Attorney General of New South Wales v Skerry

[2018] NSWSC 1161

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of New South Wales v Skerry [2018] NSWSC 1161
Hearing dates:	27 July 2018
Decision date:	27 July 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Interim supervision order for 28 days with two qualified experts appointed to conduct separate examinations of the defendant
Catchwords:	CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – preliminary hearing – application for appointment of experts and for interim extension order – orders not opposed – no point of principle
Legislation Cited:	Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Sch 1
Cases Cited:	Attorney General of New South Wales v CD (Supreme Court (NSW), Adams J, 24 November 2016, unrep) Attorney General of New South Wales v Skerry (Preliminary) Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859
Category:	Principal judgment
Parties:	Attorney General of New South Wales (Plaintiff) Michael John Skerry by his tutor Jennifer Thompson (Defendant)
Representation:	Counsel: Ms G Wright (Plaintiff) Ms N Evans (Defendant)   Solicitors: Crown Solicitor’s Office Legal Aid NSW
File Number(s):	2018/186091

Judgment

1. HIS HONOUR: By a summons filed on 15 June 2018 the Attorney General of New South Wales ("the plaintiff") seeks an extension of the status of Michael John Skerry as a forensic patient under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) for a period of 5 years. Mr Skerry appears by his tutor, Ms Jennifer Thompson.

2. This is the preliminary hearing at which the plaintiff seeks (a) an order pursuant to cl 6(5) of Sch 1 appointing two psychiatrists to conduct examinations of Mr Skerry and to furnish reports to the Court; and (b) an order pursuant to cl 10 of Sch 1 that Mr Skerry be subject to an interim extension order from 8 September 2018 for a period of 28 days.

3. Through counsel it has been indicated that there is no opposition to the making of these orders, although it is noted that there is opposition to the making of the extension order that the plaintiff ultimately seeks.

4. The lack of opposition to the making of the orders does not mean they are necessarily to be made. The legislation requires me to be satisfied that its various provisions have been satisfied on the basis of the material that has been placed before me.

5. This matter is a little unusual in that Mr Skerry has been the subject of an extension order under this legislation already. That order is soon to expire. I had some involvement in relation to the earlier proceedings. I made orders at a preliminary hearing on 26 June 2015: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859. Final orders were subsequently made on 9 September 2015 with reasons provided at a later time: Attorney General of New South Wales v CD (Supreme Court (NSW), Adams J, 24 November 2016, unrep). The order was made for a period of 3 years, although the Attorney General had sought a period of 5 years.

6. I note that although cl 8 of Sch 1 provides for a maximum period for which an extension order may be in force (5 years), cl 8(2) provides that nothing prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.

7. I am satisfied pursuant to cl 6 and cl 10 of Sch 1 that the interim orders should be made. Given the lack of opposition there is no need for me to provide any elaborate reasons. I have read the material and have formed the relevant level of satisfaction.

8. The two judgments referred to above adequately provide detail of Mr Skerry's history as a forensic patient and how he comes to be in the position he is today. There is no need for me to repeat all of that.

9. Suffice to say for the reader that Adams J was satisfied in 2015 that it was appropriate to make an extension order and on the basis of the material that has become available since then I am satisfied that if the matters alleged in the documentation were proved it would justify the making of a further extension order.

10. In particular, I note that Dr Anna Farrar, forensic psychiatrist, was involved in the assessment of Mr Skerry in 2015. She saw him again on 6 February 2018 at the Forensic Hospital, Malabar for a period of 1.5 hours and provided a report of 19 February and a supplementary report of 29 March 2018.

11. Dr Farrar utilised the Historical Clinical Risk Management-20 (HCR-20) Version 3 to assess Mr Skerry's level of risk to others in respect of violence. Her conclusion is encapsulated in the following:

“The combination of Historical Risk Factors, Clinical Risk Factors and Future Risk Management Factors on the HCR-20, place Mr Skerry in a group of persons with a moderate risk of future violence (with low to moderate risk of serious physical harm and low risk of imminent violence), which had reduced from the high risk he presented on my assessment in August 2015. Whilst his Historical Risk Factors have remained static, there has been a notable improvement in Mr Skerry’s Clinical Risk Factors and Future Risk Management Factors. His Clinical Risk Factors had improved with clozapine treatment and there had been remission of positive symptoms and development of insight with a lack of violent ideation or behavioural instability. His Future Risk Management Factors had improved with suitability and plan for medium secure unit transfer. Specific considerations for future treatment include developing a community accommodation and discharge plan with appropriate community supports, monitoring compliance with treatment in a less monitored setting, and monitoring behaviour whilst on community leave.”

12. In her supplementary report, Dr Farrar further explained her opinion that Mr Skerry "would benefit from ongoing management as a forensic patient in a medium secure forensic unit". She also discussed her opinion that "Mr Skerry's risk could not be adequately managed by a non-forensic mental health unit, due to lack of specialist knowledge and skills in the management of patients with offending behaviour and violence risk".

13. The limiting term imposed by the District Court upon Mr Skerry in November 2013 expired on 5 July 2015. The order made by Adams J took effect on the day it was made, 9 September 2015, and it is due to expire on 8 September 2018. Mr Skerry had been transferred from the Long Bay Prison Hospital on 28 July 2015 to the Forensic Hospital. He was transferred to the Macquarie Unit, a medium secure unit in Bloomfield Hospital at Orange on 7 March 2018.

14. The decision to approve the transfer of Mr Skerry from the Forensic Hospital to a medium secure unit was made by the Mental Health Review Tribunal on 21 December 2017. Influential to the decision would appear to have been the opinion of Mr Skerry's treating psychiatrist, Dr Kerri Eagle. The report of the Tribunal included the following summary:

"Given his response to Clozapine, his sustained behavioural and affective stability in the high secure hospital and his cooperation with therapeutic interventions, he is appropriate for transfer to a medium secure unit under an adequate risk management plan. Until placement in a medium secure unit is available, I am of the opinion that the high secure Forensic Hospital is the least restrictive, reasonably available option in the circumstances."

15. Counsel for the plaintiff has pointed out that Mr Skerry could remain in the Macquarie Unit at Bloomfield whether he is a forensic patient or a "civil" patient detained under the Mental Health Act 2007 (NSW). However, it was submitted that, at least at a prima facie level, it is necessary and appropriate that Mr Skerry remain a forensic patient. Management of risk in this case includes a consideration of Mr Skerry's present and future circumstances, including the regime that will apply to him upon release or discharge into a community setting and that the regime of supervision will be more rigorous. The Mental Health Review Tribunal will also play a more intensive role if Mr Skerry remains as a forensic patient.

16. I accept the force of that submission. But I also remain of the view I expressed in 2015 in Attorney General of New South Wales v Skerry (Preliminary) (at [54]) that the focus at the preliminary hearing stage should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other.

17. In the end, I am satisfied that the material relied upon by the plaintiff would, if proved, justify the making of an extension order. Accordingly, I make the orders set out in the Short Minutes provided today; in essence, that two qualified experts examine Mr Skerry and provide reports and that there be an interim extension order for a period of 28 days commencing from the expiry of Mr Skerry's current extension order on 8 September 2018.

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Decision last updated: 27 July 2018