Buchanan v The Secretary to the Department of Health

[2014] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0206

HENRY BUCHANAN (A PSEUDONYM)[1]

Appellant

v

THE SECRETARY TO THE DEPARTMENT OF HEALTH

First Respondent

and

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA

Second Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

[1]To ensure that there is no possibility of identification of the appellant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	REDLICH, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2014
DATE OF JUDGMENT:	15 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 176
JUDGMENT APPEALED FROM:	The Secretary to the Department of Health v [Buchanan] (Unreported, County Court of Victoria, Judge Parsons, 31 October 2012)

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CRIMINAL LAW – Mental impairment – Appeal – Appellant found not guilty, by reason of mental impairment, of intentionally causing injury, making threat to kill and false imprisonment – Diagnosed with paranoid schizophrenia – Subject to non-custodial supervision order – Varied to custodial supervision order – History of alcohol dependence and cannabis abuse – Evidence appellant’s mental illness well controlled, however, alcohol and drug abuse impacted efficacy of treatment – Whether judge misdirected himself as to application of s 39 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by taking into account matters extrinsic to appellant’s mental impairment in assessing likelihood of endangerment under s 40(1)(c) – No error – Expression ‘because of his or her mental impairment’ in s 40(1)(c) capable of encompassing both direct and indirect causal links – Appeal dismissed. 

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Marsh	Victoria Legal Aid
For the First Respondent	Mr W G Gilbert	Department of Health
For the Second Respondent	Ms K E Judd QC with Ms N E Hodgson	Victorian Government Solicitor
For the Third Respondent	Mr T Gyorffy QC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
BEACH JA:

1. This appeal was heard on 28 April 2014.  On that day, the Court reserved its decision.  On 7 May 2014, the Court was in a position to deliver judgment.  It ordered that the appeal be dismissed.  It indicated that reasons would be published at a later date.  These are those reasons.

Background

1. On 16 June 2009, the appellant was found not guilty, by reason of mental impairment, pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act), of two counts of intentionally causing injury, one count of threat to kill and one count of false imprisonment.  On 27 August 2009, he was declared liable to supervision under Part 5 of the Act.  It was ordered that he be subject to a non-custodial supervision order for a nominal term of five years.  There was to be a review of that order after two years. 

1. On 28 September 2011 that review was commenced.  For reasons that are not presently relevant, it was twice adjourned.  On 19 October, the review was completed.  On 31 October 2012 the non-custodial supervision order was confirmed.  It was directed that there be a major review of that order before 27 May 2014. 

1. On 18 December 2012 the appellant was subject to an emergency apprehension.  The Secretary to the Department of Health (the Secretary) filed an application, pursuant to s 29(1) of the Act, to vary the non-custodial supervision order.  That application was heard in September 2013.  It was supported by the Attorney-General (Attorney), but opposed by the appellant. 

1. On 1 October 2013 the non-custodial supervision order was varied to a custodial supervision order.  The appellant lodged an appeal against that order, pursuant to s 34 of the Act.  It was that appeal that came before this Court in April of this year. 

1. There were two grounds of appeal.  They were:

(i) The judge misdirected himself as to the application of s 39 of the Act as he took into account matters extrinsic to the appellant’s mental impairment when assessing the likelihood of endangerment under s 40(1)(c) of the Act.

(ii)       In making the decision to vary the appellant’s non-custodial supervision order to a custodial supervision order the judge failed to apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

1. Subsequently, the appellant gave notice that he would seek to rely upon the provisions of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) as aids to the interpretation of the relevant provisions of the Act.  However, during the course of oral argument before this Court little, if any, emphasis was given to the Charter.  It was readily acknowledged that the provisions invoked added nothing of any real significance to the appellant’s submissions.

1. It is necessary to say something briefly about the appellant’s personal history and circumstances.  He migrated to this country from South Sudan in 2005.  In 2006 he was injured in a motor vehicle accident.  As a result, he sustained an acquired brain injury.  In 2008 he was diagnosed with paranoid schizophrenia, and admitted to hospital.  He was released on a community treatment order under the relevant Mental Health Act provisions.  He has a history of alcohol dependence and cannabis abuse. 

1. On 4 November 2008 the appellant made a threat to kill his girlfriend.  On that occasion he held a knife to her throat.  Prior to that offending, he had been largely non-compliant with treatment, abusing both alcohol and cannabis.  He had been subject to persecutory delusion, and auditory hallucinations.  He had come to believe that his girlfriend had been unfaithful to him, and that she had been telling others that he was homosexual. 

1. As previously mentioned, the appellant was ultimately acquitted, by reason of mental impairment, of the charges brought against him arising out of his attack upon his girlfriend.  We have set out the history of what transpired thereafter.  The evidence before the judge who confirmed the non-custodial supervision order in October 2012 was that his schizophrenia was well controlled by medication, and that there existed a treatment plan which was likely to be efficacious.

1. Regrettably, however, after the appellant was discharged to the Common Ground Accommodation Service, he was regularly found to be intoxicated.  His level of intoxication was such that supervising mental health workers were concerned that he could become over-sedated while taking his prescribed medication.  In addition, on at least two occasions, he was involved in angry verbal altercations with his ex-partner. 

1. Finally, as previously indicated, the appellant’s community treatment order was revoked.  However, after further assessment it was reinstated almost immediately.  On 20 December 2012, he attended his non-custodial supervision order review heavily intoxicated.  The following day he was reported to have made sexually inappropriate remarks to other residents at his accommodation. 

1. On 24 December 2012 the appellant was apprehended under the emergency power contained in s 30 of the Act and admitted to Thomas Embling Hospital.  On that occasion he had a breathalyser reading of 0.137. 

1. In March 2013, the appellant was diagnosed as alcohol dependent.  Eventually, in both June and July 2013, he was permitted unescorted leave into the community.  However, on occasion he presented as intoxicated or substance impaired.  He could not explain his condition.  Doctors believed that he may have taken a synthetic cannabinoid.  From that time on he was permitted only escorted day leave.  

1. The issue before the County Court judge, in 2013, was whether the appellant had failed to comply with the non-custodial supervision order, and, if so, whether that order should be varied to a custodial supervision order.  In determining that issue the judge was required to apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum, consistent with community safety, and having regard to the matters listed in s 40 of the Act. 

1. Both the Secretary and the Attorney submitted, in the County Court, that the non-custodial supervision order should be varied to a custodial supervision order.  It was submitted on behalf of the appellant that no such variation was warranted, and that the Court should simply confirm the original non-custodial order.

1. The appeal to this Court raised several questions.  The first concerned the manner in which a person whose mental illness was reasonably well controlled, but who had other factors in his makeup that created or exacerbated risk to the community, should be dealt with. 

1. In order to consider that question, it is first necessary to set out the relevant provision of the Act that governs the transition from a non-custodial to a custodial supervision order. 

40.      Matters to which the court is to have regard

(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, the court must have regard to—

(a) the nature of the person's mental impairment or other condition or disability; and

(b)the relationship between the impairment, condition or disability and the offending conduct; and

(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and

(d)the need to protect people from such danger; and

(e) whether there are adequate resources available for the treatment and support of the person in the community; and

(f)any other matters the court thinks relevant.

The appellant’s submissions

Ground 1

1. Put simply, it was submitted on behalf of the appellant that if, as the Secretary and the Attorney contended, he was ‘likely to endanger’ himself or others, that was not ‘because of’ his mental impairment.  It was, rather, because of his use of alcohol and/or drugs, which impacted upon the efficacy of his medication, by reason of the inability of his mental service team to supervise that medication.  The loss of that intensive support, coupled with the appellant’s poor insight into his own condition meant that he might very well cease taking his medication, thereby causing his illness to relapse.  However, any such outcome would not satisfy the requirements of s 40(1)(c) as being causally linked, in the relevant sense, to his mental impairment. 

1. In other words, whatever threat the appellant might pose (and it might be a significant one) was the result of his intoxication and substance abuse, and their impact upon his medication.  It was not the result of his mental impairment.  Accordingly, s 40(1)(c) was not engaged. 

1. Counsel for the appellant, in oral argument, began with a consideration of the expression ‘mental impairment’ under the Act.  He noted that it was a term with multiple different contextual uses within the Act, sometimes meaning a substantive defence itself, other times referring to the nature of the underlying condition which gave rise to the defence. 

1. The key issue in this appeal, according to counsel, was the distinction between mental impairment and the factors that could impact upon that impairment.  Counsel made clear that the appellant was not submitting that factors such as substance abuse, or hostility to the treating team, could not properly be taken into account under s 40(1)(c).  It was his position, however, that those factors needed to be sharply differentiated from the mental impairment itself. 

1. Counsel contended that the judge below had failed to maintain that distinction by treating matters such as alcohol and substance abuse, which might have aggravated or accelerated the onset of a particular mental condition, as themselves integers of mental impairment, and not merely as relevant in that secondary sense.  

1. The appellant took issue with the following paragraph of the primary judge’s reasons in favour of imposing a custodial supervision order:

In my view, given the evidence of the relevant medical experts both in their oral testimony and their reports, I am satisfied that [the appellant], if the NCSO were confirmed, would be likely to endanger himself or another person or other people generally because of his mental impairment as described by Dr Reid and Dr Lester. I think it appropriate in the circumstances of the case, and particularly in view of [the appellant’s] presentation, that the term mental impairment is to be construed as Dr Reid suggests in the portion of transcript I have quoted above. I think it unrealistic to narrowly construe the term ‘mental impairment’ by reference only to his schizophrenia and to fail to have any regard at all to the other matters which have been described in the medical reports as acting upon and in tandem with his schizophrenia.[2]

[2]Emphasis added.

1. Counsel submitted that rather than starting from the position of defining what a mental impairment was for the purposes of s 40(1)(c), the judge below effectively ‘reverse engineered’ the meaning of that term from the appellant’s presentation.  Instead of satisfying himself that the appellant would be likely to endanger himself or others because of his ‘mental impairment’, the judge had adopted an unduly wide interpretation of that term, stretching its meaning beyond what was permissible.  The fact that his Honour may have done so because of the difficulties presented by the circumstances of the present case in drawing a ‘bright line’ between issues of personality and mental illness did not justify adopting an erroneous construction of the language of the relevant provision.

1. Essentially, as far as we could ascertain, the appellant’s argument boiled down to this.  Counsel contended that by including in the definition of ‘mental impairment’ those factors that had acted upon the appellant’s schizophrenia, the judge impermissibly broadened the source of potential risks to the community.  Counsel based this argument on the fact that there was ample evidence that, absent any degradation in his mental state, the appellant was capable of becoming intoxicated and making a nuisance of himself.  In other words, so it was submitted, his Honour wrongly concluded that if there were some other causative factor at play, unrelated in itself to the appellant’s mental impairment, that would render him a risk to himself or others, justifying his preventative detention.  Counsel submitted that the judge’s use of the words ‘acting upon and in tandem with’ demonstrated his Honour’s erroneous approach.  In that regard, counsel submitted that the words ‘in tandem’ should be understood as akin to ‘running in parallel with’, and not as signifying ‘interacting with’.   

1. When pressed about his concession before this Court that the judge below had been entitled to take into account those factors that affected the appellant’s schizophrenia, counsel replied that the effect upon that schizophrenia went to the magnitude of the risk, but not its source.  He further contended that by subsuming those other factors permitting s 40(1)(c) to be engaged, the judge had impermissibly introduced into the balancing exercise matters that were extraneous, going only to the source, and not magnitude, of the risk.  The distinction, according to counsel, was of paramount importance.  The source of the risk for the purpose of s 40(1)(c) had to be the mental impairment alone, and not any of the factors that may have impacted upon or exacerbated that impairment.  To do otherwise would be to ‘disaggregate … trigger and illness’.

Ground 2

1. The second ground upon which the appellant based his appeal flowed from ground 1.  Essentially, it was submitted that, by taking into account the matters referred to in the discussion of ground 1, the judge approached the task of balancing personal autonomy with the need to protect community safety ‘with the scales already unfairly weighted in favour of the protection of the community’.  That meant that the restrictions imposed upon the appellant by virtue of the custodial supervision order were in excess of what should properly have been regarded as necessary for the protection of the community.  

1. Moreover, in coming to the conclusion that community protection justified the imposition of a custodial supervision order, the judge failed to take into account the protective measures afforded by the operation of the Mental Health Act 1986.

1. Counsel drew to the Court’s attention statements made by this Court in NOM v DPP[3] as to the efficacy of the Mental Health Act 1986 in dealing with patients such as the appellant. He further submitted that the judge had failed properly to consider, in accordance with s 40(1)(e) of the Act, the adequacy of resources available for treatment and support of the appellant in the community. These ‘failures’, it was contended, gave rise to significant error in the conduct of the balancing exercise that the judge was required, by virtue of s 39, to undertake.

   [3][2012] VSCA 198 (‘NOM’).

The respondents’ submissions

The Attorney

1. The submissions made on behalf of the Attorney in relation to ground 1 can be summarised briefly.  Although s 40(1)(c) was broad enough, alone, to justify the judge having taken into account those factors that impacted upon the appellant’s mental impairment, the breadth of the discretion conferred by s 40(1)(f) put that matter beyond doubt.

1. Senior Counsel for the Attorney acknowledged, in oral argument, that subsection (f), standing alone, would not allow a judge to impose an order solely on the basis that the person in question presented a danger because he or she drank to excess, unconnected to that person’s mental impairment.  She added, however, that that question did not arise in this case because the facts demonstrated that the appellant’s anti-social behaviour was clearly connected to his mental impairment.  It was readily accepted that the words ‘in tandem’, used by the judge, may have been unfortunate.  It was submitted, however, that when his Honour’s ruling was read as a whole, no error was disclosed.    

1. Senior Counsel for the Attorney relied on her written submissions in relation to ground 2. She submitted that the judge, in applying s 39, had made a value judgment informed by the competing considerations contained in that section. In doing so, the judge acted in accordance with the principles laid down by this Court in NOM.[4]

   [4][2012] VSCA 198, [47]-[48].

1. In response to the appellant’s submission that his Honour failed to take into account the protective measures afforded by the operation of the Mental Health Act1986, Senior Counsel referred to that part of his Honour’s reasons outlining some management options, as discussed by the appellant’s psychiatrist.  The judge ultimately decided that these measures were insufficient to safeguard the community when evaluating the ‘moderate to high’ risk of endangerment that the appellant presented.  It was submitted that this conclusion was amply justified given the evidence that the appellant’s treating team had been unable to reduce the risk of his becoming intoxicated, and the flow-on effects of that particular outcome.   

The Secretary

1. Counsel for the Secretary noted that ground 1 turned upon whether the judge had, indeed, construed the term ‘mental impairment’ too broadly, or taken into account extraneous and irrelevant matters.  He submitted that there was no warrant for giving that term an unduly restrictive meaning, noting that the Act could have so defined it if that were the intention of Parliament. 

1. In arguing that the test under s 40(1)(c) had been applied correctly below, counsel for the Secretary referred to the ‘forward looking’ nature of that provision.  In assessing whether, because of his mental impairment, the appellant posed a risk to himself, or to the community, the judge had been required to consider all of the factors that might impact upon that impairment.  The main such factor, counsel submitted, was the question of the appellant’s compliance with his treatment regime.  The medical evidence made clear that the risk of non-compliance was high.  His Honour was entitled to have regard to that evidence, leading to non-compliance, whatever the source of that non-compliance might be.

1. In relation to ground 2, counsel for the Secretary took a somewhat different approach to that adopted by the Attorney.  He acknowledged that the judge had not referred, in terms, to the evidence elicited on behalf of the appellant as to the availability of protective mechanisms in the Mental Health Act 1986. However, that did not mean that his Honour fell into error.  The evidence was clear that the appellant had been subject to treatment mechanisms under the civil regime to no avail.  That was why he eventually came to be dealt with under the Act. 

The Director

1. Apart from a brief foray into the history of the Act, Senior Counsel for the Director contented himself with adopting the basic thrust of the submissions advanced on behalf of the Attorney and the Secretary. 

Conclusion

1. Because of the major review that was imminent when this appeal was heard, the Court approached the matter with as much expedition as it could muster.  It was able, within a relatively short time, to arrive at the conclusion that the appellant’s arguments in favour of grounds 1 and 2 lacked substance.  On the evidence, the link between the appellant’s regular use of alcohol and illicit drugs, and the dangers that he posed to himself and others because of his mental impairment, was obvious.  It was clear that his recurrent bouts of intoxication significantly reduced the likelihood that he would comply with medical supervision, and continue to take his medication.  That would cause a breakdown of the community management plan that had been put into place to safeguard him and others.  Without that necessary level of support, the appellant could not live, viably, within the community.  Inevitably, within weeks of ceasing to take his medication, his paranoid schizophrenia would recur, and he would become aggressive, if not violent, towards others.

1. It was noted, on behalf of the appellant, that he had not been floridly psychotic since August 2011.  He had remained relatively stable on his medication and his dose was sufficient to ensure that he remained in remission from his schizophrenic illness.  Indeed, that was so notwithstanding that he had, from time to time, abused alcohol. 

1. On the other hand, the evidence suggested that the appellant’s condition may have been prevented from worsening because he had been hospitalised, and had been, to that extent, supported by good nutrition, a settled environment and a lack of stressors. 

1. It was readily accepted, on behalf of both the Secretary and the Attorney, that provided the appellant remained stable on medication, he posed little risk to others.  If one could be confident that he would be compliant with medication, in the community, there would be no reason for him to be placed under a custodial supervision order.  However, it was clear, having regard to the evidence as a whole, that no such guarantee could be given, and that nothing short of a custodial supervision order for the immediate future would, in the circumstances, be sufficient. 

1. It was acknowledged that there was no particular benefit to the appellant in being hospitalised because his condition was unlikely to improve. 

1. In summary therefore, the consensus of opinion on the part of the various medical experts who had treated the appellant was that if he were discharged from hospital on a non-custodial supervision order, it was likely that he would return to illicit substance abuse.  It was also likely that he would consume alcohol, to the point of intoxication.  There would then be a relatively high risk of his being involved in behaviour that might be harmful towards himself or others because of his mental impairment.  He might well engage in aggressive conduct towards, or develop volatile relationships with, in particular, women. 

1. Even if the appellant were compliant with his medication, there would be an increased risk of his relapsing into psychosis if he were to combine that medication with the use of illicit substances.  If he were to become intoxicated, it would make it more difficult to supervise him, and ensure that he continued to take that medication. 

1. In short, the problem that presented itself to the judge below, as well as to this Court, was that the appellant’s risk of harm to himself and others was a result of the process by which factors in his life, including alcohol and substance abuse, would lead to non-compliance and a rapid decline into psychosis. 

1. In the end, and notwithstanding the fact that the appellant’s mental state had been stable for a significant period, we concluded that the judge below had correctly construed s 40(1)(c) of the Act by giving the expression ‘because of his or her mental impairment’ a meaning which encompassed both direct and indirect causal links. 

1. We did not accept the somewhat laboured distinction, sought to be drawn on behalf of the appellant, between the magnitude of the risk (permissible) and its source (impermissible).  Those factors that acted upon the appellant’s schizophrenia were legitimately encompassed by s 40(1)(c), and properly taken into account by the judge below.

1. To put the matter more simply, the evidence made clear that a non-custodial supervision order would make it at least likely that the appellant’s paranoid schizophrenia would become florid thereby endangering himself or others, if no longer kept under close supervision.  The immediate trigger for the recurrence of that condition may very well have been his alcohol and substance abuse.  However, the harm would, relevantly, flow from the condition itself, and not from the abuse that brought about its recurrence.

1. In arriving at that conclusion, we were fully cognisant of the fact that both the Attorney and the Secretary were seeking an order that could, potentially, result in the appellant being deprived of his liberty for a long time. We also recognised that s 39 of the Act provides that the restrictions on a person should be kept to the minimum, consistent with the safety of the community, had to be given full weight.

1. At the same time, we did not accept the submission that the effect of allowing the custodial supervision order to stand was to sanction what is effectively a regime of preventative detention for someone with nothing more than ‘problematic behaviour’.  Nor did we accept that, on the evidence, there were adequate, if not superior, treatment options available in the community, including drug and alcohol treatment from specialist counsellors. 

1. These matters were fully canvassed before the judge below. In varying the order to a custodial supervision order his Honour took into account s 39 of the Act, and applied that provision in accordance with NOM.  More specifically, his Honour made a ‘value judgment informed by the competing considerations stated in the provision’.[5] 

   [5][2012] VSCA 198, [47].

1. The judge also recognised that there were difficulties, in this particular case, with disentangling the appellant’s mental illness from his acquired brain injury, cognitive difficulties and substance abuse.  The term ‘mental impairment’ in s 40(1)(c) should not be construed so narrowly as to focus solely upon the appellant’s schizophrenia, without regard to the matters which were described in the extensive medical reports and which had the potential to activate that schizophrenia.  On the evidence, if the appellant were to be restored to a non-custodial supervision order he would be likely to endanger himself, or other persons generally, ‘because of’ his mental impairment. 

1. It was for these reasons that the Court dismissed the appeal.

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