Director of Public Prosecutions v Axb
[2019] VSC 526
•9 August 2019
| IN THE SUPREME COURT OF VICTORIA | Redacted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 1054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AXB |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2019 |
DATE OF JUDGMENT: | 9 August 2019 |
CASE MAY BE CITED AS: | DPP v AXB |
MEDIUM NEUTRAL CITATION: | [2019] VSC 526 (First Revision 17 October 2019) |
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CRIMINAL LAW – Mental impairment – Whether to make custodial or non-custodial supervision order – non availability of beds at Thomas Embling Hospital – consideration of ‘appropriate place’ for purposes of custodial supervision order – suitability of ‘designated mental health services’ other than Thomas Embling Hospital – Crimes Mental Impairment (Unfitness to be Tried) Act 1997 ss 23, 24, 26, 39, 40, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For AXB | Ms G Connelly | |
| For the Secretary to the DHHS | Mr M McLay | |
| For the OPP | Ms A Hassan |
HER HONOUR:
Introduction
On 7 November 2018, I found AXB not guilty because of mental impairment in respect of five charges brought on indictment before this court, comprising two charges of arson, one charge of damaging property, one charge of attempted murder, and one charge of causing injury intentionally. My reasons are set out in [citation redacted].
Also, on 7 November 2018, pursuant to s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), I declared AXB liable to supervision under Part 5 of the Act. I then ordered, pursuant to s 24(1)(c) of the Act, that AXB be remanded in custody in a prison, pending the making of a supervision order under s 26 of the Act, being satisfied there were no practicable alternatives in the circumstances. Lastly, I ordered that a report by the appropriate person and a certificate of available services be obtained and filed with the Court, on or before 25 January 2019, under ss 41 and 47 of the Act, and that the matter be brought back for mention on 25 January 2019 (‘November 2018 Orders’).
The decision now before the Court is whether to make a custodial supervision order (‘CSO’) under s 26(2)(a) of the Act or a non-custodial supervision order (‘NCSO’) under s 26(2)(b) of the Act. Further, if the Court makes a CSO, it must determine whether to commit AXB to custody in an ‘appropriate place’, pursuant to s 26(2)(a)(i) of the Act, or in a prison, pursuant to s 26(2)(a)(ii) of the Act. At present, AXB is being held at the St Paul’s psychosocial rehabilitation unit (‘St Paul’s Unit’) at the Port Phillip Prison (‘PPP’).
Events following the November 2018 Orders
The first s 41 report and s 47 certificate of available services
On 24 January 2019, Ms Melissa Iskov, Senior Legal Counsel and Board Support Officer at the Victorian Institute of Forensic Mental Health (‘Forensicare’), sent the Court a s 41 report, a s 47 certificate of available services, and a letter (signed by Ms Iskov).
Dr Katherine Roberts, Consultant Psychiatrist and Director of Clinical Services (Prisons) at Forensicare, authored the s 41 report. Her report states that she interviewed AXB at PPP for 75 minutes on 7 January 2019, had a conversation with his treating psychiatrist Dr Belshaw on 21 January 2019 and had available to her the Court’s letter requesting the report, as well the psychiatric reports relied upon at AXB’s consent mental impairment trial.[1] At the end of her report (at pages 7–8), Ms Roberts concludes as follows:
[1]At trial, the Defence provided a report dated 20 May 2018 by Dr Fiona Best and the Prosecution provided a report dated 16 September 2018 by Dr Sam Pang, which was co-signed by his supervisor Dr Prashant Pandurangi. The details of those reports are set out in my earlier judgment, [citation redacted].
47.Since coming into custody, he has been re-initiated on medication and has responded well to this regime along with the psychosocial support offered at St Paul’s Unit at PPP.
48. It should be noted that he is on large amounts of medication for a man of advancing age and his physical health concerns. I understand that given his stability in mental state his psychiatrist has been reticent to reduce the medication, particularly in a prison setting and amid legal proceedings, however it may [sic] that this will be necessary in the future to protect his physical health. This would likely be high risk in a community setting however, given the elevated risk of violence should he become psychotic again.
49. Given his lack of supports in the community and the absence of accommodation, coupled with the fact that his partial insight has gone untested in less structured and supportive environments, I would recommend a period at Thomas Embling Hospital (TEH) where his ultimate community release can be planned for in a graduated fashion.
…
51. Whilst I have recommended a period at TEH, I would advise caution at this being for too protracted a period, given his tendency to become dependent on caregivers. If he becomes too institutionalized, he may well be increasingly difficult to transition into the community.
The s 47 certificate was signed by Forensicare’s authorised psychiatrist and its acting chief executive officer, who signed it in his capacity as delegate to the Secretary to the Department of Health and Human Services (‘the Secretary’). It stated that there was at that time no bed available for AXB at Thomas Embling Hospital (‘TEH’). In her cover letter, Ms Iskov outlined ‘the bed pressure’ at TEH as follows:
…there are currently 20 male prisoners certified and requiring compulsory treatment at Thomas Embling Hospital. We currently only have 19 beds available for these prisoners. There are also 8 other male prisoners awaiting admission to the Thomas Embling Hospital, by the Courts under the Act, on a CSO. These matters have been adjourned until a bed becomes available. We anticipate the beds will be allocated according to the order in which the person was recommended for a CSO (subject to clinical need).
Ms Iskov requested that AXB’s matter be adjourned for a period of six months, until 25 July 2019. She stated that if a bed became available at TEH before then, she could notify the Court so that a CSO could be made earlier.
Mention hearing on 25 January 2019
At a mention hearing on 25 January 2019, counsel for AXB, Ms Georgina Connelly, raised her concern for AXB’s health, given Dr Roberts’ statement in her s 41 report that AXB was receiving high dosages of medication in prison. Ms Connelly raised the possibility that there might be an ‘appropriate place’ other than TEH, such as a locked ward at a public hospital, where AXB could be held under a CSO and where his medication regime could be changed. Ms Connelly submitted that Forensicare’s s 47 certificate of available services did not fully comply with the Act, because it failed to inform the Court of available services or facilities other than TEH. She requested that the Court seek information as to ‘whether there are in fact any alternative options’ and asked ‘whether it’s possible …to have a psychiatric report that addressed alternative options’[2]. The Court adjourned the matter for eight weeks, until 22 March 2019, to allow the Court time to obtain further information from Forensicare.
Correspondence with Forensicare
[2]Transcript of Proceedings, the Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 25 January 2019) 5 (Ms G. Connelly).
On 30 January 2019, the Court wrote to Forensicare requesting a further s 47 certificate ‘to address whether any other appropriate place exists for [AXB] apart from TEH’ and also an addendum to its s 41 report addressing in detail the following issues:
1. The impact on [AXB] of a change in environment were an appropriate place, other than TEH, identified for treatment;
2. The impact of delay, of the provision of a bed at TEH, on [AXB]’s health (physical or mental) and his living skills and how this can be addressed if he remains in the St Paul’s Unit;
3. The opinion of Dr Fiona Best in the psychiatric report filed 7 June 2018, that a trial of Clozapine would be beneficial to [AXB]. It was noted Dr Sam Pang at the hearing on 7 November 2018 testified that, ‘It's certainly the case that [AXB] has treatment resistant psychotic symptoms for which clozapine is the best medication’ (page 23)…If Clozapine should be trialled and [AXB] remains at St Paul’s Unit how is this to be addressed in the immediate future?;
4. Whether in his current placement at St Paul’s Unit [AXB] risks becoming care dependent and if so, what steps can be taken to ameliorate this?
On 15 March 2019, AXB’s solicitor, Ms Becky Nowak, emailed the Court a copy of a letter from Mr Derek Amos, Director and Past Chairman of Barrier Breakers Inc., a mental health advocacy organisation providing services to those experiencing mental illness in the Gippsland Region. Mr Amos referred to himself in his letter as AXB’s ‘case manager and a person who has weekly phone discussions with him, for 12 months.’ He advocated for the Court to make a NCSO and outlined what support Barrier Breakers Inc. could provide to AXB were he to be released into the community. With the Prosecution’s consent, the Court sent Mr Amos’ letter to Forensicare via email. In its email to Forensicare the Court noted that Mr Amos’ letter refers to the possibility of a NCSO being made and stated, ‘Forensicare should not assume her Honour intends to make a NCSO, given the serious nature of the charges.’
Forensicare’s first addendum to its s 41 report and its second s 47 certificate
On 21 March 2019, Forensicare provided the Court with the requested addendum to its s 41 report, a second s 47 certificate of available services, and a cover letter from Ms Nadia Baillie, General Counsel at Forensicare. The s 47 certificate stated that there were no beds available for AXB at that time at TEH. It did not provide further information about alternative options. Ms Ballie explained in her cover letter (at page 2) that:
…it is current State Government policy that Forensic Patients…be supervised and treated by Forensicare (a specialist forensic mental health service) at Thomas Embling Hospital, rather than by a general mental health service. I can confirm that all people, whose offending was caused by a mental illness, are placed on a CSO at Thomas Embling Hospital in line with the current government policy, with the exception of one, who is managed in a Prison.
Ms Ballie requested, on behalf of Forensicare, that the matter be adjourned to 25 July 2019. She stated that if a bed became available at TEH earlier, she could notify the Court.
Dr Roberts authored the addendum to her s 41 report, addressing each of the four issues raised in the Court’s 30 January 2019 letter to Forensicare, as follows:
(a) I suspect any move or change in environment could be considered as potentially stressful for [AXB] as he has limited supports and appears to have become familiar and comfortable in his current environment. With adequate support however, and assistance with practical matters, I expect any risks associated with a transition could be managed ….
(b) The impact of any delay in transfer could be considered as complex. On the one hand [AXB] is comfortable and settled in his mental state on the St Paul’s Unit and any delay would therefore have limited impact. That said, he has less access to all treatment modalities available in prison compared to hospital or the community. With respect to physical health, there could be some modest impact in a delay. He is able to access physical health care in the prison setting however specialist input can be limited due to logistics of arranging follow up care from prison. Monitoring of his physical health is limited by the fact he is locked down in his cell each evening, compared to in a less restrictive setting such as hospital or a community placement.
(c) I believe a trial of clozapine is worthy of consideration. Currently clozapine initiation is not available in prison due to the physical risks associated with its initiation and the limited scope to monitor in this settling. The current accepted community standard is that clozapine initiation occurs in a hospital setting. If he were to ultimately be transferred to TEH, this could occur there or alternatively in an Area Mental Health Service.
(d) There are certain steps that can be taken to avoid [AXB] becoming care dependent on the St Paul’s Unit. Staff working with him should access to [sic] clinical supervision to ensure that they do not inadvertently de-skill him and ensure that he remains as independent as possible. A plan could be drawn up with [AXB] to ensure he remains involved in activities of daily living and to limit any dependence of [sic] clinicians and thus institutionalisation.
Mention hearings on 22 March 2019 and 12 April 2019
On 22 March 2019, there was a further mention hearing at which Ms Connelly sought, on behalf of AXB, to have the matter listed for a disposition hearing to determine whether the Court should make a CSO or a NCSO. The Court then listed the matter on 12 April 2019 for further directions.
On 29 March 2019, the Court sent a letter to Forensicare informing them of the next directions date in the matter and of Ms Connelly’s intention to advocate for a NCSO on behalf of AXB. The Court asked Forensicare to provide a copy of the letter to the Department of Health and Human Services (‘DHHS’). That day the Court also sent a copy of the letter to the Victorian Attorney General. On 9 April 2019, the DHHS confirmed that it would be represented at the next directions hearing. That same day, the Victorian Government Solicitor’s Office indicated that the Attorney General did not intend to be involved in AXB’s disposition hearing.
Written submissions on behalf of AXB
On 20 April 2019, Ms Connelly filed submissions on behalf of AXB in which she submitted that the Secretary ‘should be required to provide a further s 47 certificate addressing the availability of services other than Thomas Embling Hospital in support of a custodial and non-custodial supervision order’[3]. Further, she indicated that AXB would require Dr Roberts to give evidence at the disposition hearing and potentially Dr Belshaw as well.
[3]Submissions addressing process toward disposition dated 20 April 2019, filed on behalf of AXB, [2].
In her submissions, Ms Connelly again raised concern about AXB’s high levels of medication in prison, the fact that he cannot be prescribed a trial of clozapine while in prison and the risk of institutionalisation.[4] Further, Ms Connelly submitted that, in failing to address the availability of services or facilities other than TEH, the Secretary had not only failed to comply with the Act but had also failed to give proper consideration to AXB’s right, under s 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), to be treated with humanity and with respect for his inherent dignity.
Further mention hearing on 29 April 2019
[4]Ibid [26]–[28].
Further directions took place on 29 April 2019. The Court set a timetable for the filing of further submissions by the parties and requested that Dr Roberts prepare a further brief addendum to her s 41 report to update the Court on AXB’s situation, particularly on his medication and treatment. Further, the Court set down the matter for disposition hearing on 20 May 2019.
Written submissions on behalf of the DHHS
On 10 May 2019 counsel for the DHHS, Mr Morgan McLay, filed written submissions on behalf of the Secretary to the effect that the Secretary had complied with the November 2018 orders requiring it to provide a s 47 certificate and that ‘it is not possible for [AXB]’s place of custody to be a place other than Thomas Embling Hospital if he is to be placed on a Custodial Supervision Order’[5].
Further addendum to Dr Robert’s s 41 report and third s 47 certificate
[5]Outline of Submissions, filed 10 May 2019 on behalf of the Secretary to the Department of Health and Human Services, [44].
On 10 May 2019, Forensicare provided the Court with Dr Robert’s further addendum to her s 41 report, a new s 47 certificate and a letter from Ms Baillie. The s 47 certificate stated that there were no beds available at that time for AXB at TEH. It did not provide information about the availability of services or facilities other than TEH. In the cover letter, Ms Baillie requested, on behalf of Forensicare, that AXB’s matter be adjourned until 20 November 2019. She stated that if a bed became available at TEH before then, she could notify the Court.
In preparing the further addendum to her s 41 report, Dr Roberts spoke to AXB’s treating psychiatrist at St Paul’s Unit at PPP, Dr Prashant Pandurangi (with AXB’s consent). In the further addendum, Dr Roberts referred to an incident at PPP, explaining (at paras 6 and 7):
6.In early February 2019, following a move back to the original St Paul’s Unit, which had been refurbished, from Penhyn Unit, he reportedly made threats to kill his cell mate and also harm a nurse. This was seemingly in the context of [AXB] not having a single cell. He reported to Dr Pandurangi a sudden emergence of auditory hallucinations from "demonic figures" telling him to harm others (co-patients and a member of nursing staff). He indicated that he felt he would be better if he was placed in a single cell.
7. He was initially placed in an observation cell and then locked down in his own cell. He was eventually given a single cell on which his mental state settled without any changes to his medications. It did not appear that he had truly relapsed at the time and his expression of symptoms was more in keeping with the stress at the prospect of sharing a cell. Dr Pandurangi reports there have been no such threats made since.
Regarding AXB’s medication, Dr Roberts noted (at para 8):
8. [AXB] reportedly requested a decrease in dose of Risperidone Consta (long acting injectible anti-psychotic), which was agreed to by Dr Pandurangi. The agreed plan was that the dose of 87.5mg would reduce by 12.5mg every two weeks until the final dose of 50mg was reached. Additionally, he remains on Risperidone tablets at a dose of 6mg and sodium valproate, a mood stabiliser, 1mg twice daily. The remainder of his physical health medication is unchanged. Dr Pandurang reports that his mental state has not altered with the reduction in dose of his depot.
Dr Roberts concluded (at paras 10–13) as follows:
10. …it appears that his mental state is currently stable despite a decrease in his anti-psychotic medication…
11. It appears that the risk assessment would remain unchanged. Previously, I commented on a range of triggers that increases his propensity to experience psychotic symptoms with stress being central. This appears to have been evidenced recently when he became stressed at the prospect of sharing a cell. It will therefore be important for [AXB] to manage stress in a way which will minimize any impact on his mental state, and for there to be continued robust strategies for monitoring his mental state and risks and detecting early signs of relapse.
12. I maintain my recommendation that he be treated for a period at Thomas Embling Hospital where his ultimate community release can be planned for in a graduated fashion. The recent re-emergence of symptoms in the context of stress relating to the prospect of sharing a cell would suggest that he would benefit from further work on coping with stress as well as putting supports around him in the community to mitigate exposure to stressors which may in turn result in decline in his mental state.
13. I would also reiterate however that too protracted an admission to Thomas Embling Hospital may lend itself to him becoming dependent on caregivers…
Written submissions on behalf of AXB
On 16 May 2018, Ms Connelly filed brief written submissions on behalf of AXB in reply to the 10 May 2019 submissions filed on behalf of the Secretary. At the end of those submissions (at para 6) Ms Connelly states, ‘To assist the efficient conduct of this AXB accepts that the Thomas Embling Hospital is more suitable than other designated mental health services. He is not prepared to accept that other designated mental health services are unsuitable because of their physical layout or the expertise of their staff.’
Disposition hearing on 20 May 2019
The disposition hearing took place on 20 May 2019. Ms Connelly appeared on behalf of AXB, Ms Hassan appeared on behalf of the Crown, and Mr McLay appeared on behalf of the Secretary.
At the hearing, the following witnesses were called to give evidence before the Court:
(a) Dr Katherine Roberts, Consultant Psychiatrist and Director of Clinical Services (Prisons) at Forensicare. Dr Roberts authored the s 41 report provided to the Court and the two addendums to that report. She was called on behalf of the Crown and cross-examined by Ms. Connelly on behalf of AXB and by Mr McLay on behalf of the Secretary;
(b) Mr Derek Amos, Director and Past Chairman of Barrier Breakers Inc Mr Amos wrote the 15 March 2019 letter outlining the support that Barrier Breakers Inc could provide to AXB if he were released into the community. Mr Amos was called on behalf of AXB and cross examined by Ms Hassan on behalf of the Crown;
(c) Mr Tom Dalton. Mr Dalton is the Chief Executive Officer of Forensicare. Mr Dalton co-signed, as delegate to the Secretary, the second and third s 47 certificates provided to the Court.[6] He was called by Mr McLay and cross-examined by Ms Connelly on behalf of AXB.
[6]Les Potter, Forensicare’s acting chief executive officer at the relevant time, co-signed the first s 47 certificate as delegate to the Secretary.
The Court noted the written submissions filed by the parties and the following documents were tendered as exhibits:
(a) by Ms Hassan, on behalf of the Crown –
(i) Exhibit A: Dr Robert’s reports, being her s 41 report dated 24 January 2019, the first addendum to her report, dated 20 March 2019 (provided to the Court on 21 March 2019) and the second addendum to her report, dated 7 May 2019 (provided to the Court on 10 May 2019);
(ii) Exhibit B: the s 42 report of Mr [redacted] (AXB’s brother), dated 2 May 2019;
(iii) Exhibit C: the s 42 report of Mr [redacted] (the victim of AXB’s attempted murder), dated 5 May 2019;
(iv)Exhibit D: the s 42 report of Mr [redacted] (the victim of AXB’s intentional damage to property), dated 17 May 2019.
(b) by Mr McLay, on behalf of the Secretary–
(i) Forensicare’s third s 47 certificate (provided to the Court on 10 May 2019).
Oral evidence of Dr Katherine Roberts
Under examination by Ms Hassan
On examination, Dr Roberts gave evidence on two key issues in particular, being:
(a) the need, in her opinion, for AXB to be gradually reintegrated into the community and why she believed this could be ‘planned for much more effectively’ at TEH[7]; and
(b) AXB’s medication regime.
[7]Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 7.
In relation to AXB’s reintegration into the community, Dr Roberts stated as follows:
…his insight is only partial…so, whilst he’s accepting medication, I didn’t feel that he has a full understanding of his illness, and certainly that’s something that can be worked upon at Thomas Embling …He’s at St Paul’s Unit currently, which is a fairly contained and structured until [sic] It’s also highly supportive. So, ordinarily what would occur if an individual is on a custodial supervision order at Thomas Embling, is that gradually they would increase leaves off – well initially within campus leaves and then off-campus leaves, gradually. And therefore, this can test his insight, if it remains partial, i.e. can he identify early warning signs? Can he work with the supports in a gradually less supportive environment?[8]
[8]Ibid 3-4.
Regarding the risk of institutionalisation, Dr Roberts explained, ‘He does seem mildly institutionalised already…So it would be helpful if, if he could be tracked fairly rapidly through rehabilitation. However, you’d have to have him in that environment and test that out gradually…’[9]
[9]Ibid 4-5.
In relation to AXB’s medication regime, Dr Roberts gave evidence that his medication had been reduced at St Paul’s Unit, stating, ‘…it’s reassuring that he has now had his medication reduced somewhat and his mental state’s essentially remained stable.’[10] Dr Roberts confirmed that the reduction in AXB’s medication had ‘somewhat allayed’ the concern she expressed in her original s 41 report regarding his medication.[11]
[10]Ibid 5.
[11]Ibid 6.
Dr Roberts further gave evidence that ‘irrespective of doses of medication, if he is exposed to wide ranging and large amounts of stress, there could be a deterioration in his mental state. So I would wish to test that in a secure environment ideally, initially.’[12]
[12]Ibid 6-7.
Under cross-examination by Ms Connelly
Ms Connelly cross examined Dr Roberts on the interaction between AXB’s antipsychotic medication and his other comorbidities. Dr Roberts explained that ‘his comorbidities remain, so you would certainly want to continue monitoring them…irrespective of antipsychotic medication, but we do know that that can complicate the physical health concerns, but one [sic] we’d routinely do monitoring anyhow.’[13] In further cross examination on AXB’s medication, Dr Roberts confirmed that following the reduction in his medication, there is less reason to do a trial of clozapine.[14]
[13]Ibid 10.
[14]Ibid 11.
Regarding the risk of institutionalization, Ms Connelly asked Dr Roberts for guidance on what would be ‘too protracted’ a stay in custody. While Dr Roberts expressed concern about AXB losing more independence, she explained, ‘I can’t be definitive because I think it does depend how he presents, if and when he arrives at Thomas Embling.’[15] Dr Roberts went on to say that a way to ‘avoid’ institutionalisation ‘would be to not have him reside at Thomas Embling indefinitely.’[16] When asked whether there was a plan in place for AXB at St Paul’s Unit to avoid care dependence, Dr Roberts stated:
There’s certainly discussion around it at St Paul’s. There is difficulty in that patients can’t cook for themselves there. But they do a range of groups and they do have some focus on independent living skills…There is [sic] moves to avoid any further dependency…I haven’t seen the details of his individual plan, but my impression from speaking to his two psychiatrists were, that this was a consideration, so I would assume so.’[17]
[15]Ibid 12.
[16]Ibid 13.
[17]Ibid 13-14.
Dr Roberts was then questioned on area mental health services. Regarding her experience in community mental health, Dr Roberts stated that she had in the past worked as a psychiatrist registrar at Werribee Mercy Hospital. Dr Roberts explained that while there are locked wards in hospitals where acutely mentally unwell people are admitted as in-patients, called ‘high dependency units’, they are ‘not as secure as Thomas Embling can offer’ and ‘the length of stays are generally exceptionally short’, partly because the services ‘are exceptionally pushed for resources and for beds’.[18]
[18]Ibid 14-15.
When questioned about secure extended care units in hospitals (‘SECUs’), Dr Roberts acknowledged that they exist and that there is a SECU in Latrobe Valley. She stated that while SECUs are secure, ‘they’re known to be less secure’ than TEH and she understood that ‘patients do abscond from these units’.[19] Dr Roberts also stated that often SECUs ‘cannot manage…all risk behaviours’ and ‘have extreme pressure on resources.’[20] She noted by way of example regarding risk behaviours that there were some patients at TEH who could no longer be managed at secure extended care units.[21]
[19]Ibid 16-17.
[20]Ibid 17.
[21]Ibid 17
Responding to a question from Her Honour about how the ‘planned reintegration process’ that would occur at TEH compared to what might occur at a SECU, Dr Roberts stated, ‘my understanding is that it wouldn’t be as possible from a SECU’[22].
[22]Ibid 17.
Ms Connelly also cross-examined Dr Roberts about the letter from Barrier Breakers Inc. Dr Roberts confirmed that the letter did somewhat allay her concerns about the level of stress AXB would experience in transitioning back into the community and about his likely compliance with medication in the community.[23] In response to a question from Ms Connelly about whether, in those circumstances, AXB would be ‘unlikely to endanger himself or a member of the community’, Dr Roberts said:
I think you could say it would be less likely, but there’s always risk of other stressors, irrespective of compliance with medication that I would be concerned about. Now, I can’t nominate what they might be, but, um, I think that’s why I’m recommending Thomas Embling, because we could manage that and observe that, and his reaction to various stressors in a more graduated fashion.[24]
[23]Ibid 19.
[24]Ibid 19-20.
Under cross-examination by Mr McLay
Mr McLay cross examined Dr Roberts on the graduated leave process at TEH. Dr Roberts confirmed that process involves both graduated leave within campus (at TEH) and off-campus leave. In relation to within campus leave, Dr Roberts explained that at TEH ‘there are multiple units all within a secure environment’[25]. She explained that when patients are first admitted at TEH they are placed on a particular unit. Generally, they would not be allowed to leave that unit until they are assessed ‘around how they’ve coped with the transition’ to TEH. After that, ‘slowly from there’ they would generally be allowed escorted leave onto the campus and then ultimately unescorted leave, for example to go to the gym on campus or other programs that run at TEH.[26] Explaining the importance of the within campus leave program at TEH, Dr Roberts stated, ‘I think to start in a very controlled manner, enables us to monitor his mental state whilst slowly increasing exposure to leaves, stressors, all the while ensuring his mental state remains stable.’[27] Dr Roberts stated that from her experience, TEH’s graduated on campus leave process was not available or comparable to anything that occurs in any acute unit or SECU in a hospital.
[25]Ibid 22.
[26]Ibid 21.
[27]Ibid 21.
Next, Mr McLay questioned Dr Roberts about the Forensic Leave Panel (‘FLP’) and its relationship to TEH. Dr Roberts explained that the connection between the FLP and TEH went beyond the fact that the FLP sits at TEH. She explained the process TEH patients go through to obtain off campus leave approval. Initially, she explained, a proposed off campus leave would be discussed with the patient. Then senior psychiatrists and clinicians would discuss it at an internal TEH committee, called the Leave Review Committee. After that, an application would be made to the FLP. At a hearing, the FLP would receive reports from the patient’s treating clinicians and the patient would attend and be able to speak directly to the panel. Dr Roberts confirmed that there is a model of care that sits under that process that allows the FLP to be properly informed about the patient’s progress. Further, Dr Roberts explained that ‘the way leaves are granted is through quite a structured and robust system, so primarily leaves would be linked to rehabilitation goals…they are tied with…stability in mental state, goals which would reconnect [AXB] to the community.’[28]
[28]Ibid 22 -23.
Mr McLay went on to cross examine Dr Roberts on the risk of institutionalisation. Dr Roberts confirmed that AXB had difficulty with independence prior to his forensic involvement. She explained that her reference to the risk of institutionalisation in her s 41 report was not meant to suggest that AXB should not be held at TEH. However, she believed that if he were held at TEH:
You would want to be quite explicit in working with him to maintain activities of daily living …ideally, have him on a rehabilitation pathway fairly rapidly, where you would be seeking to engage him in a variety of programs…and then link him out to the community.’[29]
[29]Ibid 24.
Dr Roberts expressed the view that TEH was well placed to deal with the rehabilitative requirement to increase AXB’s independent living skills, explaining:
…we have the ability for patients to cook for themselves, for example…some rehabilitation patients would shop for themselves on a weekly basis, prepare all their meals, they manage their own laundry…clean their own rooms, so independent living skills are certainly a focus at Thomas Embling.[30]
[30]Ibid 25.
On cross examination regarding acute units and SECUs, Dr Roberts repeated that they do not provide the same level of security as TEH and that they are not focused on forensic patients and not all staff there would have training and experience with forensic patients. She also agreed, by comparison, that TEH is a purpose-built facility for, among other things, providing ongoing treatment for patients on CSOs. Dr Roberts confirmed that, in recommending that AXB be held on a CSO at TEH, she considered other options.[31]
[31]Ibid 25-26.
Under re-examination by Ms Hassan
Ms Hassan re-examined Dr Roberts, asking about AXB’s present situation at St Paul’s Unit. Dr Roberts did not know the specifics of his routine there but spoke generally about the program. She explained as follows:
So it’s a psychosocial rehabilitation unit…there’s 30 patients…There is a multi-disciplinary team, so a psychiatrist, a psychiatric registrar, the psychology social work OT, there’s a programs coordinator…So there’s various programs that run through the day. There is [sic] community meetings, there is an outdoor area where I believe, organised walks occur so there’d be kind of health and fitness pursuits, as well as groups that focus on better understanding about mental illness…as well as more vocational programs. There’d be quite frequent monitoring from certainly psychiatric registrars, intermittent review by psychiatrists and then…a range of other clinicians involved in monitoring and managing [AXB]’s mental health. He’d be out of his cell, I believe for about 12 hours a day and then locked down overnight….patients don’t cook for themselves but they do some activities of daily living. My understanding is that they do their own laundry but this…was a bit of an issue for [AXB] and he was frequently needing support from nursing staff around this activity.[32]
[32]Ibid 28-9.
Oral evidence of Mr Derek Amos
Under examination by Ms Connelly
Mr Amos explained that Barrier Breakers Inc. is a mental health advocacy organisation serving the Gippsland region that has been operating since 2006. It has nine board directors and, until the month prior to Mr Amos giving evidence, three of them were medical practitioners. Mr Amos stated that the organisation has about 300 volunteers who are all experienced with working with people with mental illness. Most of its volunteers have family members who experience mental illness and some have themselves experienced mental illness. Barrier Breakers Inc. also has volunteers who are trained advocates who work from one of their offices.[33] Mr Amos later said that Barrier Breakers Inc. ‘take a lot of volunteers from tertiary institutions in Gippsland’ who ‘undertake…certificates/diplomas in community services and…certificates associated with the work we do.’[34]
[33]Ibid 30.
[34]Ibid at 33.
Mr Amos came into contact with AXB after he received a call from the Morwell office of Victoria Legal Aid asking if Barrier Breakers Inc. could provide mental health advocacy for AXB. He is now in weekly contact with AXB over the telephone.[35]
[35]Ibid 31. Mr Amos explained that after Victoria Legal Aid contacted him, he was asked to take responsibility for protecting and realising AXB’s assets. He agreed. AXB then gave him a power of attorney. Mr Amos has a telephone conversation with AXB once a week to report on his management of AXB’s assets and have a general chat.
Ms Connelly asked Mr Amos about the assistance Barrier Breakers Inc. could provide AXB in finding accommodation on his release back into the community. He explained that he had found AXB immediate temporary accommodation at the house of a volunteer he knew to be a suitable person. He said he hoped the organisation would be able to secure long-term accommodation for AXB within three to four weeks of his release, most likely a two-bedroom unit.[36]
[36]Ibid 32.
When asked what assistance Barrier Breakers Inc. could provide in relation to AXB’s compliance with his medication regime, Mr Amos stated that one of the organisation’s workers would attend upon AXB every day ‘to ensure medication adherence, but to also…ensure he has a companion and…someone else that, you know, could be in his life to attend to his normal needs.’[37] He also said that Barrier Breakers Inc. works very closely with the community mental health service within the Gippsland region, which is managed from the Latrobe Eastern Hospital in Traralgon.
[37]Ibid 33.
Mr Amos stated that Barrier Breakers Inc. proposed to appoint ‘a senior experienced advocate’[38] to work with AXB. He stated that it ‘would be picked up…quite readily’ if AXB were to have a mild form of relapse in community, especially since they would be working with a community mental health service. He said AXB would immediately be placed in the Flynn Ward at Traralgon if the community mental health service noticed he was becoming unwell. He also said that the community mental health service would be advised if AXB refused to take his medication and would seek an order to have him declared an involuntary patient at the Flynn Ward under the Mental Health Act.[39] Mr Amos stated that he had discussed the proposed arrangements with AXB and that his reaction was ‘very compliant’.[40]
[38]Ibid 34.
[39]Ibid 35.
[40]Ibid 35.
Under cross-examination by Ms Hassan
Under cross examination Mr Amos said he had been having weekly telephone conversations of about 30 minutes with AXB since around 6 March 2018. He said he had never met AXB and did not have any medical qualifications.[41] Mr Amos explained that he co-founded Barrier Breakers Inc. in 2006 and had experience in the area of mental illness as his eldest brother had schizophrenia and he dealt with a lot of people with mental illness as a Member of Parliament for four terms.[42]
[41]Ibid 36.
[42]Ibid 37.
Ms Hassan asked Mr Amos about the volunteer offering short term accommodation to AXB. Mr Amos said her name was [redacted], she was the administration manager of their Sale office and had no qualifications in mental health.[43] Mr Amos later said that if there were no volunteers willing to take AXB, he and his wife would take him into their home, but they preferred to see AXB accommodated closer to the Latrobe Regional Hospital’s community mental health service.[44]
[43]Ibid 37.
[44]Ibid 39.
When cross examined on the organisation’s plan for AXB’s long term accommodation, Mr Amos stated that they had two real estate agents willing to work with them once they had been able to interview AXB. He stated that AXB would be living alone but a volunteer would visit him daily. [45]
[45]Ibid 39.
Regarding the volunteers working with Barrier Breakers Inc. Mr Amos said not all of them were students as some had received their diplomas or certificates and they had some mental health nurses. He confirmed that volunteers could walk away at any time but, to his knowledge, that did not happen without the volunteer or the chief advocate of the organisation arranging a replacement.[46] He said that from time to time a volunteer may say that the work is beyond their capacity. He also explained that the volunteers would not be monitoring AXB’s medication or the interplay of his medication with his physical comorbidities, which he said was a matter for the community mental health service.[47]
[46]Ibid 40.
[47]Ibid 41.
Oral evidence of Mr Tom Dalton
Under examination by Mr McLay
Mr Dalton stated that he had been the chief executive officer of Forensicare for ten years. He is not a psychiatrist but confirmed he has an awareness of the greater mental health service environment in Victoria (in addition to his knowledge on the services provided by Forensicare).[48]
[48]Ibid 50.
In relation to the s 47 certificates he signed in this matter, he stated that he did so as delegate of the Secretary. Mr Dalton explained that where the Court requests a s 47 certificate in relation to an individual, he and the authorised psychiatrist of Forensicare, Dr Danny Sullivan, consider ‘the circumstances of the person’ and ‘take into account their individual needs’ and the s 41 report in the matter.[49]
[49]Ibid 52.
Mr Dalton gave evidence that at the time of his evidence there were five people on a waiting list to be held under a CSO at Thomas Embling. AXB was number four on that list.[50] Mr Dalton said that, in his experience, it took on average 12 months until a bed became available for a prisoner at TEH, from the time the Court was ready to order that they be held on a CSO.[51]
[50]Ibid 52.
[51]Ibid 54.
Mr Dalton explained that Forensicare, together with Corrections Victoria, had recently tried to ensure that where prisoners were waiting for a bed at TEH they be held at St Paul’s Unit, so that they could receive a higher level of attention and treatment and have a ‘smoother transition’ to TEH. He explained that Forensicare had started to work with men at St Paul’s Unit in programs or groups similar to some of those run at TEH.[52]
[52]Ibid 54.
Mr Dalton further confirmed that, in his view, there is no other facility in Victoria that is able to deal with the requirements of a CSO besides TEH.[53]
[53]Ibid 57.
Separately, in the context of explaining why prisoners who require compulsory treatment[54] are sent to TEH, Mr Dalton outlined in more detail the level of security at TEH and the level of experience of its staff in dealing with forensic patients, stating:
that [security]…involves not just the perimeter security, but also the…physical security that happens within the hospital site itself and the procedural security in terms of the processes by which the staff interact with patients and the relational security…the extent to which we, in a secure forensic mental health environment, think about the issues of how we engage with our patients, impacting on their security overall.[55]
[54]Provided under secure treatment orders, pursuant to ss.270 and 276 of the Mental Health Act 2014 (Vic).
[55]Ibid 57.
Under cross-examination by Ms Connelly
Ms Connelly cross examined Mr Dalton on the mental health services that would be available to AXB were he released into the community on a NCSO. Mr Dalton said in the event that the Court made a NCSO, Forensicare would consult and liaise with his local mental health service.[56] However, the local mental health service would be responsible for liaising with community support groups and services, not Forensicare.[57] Mr Dalton explained that mental health services across the state are ‘pretty stretched’. However, if AXB had an established relationship with an area mental health service prior to his remand, in his experience, that service would probably resume working with him.[58]
[56]Ibid 61.
[57]Ibid 68.
[58]Ibid 60.
When cross-examined as to why the s 47 certificates in this matter only address the availability of services at TEH, Mr Dalton stated that in Victoria TEH ‘is the only facility equipped in security terms, both physical security, procedural security and relational security and in terms of staffing levels, to provide treatment and care of patients under a custodial supervision order’.[59] Mr Dalton did not know whether there were places available at the SECU in La Trobe Valley and had not made inquiries about that.[60] He confirmed that when a s 41 report recommends a CSO, he only considers the availability of services at TEH.[61]
[59]Ibid 66.
[60]Ibid 59.
[61]Ibid 66.
Mr Dalton later elaborated on his view about forensic patients being held under CSOs at SECUs, as follows:
So, it’d be my professional view that there would be problems which would emerge in the system if people on custodial supervision orders were treated and detained in secure extended care units. And the approach which has existed in Victoria since the Act came into being in July 1998, has been that people on custodial supervision orders are most appropriately housed at the Thomas Embling Hospital and that approach has continued to be taken over periods where the waiting list…has grown or shrunk, because it’s the most appropriate facility in terms of the level of security, the focus on treatment…the infrastructure within the hospital, but also the corporate infrastructure to enable the oversight…Which includes coming back to court in cases where there are reviews or applications, supporting clinicians in their decision making under the Act and…stewardship of those patients who are receiving treatment under the Act.[62]
[62]Ibid 72.
Mr Dalton did however accept that the process of applying to the FLP for community leave for a forensic patient may still operate for a person placed in a ‘designated mental health service’ other than TEH.[63]
Section 42 reports tendered on behalf of the Crown
[63]Ibid 70.
Under s 42(1) of the Act, a family member or a victim of a person who has committed an offence may make a report to the Court for the purpose of assisting counselling or treatment processes for all people affected by an offence and for the purpose of assisting the Court in determining any conditions it may impose on an order made in respect of a person under the Act.[64] Under s 42(2) of the Act, such a report is to ‘contain the views of the family member or victim on the conduct of the person and the impact of that conduct on the family member or victim.’
[64]Or to assist the Court in determining whether or not to grant a person extended leave.
Section 42 report of Mr [redacted] (brother of AXB)
In his report, Mr [redacted] said that when his brother was regularly taking his medication he was ‘a caring and thoughtful person’. He explained that at one point there was a nurse assigned to visit his brother every fortnight to administer his medication. However, after the government cancelled that practice, his brother stopped taking his medication. After that, his brother began to ‘doctor shop’ for a doctor ‘that would agree with what he thought his needs were.’
He outlined three occasions on which his brother was admitted to hospital to have his medication reassessed because he appeared to pose a threat to others and described an event that led to an intervention order being made to protect him against his brother. He then stated, ‘Myself and my family became extremely stressed that he would return when we were asleep or not at home and have only relaxed and been able to sleep without concern since he has been in remand. Due to his history of not taking medication we are very concerned about what will occur if he is released on his own reconnaissance.’
Section 42 report of Mr [redacted]
In his report, Mr [redacted] described the effect of AXB’s attempted murder against him as ‘severe’ and explained, ‘I have been permanently physically injured, psychologically damaged, emotionally crippled and financially disadvantaged…The crime has caused me injuries which will have an effect on me for the rest of my life.’
Regarding the Court’s supervision order, Mr [redacted] said, ‘I believe that the best course of action is to impose a custodial supervision order upon the offender and confine him to a secure psychiatric unit where he should be compelled to take prescribed medication. I do not think it appropriate to grant any type of leave from the secure unit.’
Section 42 report of Mr [redacted]
In his report, Mr [redacted] said, ‘This person took it upon himself to smash the front of my car …with a tomahawk…I have never spoken to him either before this or since, so it was an unprovoked wanton act of violence.’ Regarding the Court’s supervision order, he stated, ’It is my concern as [AXB] has done this before when at large in the community that he will do so again as his brother informed me he goes off his medication when left unsupervised.’
Oral submissions on behalf of AXB
Regarding the option before the Court of making a NCSO, Ms Connelly submitted that the Court is required to consider the matters sets out in s 40 of the Act and to apply, in accordance with s 39 of the Act, 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.[65] Ms Connelly stated that AXB would ‘present low risk of endangerment’ in the community if his medication was managed and complied with and if the Court accepted ‘what Mr Amos said about the level of support he would receive…and should that be supplemented by the community health services and supported by Forensicare.’[66]
[65]Ibid 78-79.
[66]Ibid 79-80.
Ms Connelly submitted that, if the Court were to take the view that a CSO is warranted in this case, it could not make a CSO committing AXB to custody in a prison, without a further s 47 certificate addressing the availability of facilities or services other than TEH. In her submission, the Court required a certificate because it could not otherwise conclude, as required under s 26(4) of the Act, that there were no practicable alternatives to prison for AXB.[67]
[67]Ibid 74-76.
Ms Connelly later submitted, however, that if the Court decided to impose a CSO at TEH, ‘the appropriate course would be to adjourn’ until a bed is available there, rather than make a CSO committing AXB to custody in a prison.[68] Further, Ms Connelly stated that AXB did not call on the Court to decide whether a further s 47 certificate was required, but that the Court should require a further certificate if, after hearing the evidence, it was contemplating making a CSO at a place other than TEH.[69]
[68]Ibid 90.
[69]Ibid 83 & 85.
Ms Connelly submitted that it was for the Court, not the Secretary, to determine whether ‘for practical purposes’ there was an ‘appropriate place’ (as defined under the Act) other than TEH that was a ‘suitable’ alternative to prison where AXB could be held under a CSO.[70] However, Ms. Connelly conceded, ‘I don’t take issue with Mr Dalton or Dr Roberts [sic] ability to evaluate the respective merits of the different places and Your Honour can act on that evidence.’ [71]
[70]Ibid 74 & 76.
[71]Ibid 83.
Ms Connelly submitted that security was not a significant consideration in this case. She stated that AXB was not a flight risk and that the level of security in a SECU would suffice for AXB.[72] While Ms Connelly conceded that her concerns regarding AXB’s medication were ‘less pressing’, she stated, ‘he remains in a gaol…unlike in a health setting, he is locked down overnight with no supervision or help, support.’[73]
Oral submissions on behalf of the Crown
[72]Ibid 76-77.
[73]Ibid 85.
Ms Hassan made brief submissions on behalf of the Crown that on the basis of the evidence before the Court a NCSO was not appropriate in this matter. She submitted that the support offered to AXB by Barrier Breakers Inc. was not satisfactory to manage the risk involved in immediately releasing AXB into the community.[74]
Oral submissions on behalf of the Secretary
[74]Ibid 81.
Mr McLay submitted that the s 47 certificates provided addressed the availability of services at ‘the only suitable facility’. He stated, ‘if the other facilities are unsuitable, in my respectful submission they’re also unavailable.’[75] Mr McLay submitted that TEH is not only suitable in terms of security but is ‘also the most humane treatment option.’[76]
[75]Ibid 87.
[76]Ibid 87.
Analysis
In the November 2018 Orders, pursuant to s 23(a) of the Act, I declared AXB liable to supervision under Part 5 of the Act. Pursuant to s 26(1) of the Act, I am required to make a supervision order in respect of AXB, which may be a CSO under s 26(2)(a) or a NCSO under s 26(2)(b). Under a CSO, the Court may commit a person to custody in an ‘appropriate place’ (as defined under the Act) or in a prison. Under a NCSO, the Court may release a person on conditions decided by the court and specified in the order.
Question 1: Should the Court make a NCSO or a CSO?
Relevant legal provisions
In making a supervision order, I am required to apply the principle set out in s 39 of the Act, ‘that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.’ Further, I am required to have regard to the matters set out in s 40(1) of the Act, which are:
(a) the nature of the person’s mental impairment or other condition or disability;
(b) the relationship between the impairment, condition or disability and the offending conduct;
(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;
(d) the need to protect people from such danger;
(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.
Finally, the Court cannot release unconditionally or otherwise release a person from custody unless it has taken the steps set out in s 40(2) of the Act including, as per ss 40(2)(b) and (d), considering any reports provided to the Court under ss 41 and 42 of the Act.
Application
In my view, based upon the evidence put before the Court, a NCSO is not an appropriate option for AXB. In forming this view, I have considered the s 42 reports of AXB’s victims and brother, Mr Amos’ evidence on the support Barrier Breakers Inc. could provide to AXB were he released into the community, and Dr Roberts’ written and oral evidence regarding, among other things, AXB’s mental state and her treatment recommendations.
I set out the serious nature of AXB’s offending in my earlier judgment, [citation redacted]. AXB was found not guilty because of mental impairment on the basis of evidence of paranoid schizophrenia with psychotic symptoms. Dr Roberts has given evidence that AXB only has partial insight into his condition and struggles to identify the early warning signs of a relapse in his symptoms[77]. She also gave evidence that there is a risk of relapse if AXB does not comply with his medication, which is a concern given his history of non-compliance under a lower level of supervision and support. Further, she explained that AXB’s symptoms are triggered by stress, which is relevant given that AXB will undoubtedly be exposed to a range of stressors once released into the community.
[77]See, for example, her s 41 report dated 24 January 2019 at paras 26 and 33.
The work Barrier Breakers Inc. does to assist those experiencing mental illness in the Gippsland Region is important work. The support the organisation is willing to provide to AXB is meaningful and will no doubt be of value to AXB when he is eventually released into the community. I also appreciate that Barrier Breakers Inc. works closely with local mental health services, including services operating from the Latrobe Eastern Hospital in Traralgon. However, in my opinion, the level of support offered by Barrier Breakers Inc. and local mental health services is not adequate to address the current risk of a relapse in AXB’s condition and of danger to the community, were he to be released into the community at this time. I am convinced by the evidence before me that AXB currently requires secure care and a high level of supervision and that a CSO is necessary for the safety of the community and for AXB.
Question 2: Where should AXB be held in custody under a CSO?
Relevant legal provisions
Under s 26(2) of the Act, the Court may make a CSO committing a person to custody in an ‘appropriate place’ or in a prison. The term ‘appropriate place’ is defined in s 3 of the Act as meaning a designated mental health service, a residential treatment facility or a residential institution. The latter two terms have the same meaning as in s 3 of the Disability Act 2006 (Vic) and refer to services and facilities for people with disabilities. The term ‘designated mental health service’ has the same meaning as in s 3(1) of the Mental Health Act 2014 (Vic), which defines it as Forensicare or a prescribed public hospital, public health service, denominational hospital, privately-operated hospital or private hospital within the meaning of s 3(1) of the Health Services Act 1988 (Vic). Pursuant to s 26(8) of the Act, a person detained under a CSO in a designated mental health service is deemed to be in the custody of the Secretary.
In making a CSO, the Court must have regard to the principle set out in s 39 of the Act and the matters set out in s 40 (which are set out in paragraph 78 above). Under s 26(3), the Court must not make a CSO committing a person to custody in an appropriate place ‘unless it has received a certificate under s 47 stating that the facilities or services necessary for the order are available.’ Under s 26(4), the Court must not make a CSO committing a person to custody in a prison ‘unless it is satisfied that there is no practicable alternative in the circumstances.’
Application
The evidence before the Court suggests that TEH is the most appropriate place to hold AXB under a CSO. However, the key issue in this matter has been that there were no beds available there.[78] That issue led to evidence being put before the Court to determine if there is an ‘appropriate place’ where AXB could be placed on a CSO instead of TEH or until a bed becomes available there.
[78]In the courts’ experience, the lack of availability of beds at TEH is increasingly causing delays in the making of CSOs under the Act and is problematic to the smooth functioning of the mechanisms under the Act for dealing with people found not guilty of offences because of mental impairment.
I accept the evidence before the Court that TEH is the only appropriate place on a practical level for AXB to be held under a CSO. There are a number of reasons why I have reached that conclusion in this case. First, the serious nature of AXB’s offending makes security an issue. I accept that security is less of a concern while AXB is on his medication, although there is a risk that he will cease to be compliant with medication unless he is very carefully supervised in this respect. Community safety and security issues may still arise if AXB is triggered by stress in a given situation. The fact that TEH provides a more secure environment than a SECU is therefore relevant.
Second, the unique system in place at TEH, which allows for a gradual transition and re-integration back into the community, is critical to ensure AXB is properly prepared to be released into the community, which is the ultimate aim, and to reduce the risk of him relapsing and of reoffending once released. That system was described in detail by both Dr Roberts and Mr Dalton. It allows for a robust, careful process of monitoring AXB’s progress, particularly in dealing with stress, which Dr Roberts has identified as an issue and trigger for AXB.[79]
[79]See, for example, Dr Robert’s s 41 report at [43] and the second addendum to her report at [11]. She also, Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 6-7 and 19-20 (Dr Katherine Roberts).
Part of that system in place at TEH involves applications to the FLP for community leave for TEH’s forensic patients. In theory, staff at a SECU could do the same for a forensic patient in their care, however this process may be less stringent and less successful than would be the case for patients of TEH given that TEH have the advantage of a well-established process in place for FLP proceedings, which are conducted on the TEH campus. Moreover, at TEH those applications are made in line with specific rehabilitation goals set for the forensic patient, which the staff have been working on with the patient under the overall system in place in THE.[80] That system begins with on-campus leave (within the various units at TEH), supervised and/or unsupervised, and progresses to community leave, depending on the patient’s progress, which can already begin to be tested on campus, aligning with the principle in s 39 of the Act. By contrast, at a SECU patients are held within the one secure unit[81] so there may be less opportunity (without an equivalent to TEH’s ‘on-campus leave’) to test, prior to applying to FLP for community leave, how a forensic patient is progressing in responding to various stressors.
[80]Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 22-23 (Dr Katherine Roberts).
[81]Ibid 22 (Dr Katherine Roberts).
Further, at TEH the staff can slowly build a patient’s living skills and independence by giving them the opportunity to shop, cook and clean for themselves and to wash their own clothes.[82] TEH is able to reduce the stress for patients upon their release into the community by assisting them to attain such key living skills. This will be particularly important for AXB, as dependence has been an issue for him in the past and it will reduce the stress he faces when he is reintegrated into the community.
[82]Ibid 25 (Dr Katherine Roberts).
A further benefit in AXB being held at TEH is that the staff there can work with him to develop a fuller understanding of his condition, given Dr Roberts’ opinion that he only has ‘partial insight’[83] into his condition. Staff at TEH can help AXB to better identify, not only his stressors, but also the early warning signs of relapse. While that could occur elsewhere, it is nonetheless an added benefit for AXB of a CSO committing him to be held at TEH.
[83]See, for example, Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 3–4 (Dr Katherine Roberts).
For the reasons given above, I am well satisfied that the optimal place for AXB to receive mental health treatment is TEH in order for his clinical and forensic needs to be met before he can be reintegrated into the community.[84] Further, as presently advised, no other suitable facility has been identified for AXB to be held if placed on a CSO, other than TEH. There is also no practicable alternative in the circumstances to AXB being held in custody at St Paul’s Unit at PPP while he waits for a bed to become available for him at TEH. St Paul’s Unit has the advantage of clinical and psychiatric oversight by Forensicare. The evidence before me is that AXB is well settled at St Paul’s Unit[85] and that the unit aims to facilitate a smooth transition to THE.[86] He attends groups on offer there, namely Mental Health Recovery, Emotional Regulation and Literacy.[87] He socialises there.[88] And it appears there may be some focus on living skills there and certainly that those treating him at St Paul’s Unit are aware of the need to avoid care dependence.[89] I also note that there is no longer any pressing need to change AXB’s medication, which was an early reason for concern at AXB being held at St Paul’s Unit.
[84]Mr Dalton’s evidence supports the conclusion that in the provision of a s 47 certificate, the Secretary has given proper consideration to AXB’s right, under s 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), to be treated with humanity and with respect for his inherent dignity.
[85]See Dr Roberts’ s 41 report, especially at [26] but also at [17] and [39].
[86]Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 54 (Mr Thomas Dalton).
[87]See Dr Roberts’ second addendum to her s 41 report at [4].
[88]Ibid. See also Dr Roberts’ s 41 report at [26].
[89]Transcript of Proceedings, The Queen v AXB (Supreme Court of Victoria, S CR 2018 0154, Jane Dixon J, 20 May 2019) 13-14 (Dr Katherine Roberts).
Counsel for AXB pointed out that at St Paul’s Unit AXB is locked down in his cell overnight so that AXB’s physical health is not monitored overnight. However, there is no specific evidence that this is causing AXB distress or any significant risk of harm to his health. Continuity of care appears important in his case and the court has been told that AXB could make a relatively smooth transition to TEH if a bed were to become available. Obviously, it is highly desirable that this occur as soon as reasonably practicable.
Other matters
Counsel for AXB complained about the adequacy of the s 47 certificates provided by Forensicare.
It is not strictly necessary for me to decide this question since my determination of this case has relied primarily upon the evidence put before me in Court and not solely on the information contained in the s 47 certificates regarding the availability of services.
Relevant Provisions
Section 26(3)(a) of the Act provides that the Court must not make a supervision order committing a person to custody in an appropriate place unless it has received a certificate under s 47 ‘stating that the facilities or services necessary for the order are available.’
Section 47(2) states that the certificate of available services must:
(a) state whether or not there are facilities or services available for the custody, care or treatment of the person (as the case requires); and
(b) if there are, give an outline of those facilities or services.
Section 47(3) states that if there are no facilities or services available, the certificate may ‘contain any other options’ the Secretary ‘considers appropriate for the court to consider in making the proposed order.’ Further, under s 47(5) the Court may require the Secretary ‘to give evidence or to provide the court with a further certificate to clarify or expand on the matters dealt with in a certificate under this section.’
Interpreting the requirement under s 47(2) of the Act
Ms Connelly sought to argue on behalf of AXB that there is a division of responsibility in the Act whereby:
(1)the Secretary (or their delegate) is required to inquire into the availability of facilities or services at designated mental health services; and
(2)the Court must determine which available facilities or services, if any, are suitable places to commit the person in question to custody.
It appears to the court that the Secretary or their delegate may take into account the suitability of designated mental health services when providing a certificate of available services, even though it is ultimately the Court that determines where a person is held under a CSO.
In DPP v Anderson [2011] VSC 625[90], Osborn JA considered that the purpose of the certificate is to ensure that the Court does not make an order requiring that a forensic patient be held at a facility that has no place available for them. In that sense, the certificate of available services has a very practical use.[91]
[90]At [34(a)].
[91]Arguably that is the reason for the requirement under s 26(3)(a), that the Court must not commit a person to custody in an appropriate place without a certificate of available services.
Ms Connelly pointed out that s 47(2)(a) requires the Secretary to state ‘whether or not there are facilities or services available [emphasis added]’. However, the full sentence continues, ‘for the custody, care or treatment of the person (as the case requires)’. A plain reading of the entire provision is to the effect that facilities or services must be able to accommodate the requirements of the custody, care or treatment of a person to be available for that purpose.
Section 47(3) allows the Secretary to include in the certificate of available services any options it ‘considers appropriate’ where there are no facilities or services available, implying that the Secretary may have a role to play in making recommendations to the court as to what options are appropriate for a person.
So, in looking at the overall scheme of the Act, the purpose of the certificate of available services, and the language of relevant provisions, it appears that the Secretary may consider the suitability of designated mental health services in providing a certificate of available services. The provision of the certificate is an important process and should not involve the application of any blanket policy or approach. Ultimately, it will be for the Court to decide what place is suitable for a person to be held under a CSO. The certificate is merely a tool to:
(a) assist and inform the Court; and
(b) prevent a situation whereby the Court orders that a person be held under a CSO at a service or facility that is unable to comply with that order.
Of course, if the Court believes the Secretary has not or may not have provided enough information in a certificate of available services, under s 47(5) of the Act it can (as has occurred in this case) require the Secretary ‘to give evidence or to provide the court with a further certificate to clarify or expand on the matters dealt with in a certificate’.
Conclusion
As already stated, the court has determined that AXB is liable to supervision under the Act and considers that AXB should be placed on a CSO. At the present time it appears to the court that TEH is the only ‘appropriate place’ for AXB to be held in custody and treated, once a CSO under s 26(2)(a) of the Act is imposed. I am satisfied that there is no practicable alternative in the circumstances than remanding AXB in custody in prison, pursuant to s 24(1)(c) of the Act, pending the making of a CSO. I will adjourn this matter, pending further information about the availability of a bed for AXB at TEH.