Attorney General of New South Wales v Christian bht Thompson

[2018] NSWSC 744

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744
Hearing dates:	08 March 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   Pursuant to cl. 1 of Scheule 1 of the Mental Health (Forensic Provision) Act 1990, Lindsay Robert Christian is subject to an extension order for a period of 2 years from 12 March 2018;  (2)   Access to the Supreme Court file by non-parties to these proceedings, is restricted and only permitted by leave of a Judge of the Court and only with prior notice to the parties who or which are to be provided an opportunity to be heard in respect of the application for access.
Catchwords:	MENTAL HEALTH – forensic patient – application for extension of term – up to 5 years available – sexual offending – schizoaffective disorder and Borderline Personality Disorder – recent diagnosis of schizoaffective disorder – need for medication to be stabilised – Mental Health Facility probably appropriate, but need for Tribunal to oversee any alterations – 2 year extension granted in accordance with expert opinion.
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 Terrorism (High Risk Offenders) Act 2017
Cases Cited:	Attorney General for New South Wales v Kapeen [2017] NSWSC 226 Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 Attorney General of New South Wales v McGuire [2013] NSWSC 1862 Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2) [2016] NSWSC 107 Attorney-General for the State of New South Wales v Boyce by His Tutor Jennifer Thompson [2017] NSWSC 144 Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 Re J (No 2) [2011] NSWSC 1224 State of NSW v Ceissman [2018] NSWSC 508
Category:	Principal judgment
Parties:	Attorney General of New South Wales (Plaintiff) Lindsay Robert Christian by his tutor Jennifer Thompson (Defendant)
Representation:	Counsel: J Edwards (Plaintiff) C Goodhand (Defendant)   Solicitors: Crown Solicitor for NSW (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/278714

Judgment

1. HIS HONOUR: The plaintiff, the Attorney General of New South Wales, seeks an order under Clause 1 of Schedule One of the Mental Health (Forensic Provisions) Act 1990 (“the MHFP Act”), extending the status of the defendant, Lindsay Robert Christian, as a forensic patient for a further period of two years. The application was made by Summons filed 13 September 2017. Preliminary hearings have been heard and orders made. The Court, as presently constituted, issued the final orders on 8 March 2018. Reasons were reserved. These are the reasons.

2. Earlier, during the course of the interlocutory proceedings, two experts were appointed to conduct separate examinations of Mr Christian and to furnish reports to the Court. Those reports were before the Court on 8 March 2018.

Background Facts

3. Mr Christian's history of mental illness is complex and he has a long history of diagnoses for disorders and/or mental illness. The Attorney General has helpfully set out a chronology (Annexure A to its Written Submissions) from which the following summary is largely taken.

4. The defendant was born on 27 November 1965 and claims to have contracted Meningoencephalitis in or about 1999 to 2000. In 2002, Mr Christian was referred, for the first time, to Dr Peter Corrigan who diagnosed him with Major Depressive Disorder and Borderline Personality Disorder.

5. On 30 June 2003 Mr Christian was scheduled under the Mental Health Legislation after walking along a roadway, attempting to have vehicles run him over. That conduct was reported by numerous people to the police. When police attended on the situation, Mr Christian repeatedly demanded that they kill him or he would kill them.

6. In 2009, Mr Christian was again referred to Dr Corrigan, who diagnosed him with a treatment-resistant form of Depression, Bipolar Disorder Type II and Borderline Personality Disorder.

7. In 2010-2011, Mr Christian continued to be treated by Dr Corrigan. Treatment notes indicated that Mr Christian attended for psychotherapy on a monthly basis. Dr Corrigan recorded diagnoses of Depression and Borderline Personality Disorder in December 2010 and possible Bipolar Disorder Type II in June 2011.

8. The treatment notes from the 2010-2011 period disclosed prescriptions, including Zyprexa, Seroquel, Endep, Melatonin, Epilim and Valium. The treatment notes also frequently refer to depression, financial pressure, anger management, suicidal thoughts, but denial of suicidal or homicidal ideation.

9. On 6 July 2011, Dr Corrigan compiled a psychiatric report. The report, which was addressed to the referring general practitioner, concerned Mr Christian's mental health as at July 2011 and his diagnosis. The report described Mr Christian as having had "a period of 2 to 3 weeks of being up" and as presenting as "mildly hypomanic".

10. Dr Corrigan's contemporaneous treatment notes stated: "mood high 2 to 3 weeks more productive, then crashed; non-compliant meds; amneric, hypersomnia, no[t] compliant with dex for weeks, can't get organised to get it, can't think or concentrate; suicidal thinking but no active intention or planning; feels well supported by friends; no psychotic symptoms; discussion re possibility of Bipolar II Disorder; risks discussed/handout; agreed trial of Lamical ".

11. On 9 July 2011, Mr Christian sexually assaulted his neighbour and his neighbour's intellectually disabled niece (who functions at an approximate age of 13 or 14). He also damaged some of his property and the property of his friend/carer.

12. On 10 July 2011, Mr Christian was again scheduled under the Mental Health Legislation after being violent and argumentative with police. Upon arrival at the Mater Hospital, Mr Christian was combative with staff. He required restraint by police and security staff; seclusion; and ultimately tranquilizing with intramuscular sedation. When police searched Mr Christian's home, they found drugs and drug paraphernalia.

13. On 11 July 2011, Mr Christian was discharged from Mater Hospital into police custody. In custody, Mr Christian tried to strangle himself with his blankets. Mr Christian, at that stage, was charged with the index offences, namely, sexual intercourse without consent (two counts); indecent assault (two counts); common assault (three counts); cultivate a prohibited plant (commercial quantity); and supply/knowingly take part in the supply of a prohibited drug.

14. On 12 July 2011, Mr Christian was again scheduled under the Mental Health Legislation after attempting suicide by strangulation the previous night. Dr Corrigan compiled a further psychiatric report addressed to "the Honourable Court", concerning Mr Christian's mental state as at July 2011, which confirmed that Mr Christian was being treated for Depression.

15. On the same day, a nursing report by Denise Walters, addressed to Newcastle Local Court, also dealt with Mr Christian's mental state and described him as presenting as "vague, confused and distressed"; "hearing voices telling him to hurt himself"; and rocking back and forth and hitting himself.

16. On 19 July 2011, Mr Christian was granted bail in relation to the index offences subject to the condition that he comply with all treatment directions by Dr Corrigan.

17. On 24 August 2011, Dr Corrigan considered referring Mr Christian to Mater Hospital as a voluntary patient because of his "major depression with psychotic factors [eg hearing voices]" and "high suicide risk factors".

18. On 18 October 2012, Dr Corrigan compiled a further psychiatric report addressed to Mr Christian's solicitor, concerning Mr Christian’s mental health history, his diagnosis and his mental state at the time he committed the sexual offences. The report concluded that:

"It is my opinion that, on 10 July 2011, Mr Christian was mentally ill and suffering from Bipolar II Disorder, alcohol intoxication and instability of mood associated with Borderline Personality Disorder".

19. Between 23 and 27 November 2012, Mr Christian was hospitalised after a serious suicide attempt thought to be achieved by an overdose of a number of substances. He had been found unconscious in the back of a station wagon, surrounded by copious amounts of medication. Mr Christian was unresponsive, went into respiratory arrest and required intubation and extubation.

20. Prior to the above-mentioned overdose, Mr Christian had not been taking his regular medication; had been hearing voices; was more volatile; had ceased self-care (eg showering); and believed that people were cutting his hair in the middle of the night.

21. Between 16 and 18 June 2013, Mr Christian was hospitalised after another suicide attempt. Mr Christian had attempted to jump out of a moving car during an argument.

22. On 25 July 2013, Dr Corrigan compiled a further psychiatric report. The report was produced for the purposes of the proceedings in relation to the index offences and was addressed to his then solicitor. The report concerned Mr Christian’s mental health history; his diagnosis; his mental state at the time of the sexual offences; and his fitness, or otherwise, to be tried.

23. On 4 September 2013, Dr Stephen Allnutt compiled a report, also for the purposes of the hearing in relation to the index offences.

24. Dr Allnutt concluded that Mr Christian likely had a mood disorder (Bipolar Disorder Type II) and an underlying personality disorder (Borderline Personality Disorder). Dr Allnutt was ambivalent about Mr Christian’s psychoses and was unsure whether he had a psychotic disorder of some sort (eg schizophrenia or schizoaffective disorder). Nevertheless, Dr Allnutt stated that Mr Christian manifested active symptoms of psychosis and concluded that Mr Christian was unfit to be tried.

25. On 18 October 2013, Dr Gary Banks compiled a psychiatric report. Dr Banks’ report was addressed to the Director of Public Prosecutions (“DPP”) and concluded that "Mr Christian would be fit to stand trial if he presented to Court in a manner similar to that evidenced on the day of this assessment". Nevertheless, the report suggested that the "variability of his presentation is potentially problematic … and it remains possible that he may not be fit when reviewed at a later date".

26. On 31 October 2013, another report of Dr Corrigan stated that "Mr Christian has impairment from Borderline Personality Disorder, Bipolar Disorder, Narcoleptic Sleep Disorder and a psychotic illness" and concluded that he was unfit to be tried.

27. On 8 November 2013, there was a fitness hearing before the District Court. The District Court held that Mr Christian was unfit to stand trial in relation to the index offences and referred him to the Tribunal. On 28 January 2014, a Review Hearing by the Tribunal occurred (“the first Tribunal Review Hearing”) for which the determination issued on 4 March 2014. The first Tribunal Review Hearing determined that, pursuant to s 16 of the MHFP Act, Mr Christian was unfit to stand trial in relation to the index offences and, on the balance of probabilities, would not become fit during the period of 12 months after the finding of unfitness.

28. On 25 March 2014, the DPP advised the District Court that he intended to proceed with the charges against Mr Christian for the sexual offences (but not the common assault and drug offences) and sought a listing for a Special Hearing. On 2 September 2014, the DPP filed an indictment charging Mr Christian with two counts of sexual intercourse without consent and two counts of indecent assault.

29. On 4 September 2014, a Special Hearing occurred before Wilson DCJ (as her Honour then was). Her Honour found, on the limited evidence available, that Mr Christian was guilty of the offences (except one count of indecent assault) and Mr Christian was taken into custody and transferred to the Cessnock Correctional Centre.

30. On 9 September 2014, Dr Corrigan compiled another report for the benefit of prison medical services. During this time, staff at the Cessnock Correctional Centre regularly reviewed Mr Christian’s mental health. He was described by staff as "confused"; "physically agitated"; "anxious"; and "sleep-deprived". Mr Christian reported auditory hallucinations and/or the hearing of voices and thoughts of self-harm. On 22 September 2014, Mr Christian was transferred to the Metropolitan Remand and Reception Centre (“MRRC”).

31. During late September/early October 2014, staff at MRRC monitored Mr Christian’s mental health and described him as "mentally unwell", "anxious" and "restless" (eg "rocking back and forth, grimacing facial features" etc). The staff noted that Mr Christian was reporting auditory hallucinations and/or hearing voices (including voices that are "commanding in nature and tell him to harm himself"). Mr Christian also reported a belief that "he has a tracking device in his arm put there by police", which he had tried to remove, and "that someone comes into his cell at night and is cutting his hair".

32. On 2 April 2015, the District Court conducted a Sentencing Hearing (Ellis DCJ presiding). His Honour imposed limiting terms on Mr Christian, which are unnecessary to recount. Mr Christian was referred to the Tribunal under s 24 of the MHFP Act and remanded into custody.

33. In a Fitness Hearing, also before Ellis DCJ, the Court found that Mr Christian was unfit to stand trial in relation to the common assault and drug offences and referred him for a second Tribunal Review Hearing. On 25 May 2015, a nursing report concerning Mr Christian’s mental state was compiled for the purpose of the second Tribunal Review Hearing. On 28 May 2015, Dr Antony Henderson compiled a report, also for the purposes of the second Tribunal Review Hearing, and diagnosed Mr Christian’s mental health as not "fit for Court (sic)", due to "severe Personality Disorder … and inability to manage stress".

34. The second Tribunal Review Hearing occurred on 29 May 2015. On 18 June 2015, the second Tribunal Review Hearing determined that, under s 16 of the MHFP Act, Mr Christian was unfit to stand trial in relation to the common assault and drug offences and, on the balance of probabilities, would not become fit during the period of 12 months thereafter. The second Tribunal Review Hearing also determined that, under s 24 of the MHFP Act and in relation only to the sexual offences, Mr Christian was suffering from a mental illness and, under s 46 and s 47 of the MHFP Act, should be detained at the MRRC for care and treatment.

35. In October 2015, a further nursing report of Renee Hall was compiled for the purpose of the upcoming third Tribunal Review Hearing. On 22 October 2015, Dr Henderson compiled a psychiatric report concerning progress, if any, since the second Tribunal determination, and stated that Mr Christian likely had "Borderline Personality Disorder (with antisocial traits)" and "consistently presents with affective instability, hostility, limited frustration tolerance, stress-related psychotic-like symptoms and drug seeking behaviour". Dr Henderson recommended management in a correctional facility as the most appropriate treatment option.

36. On 23 October 2015, the third Tribunal Review Hearing occurred.

37. On 28 October 2015, a special hearing occurred in which Ellis DCJ found, on the limited evidence available, that Mr Christian committed the offences of common assault (three counts); cultivate a prohibited plant (commercial quantity) (one count); and supply/knowingly take part in the supply of a prohibited drug (one count). Further, Ellis DCJ imposed limiting terms on Mr Christian for the common assault and drug offences, once more, which are unnecessary to recite. Again, Ellis DCJ referred Mr Christian to the Tribunal under s 24 of the MHFP Act and remanded him in custody.

38. On 24 November 2015, the third Tribunal Review Hearing determined, pursuant to ss 46 and 47 of the MHFP Act, that Mr Christian should be detained at the MRRC for care and treatment and noted that he remained unfit to be tried.

39. On 17 March 2016, Dr Henderson compiled a further psychiatric report for the fourth Tribunal Review Hearing, and concluded that Mr Christian was not "fit for Court", although the report noted the possibility of malingering or decompensation for "secondary gain". The fourth Tribunal Review Hearing occurred on 18 March 2016.

40. In late March/early April 2016, Mr Christian was charged with an offence in custody, namely, fight and engage another in physical combat. The charge related to an incident involving another inmate and Mr Christian was reprimanded and cautioned.

41. On 22 April 2016, the fourth Tribunal Review Hearing determined, pursuant to s 24 of the MHFP Act, that Mr Christian was a person suffering from a mental illness and a mental condition; that he did not object to being detained in a mental health facility; and, pursuant to s 46 and s 47 of the MHFP Act, that he should be detained at the MRRC for care and treatment.

42. Between April and June 2016, staff at the MRRC monitored Mr Christian’s mental health and noted that he had developed an extreme dislike for his treating psychiatrist (Dr Henderson) and that Mr Christian was "shaking" and becoming "visibly angry" in his presence. The staff noted that Mr Christian said that he wanted to "rip his [Dr Henderson’s] head off" and that Dr Henderson is "stealing his thoughts".

43. Between May and June 2016, Mr Christian was charged with the offence in custody of refuse/failed drug sample.

44. On 16 June 2016, Ellis DCJ issued an order under s 27 of the MHFP Act detaining Mr Christian at a mental health facility for care and treatment. On 17 June 2016, Mr Christian was admitted to the Long Bay Hospital and assessed in relation to his mental health.

45. On 20 June 2016, Long Bay Hospital staff conducted a mental health review of Mr Christian, during which Mr Christian was "angry and irritable with paranoid ideation towards the court and Dr Henderson and required de-escalation by corrective services staff and termination of the interview".

46. On 22 June 2016, a further review of Mr Christian occurred, conducted by the staff at Long Bay Hospital. On 26 June 2016, a nursing report was compiled by Siobahn McKenna for the forthcoming fifth Tribunal Review Hearing.

47. On 4 July 2016, Dr Anna Farrar compiled a psychiatric report on Mr Christian for the purposes of the fifth Tribunal Review Hearing in which she concluded that Mr Christian remained unfit to be tried and noted both "evidence of risk to self in the form of depressed mood, with reported auditory hallucinations" and "evidence of risk to others in the form of affect instability and anger".

48. The fifth Tribunal Review Hearing occurred on 7 July 2016 and, on 12 July 2016, the fifth Tribunal Review Hearing determined, under s 45 of the MHFP Act, that Mr Christian was unfit to be tried for the offences with which he had been charged and would not, during the period of 12 months thereafter, become fit to be tried. Further, the fifth Tribunal Review Hearing ordered, under s 47 of the MHFP Act, that Mr Christian be detained at the Long Bay Hospital for care and treatment.

49. During July 2016, the staff at Long Bay Hospital reported that Mr Christian continued to display aggressive behaviour towards doctors and nurses and, on 27 July 2016, in conducting a review of Mr Christian, noted that he became "so agitated he needed to be removed from the interview room".

50. On 10 August 2016, staff at the Long Bay Hospital conducted a further mental health review. On 25 August 2016, Dr Farrar conducted a fitness assessment of Mr Christian and assessed him as fit to plead.

19. On 29 August 2016, Dr Alexey Sidorov issued a psychiatric report addressed to the Tribunal for the purposes of the forthcoming sixth Tribunal Review Hearing on the issue of his progress since the fifth Tribunal Review Hearing determination. Dr Sidorov's diagnosis was that "the opinion of the treating team [is] that Mr Christian’s symptoms are best explained with [a] diagnosis of Borderline Personality Disorder, with a co-morbid Anxiety's Disorder and Depressive Disorder". Dr Sidorov’s report rejected a diagnosis of "Psychotic Disorder", but noted that "an underlying diagnosis of Bipolar Disorder is possible in light of irritability and mood lability" and recommended that Mr Christian be transferred back to the MRRC.

20. On 30 August 2016, the Tribunal conducted its sixth Tribunal Review Hearing and on 2 September 2016 determined, pursuant to ss 47 and 48 of the MHFP Act, that Mr Christian be transferred to and detained at the MRRC for care and treatment.

21. On 9 September 2016, a psychologist at the Long Bay Hospital assessed Mr Christian using static assessment tools as a result of which he was given a low risk score (a score of one). On 12 September 2016, pursuant to the determinations of the the sixth Tribunal Review Hearing, Mr Christian was transferred to the MRRC.

22. A nursing report issued on 2 November 2016, for the purposes of the seventh Tribunal Review Hearing and, on 3 November 2016, a psychiatric report by Dr Andrew White was produced for the same purpose. The psychiatric report of 3 November 2016 assessed the progress of Mr Christian since the sixth Tribunal Review Hearing determination and stated that "all the evidence would point" to Borderline Personality Disorder being Mr Christian’s "primary diagnosis", but also noted the possibility of Bipolar Disorder Type II, some sort of psychotic disorder and a Substance Abuse Disorder. Dr White expressed the opinion that Mr Christian remained unfit to be tried and he recommended that Mr Christian be transferred to The Forensic Hospital.

23. On 10 November 2016, the seventh Tribunal Review Hearing was conducted. On 18 November 2016, the seventh Tribunal Review Hearing determined, pursuant to s 47 and s 48 of the MHFP Act, that Mr Christian be transferred to and detained at The Forensic Hospital for care and treatment, as soon as a bed became available and found that Mr Christian remained unfit to be tried.

24. On 30 November 2016, the plaintiff, the Attorney General, instructed the NSW Crown Solicitor's office to collect information for the purposes of an application for an order extending Mr Christian’s status as a forensic patient. On 24 January 2017, the NSW Crown Solicitor's office notified Mr Christian that consideration was being given to making such an application in relation to him. By this time, pursuant to the determination of the seventh Tribunal Review Hearing, Mr Christian had been transferred to The Forensic Hospital.

25. On 30 March 2017, a multidisciplinary team report issued, compiled for the purpose of the upcoming eighth Tribunal Review Hearing. The report included a medical report; a nursing report; a clinical psychology report; a diversional therapy report; a social work report; and a multidisciplinary risk assessment. It stated that Mr Christian’s "presentation is complex” and raised the possibility that he had "developed a late-onset psychotic condition leading to his decompensation and disordered behaviour, and offending" (eg schizoaffective disorder).

26. On 6 April 2017, the eighth Tribunal Review Hearing was conducted. The Tribunal determined that it should adjourn the Review Hearing to permit Mr Christian’s treating team to prepare an application for Mr Christian to have escorted day leave from The Forensic Hospital.

27. On 12 April 2017, the NSW Crown Solicitor's office again notified Mr Christian that consideration was being given to making an application for an extension order in relation to him. The eighth Review Hearing was conducted by the Tribunal on 27 April 2017.

28. On 4 May 2017, Mr Christian made a claim of childhood sexual abuse at the hands of his father's partner. This seems to be the first time that Mr Christian had made this claim.

29. On 5 May 2017, further notice was given that consideration was being given to the making of an application for an extension order.

30. On 12 May 2017, Mr Christian had his escorted day leave and was observed to be "slightly hypervigilant" and protective of a female staff escort.

31. On 24 May 2017, Dr Andrew Ellis, pursuant to a request by the Crown Solicitor's office, conducted an assessment of Mr Christian to which Mr Christian responded unfavourably and was later observed to be "isolative", "brooding" and "angry". He then developed a deep resentment towards Dr Andrea Rose, a member of the treating team for requiring him to attend the assessment, when he was not, in his view, in a fit state, and for writing unfavourable reports about him.

32. On 31 May 2017, Dr Ellis issued his assessment report in which he examined the risk of reoffending and appropriate arrangements for Mr Christian’s future care and treatment. On 9 June 2017, Mr Christian had a second escorted day’s leave and went grocery shopping.

33. On 20 June 2017, the Tribunal issued the determination of its eighth Review Hearing in which they ordered, pursuant to s 49 of the MHFP Act, that Mr Christian may have escorted day leave and otherwise determined that he remained unfit to be tried and should be detained at The Forensic Hospital for care and treatment.

34. On 24 July 2017, a psychological assessment report was conducted, being an assessment of neurocognitive and personality issues and was performed by two psychologists.

35. On 25 July 2017, a report of the Community Forensic Mental Health Service issued, addressed to the treating team at The Forensic Hospital, for the ninth Tribunal Review Hearing. The report stated that Mr Christian fell "into a group of patients who present at least a moderate risk of future aggression and problem sexual behaviour" and that he continued "to present with a number of vulnerabilities, which support the need for ongoing hospital-based treatment and rehabilitation in relation to both his mental disorder and offending behaviour".

36. On 1 August 2017, there was a multidisciplinary report, also for the purposes of the ninth Tribunal Review Hearing, which included a medical report; a nursing report; a clinical psychology report; and occupational therapy report; and a multidisciplinary risk assessment. The report stated that "Mr Christian remains a difficult presentation", but concluded that "his foremost diagnosis is one of a Cluster B Personality Disorder" and that "a major mental illness" (eg a psychotic disorder) is "less likely".

37. The ninth Tribunal Review Hearing was conducted on 10 August 2017. On the same date, Mr Christian was observed making "sexually suggestive gestures" about members of staff at The Forensic Hospital and requested that any notes recording the incident be removed.

38. On 25 August 2017, instructions were given for the making of the application for an extension order that is now before the Court.

39. On 28 August 2017, the Tribunal’s determination arising from the ninth Review Hearing found there were reasonable grounds for believing that the then present arrangements for care, treatment and control of Mr Christian (namely, detention at The Forensic Hospital) are necessary and sufficient for the protection of Mr Christian and others from serious harm. The Tribunal noted that "there was grave concern at [that] time about [Mr Christian’s] release directly into the community" and the report stated that he "continue[d] to need supervision, care and treatment".

40. On 4 September 2017, the Crown Solicitor’s office notified Mr Christian that an application for an extension order was to be made and on 13 September 2017 that application was filed.

41. On 11 October 2017, there was a multidisciplinary team report which noted that there were "contrasting opinions amongst the clinicians who assessed and treated Mr Christian" but, ultimately, concluded that he "most likely suffers from a psychotic disorder such as schizoaffective disorder" as well as a "polysubstance use disorder".

42. On 16 October 2017, Dr Trevor Ma issued a psychiatric report in which he expressed the opinion that he was "more certain of the impression that Mr Christian has a psychotic disorder such as Schizoaffective Disorder that is currently characterised by persecutory delusions".

43. On 19 October 2017, the tenth Tribunal Review Hearing occurred and determined to adjourn the Review Hearing to permit Mr Christian to gather evidence to support the submission that he has become fit to be tried. While the Tribunal was deliberating, Mr Christian became hostile and verbally and physically intimidating towards his treating team (especially Dr Ma) and had to leave the tenth Tribunal Review Hearing early.

44. Mr Christian was unable to guarantee that he would not be physically aggressive to Dr Ma, following a number of days of increasing resentment towards the doctor and his treating team. The resentment/persecutory belief system continued after the tenth Tribunal Review Hearing.

45. On 24 October 2017, Mr Christian asserted that he had long-term impotence (a period of 17 years) and asserted that this proved he could not have committed the sexual offences because his impotence rendered it impossible for him to have committed them.

46. On 13 November 2017, Dr Ma's psychiatric report confirmed the doctor’s diagnosis of Schizoaffective Disorder and stated Mr Christian had become fit to be tried.

47. On 15 November 2017, a psychiatric report of Andrew Fordyce, seemingly qualified by Mr Christian’s legal representatives and performed for the forthcoming eleventh Tribunal Review Hearing, expressed the opinion that "on the balance of probabilities, … [Mr Christian] is fit to plea [sic]" but noted that Mr Christian may not have the capacity to maintain fitness through a trial of meaningful length, because of "the potential for his mental health to deteriorate under stress".

48. The eleventh Tribunal Review Hearing, conducted on 23 November 2017, determined that Mr Christian remained unfit to be tried, having found that he suffered from Schizoaffective Disorder and also determined that Mr Christian should be detained at The Forensic Hospital for care and treatment.

49. On 30 November 2017, RA Hume J issued interlocutory orders that Mr Christian be subject to Interim Extension Orders (“IEO”) and requiring two experts to examine Mr Christian. Those experts were Ms Jenny Howell and Dr Richard Furst.

50. On 12 January 2018, Davies J extended the IEO. The report of Ms Howell became available on 2 February 2018 arising from her examination of Mr Christian on 29 December 2017.

51. Justice Adams renewed the IEO on 5 February 2018 and, on 13 February 2018, Dr Furst issued his report arising from the examination on 17 January 2018.

52. As earlier stated the foregoing chronology has been taken almost entirely from the Chronology provided by the plaintiff and annexed to its Written Submissions. The annexure helpfully cites each of the affidavits and exhibits upon which each entry is based and those entries have been studied to ensure that the Chronology accurately reflects the evidence before the Court. The rather lengthy Chronology recited above gives an overall view of the history of Mr Christian and his diagnoses and assessments during the course of his detention. Such an overall view is, in my view, necessary background to the consideration of the issues before the Court.

Legislation

85. As earlier stated, the application by the Attorney General is governed by the provisions of the MHFP Act and, in particular, Pt 5 of the Act, which makes provision for forensic patients. The MHFP Act defines a forensic patient as a person detained pursuant to an order under the MHFP Act, either initially as a result of criminal charges or as a result of an extension order that has been made.

86. The objects of Pt 5 are set out in s 40 of the MHFP Act, which is in the following terms:

“40    OBJECTS

The objects of this Part are as follows:

(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.

Note: Section 68 of the Mental Health Act 2007 sets out general principles with respect to the treatment of all people with a mental illness or mental disorder.”

87. The extension order that is sought by the Attorney General is governed by the provisions of s 54A of the MHFP Act, which, in turn, refers the Court to Sch 1. Clause 2 of Sch 1 is in the following terms:

“2    FORENSIC PATIENTS IN RESPECT OF WHOM EXTENSION ORDERS MAY BE MADE

(1)    A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:

(a)    the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and

(b)    the risk cannot be adequately managed by other less restrictive means.

(2)    The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.

Note: Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.”

88. As can be seen from the foregoing, the Court is permitted to render a person subject to an extension order on the basis of a test that has become relatively familiar in the area of the Crimes (High Risk Offenders) Act 2006 and the Terrorism (High Risk Offenders) Act 2017. There seems no good reason why the approach adopted in relation to the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act ought not to be applied to the test in Sch 1 cl 2 of the MHFP Act.

89. Care, however, must be taken because, under cl 2 of the MHFP Act, the Supreme Court is permitted to render a person subject to an extension order in circumstances where the tests have been, to some extent, elided from the separate tasks contained in the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act, and the level of discretion seems greater.

90. The Court, as presently constituted, analysed the operation of the Terrorism (High Risk Offenders) Act and, to the extent that it was legislation in pari materia, the Crimes (High Risk Offenders) Act in the State of NSW v Ceissman [2018] NSWSC 508. The Court has previously taken the view that the approach in the Crimes (High Risk Offenders) Act should be applied to matters under the MHFP Act to the extent appropriate: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [12] (per Davies J). The approach in Attorney General of New South Wales v McGuire has been taken in a number of other cases: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859; New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863; Attorney-General for the State of New South Wales v Boyce by His Tutor Jennifer Thompson [2017] NSWSC 144; Attorney General for New South Wales v Kapeen [2017] NSWSC 226.

91. In State of NSW v Ceissman, supra, I referred to the notion of unacceptable risk to which the Schedule refers and, relying upon the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, referred to the determination of an "unacceptable risk" as being an application of a matrix which balances, on the one hand, the probability of the risk manifesting and, on the other hand, the harm that would be inflicted if the risk were to manifest, assuming, in each case, that the likelihood of the risk manifesting is not insignificant: see State of NSW v Ceissman, supra, at [24], [25].

92. Under the MHFP Act, the risk that the Court examines is the risk posed by the forensic patient in circumstances where she or he would no longer be a forensic patient. In other words, the risk that is balanced to determine whether the risk is unacceptable is the risk posed by the patient if the patient were no longer detained at a mental health facility.

93. Once the Court has been satisfied, assuming for the purposes of this analysis, that the Court is so satisfied, to a high degree of probability that a particular forensic patient poses an unacceptable risk of causing serious harm to others, the Court is required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney General to prove that the risk cannot be so managed.

94. One of the means of managing a person with an unacceptable risk is the regime implemented by the legislature under the Mental Health Act 2007, an analysis of which was performed by White J (as His Honour then was) in the Re J (No 2) [2011] NSWSC 1224 at [89]-[95]. That analysis was performed by White J for a slightly different purpose, namely to determine the meaning of the term "serious harm" in the Mental Health Act. See also Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, per RA Hume J, at [16] and Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [14]-[19], per Davies J.

95. In dealing with the question of whether there are less restrictive means of managing unacceptable risk, an examination of the comparison of the regime under the Mental Health Act and the MHFP Act is appropriate. With respect, I adopt the analysis of Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96]-[129].

96. The plaintiff relies upon an overall distinction related to onus between the two Acts, and submits that the onus in the MHFP Act is in favour of greater restrictions on the forensic patient and is displaced by evidence before the Tribunal in order for restrictions to be lifted. Whereas, under the Mental Health Act, the onus in relation to a patient is in favour of the liberty of the person and the relevant decision-makers must, by and large, be satisfied that the restriction is warranted. In that submission, the plaintiff relies upon the comments by Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2), supra, at [121]. That overall distinction is a broad distinction that appropriately summarises the difference in approach.

97. Further, the plaintiff relies upon four main differences that arise from the summary of Adamson J in Attorney General of NSW v Doolan by His Tutor Jennifer Thompson (No 2), supra, which the plaintiff submits are, again, the main differences warranting emphasis for the purposes of the proceedings now before the Court. It is appropriate for the Court to repeat that submission:

“[23] First, detention: a forensic patient is to remain in detention (in a mental health facility, correctional facility or other place) unless the criteria for release in s 43(a) of the MHFP Act (including that the safety of any member of the public will not seriously be endangered by the patient’s release) are met. By contrast, an involuntary patient is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered.

[24] Second, release from detention: only the Tribunal has the power to release a forensic patient, and it may do so only if it has an independent expert risk assessment report and only if the criteria for release in s 43 of the MHFP Act are met. By contrast, any authorised medical officer can discharge an involuntary patient at any time and he or she must do so in certain circumstances (eg, if the patient is not ‘mentally ill’). There is no requirement for an independent expert risk assessment report.

[25] Third, imposition of conditions while the patient is in the community: the MHFP Act empowers the Tribunal to impose conditions relating to various matters (including accommodation, treatment, medication, conduct, case management and drug testing) when it orders the release of, or grants leave of absence to, a forensic patient. By contrast, when a civil patient is released into the community, he or she may be subject to conditions that relate to treatment only (eg, medication and therapy, counselling, management, rehabilitation etc).

[26]   Fourth, breaches of conditions/recall: a forensic patient is subject to the oversight of the Tribunal, which has substantial powers of ‘recall’ from release or leave of absence in circumstances where, for example, the patient has breached a condition of release or is at risk of ‘causing serious harm to himself or herself or to any member of the public because of his or her mental condition’. By contrast, when a civil patient is realised into the community, the responsibility for overseeing treatment rests with the patient and the director of community treatment. Recall options are much more limited.”

98. The legislature has prescribed mandatory considerations (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40) in cl 7(2) of Sch 1, which are in the following terms:

“7    DETERMINATION OF APPLICATION FOR EXTENSION ORDER

…

(2)    In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a)    the safety of the community,

(b)    the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient,

(c)    the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b),

(d)    any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

(e)    any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

(f)    any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,

(g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),

(h)    the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

(i)    any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.”

99. Pursuant to authority, it is necessary, to have regard to each of the criteria prescribed, if available. It is noteworthy, and, in my view, not a coincidence that the first such criterion is the safety of the community. It is also appropriate for the Court to note that other matters, not prescribed in s 7(2) of the MHFP Act, may be relevant, but are not mandatory criteria for the consideration of the Court.

Submissions

100. There is a significant degree of consensus as to the principles to be applied to the issues before the Court. The difference between the parties is one of fact, namely, the application of the principles to the position of the defendant.

101. The plaintiff's submissions deal at some length with the principles. Those submissions were helpful, but, as earlier stated, uncontentious. Largely, those submissions accord with the view taken by the Court and reflected above.

102. As to the issues of contention, which are essentially whether the defendant poses an unacceptable risk and whether that risk can be adequately managed by less restrictive means than an extension pursuant to the application of the plaintiff, the parties differ.

103. The plaintiff submits that Mr Christian poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and relies on the terms of cl 2(1)(a) of the Schedule to the MHFP Act. The Court has already recited, without significant comment, the chronology of the treatment of Mr Christian.

104. The plaintiff relies upon the recent diagnosis of serious mental illness: schizoaffective disorder, comorbid with Borderline Personality Disorder and a substance abuse disorder. The plaintiff relies upon the psychiatric evidence to submit that the schizoaffective disorder is considered to be his primary and most serious diagnosis and emphasises the recent nature of the diagnosis, which, it is submitted, has the effect that the current treatment strategy is only in the early stages and adaption of that treatment may be necessary.

105. Further, the plaintiff submitted that the disorder, assuming it has been extant but undiagnosed for some time, is likely to have played a role in the commission of the sexual offences. Lastly, the plaintiff submitted that the schizoaffective disorder has increased the defendant's prospects of reoffending and, in particular, in accordance with the report of Dr Ellis has referred to it being a basis as an independent risk factor for sexual offending.

106. Further, the plaintiff submitted that the clinicians and health professionals who have assessed the defendant agree that he poses a risk of reoffending. That agreement is based upon a variety of approaches in the assessment of such risk. Further again, the clinicians and health professionals concerned are unanimous that the defendant requires inpatient treatment.

107. The plaintiff referred to the comments of Ellis DCJ that, in the absence of his mental illness, the defendant would have been sentenced to a significant period of imprisonment because of the serious nature of the sexual offences committed.

108. Further, the plaintiff submitted that the defendant has shown little or no insight into his offending and continues to deny having committed the offences and, on occasion, the defendant has insisted that he was set up by the victims for financial gain.

109. The defendant has refused to participate in Sex Offender Treatment Program or its equivalent, despite repeated requests. Again, the clinicians and health professionals, in their assessment of the defendant's attitude, agreed that his refusal to accept responsibility for the offences is problematic and requires addressing.

110. The substance abuse disorder is, according to the plaintiff, largely unknown and, if the defendant were under a regime that was less restrictive than the current regime, this is likely to be an aggravating feature of the otherwise diagnosed mental illnesses. The intoxication of the defendant was a factor in the commission of the index offences and the serious disinhibiting effect of alcohol is extremely problematic. The defendant has similarly not completed a drug and alcohol rehabilitation program.

111. In dealing with the adequacy of less restrictive means, the plaintiff relies heavily on the report of Dr Furst who recommended that the defendant continue to be managed under the MHFP Act and remarked that anything less strict would destabilise the defendant. The plaintiff also relies upon Dr Ellis. Although this report is more equivocal, the plaintiff submits that it is more in the nature of a record of fact and should be treated with caution because of the lack of understanding of the legal difference between the Mental Health Act and the MHFP Act regimes.

112. The plaintiff submits that it is appropriate only for the defendant to be allowed release, if any, on the basis of a decision of the Tribunal, rather than one doctor, as is the case under the Mental Health Act regime. This is particularly so in circumstances where the defendant has had a history of relationship breakdowns with clinicians which points to the desirability of the Tribunal's supervision continuing.

113. The defendant, in his submissions or submissions on his behalf, did not concede that the plaintiff has shown that the defendant is an unacceptable risk of serious harm to others if the limiting term were not extended. However, the defendant submits very little in support of that proposition, other than reliance upon the burden of proof being with the plaintiff and the burden not having been discharged.

114. The defendant also accepts the plaintiff's submissions as to the correct approach to the high degree of probability.

115. Rather, the defendant has relied, for its major submissions, on the subsequent step to be considered. In other words, the defendant, while not accepting that the defendant is an unacceptable risk, submits that, even if the Court were to find that the defendant is an unacceptable risk, would not find that the plaintiff has discharged its onus in satisfying the Court that no less restrictive regime is appropriate.

116. In that regard the defendant submits that the risk, assuming for these subsequent submissions that the Court was satisfied that there was an unacceptable risk, can be adequately managed by other, less restrictive, means and, in particular, under s 14 of the Mental Health Act. The defendant points out that the regime under s 14 of the Mental Health Act also includes residency in the Forensic Health Hospital and then in a Mental Health Facility.

117. The defendant submits that the unacceptable risk is adequately managed when it is able to be "mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill … patients being confined in some form of institutional care rather than taking their place in the community …". The defendant submits that less restrictive means includes managing the patient as an involuntary patient under the Mental Health Act, and is capable of being judged by the legal power of others to control the defendant’s actions and the practical operation of the power in the circumstances of the defendant.

118. The defendant also relies upon the reports of Dr Furst and Dr Howell, as well as Dr Ellis. The first two reports are relied upon expressly for the criterion in cl 7(2)(b) and the latter for the criterion under cl 7(2)(c) of the Schedule.

119. The defendant submits that he participated in one day escorted leave and there was no evidence that he was a risk of serious harm to the community during that time. Further, the defendant has not been shown, notwithstanding his lack of insight, to be at risk of refusing to take his medication as prescribed. The defendant submits that the Court is not concerned with removing all risk, but whether the defendant poses an unacceptable risk and whether the unacceptability of that risk can be sufficiently ameliorated by less restrictive means than an extension of the limiting term.

120. The defendant also relies upon the period when he was on bail for three years and did not breach his bail conditions or cause serious harm to others. During that time he attended his psychiatrist and general practitioner regularly and, although he did attempt suicide during that time, the defendant says that is not a factor to be considered in relation to the safety of the community.

121. The one issue on which the parties do differ is the reliance on the principles arising out of the Crimes (High Risk Offenders) Act and their application to the regime under the MHFP Act. The defendant, correctly, points out that the regime under the MHFP Act has a far wider reach and greater caution should be taken when applying the principles.

122. Further again, the risk in the different regimes is significantly different. In both the Crimes (High Risk Offenders) Act and the Terrorism (High Risk Offenders) Act the risk is one of committing a serious violence offence or a terrorism offence. In the former case that is an offence that results in grievous bodily harm or death. More importantly, neither high risk offenders regimes involve a concept of the adequacy of less restrictive means.

Consideration

123. The Court has set out the history of the defendant's offending and treatment in the chronology earlier in these reasons for judgment. It is clear from the report of Dr Furst that there have been some difficulties in stabilising the medication regime under which the defendant has been treated.

124. There has also been some differences in diagnosis. The diagnosis has consistently suggested Borderline Personality Disorder, but only recently has suggested Schizoaffective Disorder. At one stage he was diagnosed with Bipolar Affective Disorder [Type II] with the possibility of psychotic illness.

125. During his time in hospital at least up until mid-2017, the defendant reported to doctors that he was doing "quite well" but he believed that staff "were talking about him”, regarding this as “paranoid thoughts”, and alluded to the “suppressed rage” and depression".

126. Dr Furst refers to the defendant's treatment and the care under Dr Trevor Ma, psychiatrist, since mid to late 2017. During that time there were multiple aggressive verbal outbursts; the defendant voiced paranoid thoughts, including that fellow patients were deliberately trying to spread gastroenteritis to him; he required sedation; and was ultimately referred to a medium secure forensic unit. His mood was unstable.

127. The Tribunal reviewed the defendant's case on 19 October 2017 at the Forensic Hospital and adjourned those issues to 23 November 2017 for further consideration. There was consideration given to the potential for the defendant to be transferred to a medium secure forensic unit, such as Morisset.

128. Dr Furst reports that grave concern was expressed by the Tribunal in relation to the defendant's plans or expressed intention to be released directly into the community. Dr Furst noted that the defendant was verbally aggressive and physically intimidating to his treating team outside the Tribunal hearing in October 2017.

129. The Tribunal noted that he continued to need supervision, care and treatment and the report recites:

"Given his risk vulnerabilities, it was determined [there] were reasonable grounds for believing that care, treatment and control were needed for Mr Christian's own protection from serious harm or the protection of others from serious harm. The Forensic Hospital was seen as the least restrictive environment which enabled care and treatment to be effectively given to Mr Christian, ultimately recommending no change to the present order that Mr Christian be detained in the Forensic Hospital at Malabar on an involuntary basis for ongoing care, treatment and control."

130. In November, the defendant was prescribed and commenced on zuclopenthixol. Dr Furst concluded that the defendant suffered from a mental illness in the form of schizoaffective disorder and continued to manifest paranoid delusions, including about judicial officers, solicitors and his treating team, has poor insight and emotional instability. Dr Furst repeated that the defendant meets the diagnostic criteria for schizoaffective disorder, substance use disorder and borderline personality disorder and remains a ‘mentally ill person’ within the meaning of the Mental Health Act. Dr Furst opined that the defendant continues to pose a risk of causing serious harm to others if he ceases to be a forensic patient and that risk is at least at a moderate level of future violent offending/aggression and a low-moderate risk of future sexual offending.

131. As at February 2018, when the orders of the Court issued, Dr Furst expressed the following opinion:

"Having regard to all of the available information outlined above, I am of the opinion that Mr Christian is not yet stable in his mental state, with evidence of ongoing paranoid thinking and schizoaffective disorder that is treatment resistant. He has failed to adequately engage in a highly restrictive and supported setting in the Bronte Ward at the Forensic Hospital.

Although treatment at Morisset Hospital is desirable in the longer-term and would be his logical rehabilitation pathway given he plans to live in Cooranbong and has the support of family and his carer, I am of the opinion he currently remains too symptomatic, including paranoia about his treating team and he is largely disengaged in rehabilitation, meaning that at a transfer to Morisset, or a transferred to any other less restrictive psychiatric hospital environment on an involuntary basis, would be premature and would likely destabilise his mental state and result in more florid psychosis."

132. Further, Dr Furst opined:

"Having regard to his risk profile and clinical needs, I am of the opinion that care, treatment and control as a forensic patient is needed for Mr Christian's own protection from serious harm or the protection of others from serious harm. I am of the opinion that the Forensic Hospital is the least restrictive environment which would currently enable care and treatment to be effectively given to Mr Christian."

133. Dr Furst also expressed the opinion, in terms of the length of time that an extension order ought to be made, that an appropriate figure was 2 years for the extension, which period would allow for the treating team to manage his schizoaffective disorder more aggressively; provide psychoeducation; and provide other interventions over the next 12 months at the Forensic Hospital and thereafter ensure their stabilisation.

134. As earlier stated the report of Dr Andrew Ellis, Forensic Psychiatrist, is less definitive. Nevertheless Dr Ellis expressed the following opinion:

"Concern with relying solely on the Mental Health Act scheme would be that this type of clinical may not be provided, with quick transfer to a generalist psychiatric unit and/or rapid discharge to any available community accommodation. Brief reviews have previously discounted the possibility of an enduring mental illness, and given his atypical presentation, there may be pressure to discharge to private providers only on a resource related basis. This type of fractured care is generally unsatisfactory. He could theoretically be discharged from care without consultation or external review. This scenario might lead to non-compliance with antipsychotic medication and substance use with rapid escalation in risk in the absence of monitoring. Given the current attention to his case, this scenario appears less likely.”

A significant difference in forensic patient status is when on conditional release, recall to hospital or prison may be enacted more rapidly in a cycle of clinical deterioration. It does not require the deteriorate to a point where he becomes a ‘mentally ill person', although if clinicians are mindful of the need to appraise his 'continuing condition' under s 14 of the Mental Health Act, early deterioration or non-compliance with treatment could be the grounds for hospitalisation. This has greater relevance in this case than some other forensic patients as his risk stems from a number of clinical areas including substance use and personality disorder as well as mental illness. An increase in risk could be managed in the circumstance where other clinical conditions deteriorate but his mental illness does not. …

…

Ultimately, the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order. If conducted in an evidence-based fashion in the manner suggested above the use of the civil mental health legislation could be as safe and effective as an order for detention or conditional release. It would also remove the possibility of restrictive and ineffective recall to prison in the event of a non-criminal breach of conditions of release."

135. Overall, and bearing in mind the mandatory criteria established by cl (7)(2) of the Schedule to the MHFP Act, I am satisfied that the defendant represents an unacceptable risk within the meaning of that Act, as explained above. Further, I am satisfied, notwithstanding the theoretical availability of adequate care under the Mental Health Act, that given Mr Christian’s complex mental condition, including the subsistence of a number of disorders and his lack of insight into his own offending, treatment under the Mental Health Act, otherwise than under a limiting term, poses unacceptable risks to the community.

135. The fact, if it be the fact, that the MHFP Act might impose a regime that is little different from the regime under the Mental Health Act simply means that the case-by-case approach applicable to the defendant is one that would allow, at least on a trial basis, a less restrictive set of conditions. Nevertheless, on all of the evidence before the Court, the Court is satisfied that without the involuntary and restrictive nature of the review by the Tribunal, the defendant poses an unacceptable risk of safety to the community.

136. I draw comfort in this respect from the treatment by the defendant of his treating team during interviews and his sexually suggestive gestures about members of staff at The Forensic Hospital.

137. It is for the foregoing reasons that the Court made orders on 8 March 2018.

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Amendments

05 June 2018 - [36] - Amended and new paragraph inserted to correct a slip.

Decision last updated: 05 June 2018