H v Director of Public Prosecutions (No 3)
[2008] TASSC 80
•9 December 2008
[2008] TASSC 80
CITATION: H v Director of Public Prosecutions (No 3) [2008] TASSC 80
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: 9 December 2008
DELIVERED AT: Hobart
HEARING DATES: 14 August, 2, 22 October, 3, 4 December 2007,
18 March, 18, 28 August 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Mental Health – Confinement and restraint of mentally ill persons and similar orders – Generally – Administration and resources – Potential risk – Legislative inadequacy.
Sentencing Act 1997 (Tas), Pt10.
R v Draoui (2008) 101 SASR 26; Fardon v Attorney-General for Queensland (2004) 223 CLR 575, followed.
H v Director of Public Prosecutions (No 2) [2008] TASSC 10, 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 80
Number of Paragraphs: 28
Serial No 80/2008
File Nos 104/2002373/2002
H v DIRECTOR OF PUBLIC PROSECUTIONS
IN THE MATTER OF THE CRIMINAL JUSTICE
(MENTAL IMPAIRMENT) ACT 1999, s37 (No 3)
REASONS FOR JUDGMENT SLICER J
9 December 2008
H suffers from a chronic paranoid psychosis, specifically paranoid schizophrenia. On 21 March 2003, I convicted him of the crimes of attempted wounding, committing an act intended to cause bodily harm, and assault. He was sentenced to a term of imprisonment for two years, backdated to 30 July 2002, but to be suspended as and from the date of sentence. I ordered on the same day that he be subject to a restriction order in accordance with the Criminal Justice (Mental Impairment) Act 1999 ("the Act") and the Sentencing Act 1997, Pt10. The crimes for which he was convicted were interrelated. One product of his illness is that his belief system includes a conceptual structure involving the physics of perpetual motion, a desire to construct machines providing for such motion, and beliefs mixed with the interrelationship of God, mathematics and human existence. His ideas are fixed and his affliction has existed for some 25 years.
At the times of the acts of violence he was effectively homeless, having been evicted from hostel accommodation and finding accommodation in an outbuilding attached to church premises. He had failed to attend the court of petty sessions in answer to a summons for conduct which had occurred at the hostel. Police attempting to execute a warrant were attacked with unrestrained anger. Intrusion into his preoccupied mind can produce disproportionate response and uncontrolled violence.
His history, condition and diagnosis have been stated in the comments on passing sentence dated 21 March 2003 and subsequent judgments (H v Director of Public Prosecutions [2007] TASSC 96 and H v Director of Public Prosecutions (No 2) [2008] TASSC 10).
In 2007, Mr H applied for the removal of the restriction order, an application opposed by the Chief Forensic Psychiatrist. In May 2007, the Forensic Tribunal, in accordance with the Act, s37, had determined "that the Order was no longer warranted" and certified that "a certificate should issue … allowing him to apply to the Supreme Court of Tasmania to have the Restriction Order discharged." The basis of the opposition was summarised in [2008] TASSC 10 in the following terms at par19:
"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."
On 18 March 2008, I took the unusual step of further adjourning the hearing to permit further treatment and review, suggesting that attention be given to some of the matters identified in the Burdekin Report (Human Rights and Equal Opportunity Commission – Report of the National Inquiry – Burdekin 1993). In doing so, I referred to current research and statements of legal principle relevant to the competing interests of public safety and treatment of a person medically afflicted, stating at par4:
"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))."
The hearing resumed on 18 August and continued on 28 August 2008. Further reports and updates were tendered to the Court. The Chief Forensic Psychiatrist maintained his opposition to the removal of the restriction order and its substitution by a less restrictive supervision order. The position advanced on his behalf can be categorised as:
(1)Administration and resources.
(2)Potential risk.
(3)Legislative inadequacy.
Common ground
The Court has the advantage of receiving opinions from eminent psychiatrists. There is agreement on diagnosis and prognosis. Mr H suffers from a longstanding illness which requires ongoing treatment and management. He has no family, other than in the Czech Republic, with whom he has no contact. All examining medical practitioners agree that the patient "lacks insight and would not comply with treatment unless managed assertively … it would not be feasible to manage Mr [H] in the community". The differences are that the age of the patient (60) has lessened his capacity and propensity for violent reaction and the availability of alternative management. Dr Sale suggests that transfer to a different facility or, at least, its option, would "be consistent with the widely held view in mental health circles that a patient should be managed in the least restrictive environment." There is no suggestion that the patient be released from restriction or supervision.
Statement of principle
The interreaction of mental illness and the criminal justice system has long been recognised (M'Naghten (1843) 10 Cl & Fin 200: All ER 229; Porter v The King (1936) 55 CLR 182; Gilchrist v R 82/1982; R v Sivyer [2002] NSWCCA 410; R v Draoui (2008) 101 SASR 267). Principles associated with release, community response, public safety and tensions between protection, treatment and the interests of the individual involve the different disciplines of law and medicine (Re Attorney-General (Tas); ex parte Thompson (1994) 73 A Crim R 448; Re Weiss (2001) 125 A Crim R 150; Attorney-General v Francis [2007] 1 Qd R 396; Fardon v Attorney-General for Queensland (2004) 223 CLR 575). Prevalence and legislative response is likewise well documented ("Mental Illness" in Australian Legislation, Errington, (1987) 61 ALJ 182; The identification of mental disorders in the criminal justice system, Australian Institute of Criminology, March 2007, No 334; Identifying and Accommodating the Needs of Mentally Ill People in Gaols and Prisons, Ogloff, Psychiatry, Psychology and Law, Vol 9, No1, 2002. Courts are required to assess those competing interests and demands and, when called upon, determine an outcome for an individual affected by the complex process. Whilst courts ought not involve themselves in the forms of treatment, they are required to have regard to the rights of a patient. In doing so, courts are obliged by legislation and judicial principle to make orders which are least restrictive of freedom and personal autonomy consistent with the safety of the community (Weiss (supra)). In that regard, the aim is consistent with "the widely held view in mental health circles" referred to by Dr Sale above.
Administration and resources
The costs to the community are high (see Australian Institute of Criminology (supra)) and references attached to Why People with a mental illness are Over-represented in the Criminal Justice System – Henderson, Mental Health Co-ordinating Council, Mental Health Expenditure & Priorities Section 6, Australian Institute of Health & Welfare (2005)). The reports provided to this Court in 2007 by the Southern Area Manager of Mental Health Services dated 12 September, contain references to "budget concerns and current staff shortages" (H v Director of Public Prosecutions (No 2) (supra) at 2, par4). The alternate facility "Tyenna" has limited accommodation. Supervision and escort costs are undoubtedly high. Against that must be placed the patient unit costs required for the operation of the Wilfred Lopes Centre. The report by the Department of Health and Human Services dated 26 August 2008 shows that between January 2007 and 20 August 2008, Mr H has been allowed, under escort, 27 leaves amounting to approximately 70 hours. Most of that time followed the initiation of proceedings in this Court and their adjournment for the purpose of review.
On 3 October 2007, the Minister for Health Services published in the Gazette a notice approving six hospitals or centres as "hospitals for the care and treatment of involuntary patients with mental illnesses". The Chief Forensic Psychiatrist has more options available for treatment and supervision. Replacement of a restriction order does not preclude further use of the Wilfred Lopes Centre. The intention is to afford greater flexibility for treatment and supervision. If this application is refused, the patient is precluded from re-applying for a further period and then must again appear before the Tribunal. Administrative concerns ought not preclude the replacement of the existing order.
Potential risk
The attacks giving rise to the making of a restriction order were made on police officers acting in the course of their duty. Understandably they are opposed to any variation of the existing order. But the opinion of Dr Sale is apposite. H is now aged 60. He has been in confinement for over six years, a period longer than if he had been treated as a prisoner. His violence was reactive. The original incident was not, in itself, life-threatening and was itself reactive. The warrant issued was for non-appearance in court for that originating event. The applicant did not wish to be disturbed from his work. Escalation produced increasing forms of reaction. That process, well understood by medical professionals, can be met by the form of intervention. The process of ageing with lessened physical capacity and a showing of emotional response are factors mitigating future risk. The Court accepts that there remains a level of risk, but its degree is less than that present in 2002. The effect of any substitution of the restriction order is not that of open or unconditional release into the community, but a flexible accommodation of treatment and supervision.
Legislative restrictions
Many of the earlier concerns of the Chief Forensic Psychiatrist were associated with legislative provisions which inhibited his capacity to properly supervise and control the patient. The Tribunal had reached the conclusion that a lesser form of restriction would still involve placement in a "locked general mental health institution" and that breach of any supervision order would allow compulsory return to the Wilfred Lopes Centre, and that such sanction would be sufficient to effect compliance with the terms of the order. The concern of the Chief Forensic Psychiatrist was that any "containment or restraint" could be undertaken without concurrent supervision and continuing care orders, a regime not allowed for by statute. The process would involve differing authorities possessed by different medical practitioners and require frequent renewal of the continuing care order at six monthly intervals (the Act, s31B). The Court respects his concerns.
The Act, s27, provides that in discharging a restriction order, the Court may:
"… make any other order in respect of the defendant that it could have made under section 18(2) or 21."
Sections 18 and 21 are framed in identical terms, relevantly permitting the Court to:
"(b) release the defendant and make a supervision order; or
(c)make a continuing care order; or
(d)release the defendant and make a community treatment order; or
(e)release the defendant on such conditions as the court considers appropriate; or
(f)release the defendant unconditionally."
The use of the word "or" ought not here be interpreted to include the word "and". It would have been preferable to include a term "or combination" in the legislative scheme. The Act, s39C, provides for a "restriction order or any other order under this Act that commits a defendant to, or otherwise requires the detention of a person in, a secure mental health unit", and permits a more flexible use of power, allowing through subs(4):
"(a) that person has the custody of the defendant; and
(b)the defendant is taken to be in detention for the purposes of section 41."
Dr Crawshaw gave further consideration to the legislative scheme in his advice to the Court dated 15 August 2008. He advanced three practical options, each fraught with legal difficulty. They were:
(1)Placement on a continuing care order with transfer to Tyenna.
(2)Placement on a supervision order with provision for detention.
(3)Continuation of the restriction order with a term permitting a leave mechanism.
There are problems with each of the identified options. The first might preclude compulsory return to the Wilfred Lopes Centre if the Tyenna placement is unworkable. The second might inhibit the power of apprehension and the requirement to obtain Tribunal approval within 96 hours. The third involves recourse to the Mental Health Act 1996, ss72Q, 73E, a course which permits temporary measures only and requires the approval of the Tribunal.
The dilemma can be readily stated. The aim is to permit greater flexibility in the treatment of the applicant without the present level of incarceration. That flexibility requires compulsory return to the Wilfred Lopes Centre if the regime is found to be unworkable. Release to a less intensive institution or centre is desirable if the Chief Forensic Psychiatrist believes, as a consequence of medical judgment, such a course to be apposite. Return to the community simpliciter is not a present option. The Court is reluctant to leave the present order in force without variation.
The Court approach to the dilemma is to consider the extent to which the Act, ss18(2)(e), 21(1)(e) can be used and, secondly, to consider the attachment of differing orders to the separate convictions upon which the original restriction order was made.
The Act, s29A, relevantly provides:
"(1) A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Forensic Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate.
(2) Without limiting the conditions that may be specified in a supervision order, such conditions may include any one or more of the following conditions:
(a)a condition requiring the defendant to take medication or submit to the administration of medical treatment as specified in the order or as determined by the Chief Forensic Psychiatrist;
(b)a condition requiring the defendant to comply with any directions as to supervision given by the Chief Forensic Psychiatrist."
Section 30 permits revocation by the Court and substitution of a restriction order. Section 31 applies to apprehension for contravention of an order or deterioration in the mental health of a patient. It permits a prescribed person, who includes the Chief Forensic Psychiatrist or his delegate to:
"(2) … apprehend a defendant who is subject to a supervision order if the prescribed person believes on reasonable grounds —
(a)that —
(i)the defendant has contravened, or is likely to contravene, the supervision order; or
(ii)there has been, or is likely to be, a serious deterioration in the defendant's mental health; and
(b)that, because of the breach or likely breach of the supervision order or the deterioration or likely deterioration in the defendant's mental health, there is a risk that the defendant will harm himself, herself or another person."
Wide powers of apprehension and detention are afforded by subss(3) - (9), which provide:
"(3) As soon as practicable after apprehending a defendant under subsection (2), the prescribed person is to —
(a)notify the Chief Forensic Psychiatrist of the apprehension; and
(b)take the defendant to a secure mental health unit.
(4) If after apprehending a defendant under subsection (2) it is not possible or practicable to take him or her to a secure mental health unit immediately, the prescribed person may take the defendant to an approved hospital where he or she is to be admitted and treated as an involuntary patient, within the meaning of the Mental Health Act 1996, until such time as he or she can be transferred to a secure mental health unit.
(5) When apprehending a defendant, taking him or her to a secure mental health unit or an approved hospital or transferring him or her to a secure mental health unit under this section, a prescribed person may —
(a)be assisted by such persons as he or she considers appropriate; and
(b)use such restraint and force as the prescribed person believes appropriate in the circumstances; and
(c)enter, without warrant, any premises or part of premises in which the prescribed person reasonably believes the defendant is present.
(6) A secure mental health unit to which a defendant is taken under subsection (3) is to admit the defendant and may detain the defendant in the unit —
(a)for a period not exceeding 24 hours; and
(b)if the Chief Forensic Psychiatrist authorises it, for one further period not exceeding 72 hours; and
(c)if the Forensic Tribunal authorises it, for one or more further periods each of a length to be determined by the Forensic Tribunal.
(7) Despite subsection (6), if —
(a)within a period referred to in paragraph (a) or (b) of that subsection an application is made to the Forensic Tribunal for an extension of the period for which a defendant may be detained under that subsection; and
(b)a member of the Forensic Tribunal authorises it —
the defendant may be detained in the secure mental health unit until the application is determined by the Forensic Tribunal.
(8) Despite subsection (6), if within any period for which a defendant may be detained under that subsection an application is made to the Supreme Court under section 30 to vary or revoke the supervision order in respect of the defendant, the defendant may be detained in a secure mental health unit until the Court has determined the application.
(9) While a defendant is being detained in an approved hospital or secure mental health unit under this section, the supervision order is suspended."
The combination of the Act, ss18(2)(b) or (e), 21(1)(b) or (e), with ss29A and 30, permits the Court to impose a supervision order with conditions of residence, treatment, movement and medication. Breach of a residence condition would permit apprehension and detention. This approach permits the making of the following orders:
(1)That the restriction order be revoked and substituted by a supervision order.
(2)That the supervision order be subject to the following conditions:
(a)H be subject to the supervision of the Chief Forensic Psychiatrist or his delegate;
(b)that he submit to direction to be detained as an involuntary patient under the Mental Health Act 1996 in an approved hospital or institution and submit to such transfers between such hospital or institution as directed;
(c)during such period or periods of detention, he submit to the provisions relating to the care and management of involuntary patients within such hospital or institution;
(d)that if released from such hospital or institution, he return to such place upon directions by the Chief Forensic Psychiatrist or his delegate or submit to transfer between such hospital or institution as directed;
(e)he undertake such medical assessment or treatment as directed by the Chief Forensic Psychiatrist, his delegate or any medical officer employed within the hospital or institution;
(f)if released, permanently or on leave from any hospital or institution:
(i) he must reside at premises approved in writing by the Chief Forensic Psychiatrist or his delegate or nominee and not change that address without written authority;
(ii) he make himself available at his residence for examination and treatment when notified by an authorised person;
(iii) attend as a patient at a nominated treatment centre when required by an authorised officer;
(iv) take such medication and submit to such treatment as directed by an authorised officer;
(v) attend such education and treatment programs as directed by an authorised officer;
(vi) submit to the taking of blood or urine samples for analysis as directed by an authorised officer;
(vii) not leave the State of Tasmania without prior written approval of the Chief Forensic Psychiatrist or his delegate;
(viii) return to such approved hospital or institution as directed by the Chief Forensic Psychiatrist or authorised officer.
The above orders are not intended to be exhaustive and will not be made until the parties have had an opportunity to consider their import and suggest variation or addition.
The applicant was convicted of three crimes, intentional grievous bodily harm, wounding and assault. The restriction order was made on each. The Sentencing Act, s11, permits the imposition of a single sentence. In cases where one or more of the convictions is set aside through appeal, the sentence remains attached to the others and it would be for the appellate court to vary the sentence if appropriate. (It would have been possible to impose separate sentences on the three convictions.) Here the restriction order is attached to each of the components. In some instances a restriction order might be required for one of the crimes or convictions but not others. Here removal of the restriction order on the three convictions does not preclude the imposition of separate orders in relation to each conviction.
The restriction order was made in accordance with the Sentencing Act, Pt10. The Court was permitted to impose a restriction order in addition to any sentence imposed (s75(1)(b), (e)) and it might make an order in respect of one conviction but not another if the latter would not have warranted imprisonment (s75(2)). Wide powers are afforded by s77A in determining the conditions of supervision which include the administration of medical treatment which could include hospital treatment (s77A(2)(a)), and are subject to the import of subs(2)(b). The Court is required to:
"… apply, where appropriate, the principle that restrictions on the person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community when determining —
(a) which order to make under this Part; or
(b) the conditions of such an order."
Section 78 provides for detention and custody, whilst s79 permits the making of a continuing care order. Detainees who abscond may be arrested (s79A). There is a concurrence of legislative power, after the making of the original order, granted by the Sentencing Act, the Mental Health Act and the Act.
It would be possible, but clumsy, to revoke the restriction order and impose a supervision order in relation to the conviction for intentionally causing grievous bodily harm and a continuing care order in relation to the wounding. I would be reluctant to adopt this form of resolution unless that already proposed is thought to be unworkable once the parties have had the opportunity to consider the validity and import of this option.
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