerability for violence, he would require "assertive case management, treatment and monitoring in the long term".
Dr Kavanagh and Ms Zingirlis expressed the following opinions for the purposes of ss 74 and 43 of the Act:
"In regard to Section 74 of [the Act], it is our opinion that [XY] suffers from a mental illness (Schizophrenia) as defined by the NSW Mental Health Act 2007 in that he has a condition that can seriously impair, either temporarily or permanently, his mental functioning. His illness, when he is unwell is characterised by hallucinations, delusions, serious thought disorder, and severe disturbance of mood. It is our opinion that there are reasonable grounds that [XY] requires care, treatment and control for his own protection and the protection of others from serious harm. It is our opinion that if inadequately treated [XY's] condition is likely to deteriorate and that he will thus pose a risk to himself and others.
In regard to Section 43(a) of the Act, it is our opinion that, on the balance of probabilities, the safety of [XY] and the public will not likely be seriously endangered by his Conditional Release to facilitate his transfer to the Secure Mental Health Rehabilitation Unit (SMHRU) at Caboolture, Queensland. This is on the proviso that the proposed plan for [XY's] safe transfer and risk management, recommended by Dr Burns, is strictly adhered to. Once [XY] has been safely admitted to SMHRU, it is our understanding that he will be granted Unconditional Release by [the Tribunal] and cease to be a Forensic Patient in the state of NSW. He will however remain a Forensic Patient in the state of Queensland. This, in our opinion, is the least restrictive care available for [XY] and that he requires such treatment and care.
In regard to Section 43(b) of the Act, it is our opinion that [XY's] current proposed placement and transfer, from one medium secure unit to another, is considered to offer a safe and effective level of care of the least restrictive nature."
Proceedings before the Tribunal
The Attorney General opposed the application for XY's unconditional release. The Attorney General contended that the gravity of XY's violent offending was such that the Tribunal could not be satisfied, for the purposes of s 43(a), that XY's unconditional release would not seriously endanger his safety or the safety of any member of the public. The Attorney General referred the Tribunal to NOM v Director of Public Prosecutions [2012] VSCA 198; 38 VR 618, particularly at [63]-[64], and Re VAS [2010] VSC 411.
The Tribunal, at (82), agreed with the observation in NOM, at [59], that:
"It is an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible, that is the critical consideration, not the gravity of the harm that may eventuate." (Footnote omitted)
The Tribunal added that "the use of the word 'seriously' in s 43(a) means that the risk of endangerment must be very high". The Tribunal, at (83), concluded its consideration of the statutory requirements in s 43(a) as follows:
"... the Tribunal must be satisfied to the requisite standard that [XY's] unconditional release in the circumstances and in the manner proposed would not seriously endanger any member of the public. To be so satisfied, the Tribunal is required to have regard as to whether, on the evidence before it, the likelihood of the risk of harm from [XY] to a member of the public is likely to materialise and whether or not that risk is more than merely possible and can be characterised as very high."
This finding is the subject of ground 1 of the appeal.
The Tribunal continued, at (85), that:
"... the application for [XY's] unconditional release (preceded by a short period of conditional release) is to facilitate his return to Queensland and to be detained in the medium secure forensic unit at Caboolture pursuant to a Queensland Forensic Order."
The Tribunal noted that an unconditional release from a New South Wales Forensic Order would avoid the problem of XY being simultaneously subject to two such orders in two different states.
The Tribunal rejected the Attorney General's argument that it could not be reasonably satisfied that the public in New South Wales or Queensland would not be seriously endangered by XY's unconditional release. Rather, as the Tribunal stated:
"(95) On the evidence before it, the Tribunal is satisfied [XY's] current clinical risk status is low in his current controlled environment and while he remains treatment compliant. It has also noted Dr Kavanagh's evidence that one of [XY's] stressors is his proposed relocation to Queensland. For that reason the Tribunal has noted with approval the detailed proposal and risk assessment regime prepared by his treating team at the Macquarie unit in order to ensure [XY's] travel to Queensland and ultimately the Caboolture medium secure unit is done in a closely supervised environment at all times.
(96) Given the conclusion reached as to [XY's] current clinical risk status and the approach taken as enunciated above to the phrase 'seriously endangered' as it appears in s 43(a) of [the Act], the Tribunal is satisfied that [XY's] unconditional release in the circumstances and manner proposed will not seriously endanger any member of the public whether the 'public' be the public of New South Wales alone or the public of New South Wales and Queensland."
The Attorney General also argued before the Tribunal that the Tribunal could not be satisfied that care of a "less restrictive kind" as required by s 43(b) would be reasonably available to XY should he be returned to Queensland. The Attorney General submitted that, on the evidence, it was intended that upon XY's admission to Caboolture, he would not have outside leave for approximately four weeks and would have limited ground leave within the Caboolture unit, to enable him to undergo a detailed risk and mental health assessment and to allow time for him to settle into the new environment. Such care was thus not "less restrictive" than his care in New South Wales, where XY had periods of unsupervised leave. The Attorney General also submitted that Dr Kavanagh's opinion of the meaning of "care of a less restrictive kind" should not be accepted.
The Tribunal, at (98), acknowledged that on the evidence, XY required "ongoing care and treatment in a medium secure forensic unit". In this regard, Dr Kavanagh gave evidence of her opinion that care "of a less restrictive kind" within the meaning of s 43(b) needed also to be "safe and effective care". The Tribunal agreed, at (100), with Dr Kavanagh's evidence that as a relocation to Queensland would be a stressful experience for XY and his mental health would have to be carefully monitored for a period after his arrival, the proposal to "temporarily suspend" XY's unsupervised leave conditions was both appropriate and consistent with "'safe and effective care' of the least restrictive kind at a potentially vulnerable time" for XY's mental health.
The Tribunal, at (101), also accepted Dr Kavanagh's opinion:
"... that the test under the first limb of s 43(b) must, in the first instance, consider 'care of the least restrictive kind, that is consistent with safe and effective care'. To do otherwise would render the phrase 'consistent with safe and effective care' otiose and would be at odds with the principles for the care and treatment of patients under the Mental Health Act in s 68 of the Mental Health Act 2007 (NSW) and specifically s 68(a) that requires people with a mental illness 'should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given."
The Tribunal concluded, therefore, that the proposal that XY's leave conditions be suspended for a period of approximately four weeks when he was first admitted to Caboolture was, in all the circumstances, "care of a less restrictive kind, that is consistent with safe and effective care".
The Tribunal dismissed other arguments advanced by the Attorney General which are not relevant to the appeal, save for one matter. The Tribunal noted, at (122), that the Attorney General had raised the question of the Tribunal's power to transfer a forensic patient from New South Wales to another state under the Mental Health Act, s 176. The Tribunal stated, at (123), that having regard to the terms of s 176, the absence of regulatory provisions as required under subs (1) entailed that s 176 did not currently allow for the transfer of a New South Wales forensic patient to another state.
Consideration
First ground of appeal: s 43(a)
The Attorney General submitted that the Tribunal erred in its characterisation, at (82) (see above at [34]), of the central question under s 43(a), as being whether the likelihood of the materialisation of any risk of harm posed by XY was "very high" and in finding that the critical consideration is the likelihood of the risk materialising without reference to the gravity of harm that may eventuate if it does. The Attorney General submitted that the Tribunal was required to balance both the likelihood of a risk materialising and the potential gravity of any harm that might result in determining whether XY's release would result in serious endangerment to him or to the public.
The Attorney General and XY submitted that the Tribunal misdirected itself as to what was said in NOM v Director of Public Prosecutions and that, correctly understood, the analysis of the Victorian Court of Appeal in NOM v Director of Public Prosecutions of the meaning of "serious endangerment" was only applicable to the phrase "seriously endangered" in s 43(a).
NOM v Director of Public Prosecutions was concerned with s 40(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) where the relevant words of the legislation were:
"... 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."
The relevant expression in s 43(a) is:
"... the safety of the patient or any member of the public will not be seriously endangered by the patient's release"
Curtain AJA (Redlich and Harper JJA agreeing) stated, at [58], in respect of s 40(1)(c):
"Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any Parliamentary guidance on the meaning of the word, this much is clear from the term's ordinary and literal meaning. In the Oxford English Dictionary, the word 'endanger' means 'to expose to danger or cause danger to.' The current main sense of the word 'danger' is defined as 'liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril.' The ordinary meaning of endangerment entails the concept of chance or risk. The terms of s 40(1)(c) requires a Court to assess whether a person is 'likely to endanger themselves or others.' This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the 'chance', 'risk' or 'peril' of it eventuating is minimal, then a person subject to a supervision order is not necessarily 'likely to endanger' himself or others under s 40(1)(c)." (Footnotes omitted)
Curtain AJA then made the finding to which reference is made at [32] above.
Curtain AJA, at [61], pointed to an error in the decision of the primary judge in that case in failing "to distinguish between the notions of likelihood of danger and serious endangerment". His Honour referred to In the Matters of Major Reviews of Percy, Farrell and RJO (1998) VSC 70 where Eames J dealt with the criterion of "serious endangerment" under s 35(3)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act. His Honour noted, at [63], that:
"In the course of considering 'serious endangerment' Eames J took into account the gravity of the potential harm by drawing the distinction between a highly probable risk of minor moment and a mathematically improbable risk of serious import. The former may not satisfy a court that the person subject to a custodial order or the public would be seriously endangered by keeping custodial arrangements intact, whereas the latter may satisfy the court of such a criterion, provided that it could be established to the applicable standard of proof ..."
Curtain AJA then set out Eames J's explanation in In the Matters of Major Reviews of Percy, Farrell and RJO, at [56], of the meaning of "seriously endangered":
"In my opinion, a conclusion that there is a less than 50% chance of violent behaviour if the reviewee is released might, in some cases, support a conclusion that the judge is satisfied that the safety of the public would be 'seriously endangered'. The risk of serious harm being done, were the anticipated danger to eventuate, may constitute a release to be a serious endangerment, on the balance of probabilities, even though the risk of the event happening was less than a 50% chance. Similarly, a very high risk of a relatively minor act occurring (for example, indecent exposure) might not constitute serious endangerment of the public." (Footnote omitted)
Curtain AJA went on to state, at [64], that in many cases there may be no real difference between:
"... the risk of 'serious endangerment' (which encompasses the gravity of the possible harm) and the likelihood of endangerment (to which the gravity of the possible harm is irrelevant) ..."
In my opinion, the Tribunal erred in its construction of the phrase "seriously endangered" in s 43(a) and that that phrase, as used in s 43(a), involves a consideration of both the probability and the gravity of the risk.
The Attorney General submitted that the reference to "any member of the public" in s 43(a) included the public in both New South Wales and Queensland. The Tribunal accepted this submission, given that, at the time of his arrival in Queensland, XY would still be subject to the New South Wales Order. This was not in dispute on the appeal. It should be said, however, that any member of "the public" in s 43(a) may extend to any member of the public with whom the patient comes or may come into contact with. For example, if the Tribunal was considering conditional release to enable a patient to travel overseas, any member of "the public" would presumably encompass persons encountered in the course of travelling and whilst overseas.
The Attorney General further submitted that apart from acting on a wrong construction of s 43(a), the Tribunal erred in the exercise of its discretion in making an order for XY's unconditional release and, in particular, in considering that it was making an order for unconditional release "in name only", given that XY was going to be taken into care under the Queensland mental health legislation. The Attorney General submitted that s 43 ought not to be treated as a surrogate provision for the Mental Health Act, s 176 so as to achieve an interstate transfer.
XY submitted that the Tribunal was entitled and indeed was required to take into account all relevant circumstances in determining whether it was satisfied that an order for release should be made. This would include the evidence relating to his proposed care in Queensland.
In circumstances where the proposed transfer to Queensland underlay the making of the application, I am of the opinion that it was relevant, if not incumbent upon the Tribunal, to have regard to XY's proposed care in that State. That was relevant material for the purposes of the Tribunal's determination as to whether it was satisfied of the matters specified in s 43(a). The matter might be tested in this way. If the proposal was for XY to be released in order for him to be returned to his parents' care, it would be relevant for the Tribunal to consider the circumstances of his proposed care, including matters relating to his medication regime and the availability of services for him should they be required. If the proposed living arrangements were a mental health facility, that would likewise be relevant and require an understanding and consideration of what that care involved. In short, the living arrangements and proposed medical care, whatever they might be, is a matter that would be integral to any determination under s 43(a).
Accordingly, I would reject this aspect of the Attorney General's argument, but otherwise uphold ground 1 of the appeal.
Second ground of appeal: s 43(b)
The Attorney General submitted that the Tribunal erred in interpreting the phrase "other care of a less restrictive kind" in s 43(b). The Attorney General submitted that the section required a comparison between the existing restrictions on a forensic patient's liberty and the restrictions on the patient's liberty under the proposed "other care" regime, and that the Tribunal had failed to undertake the comparison.
On the material before the Tribunal, the Macquarie unit, in which XY was detained at the Bloomfield Hospital, and the unit to which he was to be admitted in Caboolture were both medium risk facilities. It was agreed that the proposed care of Caboolture was "appropriate and reasonably available" to XY as required by the section. Accordingly, the question in issue was whether the proposed care at Caboolture was "other care of a less restrictive kind".
The Attorney General's essential proposition was that the Tribunal could not be satisfied that the care in Queensland was of a less restrictive kind than his care in New South Wales. The Attorney General submitted that the notion of "care" under Pt 5 of the Act was implicitly linked to the notion of control, as was apparent from the objects of Pt 5 stated in s 40 of the Act.
The Attorney General submitted, therefore, that it was necessary, in order to ascertain whether the proposed "other care" was more or less restrictive, to have regard to the control that would be exercised in relation to the person subject to the proposed arrangements. The Attorney General contended that when regard was had to the conditions imposed by the Tribunal upon XY in New South Wales, it was apparent that those conditions were less restrictive than those proposed for him in Queensland. In particular, the Attorney General relied upon the fact that there would be a period of four weeks when XY was first admitted to Caboolture in which there would be no outside privileges available to him whilst a proper risk assessment could be undertaken.
The Attorney General also pointed out that in its determinations to date, and as recently as April 2014, the Queensland Tribunal had ordered only limited community treatment and that XY was precluded from engaging in any unsupervised leave. The Attorney General further submitted that XY's future care and the level of control would be dependent upon the outcome of the assessment in Queensland and the conditions that the Tribunal saw fit to impose from time to time. What level of control might be exercised would depend upon XY's mental health from time to time, and thus was unknown.
The Attorney General submitted, therefore, that both in respect of the immediate period after admission to Caboolture and in any point thereafter, the Tribunal could not be satisfied that "other care of a less restrictive kind" was available to XY.
XY contended that the Tribunal did not err in its construction or application of s 43(b). He submitted that the Tribunal was not confined to considering the circumstances of care in the immediate transitional period whilst an assessment was undertaken, but was entitled to have regard to the overall proposed care at Caboolture. XY submitted the Tribunal was entitled to conclude that following the brief transitional period, his rehabilitation would proceed with greater success than it had in New South Wales and with consequent greater liberties because of the involvement of his family and the availability to him of cultural ties that were not readily available to him in New South Wales.
Consideration
(a) meaning of medium care facility
A "mental health facility" is defined under the Act to have the same meaning as in the Mental Health Act. In the latter Act, "mental health facility" is defined to mean, relevantly, a "declared mental health facility", which in turn is defined to mean "premises subject to an order in force under s 109". Section 109(1) provides that the Director General may, by order published in the Government Gazette, declare any premises to be a "declared mental health facility". Section 109(2) provides that an order under subs (1) may "designate a declared mental health facility as a facility of a specified class".
Notwithstanding this provision, the Attorney General was not able to inform the Court as to whether there was any such statutory or regulatory classification made of mental health facilities in New South Wales. There is no definition in the New South Wales legislation of a "medium secure unit" or "medium security unit". Nor does the Queensland legislation contain any provision relating to medium secure care. Nonetheless, it was accepted that the unit in which XY was detained at Bloomfield Hospital was a medium secure unit, as is the unit at Caboolture to which he was to be admitted if the Tribunal made an order for his unconditional release (and to which he has now been admitted).
(b) meaning of less restrictive care
There is no definition in the New South Wales legislation of the meaning of "care of a less restrictive kind". In the Dictionary to the Queensland Mental Health Act, "less restrictive" is defined as follows:
"...
less restrictive, for assessment, treatment or care of an involuntary patient, means assessment, treatment or care of the level that -
(a) maximises the opportunity for positive outcomes; and
(b) ensures the protection of the patient and the community; and
(c) having regard to paragraphs (a) and (b), imposes the minimum limits on the freedom of the patient."
An "involuntary patient" is defined in the Queensland legislation to include a forensic patient.
In the absence of any statutory definition in the New South Wales legislation to assist in the construction of s 43(b), it is necessary to return to the principles of statutory construction, which require the text of the provision to be construed having regard to the context in which it appears and its purpose. The starting position is the text of the provision: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [23]-[25].
The Macquarie Dictionary (online edition, 2014) defines "care", relevantly to mean "protection; charge" and gives the phrase "under the care of a doctor" as an illustration of that meaning. The Oxford English Dictionary (online edition, 2014) similarly defines "care" to mean: "charge; oversight with a view to protection, preservation, or guidance". The Macquarie Dictionary defines "restrict" to mean "to confine or keep within limits, as of space, action, choice, quantity". "Restrictive", in turn, is defined to mean "tending or serving to restrict".
These definitions provide some support for the Attorney General's submission that the Tribunal could not be satisfied that the care at Caboolture was less restrictive because the conditions under which XY was to be detained were, initially, more restrictive than the conditions under which he was presently detained and that thereafter it could not be known whether his care would be less restrictive or not. It should be noted that senior counsel for XY accepted that the conditions on a patient's detention were "everything".
However, the context and purpose of the legislation indicate that the phrase "care of a less restrictive kind" ought not to be confined so as to related only to the extent and type of leave which a forensic patient may be granted. The objects of Pt 5 of the Act include the provision for the care, treatment and control of a forensic patient. The principles for care and treatment of persons with a mental illness, as defined in the Mental Health Act, include that a person should receive treatment in "the least restrictive environment enabling the care and treatment to be effectively given": s 68(a). The cultural and language needs of such a person are also to be recognised: s 68(g).
It is apparent from Dr Kavanagh's evidence that a professional dealing with a patient such as XY is concerned, not only with the extent of the physical control to which a person is subject, but also with the person's psychosocial care, including the circumstances of a person's detention and the most appropriate means of improving outcomes for the mentally ill person.
The Tribunal considered, in accepting the opinion of Dr Kavanagh, that upon its proper construction, it was necessary under s 43(b) for it to consider, in the first instance, whether what was proposed was "care of the least restrictive kind, that is consistent with safe and effective care". As I have indicated, the language of s 43(6) is different, in that the Tribunal must be satisfied that care of "a less restrictive kind" is reasonably available. Dr Kavanagh explained in some detail in her evidence what she meant by "care of the least restrictive kind" as follows:
"DR KAVANAGH: When looking at 'least restrictive' we're looking at again what the treating team has been saying. They can't provide - and again we're looking at his treatment and his care, and where we're looking at for him to improve his rehabilitation to allow him to go further we do need him access to his family. He needs to have access to the community. He's isolated where he is. Another risk factor, and I'm always looking at risk factors, is lack of personal supports. So he does have professional supports, as we can see, but he does lack those personal supports. And these are one of the reasons that it is least restrictive.
Another thing is that being on one forensic order is also a least restrictive because there's a lot of stress involved with forensic hearings. And so if we look at [XY] at the moment he's quite stressed. We can see that he's not like - for instance, it's very difficult to see on a videolink. However, when I interviewed him he was more animated. But we can see that he's not animated now because he is under quite a lot of stress, and these proceedings are stressful. So, in other words, in fact being on one forensic order as opposed to two, this is the least restrictive care. And does he need that care? Yes, he does need that care. (CB 129)
...
... section 43(a) and (b) cannot be mutually exclusive because if we are looking at a person's risk to himself and others that move increases the risk. So what we're doing is putting in strategies to manage that risk, and that's what's important. That is least restrictive care. So by restricting his leave for four weeks that's addressing that risk factor. And it's very important and it is the least restrictive to allow him that transfer.
And while he's staying in New South Wales [his] rehabilitation is actually stunted. He is going through the motions, but his emotional growth is being stunted because he lacks that family support, he lacks the community support and that would be an important part of his rehabilitation.
And if we look at care one thing I was unable to understand, and I might have to ask Mr Kell this, is how can care equate to where a person is placed because we actually looked at the Webster Dictionary and I know that for us as medical professionals our terms 'care' can differ from, for instance, a legal definition, and for us the provision of what is necessary for health, welfare and maintenance and protection of someone or some thing is concerned care.
So if we are looking at [XY's] treatment, care and control. So care has to be looked at not as a place and restriction on a person's movement but providing a person with what is necessary for their physical, emotional and spiritual wellbeing. That's for us care. Now, if in a legal sense it's different then I would like to understand that because I don't understand that. The control part I do understand, and, yes, we do need that control. There's no doubt about it. But the care bit I don't understand in the submission."
The matters to which Dr Kavanagh referred are consonant with the meaning of "less restrictive" in the Queensland legislation. That is significant given that, as I discuss below in relation to s 176, there is co-operation between certain states, including New South Wales and Queensland, in relation to persons who are subject to the provisions of the mental health legislation in operation in the respective states. This has not resulted in uniform or national laws. Nonetheless, where there is intended to be co-operation between states, as there is between New South Wales and Queensland, and where mental health legislation is of such a specialised nature, it is reasonable to assume that there would have been input to the terminology and concept in the legislation from relevant professionals. Accordingly, when regard is had to the context of this legislation as specialised legislation dealing with the mentally ill, including with persons who are forensic patients, the specialised views of experts in the field may assist in the proper construction of the legislation.
The Tribunal's task may have been easier if it had focused upon the statutory language of s 43. The concept of the public being "seriously endangered by the patient's release" undoubtedly encompasses both the nature of the potential harm and the chance of its occurrence. If the conduct which may occur would probably not have serious consequences for any member of the public if it did occur, a reasonably high chance of occurrence would be tolerable. If the anticipated conduct following (in the example given above) non-compliance with a regime of medication involved serious physical harm and possibly homicide, a much lower level of risk of occurrence would need to be established for the Tribunal to be satisfied as to par (a). Accordingly, the Tribunal was wrong to suggest that it could be satisfied as to the absence of serious danger unless the risk of the harm eventuating was "very high".
One problem in understanding precisely what the Tribunal meant arose from the focus in the impugned passage on two words, "seriously endangered", instead of focusing upon the whole of the provision. What the Tribunal was required to be satisfied of was a negative, namely that the safety of the public will not be seriously endangered by the patient's release. To apply that test, it needed to identify the nature of the harm which might follow from release, and the chance of the harm eventuating. That task it undertook in the following paragraphs of its reasons, stating:
"[84] ... In relation to [XY], it is abundantly clear the Tribunal is not being asked, without more, to grant him unconditional release in the sense that, in making such an order, [XY] would be released from any supervisory controls and would be able to reside in the community. If that were the case, the application would, on the evidence before the Tribunal, undoubtedly fail.
[85] As the evidence before the Tribunal establishes, the application for [XY's] unconditional release (preceded by a short period of conditional release) is to facilitate his return to Queensland and to be detained in the medium security forensic unit at Caboolture pursuant to a Queensland Forensic Order. Unconditionally releasing [XY] from his NSW Forensic Order once he is subject to the jurisdiction of his Queensland Forensic Order avoids the issue of being subject to Forensic Orders from two states."
In short, the basis for the order was that the level of security to which the respondent would be subject would not significantly vary, except to the extent that he would no longer be subject to two orders. That was seen to be a benefit for his care, but not one which reduced the level of safety accorded to the public. Thus, the Tribunal stated at [89]:
"As has been earlier established, the application for [XY's] unconditional release presently before the Tribunal is that in name only. It does not contemplate [XY] doing any more than relocating for a medium secure unit in New South Wales to a medium secure unit in Queensland and the Tribunal believes those factors should be properly considered in that context."
The Tribunal then considered and approved "the detailed proposal and risk assessment regime prepared by his treating team at the Macquarie unit in order to ensure [his] travel to Queensland and ultimately the Caboolture medium secure unit is done in a closely supervised environment at all times": at [95].
These findings demonstrate that the Tribunal would have come to precisely the same conclusion had it identified the operation of s 43(a) in the correct manner. Accordingly, although there was an error of law to be identified in its reasons for decision, the error was immaterial to the decision-making process in fact carried out.
Application of s 43(b)
The second ground of the Attorney's challenge was that the Tribunal either misconstrued the phrase "other care of a less restrictive kind" in s 43(b), or failed to make the necessary comparison between the existing restrictions on XY and those which would arise under the alternative regime.
That challenge was without substance. The Tribunal had before it the independent psychiatric evidence of Dr Kavanagh. The Tribunal accepted that the care to be offered in Caboolture would be preferable to that available in New South Wales because the respondent would be relocated to a place near his family so that care would be effected "in an appropriate and reasonable manner and, if anything, will remove some of the restriction and isolation [XY] currently experiences in the Macquarie unit being so far removed from his cultural and ethnic ties": at [114]. The Tribunal also accepted Dr Kavanagh's evidence that, by removing one forensic order, he would be subject to a less restrictive regime and less stress: at [95].
The Tribunal acknowledged a factual matter, namely that the respondent would lose his current entitlements to absence on leave whilst he was being assessed at Caboolture. In a sense, and for a period, it might be expected that his conditions of care would be more restrictive. Acknowledging that fact, the Tribunal nevertheless took a longer term approach, being satisfied that once the assessment process had been completed, the respondent would be subject to a less restrictive regime than in New South Wales: at [99]-[101]. This was an entirely factual assessment: the Attorney demonstrated no error of law (or indeed fact). Ground 2 must be rejected.
For these reasons, the Court should not set aside the order made by the Tribunal.
Effect of transfer to Queensland
If the transfer were effected under s 176 of the Mental Health Act, the status of the respondent as a forensic patient in New South Wales would in any event have ceased by operation of s 176(2), regardless of the impugned order of the Tribunal. For that additional reason the Court would not set aside the decision of the Tribunal, as to do so would lack utility.
The application of s 176(2) requires reference to the terms of s 176, set out at [127] above. The Attorney noted that a transfer to a mental health facility in another State was only authorised "if the transfer is permitted by or under a provision of a corresponding law of the other State": s 176(1). As noted above, the corresponding law is the Mental Health Act 2000 (Qld). Transfer to a mental health service in Queensland is provided for under s 183 of the Queensland Act. That provision, the Attorney correctly noted, refers to a person who is "involuntarily detained in an interstate mental health service under a corresponding law": s 183(1). The relevant corresponding laws are identified by the Mental Health Regulation 2002 (Qld), the Schedule of which includes the Mental Health Act 1990 (NSW). The Attorney accepted that this would include reference to the current Mental Health Act in New South Wales: his point was that there was no reference in the Queensland regulation to the Forensic Provisions Act in this State, under which the respondent was detained.
This submission should be accepted: s 183 of the Queensland Act does not provide for the transfer of forensic patients detained under the Forensic Provisions Act in a New South Wales mental health facility. That conclusion was not, he noted, accidental: forensic patients did not come within the terms of s 176 of the Mental Health Act 2007 (NSW) until 2008, several years after the enactment of the Queensland Act.
Counsel for the respondent submitted that s 176(1) was satisfied on a different basis. The respondent was already subject to a forensic order in Queensland. Indeed, he was subject to an "interstate apprehension order" issued on 15 September 2009, which not only permitted, but required, his return to the Caboolture Mental Health Unit in Queensland. Although there was no evidence that he was apprehended (under s 186 of the Mental Health Act (NSW)) or served with a copy of the order, so that his physical removal from New South Wales could be justified on that basis, counsel submitted that, there being existing authority for his transfer to Queensland for the purposes of the Mental Health Act (Qld), that transfer was "permitted by or under" the Queensland law. Once that condition was satisfied, s 176(1) was engaged with the consequence that, upon transfer, he ceased to be a forensic patient in New South Wales.
It is not in doubt that the respondent's status as a forensic patient, pursuant to a forensic order made in Queensland, subsists. The Queensland Mental Health Review Tribunal continues to make regular orders confirming the forensic order and approving conditional limited community treatment. (The latest order before this Court was dated 2 April 2014, but the Court was advised that there was a more recent order in force.)
It appears that the statutory authority underlying this submission may be found in s 185 of the Queensland Act which applies to an involuntary patient (as defined in the Dictionary to the Act) "who is apprehended in a participating State": s 185(1). The section then provides that the patient may be taken to "an authorised mental health service", being a Queensland mental health service. The application of this section in the present case may depend upon whether the respondent was "apprehended" in New South Wales. If that involved the execution of the warrant issued in Queensland, it was not shown that that had occurred: it appears that he was held in New South Wales pursuant only to the New South Wales statutory regime. On the other hand, it may not be necessary to rely upon s 185. There was in the evidence before the Court a document issued under ss 507 and 508 of the Queensland Act entitled "Authority to return patient to authorised mental health service". Section 508 relies purely upon the issue of a notice under s 507 to empower a health practitioner or police officer to take the patient to the authorised mental health service: s 508(1)(a) and (2).
The submissions as to the basis for the operation of s 176(1) of the New South Wales Act were not comprehensive. However, I am not satisfied that the return of the respondent to Queensland was not both permitted and authorised by ss 507 and 508 (and possibly s 185) of the Queensland Mental Health Act. Accordingly, the declaration sought by the Attorney to the effect that "[the Tribunal] did not have power under s 176 ... to authorise the transfer of [XY] from New South Wales to Queensland" was inapposite and should not be made.
I agree with the President that an order could be made under s 77A(9) affirming the decision of the Tribunal. Otherwise, it is sufficient to dismiss the appeal. The Attorney agreed to pay the respondent's costs in any event (CA Tcpt p 61(20)) and that order should be made
I would also revoke the non-publication order made on 27 October 2014 under the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the 2010 Act") with respect to disclosure of the identity of the respondent. While there is a legitimate concern to protect the privacy of a person suffering mental illness and brought before the courts against his or her will, the respondent is the subject of a published judgment in relation to the finding of not guilty on the grounds of mental illness and the homicide was no doubt the subject of some publicity. Any such order must be justified under the 2010 Act, s 6 of which requires that "a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." The most nearly apposite ground in this case is that such an order "is otherwise necessary in the public interest ... and that public interest significantly outweighs the public interest in open justice": s 8(1)(e). Further, while the Court may have inherent power to make such an order (see s 4), in my view such a power should not be exercised without due regard to ss 6 and 8.
In any event, such an order is not necessary: the Mental Health Act provides:
162 Publication of names
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) to whom a matter before the Tribunal relates, or
(b) who appears as a witness before the Tribunal in any proceedings, or
(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990,
whether before or after the hearing is completed.
It may be accepted that s 162 applies to the proceedings in this Court, so that it is appropriate that this judgment not use the respondent's name. However, for this Court to make any order to that effect is not merely otiose, but might be thought to affect the Tribunal's power to consent.
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