H v Director of Public Prosecutions (No 2)

[2008] TASSC 10

[2008] TASSC 10

CITATION:              H v Director of Public Prosecutions (No 2) [2008] TASSC 10

PARTIES:  H, P
  v
  DIRECTOR OF PUBLIC PROSECUTIONS

IN THE MATTER OF THE CRIMINAL JUSTICE
(MENTAL IMPAIRMENT) ACT 1999, s37

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  104/2002

373/2002

DELIVERED ON:  18 March 2008
DELIVERED AT:  Hobart
HEARING DATES:  3, 4 December 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Mental Health – Confinement and restraint of mentally ill persons and similar orders – Generally – Custodial supervision order – Discretion to revoke order – Powers of Mental Health Tribunal – Possibility of patient later becoming danger to public.

Criminal Justice (Mental Impairment) Act 1999 (Tas), ss26, 30(3) and 37.

Attorney-General v Francis [2007] 1 Qd R 396; Fardon v Attorney-General for Queensland (2004) 223 CLR 575, referred to.
Aust Dig Mental Health [5]

REPRESENTATION:

Counsel:
             Applicant:  C D Mackie
             Respondent:  J Hartnett
Solicitors:
             Applicant:  Mackie Crompton
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 10
Number of Paragraphs:  20

Serial No 10/2008
File Nos 104/2002

373/2002

P H v DIRECTOR OF PUBLIC PROSECUTIONS
IN THE MATTER OF THE CRIMINAL JUSTICE
(MENTAL IMPAIRMENT) ACT 1999, s37 (No 2)

REASONS FOR JUDGMENT  SLICER J

18 March 2008

1. P H has applied for the discharge of a restriction order made on 21 March 2003 under the Criminal Justice (Mental Impairment) Act 1999 ("the Act"). An application for removal may only be made "not less than 2 years after the order was made" and any subsequent application "not less than 2 years after the preceding application" (the Act, s26(1)(a) and (b)). In the light of the evidence and the unsatisfactory position adopted by administrators of the Department of Health and Human Services, I am not prepared to dismiss the application, nor, given that position, is it appropriate to simply discharge the existing order. Dismissal would preclude any possibility of further review for two years and allowance would inhibit the possibility of further appropriate treatment and the provision of adequate resources for the management of a person medically ill. The administrators of the relevant institution have strenuously opposed any removal of the patient from the secure unit within the prison complex, and made no appropriate proposals for the modification of the existing regime.

1. Given those restraints, and to avoid further lengthy incarceration, the Court will take the unusual course of adjourning the further hearing of the application for some indeterminate period, less than two years (see orders made by the Court of Appeal in Attorney-General v Francis [2007] 1 Qd R 396). The Court has the power to entertain a further application after a period of "6 months or such other period as the … court may direct on refusing the application", (the Act, s30(3)). The effect of my decision to simply adjourn the hearing is to permit continuation, rather than require a further application to the Tribunal, a fresh hearing and its preparation. The course I have undertaken is intended to provide an opportunity to the Department to put in place a more appropriate management regime, providing greater attention to the adverse effects of incarceration. If there is a conflict between the Act, s26(1)(b) and s30(3), I would, in any event, permit the course envisaged by the latter provision. This matter reflects the tensions inherent in any statutory scheme which attempts to meet the requirements of the criminal justice system and the treatment of persons afflicted by mental disorder. Here that tension might lead to the indefinite incarceration of an individual, bereft of resources, following conduct which would otherwise have much earlier permitted reintegration into the community.

1. The use of the criminal justice system in dealing with a person mentally afflicted has little utilitarian purpose.  In his celebrated passage in The King v Porter (1933) 55 CLR 182, Dixon J stated at 186 – 187:

"Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law in the hope that by so doing you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health?"

1. Nevertheless there remains a proper function for restrictive measures designed for the protection of the community and the individual afflicted.  But those measures require balance.  Supervision by, or redress through, the judicial system might afford protection, but can be rendered meaningless unless the Executive is prepared or able to provide viable alternatives to simple incarceration.  (See generally Identifying and Accommodating the Needs of Mentally Ill People in Gaols and Prisons, Ogloff, Psychiatry, Psychology and Law, Vol9, No1, 2002; Law, Psychiatry and Antisocial Personality Disorder: A Problem of Government, McCallum, Law In Context, (1997) Vol15, No1, 29-52; "Mental Illness" in Australian Legislation, Errington (1987) 61 ALJ 182; Protecting the Human Rights of the Mentally Ill, Chappell, Psychiatry, Psychology and Law, Vol11, No1, 2004, 1.)  The courts are not equipped for specific development and implementation of a management plan for an individual, but are entitled to expect the "decisive weight" to be given to their legitimate concerns in reconciling the differing needs of protection, treatment and respect for the individual (Attorney-General v Francis [2005] QSC 381; Attorney-General v Francis (supra)).  Repudiation of the objects of legislation in a particular case could result in a lessened willingness to make any restrictive orders (Fardon v Attorney-General for Queensland (2004) 223 CLR 575, Attorney-General v Francis (supra)).

Original order

1. In October 2001, police were called to a residential shelter following a request by management concerning the conduct and condition of Mr H.  Violence ensued, resulting in an attack on police officers, the use of capsicum spray, escape from detention and subsequent confrontation and recapture in the City Mall.  The hearing of charges arising from those events was listed in the court of petty sessions for July 2002.  A warrant was issued for the arrest of the offender following his failure to appear.  On 30 July police executed the warrant.  At that time Mr H was living, with the permission of the minister, in a small shed attached to church premises.  Mr H resisted the arrest, during which an officer was struck and wounded with a homemade spear and the use of mace was required to subdue the assailant.  On 21 March, I sentenced the applicant to a term of imprisonment for two years following his plea to the crime of committing an act intended to cause bodily harm, attempted wounding and assault.  The sentence was backdated to 30 July and the balance suspended.  The restriction order was made as part of the order.

1. Mr H has long been afflicted with paranoid schizophrenia.  He was and remains obsessed with the construction of a "perpetual motion machine" and was engaged in that construction on 30 July.  He told interviewing police that he had resented interruption by police to that development and construction and the necessity of a court appearance, and the resentment had brought about his violent reaction.  Violent reaction to interference, challenge to an idée fixe or perseverance with "reason" is not an uncommon product of his affliction.  Removal from accommodation at a special hostel was understandable, but failure of the provision of an alternative, other than the compassion of a minister of religion, less so.  Understanding of his mental condition would have lessened the risk of harm to police officers required to do their duty.  The events of October 2001 and July 2002 have resulted in confinement since 30 July 2002, a period longer than that warranted for a non-afflicted offender, and provide an example of the tensions between the use of the criminal law and protective mental health legislation.

Circumstances of the applicant

1. The applicant was born in Czechoslovakia in 1948.  He came to Australia in 1981, having spent some time in a refugee camp.  He had been trained as a draftsman and is skilled in agricultural and industrial engineering.  He is intelligent.  He has no family or friendship or relationship network in this country.  He has been married with two children now aged 32 and 34, but has had no family contact for many years.  He was first hospitalised for his present condition in 1982, with subsequent regular, but intermittent, periods of treatment.  He has been convicted of offences of assault police and resist arrest in September 1994 and for breaches of restraint orders on 14 occasions between 1992 and 1997.  There have been no convictions until those recorded in March 2003.

Report pursuant to the Act, s33

1. The Act, s33, requires the Attorney-General to provide a report "stating … the views of the next of kin … and the victims … of the defendant's conduct". This has been done. The various police officers concerned were uniformly opposed to any discharge of the order. However, their replies add nothing to the material otherwise before the Court.

Diagnosis and prognosis

1. There is no controversy concerning his condition.  Mr H suffers from a chronic paranoid psychosis, specifically paranoid schizophrenia, which has been present for at least 25 years.  His behaviour can be intrusive and a source of alarm to others.  He can be irritable and aggressive.  The complication is that he has a complex belief system, grounded both in religion and science.  He resists any suggestion that he suffers from a psychiatric disorder which, in turn, prevents or inhibits compliance with treatment.  In the opinion of Dr Sale, the assessing psychiatrist:

"[Mr H] suffers from chronic paranoid schizophrenia.  He is treatment resistant in that his delusional beliefs are firmly entrenched, but use of medications appears to reduce irritability.  There have been aggressive and disruptive incidents in the past, and these always appear to be associated with him having ceased medication.

I believe there would be general agreement that [Mr H] would represent a risk if he were not taking medication."

1. In his opinion, "it is the provision of appropriate medication that is the core need in clinical management".  Dr Crawshaw, the Chief Forensic Psychiatrist, agrees with the primary diagnosis of paranoid schizophrenia, although he places greater emphasis on the patient's "complex delusional belief system", although he shares the opinion that maintenance of medication is central to future conduct.  The difference between the two professionals is prognosis and disposition.

Certificate

1. The Act, s37, governs the procedures necessary for the discharge of "forensic orders" which, by virtue of s3, means a restriction or supervision order. Section 37(3) provides:

"(3)   If the Forensic Tribunal, on review, determines that a forensic order is no longer warranted or that the conditions of the order are now inappropriate ¾  

(a)the Tribunal must issue the defendant with a certificate to that effect; and

(b)the defendant may apply immediately, despite any other provision of this Act, to the Supreme Court for discharge, revocation or variation of the forensic order."

1. A hearing was conducted by the Tribunal on 9 May 2007, following which it certified:

"At a hearing on the 9^th May 2007 in respect of a Restriction Order imposed on [P H] on the 21^st March 2003, the Forensic Tribunal determined that the Order was no longer warranted and that a certificate should issue to [P H] allowing him to apply to the Supreme Court of Tasmania to have the Restriction Order discharged."

and recommended that "… if the Restriction Order is discharged, P H be placed on a Supervision Order".

1. The Tribunal provided reasons for its decision based on reports of the "treating team", Dr Wood, Dr Schneider, Dr O'Donnell, the nursing team and Mr Rooke, and the benefit of an additional report from Ms Godfrey, the occupational therapist.  It is not necessary for the purpose of this decision to determine whether this Court is precluded, as argued by counsel for the respondent, from considering the reasoning of the Tribunal, although I suspect that the submission is fundamentally flawed and but a product of advocacy.  The position adopted by counsel is surprising given that these proceedings ought not be adversarial in the usual sense, and some of the material contained in the reasons shows practical reasons mitigating against the discharge of the order.  However, here Dr Crawshaw advances a number of propositions contrary to the decision of the Tribunal which do require resolution so the matters raised must be dealt with in the context of his reports, evidence and conclusions.  Here the statutory precondition to discharge has been met.

Definition of the issue

1. There is no difference between the treating and assessing psychiatrists as to diagnosis.  The differences are pragmatic disposition and statutory requirement of risk assessment.  Dr Crawshaw has reservations about management on a lesser level of restriction than on a restriction order, believing that Mr H's illness demonstrates that he has posed a:

"… significant risk to others in any environment other than a secure contained setting and has frequently been non-compliant with medication.  In his most recent interview with me and in his recent writing it is clear that he does not accept that he has a mental illness nor does he accept that he needs medication.  Any treatment offered will have to be with a degree of coercion and with a capability to contain him.  General mental health services have expressed significant reservations about their capacity to do this in the longer term."

1. Dr Crawshaw's opinion, which he acknowledged differed from that reached by the Forensic Tribunal, was that it was:

"… open to the Court to find in terms of conditions set out s34 and s35 of the Criminal Justice (Mental Impairment) Act 1999 that the least restrictive option taking into account the protection of the public, the adequacy of treatment and support in the community, and the likely compliance with a Supervision Order is the continuation of the current Restriction Order."

and that he accepted that "this opinion is different from the findings of the Forensic Tribunal and that the Court will have to reach a decision as to the relative weighting to be placed on the legal and medical evidence".

1. Dr Sale does not suggest that Mr H ought be immediately released into the general community.  He would prefer that the patient be transferred to an intermediate secure unit outside of the prison complex and be provided with special care which might permit earlier reintegration.  That unit is known as Tyenna Blue.  Underpinning the opinion of Dr Sale is the age of Mr H and his final acknowledgement that without supervised medication, Mr H's condition will deteriorate.

1. The differences are identified by Dr Sale in his report of 19 October 2007 which states his understanding of the issues as:

"—    That Tyenna Blue is smaller and offers less space of freedom – I am unable to advise as to the comparative size of the two facilities, but having visited both I believe there is little doubt that WLC is clearly the more secure facility.

·Lack of multidisciplinary staff – as previously discussed, while such staff might add to the quality of [Mr H's] life, I do not see that as a necessary part of his treatment.

·Lack of psychiatrist input at Tyenna – as previously discussed, his treatment arrangements are reasonably stable.

·Inability to continue current leave program – the argument is that budget concerns and staff shortages prevent Tyenna providing [Mr H] periods of leave.  This appears to be more a reflection upon Mental Health Services than [Mr H's] situation.

·Demands upon the Tyenna facility for other areas – again this appears to be more a reflection upon the provision of services by MHS rather than what is clinically necessary for [Mr H].

·Staffing issues – again there is a reference to multidisciplinary management.  The report from Dr Crawshaw indicates that the key aspect of management is administration of a depot antipsychotic medication. A multidisciplinary management is not a core aspect of management.

·Previous admission to Tyenna – in that his earlier admission was characterised by threats to staff, it was puzzling that he was provided with leave within the New Norfolk area.  This seems contradictory."

1. Tyenna is a secure unit which can accommodate six patients.  The average stay for patients is between three to six months.

1. Dr Crawshaw does not agree with the finding of the Tribunal and advances two opposing propositions against the removal of the present order. He does not believe that a supervision order would give him "… the legal authority to direct that he be detained in a general mental health facility or an approved hospital". He does not believe that the combined effect of supervision and continuing care orders would provide a viable option and does not wish to await a breach before permitted apprehension. I do not share his view as to the efficacy of the Act, s31. His second concern is administrative. The Court received a report dated 12 September 2007 provided by the Southern Area Manager of Mental Health Services and the Director of the Department of Psychological Medicine of the Royal Hobart Hospital. The report advocates the position that Tyenna has insufficient resources and facilities for the appropriate care of Mr H and the reluctance of staff to accept him as a patient. Much is made of the costs of care, budget concerns and current staffing shortages. It is not for this Court to compare the costs incurred in incarceration and treatment at the Wilfred Lopes Centre with those associated with Tyenna, but accepts that both are significant. However, it is obvious that the Department is unwilling to accommodate Mr H at Tyenna, and I am presently reluctant to impose an admission order. The further hearing will be adjourned sine die, but it is likely that I will relist this matter in October.  This will enable the Department to further consider a more comprehensive management plan and consider further options which provide greater freedom and flexibility.  It is only very recently that letters written by Mr H to the Court have been marked:

"exempt correspondent"

thus complying, since the December hearing, with the Mental Health Act 1996, s73, and I draw to the attention of the Department the provisions of that Act, Pt10A, Divs2 and 3. I note that in one report it is recorded that Mr H has been permitted to leave the institution for an escorted walk on only eight occasions. A proposal that he visit a nearby town was rejected by his treating psychiatrist. He has no visitors, although this is not of the institution's making. It would appear there has been little or no effort by staff to attempt renewed contact with is family in Czechoslovakia.

1. There will be a review of progress in the latter part of 2008 with attention given to some of the matters referred to in the Burdekin Report (Human Rights and Equal Opportunity Commission – Report of the National Inquiry – Burdekin 1993.)