Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2)

[2016] NSWSC 107

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107
Hearing dates:	17 and 18 February 2016
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) An order pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that the defendant be subject to an extension order for a period of five years from the date hereof.
Catchwords:	CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for extension order – whether final order should be made to extend status as a forensic patient - whether poses an "unacceptable risk" of causing serious harm to others - whether less restrictive means available – whether involuntary patient status under Mental Health Act 2007 (NSW) would adequately manage risk – extension order made – differences between statutory regimes
Legislation Cited:	Crimes (High Risk Offenders) Act 2007 (NSW) Guardianship Act 1987 (NSW), s 4 Mental Health Act 2007 (NSW), ss 12, 14, 15, 27, 35, 37, 38, 39, 40, 42, 43, 47, 51, 53, 56, 57, 58, 60, 65, 68, 150(2A), Sch 5, cl 1 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 19, 23, 24, 32, 40, 42, 43, 46, 49, 54A, 55(1), 68, 73, 74, 75, 76A, Sch 1, cll 1, 2, 4, 5, 6, 6(5), 7(1)(a), 7(2), 10, 11(2) Mental Health Regulation 2013 (NSW), cll 8, 19(1)(b), 19(4)
Cases Cited:	Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 Attorney-General of New South Wales v Doolan by his tutor Jennifer Thompson [2015] NSWSC 1773 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Veen v The Queen [No. 2] (1988) 164 CLR 465
Texts Cited:	Mental Health Review Tribunal Guidelines, s 2
Category:	Principal judgment
Parties:	Attorney General of New South Wales (Plaintiff) Bevan Charles Doolan (Defendant)
Representation:	Counsel: G Wright (Plaintiff) R Montgomery (Defendant)     Solicitors: Crown Solicitor for NSW (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2015/317034

Judgment

Introduction

1. By summons filed on 28 October 2015 the Attorney-General of New South Wales, the plaintiff, seeks an order to extend the status of Bevan Doolan, the defendant, as a forensic patient for the maximum period of five years pursuant to cl 7(1)(a) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act).

2. On 25 November 2015, following a preliminary hearing, I made an order appointing a psychiatrist and a psychologist to conduct examinations and furnish reports to the Court, as well as an order pursuant to cl 10 of Sch 1 that the defendant be subject to an interim extension order from 12 December 2015 for a period of 28 days: Attorney-General of New South Wales v Doolan by his tutor Jennifer Thompson [2015] NSWSC 1773. The interim extension order was renewed by Adams J from 9 January 2016 and by Garling J from 5 February 2016. It cannot be renewed beyond 11 March 2016: cl 11(2) of Sch 1.

The jurisdiction in the context of the statutory framework

The plaintiff’s status as a “forensic patient”

3. Section 42 of the Act defines “forensic patients” to include a person who is detained in a mental health facility pursuant to an order under s 24. Section 24 provides for an order to be made with respect to the custody of a person in respect of whom a court has nominated a “limiting term”. An order under s 24 was made in respect of the plaintiff on 20 June 2014 when Tupman DCJ nominated a limiting term of three years commencing 13 December 2012 (being the date on which the defendant was taken into custody following the commission of the index offence) following a special hearing in which her Honour found on the limited evidence available that the defendant had committed the offence charged of reckless wounding. The special hearing was conducted as Solomon DCJ found the plaintiff unfit to be tried on 29 July 2013 and referred him to the Mental Health Review Tribunal (the Tribunal) under s 14 of the Act. On 17 September 2013 the Tribunal found the plaintiff unfit to be tried.

4. As a consequence of the s 24 order, Tupman DCJ referred the plaintiff to the Tribunal and ordered that he be detained, as a result of which he became a forensic patient. These matters are addressed in more detail below in the narrative of facts.

The provisions relating to extension orders

5. Part 5 of the Act, which deals with forensic and correctional patients, contains s 40, which provides that the objects of the Part include the protection of the safety of members of the public. Section 54A, which is also contained in Part 5, confers power on this Court to make an extension order in respect of a forensic patient who is subject to a limiting term or an existing extension order (which includes an interim extension order): cll 1 and 4, Sch 1.

6. Cl 2 of Sch 1 provides:

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 (including classification as an involuntary patient under section 53).

(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.

7. Clause 7(2) of Sch 1 sets out the matters to be taken into account in determining whether to make an extension order, as follows:

“(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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General 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.

8. An application for an extension order is required to be supported by documentation that addresses each of the matters referred to in cl 7(2) to the extent relevant, as well as a report by a qualified psychiatrist or registered psychologist that addresses: the risk of the forensic patient causing serious harm to others; the need for ongoing management as a forensic patient and; the reasons why the risk posed cannot adequately be managed by other less restrictive means: Sch 1, cl 5.

9. Clause 6 of Sch 1 provides for pre-hearing procedures. As referred to above, I made orders at the preliminary hearing for medical experts to examine Mr Doolan and furnish reports to this Court.

10. Once an extension order is made, it is for the Tribunal to determine what flows from the order, in terms of care and control of the forensic patient. Thus, if an order is made, the Tribunal determines whether the defendant remains at the Forensic Hospital or lives in another mental health facility or in supported accommodation in the community such as that provided by Community Justice Program (CJP).

The background facts

11. Before addressing the factors required to be taken into account by cl 7(2), Sch 1, I propose to summarise the background facts which are germane to an assessment of the risk posed by Mr Doolan and to the ongoing management required.

The defendant’s criminal history and other matters germane to risk of harm to others

12. The defendant has a criminal history which involves stalking, intimidation and assault of strangers. He also has a lengthy criminal history of larceny and break and enter offences. He was subject to control and community orders when he was a juvenile, the first of these having been imposed when he was 13.

13. In 2010 the defendant was charged with stalking, intimidation and committing an act of indecency and behaving in an offensive manner. He was alleged to have approached a woman who was pushing her 11-month old daughter in a pram. He followed her to her apartment and waited outside her door. He removed his clothes and masturbated. She called the police who arrested him in the stairwell. On 12 August 2011 the charges were dismissed in the Local Court under s 32 of the Act on the basis that the defendant was mentally ill.

14. On 23 March 2010 in Seven Hills, a woman woke at 4.30am to see the defendant standing naked in her lounge room with the light on. The defendant then turned the light off and, when she turned her bedroom light on, she saw him standing in front of her, holding a large kitchen knife above her head. When she asked the defendant what he wanted, he answered, “To have a baby with you.” The woman managed to run out through her front door. At the conclusion of a special hearing conducted pursuant to s 23 of the Act, Keleman DCJ imposed a limiting term of 12 months which expired on 26 June 2012.

15. On 14 November 2011, a guardianship order was made by the Guardianship Tribunal, pursuant to which the Public Guardian was appointed as the defendant’s guardian. That role was performed by Sean Hosking.

16. Shortly prior to the defendant’s release, the Community Mental Health Team (CMHT) at Goulburn was made aware of his imminent discharge from gaol. At the time of his release he lived in supported accommodation in Goulburn arranged by the CJP and Disability Services Australia (DSA). His accommodation was described as “On Site Support Living Model”.

17. On 13 July 2012, a fortnight after the defendant’s release, CJP Goulburn contacted CMHT to inform it that the defendant was overdue for his (anti-psychotic) depot medication. That day, CMHT contacted Ageing Disability and Home Care Goulburn (ADAHC), which administers CJP. The ADAHC members of staff who were spoken to knew nothing about the defendant. After several further phone calls that day, including to the Tribunal, the Goulburn CMHT eventually found out where the defendant was living from CJP Goulburn.

18. On 16 July 2012 the Goulburn CMHT raised concerns with CJP about not being informed of the defendant’s arrival in the area. Shane Flynn of CJP reported that the defendant had been found masturbating in a car. An appointment was made for the defendant to see Professor Cathy Owen, a psychiatrist, at Goulburn Base Hospital. On 17 July 2012 the Goulburn CMHT telephoned Mr Hosking, who returned the call the following day. The view was expressed that the defendant’s “challenging behaviour” related to the overdue depot medication.

19. On 20 July 2012 the defendant was seen by Professor Owen. Following the consultation, Professor Owen rang the Tribunal and informed it that the defendant had presented at Goulburn Base Hospital “quite delusional and psychotic” and “with significant risk”. A summary by the Tribunal (prepared for its reviews of the defendant) recorded:

“Mr Doolan had been placed in CJP ADAHC housing in Goulburn that Professor Owen deemed as entirely unsuitable and isolative. Professor Owen wanted to know if the Tribunal could place Mr Doolan back on his forensic order and force the CJP to find more appropriate housing. It was explained that Mr Doolan was no longer under the legislative provisions of the Mental Health (Forensic Provisions) Act.

On 14 August 2012, Pam Cuehlo for ADAHC advised the Tribunal Mr Doolan was not well: there was a problem identified with responsibility for medication in spite of a comprehensive discharge summary provided to Goulburn Base Hospital. No CTO [Community Treatment Order] application was made prior to his release in June 2012.”

20. On 24 July 2012 Shane Flynn of CJP rang the CMHT to report that the defendant had arrived back at his home in Goulburn in an intoxicated state and to request information about his medication. The defendant’s depot medication was eventually administered on 26 July 2012.

21. On 26 July 2012 Barry Palmer (a Senior Clinical Consultant at CJP) and Wayne Zahra (Acting Clinical Team Leader at CJP) reported to Mr Hosking that the defendant no longer wanted to live in Goulburn and wanted to return to Sydney to have sex with a former girlfriend (who did not want any contact with him) and to have more contact with his mother in Redfern (for the purpose of obtaining money for alcohol). The report continued:

“It is the opinion of the CJP [that] if Mr Doolan was to access the Sydney region without support from staff he would be placing himself at risk of recidivism. It [is] therefore a recommendation of the CJP that a coercive function is added to Mr Doolan’s current Guardianship Order that would enable DSA to request assistance from the emergency services to retrieve Mr Doolan to [the Goulburn residence] if he were to abscond and place himself at risk.”

22. On 27 July 2012 Mr Hosking applied to the Guardianship Tribunal for review of the guardianship order (which incorporated the functions of accommodation, health care, medical/ dental consents and services). He rated the urgency as high and requested an expedited hearing in Balmain early the following week. In support of the application, Mr Hosking wrote:

“Should Mr Doolan leave his accommodation concerns are held by service providers in regard to the risk of Mr Doolan re-offending, abusing drugs and alcohol, and failing to access medications and suitable care/accommodation. There is also a concern about the risk this might pose to members of the public given Mr Doolan’s offending history.

This being the case, the Public Guardian, in consultation with the CJP and DSA, are of the view that a coercive accommodation function is needed in order to maximise the potential for Mr Doolan to remain at his residential placement. The Public Guardian has requested that CJP modify existing management plans and protocols to incorporate the potential use of a coercive accommodation authority.”

23. A functional assessment carried out by the DSA Specialist Intervention Services on 30 July 2012 reported:

“Bevan demonstrates limited insight and little understanding of the consequences in social settings. For example when discussing relationships with women he clearly does not understand the concept of consent.”

24. The Guardianship Tribunal heard the Public Guardian’s application for a variation on 1 August 2012 and made orders on that day, including the coercive order sought. The varied accommodation condition read as follows:

“a)   Accommodation

To decide where Mr Bevan Charles Doolan may reside.

The guardian may authorise others including members of the NSW Police Force and the Ambulance Service of NSW to:-

i)   take Mr Doolan to a place approved by the guardian;

ii)   keep him at that place; and

iii)   return him to that place should he leave it.”

25. In its reasons for decision the Guardianship Tribunal said:

“The Tribunal considered the evidence regarding Mr Doolan’s repeated statements that he wishes to leave, and also the potentially grave consequences for him and others if he reoffends. In the circumstances the Tribunal decided that it was in Mr Doolan’s best interests to limit the risk of this by giving authority to the guardian to authorise others to take Mr Doolan to a chosen place, to keep Mr Doolan at that place and return him if he leaves.”

26. The Tribunal noted that the defendant attended the hearing but “because of his disabilities, the Tribunal found it difficult to communicate with him.”

27. In September 2012 the defendant left his accommodation in Goulburn, travelled to Moree, and thereafter to Sydney. During this period he did not receive any practical supervision from CJP or the Public Guardian. Indeed, it appears that during most, if not all, of this period, these authorities were unaware of his whereabouts.

28. On 15 November 2012 the Guardianship Tribunal reviewed the previous guardianship order made on 14 November 2011 as varied on 1 August 2012 at a hearing in which the defendant, his mother (who purported to be his carer), a representative of the NSW Trustee and Guardian and Mr Hosking participated.

29. Mr Hosking gave evidence at the review that, despite “extensive case management and behavioural intervention planning”, CJP staff could not manage the defendant, who spent substantial periods of time in Sydney engaging in drug and alcohol binges. Mr Hosking told the Guardianship Tribunal that his coercive accommodation function “was utilised once and had limited effect as a management tool”. Mr Hosking also reported that the defendant had not been receiving any medications for at least the last month while in Sydney and that he was not subject to a Community Treatment Order (CTO). The CJP told the Guardianship Tribunal that only placement in a secure facility would address the difficulties in managing the defendant but that no such placement was available. Mr Hosking told the Guardianship Tribunal that: his capacity to make effective decisions for the defendant, given his lifestyle and non-compliance with medication, was “extremely limited”; and the guardianship order ought be permitted to lapse. He submitted that the defendant would best be managed by a CTO.

30. At the conclusion of the hearing the Guardianship Tribunal accepted the Public Guardian’s submission that the guardianship order should lapse.

The index offence

31. On 13 December 2012, six months after the defendant was released from gaol, and four weeks after the guardianship order lapsed, he committed the offence of reckless wounding (the index offence). The circumstances of the index offence were as follows.

32. The defendant followed the victim into an apartment building in Redfern at 5am and travelled with him in the lift up to the floor of the victim’s apartment. The victim was unlocking the front door when the defendant pushed him to the ground. The defendant stabbed the victim several times with a knife and followed him into the apartment. There was a struggle, in the course of which the defendant stabbed the victim several more times. The victim called Triple-0. The defendant left the building. His departure was recorded on CCTV.

33. On 14 December 2012 the defendant was taken into custody and housed at the Metropolitan Remand and Reception Centre (MRRC). In May 2013 the defendant was placed in the Additional Support Unit (ASU) of the Metropolitan Special Programs Centre (MSPC) at Long Bay. Shortly after his arrival he started behaving in a sexually inappropriate way to female custodial staff. After several further incidents he was moved to Intensive Support Unit (ISU) where he remained until his transfer back to MRRC on 25 July 2013.

34. On 29 July 2013 Solomon DCJ found the defendant unfit to be tried and referred him to the Tribunal.

Reviews undertaken by the Tribunal

35. The Tribunal is obliged, by s 46 of the Act, to review the case of a forensic patient every six months but may review the case of any forensic patient at any time. The Tribunal reviewed the defendant on a total of ten occasions, most recently on 7 January 2016.

36. At its first review, on 13 September 2013, the Tribunal found the defendant unfit to be tried and ordered his transfer from MRRC to the forensic hospital adjoining Long Bay Gaol (the Forensic Hospital) so that Clozapine medication could be administered (which could not be done while he was in gaol) in order to control his psychosis. The Tribunal said, in its reasons:

“Mr Doolan requires admission to Hospital for intensive care and treatment, including potentially, the prescription of other medications in an attempt to control his symptoms, which unfortunately, place him and others at risk of serious danger.”

37. The Tribunal’s reasons also record:

“The necessity for careful discharge planning cannot be overstated in Mr Doolan’s case, given the system failures that occurred when he was last released.”

38. On 20 March 2014, at its second review, the Tribunal was told that the defendant’s treating team wanted him to be transferred back to the ASU “as the treatment which was commenced, Clozapine, could not continue due to other medical conditions.” It was noted that his transfer to ASU was objected to by the staff there because of his history of conduct towards female staff. For this reason the defendant remained at the Forensic Hospital.

The special hearing and the indication of a limiting term

39. As the defendant was found unfit to be tried, the matter proceeded as a special hearing before Tupman DCJ pursuant to s 19 of the Act. Her Honour held that, on the limited evidence available, the defendant had committed the alternative offence of reckless wounding. Her Honour acquitted him of the more serious charge of assault with intent to rob armed with offensive weapon and wounding.

40. On 20 June 2014, Tupman DCJ indicated, pursuant to s 23 (1)(a) of the Act, that, had the special hearing proceeded as a normal trial and had the defendant been found guilty, she would have imposed a term of imprisonment of three years. Accordingly, her Honour indicated a limiting term of three years to expire on 12 December 2015. Her Honour referred the defendant to the Tribunal pursuant to s 24(1)(a) and ordered, pursuant to s 24(1)(b), that he be detained in such place as the Tribunal directed. Accordingly, he became a forensic patient by reason of the operation of s 42.

41. Judge Tupman considered that the defendant posed a risk of violence in the community due to his inability to control his behaviour and make appropriate judgments as a consequence of his mental illness and intellectual disability. Her Honour considered the defendant’s prospects of rehabilitation to be “almost nil because of his chronic mental illness”. Her Honour noted that the defendant had an acquired head injury as a result of being hit with an iron bar when he was about 18, which rendered him comatose for a period of six months. Her Honour also recorded that the defendant had an extensive history of substance abuse which included smoking cannabis from the age of seven; using amphetamines and methamphetamines between the ages of 16 and 27; and using heroin.

42. Judge Tupman said, in her Honour’s reasons for imposing the limiting term:

“It is to be hoped and I plead with the authorities, to ensure that this offender is properly monitored and considered for the balance of the limiting term and then, when that expires in December 2015, in relation to any decision to release him from custody into any other form of living. It would appear to be without doubt that his release on the last occasion before he committed this offence was done without proper regard for his chronic condition, without monitoring, without consideration of appropriate placement and without the imposition of a community treatment order. It is hardly surprising therefore that he committed this serious offence and it is to be hoped that the authorities do not let such a situation occur in the future.”

Subsequent reviews by the Tribunal

43. At its third review, on 26 June 2014, the Tribunal ordered the transfer of the defendant (subject to the availability of a bed) from the Forensic Hospital to MRRC. His transfer was effected on 30 June 2014.

44. On 25 September 2014 the Justice Health Mental Health Network conducted a mental state examination of the defendant. In its report of 26 September 2014, it said:

“This has been an issue with fellow patients and nursing and custodial staff in Correctional Centres and staff in his community placements. It seems reasonable to assume a sexual motive for his offences in 2010 even though he was not convicted of the more serious charges. The likelihood of him committing a serious sexual offence in the future needs to be considered. I would not be confident that management of his psychosis would be sufficient to manage his risk in this area.

He has a history of failing under supervision. He has previously served time in prison for breaching of parole conditions and does not seem to have any record of successfully completing parole. On his last release from gaol he was under Guardianship and a PEO [Protected Estate Order] and was housed in 24 hours a day supported accommodation but was still unable to be managed for more than a few weeks. He was lost to follow up and became non-compliant, used alcohol and other drugs and committed a serious offence a few months later.

Mr Doolan has a documented history of carrying knives on several different occasions. His current index offence involved stabbing a stranger in his own home in the course of what sounded like an attempted robbery. The offence for which he was previously a Forensic Patient allegedly involved him entering a woman’s house with a knife and telling her that he wanted her to have his babies. There were reports of him carrying a machete during his time out of custody in mid-2012. This raises obvious concerns about his ongoing risk to others.”

45. At its fourth review, on 2 October 2014, the Tribunal ordered that the defendant be transferred to the Junee Correctional Centre on the advice of Dr White, who considered that there would be more for the defendant to do there by way of therapeutic and practical work. The Tribunal noted in its reasons:

“Discharge Planning

This is Mr Doolan’s second Limiting Term. He quickly reoffended after his first Limiting Term expired. The Tribunal and the others involved in this hearing are concerned to ensure that appropriate graduated discharge planning is undertaken in anticipation of the end of Mr Doolan’s Limiting Term on 12 December 2015.”

46. At its fifth review, conducted on 15 January 2015, the Tribunal heard that the defendant continued to have grandiose delusions (that he had hundreds of children; that he was God, Jesus and Satan). It was agreed that the defendant would benefit from a trial of community living while still a forensic patient “so that his safe transition could be effectively monitored and assessed”.

47. At its seventh review, conducted on 19 February 2015, the Tribunal considered an application for escorted day leave or supervised day leave (as part of his transition to the community). It refused the application on the basis that it was not satisfied (as required under s 49 of the Act) that the defendant’s safety or that of any member of the public would not be seriously endangered if the application were granted.

Guardianship order

48. A guardianship order was made in respect of the defendant on 13 April 2015 by the NSW Civil and Administrative Tribunal. The Public Guardian was appointed with the following functions: to decide where the defendant may reside; to advocate generally for him; to make substitute decisions regarding medical and dental treatment for the defendant; to make decisions about the defendant’s freedom of movement when he is discharged from Long Bay Hospital; and to make decisions about services to be provided to him. Mr Hosking, who was the Public Guardian for the defendant when he was last at liberty, was appointed to the role again on 13 April 2015.

49. On 5 May 2015 the defendant returned to the Junee Correctional Centre. He presented as delusional, stating that he had ten triplets and could make the writer of the report (to the Tribunal) pregnant.

50. In a report to the Tribunal dated 13 May 2015, two psychologists from Statewide Disability Services reported on what had occurred since the previous review in the following terms:

“Mr Doolan is currently classified as a C1 security rating. His classification was reviewed on the 4 May 2015, however his C1 rating remained unchanged and the recommended placement at Junee CC has remained the same. This review has not yet been ratified. Mr Doolan has not been able to have his security rating reduced, due to his continued poor behaviour. He has had 5 internal punishments over the past 12 months, the most recent breach of Centre discipline was on 8 April 2015, related to sexualised behaviour directed towards a female staff member at Long Bay Hospital.

Whilst Mr Doolan is classified to Junee CC, he has spent the last 3 months at Long Bay Hospital for medical and Guardianship Tribunal matters. Since Mr Doolan was housed at LBH, he has been charged with 2 counts of indecency on 2 April 2015 and 8 April 2015. The charges were both dealt with on 7 and 10 April respectively, receiving punishments of 28 days off buy-ups and 3 days cells.

On 8 April 2015, OIMS case notes indicate that Mr Doolan self-harmed by slashing his wrists and was placed on a RIT. He remained on RIT until 13 April 2015 and was cleared on that date. He was subsequently placed one out due to his disinhibited sexual behaviour. Furthermore he was placed on SMAP.

Given Mr Doolan’s poor behaviour, he is not eligible to progress to a classification level that would enable him to participate in any external leave programs. Should Mr Doolan progress to C3 classification, it would be recommended that any day-leave into the community would initially be under the supervision of a male Correctional Officer.”

51. Dr Jones, a psychiatrist at Junee Correctional Centre, reported to the Tribunal on 13 May 2015 that the defendant continued to exhibit active psychotic symptoms. In a report dated 15 May 2015 to the Tribunal from CJP, the defendant was reported as continuing to suffer from auditory and visual hallucinations.

52. At its sixth review (the hearing of which took place on 14 May 2015), the Tribunal’s reasons dated 11 June 2015 recorded its assessment:

“Mr Doolan is not suitable for day release because of his behaviour and risk and the team is concerned about his mental illness, with the interlocking of it and a personality disorder causing difficulty of management.”

53. On 19 June 2015 the delegate of the Ministry of Health ordered pursuant to s 55(1) of the Act that the defendant be transferred from MRRC to a mental health facility. In accordance with this order the defendant was admitted to Long Bay Hospital on 23 June 2015 because of the lack of improvement in his mental state and his continuing psychotic delusions.

54. In a report dated 24 July 2015 prepared for the Tribunal’s eighth review on 30 July 2015 the Justice Health Mental Health Network reported that he was admitted to Long Bay Hospital on 23 June 2015. Dr Lee, the Psychiatric Registrar noted that “there has been poor compliance with medications in the custodial setting”.

55. In its review of 30 July 2015 the Tribunal stated:

1. the defendant currently presents a significant risk of further offending if he is discharged into the community without suitable accommodation and an appropriate treatment plan;

2. the defendant does not believe he has a mental illness or needs medication;

3. the defendant suffers from delusions (including that he is God and that he has fathered hundreds of children);

4. he has indecently exposed himself persistently while in custody;

5. the treating team requested that the defendant be transferred to the Long Bay Forensic Hospital so that therapeutic programs could be investigated; and

6. CJP have accommodation available for the defendant at Blacktown although he could not be managed in his present condition at that accommodation.

56. The issue of use of Clozapine to control the defendant’s psychosis was addressed in the Tribunal’s reasons following this review as follows:

“Dr Darren Lee said that Clozapine had been ceased because of medical complications. The cessation of Clozapine is likely to have prompted this relapse. However, Dr Lee also reports poor compliance with medications in a custodial setting. Mr Doolan has been commenced on a depot medication, as well as oral medications. It may take some months for this to reach full therapeutic effect. Mr Doolan is not keen to revisit the question of Clozapine at this time. However, it [sic] a re-trial of Clozapine may need to be considered in the future.

It is clear from the treating team’s reports, and the other evidence available to the Tribunal that Mr Doolan would present a significant risk if he were to be discharged to the community with these current symptoms at present.

The treating team has asked that Mr Doolan be transferred to the Forensic Hospital to more fully evaluate the appropriate options for Mr Doolan. Dr Lee explained that the Forensic Hospital would provide a broader range of therapeutic programs which would benefit Mr Doolan. The Tribunal accepted that this was the case, but notes that many of those programs required a considerable degree of time to complete. It is not clear to what extent to [sic] those programs might be of benefit to Mr Doolan in the five months which remain on his limiting term, especially given his limited intellectual capacity.

Although the Tribunal had previously considered whether Mr Doolan should be considered for leave, in order to assist his return to the community, Dr Lee said that leave was not appropriate given Mr Doolan’s current mental state.”

57. Dr Kerri Eagle, the defendant’s treating forensic psychiatrist at the Bronte Unit of the Forensic Hospital, prepared a report for the Tribunal’s review ninth review on 29 October 2015. She said of the defendant:

“His illness has been treatment resistant. He has been non-compliant with pharmacological treatments and clinical reviews. He has breached parole and bail conditions. He has been unable to comply with management plans in custody or detention.

. . .

He does not accept that he has a mental illness or that he requires any mental health treatment.

. . .

Mr Doolan has a high loading of historical risk factors for violence and a high loading clinical risk factors including poor insight, violent ideation, instability, active symptoms of psychosis and problems with treatment and supervision response. On the basis of this, he is at high risk of violent reoffending in the short and longer term.

. . .

Given Mr Doolan’s ongoing psychosis, intellectual impairment and ongoing problematic behaviours (such as aggressive sexual behaviours); and his other clinical risk factors (such as instability, poor insight and poor treatment response), he remains a risk of danger in a less restrictive setting. In my opinion, Mr Doolan requires ongoing treatment and management in a high secure forensic setting such as the Forensic Hospital and the Forensic Hospital is the least restrictive reasonably available form of care in the circumstances.”

58. Dr Eagle recommended the following restrictions be placed on the defendant:

“Remain detained in the Forensic Hospital under the provisions of the NSW Mental Health (Forensic Provisions) Act 1990”

59. Following that review the Tribunal expressed its conclusion that Mr Doolan presented “a high risk of violent reoffending in the short and longer term” and noted that he had been transferred to the Forensic Hospital on 21 September 2015.

60. Dr Eagle prepared a report dated 21 December 2015 (for the Tribunal’s tenth review on 7 January 2016). She summarised her opinion in the following terms:

“Mr Doolan has a severe mental illness, Schizophrenia, that is characterised by delusions, thought disorder and hallucinations. As a result of this illness and his intellectual disability Mr Doolan has engaged in challenging behaviours such as sexually inappropriate aggressive acts and violent threats. I am of the opinion that he is a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) in that he remains a serious risk of harm to others warranting ongoing detention in an acute psychiatric facility such as the Forensic Hospital and that there is no less restrictive option for his management in the circumstances.”

61. On 7 January 2016 the Tribunal accepted Dr Eagle’s opinion which is reflected in the following extract from its reasons for determination:

“Mr Doolan remains very unwell with behavioural problems and psychosis. He suffers delusions, thought disorder and hallucinations. He is a mentally ill person within the meaning of the Mental Health Act, and a serious risk of harm to others.”

The matters listed in cl 7(2)

62. I propose to address, so far as they are relevant, each of the factors listed in cl 7(2) of Sch 1. To avoid repetition, the safety of the community (cl 7(2)(a)) is not separately addressed since a consideration of the other factors listed includes this factor.

63. It appears to be common ground that the defendant should remain in the Forensic Hospital for at least a further two years, either as an involuntary patient (if the extension order is not made) or as a forensic patient (if the extension order is made).

Reports received from persons appointed under cl 6(5) to conduct examinations (cl 7(2)(b))

Dr Kasinathan

64. Dr Kasinathan, a psychiatrist, examined the defendant on 11 January 2016 at the Forensic Hospital. He opined that the defendant belongs to a “high risk category of people with elevated future risk of physical and sexual violence”. According to Dr Kasinathan:

“There is compelling clinical justification to continue his inpatient psychiatric treatment in a secure hospital to appropriately manage his risks.”

65. He considered the defendant to have significantly limited insight, active symptoms of schizophrenia, affective and behavioural instability and a poor treatment response (notwithstanding that he had been in the Forensic Hospital for almost four months by the time he was assessed). At the time of the assessment, he was subject to florid psychotic symptoms, including thought disorder and delusions. His cognitive ability was assessed as being in the moderate intellectual disability range. Dr Kasinathan said in oral evidence that the defendant does not have the cognitive ability to engage in rehabilitation programs.

66. Dr Kasinathan considered there to be a “very high likelihood of major deterioration in his mental illness, with ensuing increased risk of harm to others, if he were not detained in a psychiatric hospital”. He diagnosed the defendant as suffering from the following: schizophrenia (treatment resistant); moderate intellectual disability (lifelong and intractable); major neurocognitive disorder due to traumatic brain injury; substance abuse (alcohol, cannabis, amphetamine and opioid) disorders; and anti-social personality disorder. His anti-social disorder manifested itself in impulsivity, aggression, irresponsibility and lack of concern for others. Dr Kasinathan also considered it to be possible that the defendant suffered from paraphilic disorder, although he opined that it was also possible that his sexual disinhibition was due to the combined effect of psychosis, intellectual disability, neurocognitive disorder and antisocial personality.

67. Dr Kasinathan considered the defendant requires inpatient hospital care, preferably in a dedicated forensic hospital for ongoing treatment for at least two to three years before transition to suitable supported secure accommodation. He considered that appropriate psychiatric care could be provided whether the defendant was a forensic patient or a civil involuntary patient under the Mental Health Act2007 (NSW) and that, accordingly, he did not need to continue to be a forensic patient. He regarded the care provided within the Forensic Hospital to both categories of patient as equivalent. He opined that, after a period of two to three years, if the defendant’s clinical response was appropriate, he could be transferred to CJP as long as a Community Treatment Order (CTO) was made in respect of him.

65. Dr Kasinathan’s view that civil patient status was sufficient to manage the risk posed by the defendant appears also to be based on his concern that the recall power, if used by the Tribunal pursuant to s 68 of the Act, could result in the defendant’s return to gaol, which he regarded as deleterious to the defendant’s interests. He explained that a return to gaol advanced neither the protection of the community nor the interests of the defendant since it delayed the treatment required to reduce the risk. He said:

“I think optimal treatment of this person's mental illness and treatment needs is ultimately ‑ benefits the community because it reduces his risk of offending in future and it reduces his risk of unpredictably being aggressive.”

69. Dr Kasinathan expressed his conclusion on the question whether the defendant required on-going management as a forensic patient in the following terms:

“Mr Doolan does not require ongoing management specifically as a forensic patient for his risks to be adequately managed, as his risks could be adequately managed as a civil involuntary patient. As Dr Ellis pointed out, there is no substantial difference to the psychiatric care and risk management provided to an inpatient in the Forensic hospital, as a forensic patient order or as a civil involuntary patient. I agree that Mr Doolan could be safely and effectively managed under a civil involuntary patient order, enabling assertive administering of psychiatric medication and longer term following clinical improvement, community transition to a secure CJP placement under a Community Treatment Order.

Were Mr Doolan to continue under a forensic patient status, the forensic section of the Mental Health Review Tribunal would continue oversight. However as an involuntary patient, there would be a similar level of scrutiny from the Tribunal. As a forensic patient in the community, I agree that recall to prison is not helpful in terms of Mr Doolan’s risk management, as there are insufficient psychiatric services in prison for his specific treatment needs. Ultimately, specialist inpatient forensic psychiatric care is required for Mr Doolan, for at least the next two years. This can be adequately provided for Mr Doolan either as a civil involuntary patient or as a forensic patient.”

Dr Banks

70. Dr Banks, registered psychologist, assessed the defendant at the Forensic Hospital on 16 December 2015. He noted that the defendant appeared to be experiencing thought disorders and delusions associated with psychosis. After analysing the relevant literature, Dr Banks opined:

“A series of actuarial and structured decision-making protocols were utilised in the process of deriving the offender’s risk and likelihood for recidivism. By way of summary Mr Doolan’s scores across multiple different inventories reflects a high to very high risk for recidivism and in the absence of effective treatment and continuation of his psychotic symptoms it indicates a high likelihood of return to reoffending. In addition, there are several risk factors regarding Mr Doolan’s temperament, nature of psychotic symptoms, degree of cognitive impairment, declared motivation for ongoing substance use as soon as possible, impaired insight and judgement into his own mental health, and level of impulsivity that are highly associated with re-offending (as outlined in the body of the report).”

71. Dr Banks reviewed the defendant by reference to Static-99, an instrument designed to help predict sexual and violent recidivism in sexual offenders. The defendant received a score of 6 which placed him in the high risk category relative to other male sex offenders. Such individuals are, on average, more than 3.8 times more likely to re-offend. On each of the tests administered by Dr Banks, the defendant scored in the high risk category.

72. Dr Banks expressed his conclusions in the following passage:

“Currently, the risk Mr Doolan poses is not likely to be adequately managed by detention as a civil involuntary patient under the Mental Health Act 2007, nor under guardianship orders with him being accommodated in secure and supported accommodation, such as the Community Justice Program (CJP) placement at Lander Avenue Blacktown. It is recommended that Mr Doolan continue to be managed at Long Bay Forensic Hospital, whereby he may be transferred to a less restrictive ward, such as the 10-bed or 17-bed unit dependent on behavioural and treatment gains. Given the nature of risk factors and personality traits Mr Doolan presents with, he would require extensive and specialist support from a forensic psychiatric unit on a forensic order which in all probability will not be available at the level of speciality nor intensity in a CJP placement.

Given the improvements in his behaviour with staff following reinforcement strategies, ongoing implementation of behavioural strategies is recommended to minimise and manage his sexual disinhibition and inappropriate sexual behaviours. Should Mr Doolan remain at Long Bay Forensic Hospital, staff would also be able to monitor the severity of psychosis and possible improvement with ongoing medical compliance. Behavioural programs can then be modified to target higher-order behaviours including communication and engagement in structural learning programs, inclusive of literacy/numeracy. Any progress Mr Doolan evidences in these programs can then be used to guide future decision-making about possible reductions in supervisory intensity.”

Reports provided by experts pursuant to cl 5(b), Sch 1 (cl 7(c), Sch 1)

Dr Ellis

73. Dr Ellis, qualified psychiatrist, prepared a report dated 30 September 2015 for the purposes of the preliminary hearing based on a clinical interview conducted on 21 September 2015 at the Forensic Hospital, and a supplementary report dated 4 February 2016 for the purposes of the final hearing. Dr Ellis opined that the defendant’s risk of re-offending was high. He noted in his first report that the defendant admitted to him that he intended to kill the victim of the index offence. Dr Ellis considered that the defendant would be unable to abstain from the use of prohibited substances outside a supervised environment and noted the contribution made to the defendant’s offending conduct by such substances. He also noted that sexual disinhibition was a feature of the defendant’s offending conduct. In his oral evidence Dr Ellis referred to the seriousness of his schizophrenia; the difficulties of controlling it; and the circumstance that unless it were controlled other interventions would be likely to be futile.

74. Dr Ellis considered that there was no substantial difference between the care and risk management provided to a forensic patient in a forensic hospital or to an involuntary patient in the same facility. However, he considered there to be a significant difference between the conditional release of a forensic patient and the conditional release of an involuntary patient. In the former case, the patient could be recalled to hospital or prison more rapidly than in the latter case where recall would require that the patient deteriorate to the point where he became a “mentally ill person”. He said:

“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 conditional release, and less restrictive. 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.

Remaining on a forensic order moves the oversight from individual clinicians in health services to the automatic oversight of the forensic arm of the Mental Health Review Tribunal. This does guarantee the interest of the Forensic Mental Health Network and its specialist clinicians in the case. There is evidence that specialist forensic mental health care improves offending outcomes.”

Mr Parker

75. Mr Parker, registered psychologist, assessed the defendant as being at high risk of further sexual offences and other types of offending, principally by reason of his impulsivity. He noted his sexually inappropriate conduct towards female staff while in custody, which could be a result of intellectual impairment. He considered the defendant would be likely to break rules and laws at the earliest possible opportunity.

Any other medical reports (cl 7(2)(d))

Dr Eagle

76. Dr Eagle, the defendant’s treating psychiatrist, has reported to the Tribunal that the defendant is at high risk of sexual and violent re-offending in the short and longer term; that he is aggressive, impulsive and disinhibited. Some of her reports have already been referred to in the narrative of facts set out above.

Reports of other clinicians

77. By reason of the regular reviews by the Tribunal there are several reports of psychiatrists, including Drs Lee, Jones and White, which are referred to above in the narrative. Their consistent opinion is that the defendant poses a high and chronic risk of serious harm to others.

Any order or decision made by the Tribunal that is relevant to the application (cl 7(2)(e))

78. At its review on 19 February 2015, the Tribunal declined to grant to the defendant escorted or supervised day leave from Junee Correctional Centre as it was not satisfied (as it was required to be under s 49 of the Act) that neither the defendant’s safety nor that of any member of the public would be seriously endangered if the application were granted.

79. At the most recent review on 7 January 2016 the Tribunal determined that there was no less restrictive option for the defendant’s management and security than for him to remain at the Forensic Hospital and that there should be no variation to the order detaining him there. The Tribunal recorded in its reasons that the defendant “is a serious risk of harm to others”.

The defendant’s level of compliance with any obligations while a forensic patient (cl 7(2)(g))

80. The defendant has ten custodial charges for indecency, involving sexually inappropriate behaviour (including masturbation) in front of or towards female officers.

Views of the Court that imposed the limiting term (cl 7(2)(h))

81. The views of Tupman DCJ appear from her Honour’s reasons for imposing the limiting term following the special hearing of the defendant in respect of the index offence. I read her Honour’s remarks as registering her impression that the system had failed both the defendant and the community when he was at large following the expiry of the earlier limiting term. Although her Honour’s criticisms included that the defendant was not the subject of a CTO when he was released, I do not consider a fair reading of this passage to warrant the conclusion that her Honour was expressing the view that a CTO of itself would have either prevented the commission of the index offence or materially lowered the risk of its occurring. Rather, Tupman DCJ was of the view (as proved to be the case) that the combined resources of CJP, the Goulburn CMHT and the Public Guardian (until the order lapsed) were insufficient to control the defendant or ameliorate the risk of harm. Her Honour considered that, in such circumstances, it was “hardly surprising therefore that he committed this serious offence”.

Other relevant evidence

Dr Keller

82. Dr Adrian Keller, who has been the Clinical Director of the Forensic Hospital since 2009, gave evidence on behalf of the plaintiff and was cross-examined. He deposed that the Forensic Hospital provides the highest level of security that can be afforded by a mental health facility in New South Wales. There are also medium-secure units. In the Forensic Hospital there are four units for adult males, including the Bronte Unit, for assessment and acute care. According to Dr Keller, in most cases a high-risk civil (non-forensic) patient would be unlikely to be transferred directly from the Forensic Hospital to the community on a CTO. Most such patients are transferred to a mental health facility, as an involuntary patient.

83. Dr Keller considered that a forensic patient had a better chance than a civil patient of being accepted for admission in the medium-secure units.

84. Dr Keller also gave evidence of the difficulties associated with obtaining a comprehensive record of the clinical notes of patients (whether forensic or civil). He said:

“The availability of information has an impact on clinical and risk assessments, future planning and discharge decisions made in relation to individual patients.”

James Wu

85. Mr Wu, a senior clinical consultant at CJP, gave unchallenged evidence in an affidavit regarding CJP, its assessment procedures and service models. This is relevant to the facilities that would be available to the defendant if he were permitted to live in the community in a supported environment, such as was provided by CJP when the defendant lived in Goulburn.

Sean Hosking

86. In his affidavit dated 9 February 2016, Mr Hosking set out the role and practices of the Public Guardian and the way in which the Public Guardian co-operates with other governmental bodies such as CJP. Mr Hosking did not address in his evidence the material referred to above concerning the defendant’s last period at liberty in 2012 when the index offence occurred, although he was the defendant’s Public Guardian during some of that period (before the Guardianship Tribunal accepted his submission that the guardianship order ought lapse in November 2012).

87. Mr Montgomery, who appeared on behalf of the defendant, objected to the submissions made by Ms Wright, who appeared on behalf of the plaintiff, to the effect that what occurred in 2012 was apt to show the deficiencies in the piecemeal approach to a person’s care and control when no longer a forensic patient under the control of the Tribunal. He submitted that those matters ought to have been put to Mr Hosking and that, since he was not cross-examined, the plaintiff could not make the submission.

88. I reject Mr Montgomery’s contention. The involvement of various agencies, including the Public Guardian, with the defendant in the period from 26 June 2012, when he was released following the expiry of the limiting term imposed by Keleman DCJ, until he was arrested after the commission of the index offence on 13 December 2012, is a matter of public record. That the Public Guardian was unable to ensure that he remained at the CJP accommodation in Goulburn was a result of the defendant’s condition and does not reflect adversely on the Public Guardian. Indeed the Public Guardian’s submission to the Guardianship Tribunal on 15 November 2012 that the guardianship order should be allowed to lapse was consistent with the Public Guardian’s admitted inability to manage the defendant. In these circumstances, it was not, in my view, necessary for Ms Wright to put these matters to Mr Hosking. Had Mr Montgomery wished to augment the evidence the plaintiff adduced as to this period (26 June 2012 to 15 November 2012) from Mr Hosking, he could have done so. He chose not to, although he was aware of the evidence of that period relied on by the plaintiff.

Authorities referred to in the parties’ submissions

89. Both parties referred me to several authorities in which the Act, the Mental Health Act and the Guardianship Act had been considered. As the question whether to grant an extension order in any given case depends on the facts and the circumstances of the defendant, other decisions tend to be of assistance solely as illustrations of the application of the statutory wording to different facts. Moreover, when the law to be applied is principally statute law, the words of the statute are of prime importance. I have considered the authorities to which I have been referred but do not propose to refer to them except where necessary to explain my reasons.

The threshold test in cl 2(1)(a): whether the defendant poses an unacceptable risk of causing serious harm to others

90. The first question is whether I am satisfied “to a high degree of probability” that the defendant poses an “unacceptable risk” of causing serious harm to others if he ceased to be a forensic patient. The matters listed in cl 7(2) are relevant to both limbs of cl 2(1).

91. The present case is, in my view, a strong one. The plaintiff’s uncontrolled (and apparently treatment-resistant) schizophrenia is but one of the many conditions which create an unacceptable risk that he will cause serious harm to others if he ceases to be a forensic patient. Another is his anti-social personality disorder which, when coupled with cognitive impairment, renders him effectively incapable of controlling his strong sexual and violent impulses, which are frequently influenced by uncontrolled (and, to date, uncontrollable) psychoses.

92. As the High Court said, in a different context, in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574:

“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”

93. The defendant continues to be prey to his delusions, which arise from psychosis produced by his schizophrenia. That he continues to suffer from similar delusions (that he is God; that he has countless children; and that he can – and is entitled to – make any woman pregnant irrespective of the lack of consent) as those that influenced his offending in 2010 (on two occasions) indicates a poor prognosis, as does the circumstance that he has been in custody since December 2012.

94. Since being in custody for the past three years he has spent considerable periods of time in the Forensic Hospital at which time anti-psychotic drugs have been trialled, including Clozapine. None of the drugs trialled has been effective to prevent his delusions, although some might have moderated their frequency and extent. The defendant has experienced considerable difficulties when taking Clozapine previously such that it was discontinued on at least one occasion. He has continued to display disinhibited conduct towards female staff in the highly regulated and controlled environment of prison and the Forensic Hospital. The suggestions that his behaviour would improve in a less restricted environment, or that Clozapine (his current anti-psychotic medication) will ultimately prove to be effective once sufficient time has passed, such that the unacceptable risk posed by the defendant will be materially ameliorated, appear to me to be no more than the triumph of hope over experience.

95. I consider that the plaintiff has established this first limb to the requisite standard.

The test in cl 2(1)(b): whether the risk cannot be adequately managed by less restrictive means (including classification as an involuntary patient)

96. In my view, the principal issue in the proceedings is whether the defendant’s risk cannot be managed by less restrictive means. Such “less restrictive means”, as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as “less restrictive means”, I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person’s status as a forensic patient is more restrictive than classification as an involuntary patient. I consider that the question whether “means” are more or less restrictive is to be judged by the legal power of others to control the defendant’s actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance.

96. The wording of cl 2(1)(b) is to be contrasted with s 43(b) of the Act which refers to “care of a less restrictive kind” which necessarily requires an inquiry with greater emphasis on the facts and circumstances of the person concerned rather than the powers that might be exercised in respect of him or her: see, for example, Attorney-General for the State of New South Wales v XY [2014] NSWCA 466.

97. I understood it to be common ground that the relevant comparison requires a legal analysis of the regime for forensic patients under the Act and the regime for “civil” patients, including for involuntary patients, under the Mental Health Act. Both Ms Wright and Mr Montgomery have prepared documents which purport to identify and summarise the differences.

98. Many of the witnesses have offered opinions from their practical experience as clinicians as to the respective benefits and disadvantages of the defendant’s remaining as a forensic patient (if an extension order is made) or being declared an involuntary patient, it being accepted that the defendant qualifies for that classification and is likely to continue to qualify for some years. Some have expressed the view that it makes little difference in terms of care since it appears to be accepted that the defendant ought remain (whether as a forensic patient or an involuntary patient) at the Forensic Hospital for the next two or three years while a further trial of Clozapine is undertaken. As each of these witnesses is a medical practitioner or other clinician, this evidence is, while helpful, not determinative. That a forensic patient and an involuntary patient may be treated in the same way in terms of care in the Forensic Hospital does not answer the second limb of the test in cl 2(1) of Sch 1.

99. There are several areas of difference between the legal regimes for forensic and civil patients. The relevant areas of difference are in respect of the following, each of which will be considered in turn:

1. The objects of the legislation;

2. The composition of the Tribunal;

3. Review by the Tribunal;

4. The basis for detention;

5. Release from detention;

6. Imposition of conditions while patient is living in the community;

7. Consequences of breach of conditions.

The objects of the legislation

The Act

101. The objects of Part 5 of the Act (which is entitled “Forensic Patients and Correctional Patients”) include “to protect the safety of members of the public” (s 40(a)).

Mental Health Act

102. The principles for care and treatment set out in Pt 1, Ch 4, s 68 of the Mental Health Act are, with one exception, exclusively concerned with the person with a mental illness or mental disorder. The single exception is that those caring for such people have a right to be informed and involved: s 68(j). The first principle, in s 68(a), is:

“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”

[Emphasis added.]

Guardianship Act 1987 (NSW)

103. The general principles set out in s 4 of the Guardianship Act 1987 (NSW) (which it is the duty of those exercising powers and functions under the Guardianship Act to observe) relate exclusively to the interests (variously expressed) of the person with the relevant disabilities. As such, the Public Guardian is not permitted to consider the interests of the community, in so far as they compete, or do not correspond, with the interests of the disabled person. There is a strong bias in favour of the person’s freedom of decision and action, as is reflected in s 4, which provides as follows:

“4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.”

Composition of the Tribunal

Forensic Division

104. All reviews are conducted by a three-member panel: the President or Deputy President (who are lawyers and chair the meeting); a psychiatrist; and a third suitably qualified member (s 2 of the Tribunal’s Forensic Guidelines). When release is being considered, at least one of the members must be the President, or a Deputy President, who is the holder or former holder of a judicial office: s 73(3) of the Act.

Involuntary patients

105. A mental health inquiry may be conducted by one member (who is the President or a Deputy President or a member qualified to be appointed as a Deputy President): s 150(2A) and Sch 5, cl 1, Mental Health Act. A review must be conducted by three members: s 37 of the Mental Health Act; cl 19(1)(b), Mental Health Regulation 2013.

Review by the Tribunal

Forensic patients

106. Reviews must be conducted at least every six months and may be conducted at any time: s 46(1) of the Act.

Involuntary patients

107. An “assessable person” must be brought before the Tribunal for mental health inquiry as soon as practicable after being assessed as mentally ill: s 27(d) of the Mental Health Act. A single member at the mental health inquiry can discharge the patient if the Tribunal is not satisfied on the balance of probabilities that the person is a mentally ill person: ss 35(3); 150(2A) of the Mental Health Act and Mental Health Regulation 2013, cl 19(4). The reviews take place every three months in the first 12 months and every 6 months thereafter: s 37 of the Mental Health Act.

108. The safety of members of the public is not identified as a relevant consideration under the Mental Health Act (although as referred to below it is incorporated into some of its provisions). Neither the Attorney-General, nor the Minister of Health is required to be consulted or heard. Indeed the focus of the Mental Health Act appears to be the person concerned. For example, s 53 (which concerns the determination of applications for CTOs) provides, in part:

“(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that:

(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and . . .”

[Emphasis added.]

Detention

Forensic patients

109. The forensic patient remains in detention (in a mental health facility, correctional facility or other place) unless the criteria for release in s 43(a) of the Act (including that the safety of any member of the public will not seriously be endangered by the patient’s release) are met. The Tribunal is not permitted to release a forensic patient without an independent risk assessment report: s 74(d). The Attorney-General has the right to appear and make submissions: s 76A(2).

Involuntary patients

110. A person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered: ss 12, 14, 15, 38(3) of the Mental Health Act. The maximum period of detention is three months following a mental health inquiry: s 35(5) of the Mental Health Act. After three months, an authorised medical officer must apply to the Tribunal for a further involuntary patient order: s 37 of the Mental Health Act. Such reviews are required every three months for the first year, and every six months thereafter: s 37. Section 39 imposes a continuing obligation on an authorised medical officer to consider and cause the discharge if the patient’s continued detention is no longer necessary.

Release from detention

Forensic patients

111. Only the Tribunal has the power to release a forensic patient: s 43 of the Act. The Attorney-General or the Minister of Health has the right to appear and make submissions when release is being considered by the Tribunal: s 76A(2) of the Act. The Tribunal may not release a forensic patient without an independent expert risk assessment report which addresses whether, relevantly, the safety of any member of the public will be seriously endangered by the person’s release: s 74(d). The Tribunal must be satisfied that the safety of any member of the public will not be seriously endangered by the patient’s release: s 43(a).

Involuntary patients

112. Any authorised medical officer can discharge the patient at any time and must do so if the patient is not “mentally ill”: ss 12, 39, 40, 42 and 43 of the Mental Health Act. The authorised medical officer must inform the Tribunal of discharge “as soon as reasonably practicable” (after the discharge). When conducting a mental health inquiry, the Tribunal is obliged to discharge an involuntary patient if no longer satisfied on the balance of probabilities that the patient is mentally ill: s 35(3) of the Mental Health Act. There is no requirement for an independent expert risk assessment report.

113. The Tribunal may also discharge an involuntary patient whom it is satisfied is mentally ill to the care of a primary carer or on a CTO (s 35(5) of the Mental Health Act) or grant leave of absence as it sees fit: s 47.

Imposition of conditions while patient is living in the community

Forensic patients

114. Section 75 of the 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. The objects in s 40 (which include to protect the safety of members of the public) are relevant to the exercise of the Tribunal’s discretion under s 75.

Civil patients

115. CTOs authorise the compulsory treatment of a person in the community by reference to a “treatment plan”. The purpose of the CTO is to require the person to “receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan”: s 56(1) of the Mental Health Act. It is confined to treatment. Accordingly, the matters that can be included in a CTO are many fewer than can be included in the conditions which a Tribunal can impose on a forensic patient who is released or granted leave of absence.

116. The maximum term of a CTO is twelve months: s 53(6). The Tribunal can make a CTO on the application of an authorised medical officer, a doctor or a principal carer: s 51 of the Mental Health Act and cl 8 of the Mental Health Regulation 2013. It can revoke a CTO on the application of a patient, case manager, or any person who could have applied for an order: s 65 of the Mental Health Act. There is no provision that either requires or permits the Tribunal to take into account safety of the community when deciding whether to revoke a CTO: s 65 of the Mental Health Act.

Consequences of breach of conditions

Forensic patients

117. A forensic patient is subject to the oversight of the Tribunal. Section 68 of the Act provides for a recall power (from release or leave of absence), including: if the person has breached a condition of his or her release (s 68(1)(a)); or if his or her mental condition has deteriorated and he or she 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” (s 68(1)(d)). Once a person is recalled he or she can be detained in a mental health facility, prison or other place (as determined by the Tribunal) and must be reviewed.

Civil patients

118. The responsibility for overseeing a CTO rests with the patient (s 57(1) of the Mental Health Act) and the director of community treatment (s 58). If the patient does not comply with a CTO, the mental health facility which is responsible for implementing the treatment plan is to take steps to implement the CTO: s 58(1), including making a written record of the director’s opinions (that: the mental health facility has taken all reasonable steps to implement the order; and there is significant risk of deterioration in the mental or physical condition of the affected person) and informing the person that any further refusal will result in the person being taken to the declared mental health facility or another facility for treatment: s 58(2). If the person refuses or fails to comply again, the director has a discretion whether to issue a breach notice requiring the person to attend for treatment: s 58(3). The breach notice must warn the person that a police officer may assist in compliance with the order. If the person does not comply with the breach notice, the director has the power to make a “breach order” that the person be taken to a specified mental health facility. Once there, the person may be given treatment in accordance with the CTO and assessed for involuntary admission to a mental health facility: s 60.

Consideration of the effect of the different regimes

119. A principal focus of Part 5 the Act is the protection of the safety of members of the public. This is to be distinguished from the Mental Health Act, which contains provisions which concern the safety of other persons: such as in the definitions of mentally ill persons (in s 14) and mentally disordered persons (in s 15) where the “protection of others from serious harm” is a factor; and in s 43 where the authorised medical officer who discharges an involuntary patient must be satisfied that adequate measures will be taken to prevent the patient causing harm to, relevantly, “others”. However, a reading of the Mental Health Act reveals that its principal focus is the interests of the person concerned, rather than the safety of persons who may be affected by his or her conduct. I reject the defendant’s submission that the interests of the person always coincide with the interests of the community and that all references to “safety” in the Mental Health Act ought be read as including the safety of others. Plainly, it is in the interests of a person not to endanger the safety of others. However, the respective interests of the person and the community do not necessarily coincide.

120. I have set out the differences between regimes under various topics in order that the broader conclusions can be seen against the more detailed analysis. As long as the defendant is classified as an involuntary patient, there is little difference between the controls that apply to manage the risk and those that would apply if he continued to be a forensic patient. However, if that comparison were the only relevant or determinative one, there would be no need for the Act to apply to persons who are either “mentally ill” or “mentally disordered” since they would be able to be confined as involuntary patients under the Mental Health Act.

121. Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not “mentally ill”.

122. I consider the Attorney-General’s right to be heard before a forensic patient is released to be an important safeguard. The Attorney-General can be taken to be the repository of the public interest in the safety of the community for that purpose. By this means, the Tribunal will have available a potential contradictor to clinicians who could reasonably be expected to put the patient’s interests ahead of other interests and who could not reasonably be expected to be particularly attuned to the interests of the community as a whole.

123. Furthermore, the decision-making process for a forensic patient is more centralised since the Tribunal is the relevant decision-maker. It receives reports from relevant agencies and clinicians at its reviews which are required to take place at least every six months. Its reasons append summaries of previous reviews. This procedure has the effect that the background facts and previous clinical history of each forensic patient is readily available, at least in summary form, to the members that constitute the Tribunal. Under the Mental Health Act, the Tribunal is involved with civil patients only in the making and monitoring of a CTO. Aside from this matter, several people may have, and exercise, decision-making power over a person who is a civil patient (as appears from the comparative analysis set out above). In these circumstances, the collation of relevant information is likely to be more difficult. The quality of the decision how best to manage the defendant may be compromised by the difficulties of obtaining a comprehensive history.

124. Where a person is subject to a CTO in the community, enforcement is discretionary. While the Public Guardian may have certain powers (depending on the terms of the guardianship order), including coercive powers, there are practical limits to the way such powers can be used. The evidence presented to the Guardianship Tribunal in November 2012 (which led to the lapse of the guardianship order with respect to the defendant) illustrates the practical difficulties facing the Public Guardian in controlling and managing a person such as the defendant.

125. The resources available to the CJP are undoubtedly relevant but they would be available whether an extension order was made or not, since the Tribunal could, if minded to do so, release the defendant to secure CJP accommodation if, and when, it was persuaded that it was appropriate.

126. Mr Montgomery argued that one could not judge the future by the past, particularly when results of the present trial of Clozapine could not be known for a period of at least two years. He submitted: “This application is about the future and dealing with the psychosis and then seeing what happens.” Nonetheless the past is a guide to the future, as has already been addressed above. The evidence adduced shows that the defendant’s delusions have not, in the past, been controlled by medication.

127. The recall power that is available to the Tribunal is an important one and is, in my view, more likely to be apposite to the management of the risk posed by the defendant since it can be exercised immediately to remove the defendant from the community or other location if, for example, he is psychotic, or non-compliant. The power extends to returning him to gaol. Although his therapeutic treatment is unlikely to be as good in gaol as in the Forensic Hospital, such an exercise of power would, at least, have the benefit of protecting the safety of the community until a better option can be found for him.

128. It is significant, in my view, (although not determinative) that Dr Eagle, the defendant’s treating psychiatrist in the Bronte Unit of the Forensic Hospital, has expressed the view that he ought remain as a forensic patient. It is telling, too, that Professor Owen, when she saw the defendant on 20 July 2012 (about four weeks after his release following the expiry of his first limiting term), enquired whether his status as a forensic patient could be restored. I take from Professor Owen’s enquiry that she considered that the defendant could be better managed and controlled were he a forensic patient.

119. I am persuaded that the unacceptable risk posed by the defendant of causing serious harm to others cannot adequately be managed by the alternative regime provided by the Mental Health Act, including classifying the defendant as an involuntary patient, or any other “less restrictive means”. I do not consider that the unacceptable risk can be adequately managed other than by making an extension order. In my view, the defendant provides an exemplar of a person in respect of whom an extension order ought be made.

The principle of legality

130. It is necessary to address the defendant’s argument that the principle of legality favours a construction of Sch 1, cl 2(1) “which avoids or minimises the statute’s encroachment on [his] fundamental right to liberty”. In support of the argument, Mr Montgomery also referred to what the High Court said in Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477 in the context of proportionality in sentencing, that:

“consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality”.

131. Although there are built-in safeguards in the Act – a higher than usual standard of proof is required; an order cannot made except where circumstances warrant it and less restrictive means would not be adequate – the effect of an extension order is plainly a very significant encroachment on the right to liberty of a person whose limiting term has expired. The wording of the Act and Sch 1 indicates that Parliament intended this consequence in appropriate cases. The principles of sentencing are not to the point: the purpose of an extension order is not punitive (although, from the point of view of the person in respect of whom it is made, it may well have that effect). Parliament is entitled to legislate with respect to different objects once a sentence (or limiting term) has expired, as it has also done in the Crimes (High Risk Offenders) Act 2007 (NSW).

132. In substance, the defendant’s legality argument amounts to a submission that there was no purpose in the Act, in so far as it provided an alternative regime to that for which provision was made under the Mental Health Act, and no effect ought be given to it. The submission cannot be accepted. Although the defendant could be managed under the Mental Health Act, this is not the question. The question is whether the plaintiff has proved, by reference to the wording of the Act, that an extension order ought be made under the Act. In my view, the plaintiff has discharged the onus.

The term of the extension order

133. The matters that give rise to the risk posed by the defendant are, for the reasons given above, intractable. Although it appears likely that he will remain in the Forensic Hospital for the next two or three years, what will occur if, and when, he is discharged from the Forensic Hospital is also material. I am not persuaded that there is any proper basis for making an extension order for any lesser period than the maximum allowed. I am satisfied that the extension order should be made for five years.

Orders

134. I make the following order:

1. An order pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that the defendant be subject to an extension order for a period of five years from the date hereof.

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Decision last updated: 23 February 2016