In the Matter of MH 289/2009 (Mental Health) - [2024] ACAT 21

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF MH 289/2009 (Mental Health) [2024] ACAT 21

MH 289/2009

Catchwords: MENTAL HEALTH – conditional release order – breach of conditions of release found proven – order for release revoked

List of Legislation: Crimes Act 1900 s 234
Mental Health Act 2016 ss 6,180, 181, 182, 183

Tribunal:Presidential Member MT Daniel
Senior Member L Beacroft

Date of Orders:  3 August 2023
Date of Reasons for Decision:      14 September 2023
Date of Publication  29 February 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MH 289/2009

IN THE MATTER OF MH 289/2009

Tribunal: Presidential Member MT Daniel

Senior Member L Beacroft

Date:3 August 2023

ORDER

The Tribunal being satisfied [the subject person] has contravened conditions of the order for release by:

Taking the illicit substance dexamphetamine as detected in the pathology results for 11 July 2023 (condition vi); and
Failing to provide a sample of his own urine as directed on 25 July 2023 (condition ix);

and the Tribunal having considered:

the principles in section 6 of the Mental Health Act 2015;
the factors set out in section 180(3) of the Mental Health Act 2015; and
the evidence and submissions presented at the hearing on 31 July and 1 August 2023;

IT IS ORDERED:

The order for release of [the subject person] from detention is revoked.
Pursuant to section 182(6) of the Mental Health Act 2015 [the subject person] is to be detained in custody until the Tribunal orders otherwise.
[The subject person] is to present himself to an ACT correctional centre for admission by 3:00pm Thursday 3 August 2023.
The Tribunal will review [the subject person’s] detention and consider his release from custody within one month of these orders.
The Registrar is to provide a copy of these orders to the Director-General, and to the Superintendent of the Alexander Maconochie Centre, as required by section 64 of the Corrections Management Act 2007.

….………Signed.……..

Presidential Member MT Daniel
For and on behalf of the Tribunal

REASONS FOR DECISION

On 3 August 2023, the Tribunal made orders revoking an order for release of the subject person from custody. The following are our reasons for that decision.

Background

In [date], the subject person was found not guilty by reason of mental impairment of the crime of murder and the Supreme Court ordered pursuant to section 324 of the Crimes Act 1900 that he be detained in custody for immediate review by the Tribunal under section 180 of the Mental Health Act 2016 (MH Act). In its judgment, the Court noted the unchallenged evidence of three psychiatrists that at the time of the offence, the subject person was likely experiencing a psychotic episode arising from paranoid schizophrenia. The Court also noted the subject person’s historic use of cannabis, and some minor experimentation with methamphetamines, in the period prior to the offence.
The subject person had been before the Tribunal prior to [date], initially as a result of the dismissal of criminal charges in [date], at which time a psychologist diagnosed him with a major depressive disorder, alcohol and substance abuse. On the records available to the Tribunal, in the subsequent 14 years diagnoses have included schizophrenia, mixed personality disorder, PTSD, associated anxiety and depression, with a recurrent theme of substance abuse disorder.
On [date], the Tribunal ordered the release of the subject person on conditions. That order for release has continued, with variation to the conditions of release being made from time to time.
Although the order for release from detention was made in [date], the subject person has not lived in the community uninterrupted since that time. Initially the conditions of release as to residence required him to reside in a specified mental health facility, and it was only in [date] that the subject person was first permitted to reside in the community, at a specified address. There have also been periods when the subject person has been remanded in custody due to the commission of fresh offences: most recently he was remanded in custody on [date] having been arrested and charged with offences including a serious offence of violence (the recent offences).
The Tribunal reviewed the conditions of release on [date], in anticipation of the subject person’s release from custody after sentencing and made some variations to the conditions to update the subject persons residential address and to clarify communication and behaviour expectations. These most recent conditions of release comprise of 12 conditions under the headings:
(a)Residence and contact; specifying arrangements of where he is to reside;
(b)Assessment, Treatment, Rehabilitation, Care and Support; requiring him to attend fortnightly for treatment for his mental illness; and to participate in any other programs or treatments as directed by the Chief Psychiatrist;
(c)Substance Use and Monitoring; requiring him to abstain from unprescribed substances and to undergo urinalysis and other drug testing as directed; and
(d)Behaviour; requiring him to behave appropriately to persons at the place of residence and to delegates of the Chief Psychiatrist.
In essence, these were the same conditions that had been in place when the recent offences were committed.
[In 2023], the subject person was sentenced on the recent offences. He was ordered to serve 19 months imprisonment, backdated to 30 May 2022, and to be released from custody after serving 12 months subject to a good behaviour bond with the remaining seven months suspended.
The Tribunal notes that the good behaviour bond only includes core conditions. This means the subject person will only breach the good behaviour bond if he reoffends, but not if he tests positive for unprescribed substances or fails to undergo a drug test. Importantly, there is no supervision or input by Corrections in relation to those criminogenic factors which do not ordinarily fall within the purview of ACT Mental Health.
The reason that the subject person was given a bare good behaviour order for the recent offences, despite their seriousness and parallels with the circumstances of the murder charge, is that the Magistrates Court accepted a submission from the subject person’s legal representative that supervision by Corrections was redundant given the subject person would be subject to an ACAT order, and that supervision by Corrections, if imposed, would give rise to a risk of inconsistency[1]. We do not see that such inconsistency is necessarily the case, as supervision by Corrections and meeting the requirements of an ACAT order could be seen as complementary and reinforcing rather than contradictory.
[1] Transcript of sentencing 3 April 2023, page 44
In any event, the result of the various court orders is that the subject person has recently committed serious crimes, for which he was held criminally responsible and is subject to a good behaviour bond, and yet his management when released into the community lies entirely with ACT Health and ACAT.

The review of conditions hearing on 31 July and 1 August 2023

Section 181(2) of the MH Act requires the Chief Psychiatrist to advise the Tribunal in writing as soon as practicable after becoming aware a subject person has contravened a condition of release. Section 182(2) of the MH Act then requires the Tribunal to conduct a review of each of the conditions of release within 72 hours of receiving that notification.
On Friday 28 July 2023 at 4:19pm, the Forensic Consultation and Intervention Service (FOCIS) on behalf of the Chief Psychiatrist advised the Tribunal that the subject person had contravened a condition of release by providing a synthetic sample of urine for testing on 25 July 2023, rather than a genuine sample.
The Tribunal commenced a hearing[2] to review the conditions of release at 4:00pm on Monday 31 July 2023.
[2] Section 182(3) of the MH Act provides that a review triggered by a notice of contravention of conditions of release need not be conducted by way of a hearing, however given the seriousness of the alleged contravention and possible consequences the Tribunal decided to proceed in that way in this case.
The Chief Psychiatrist had initially reported a contravention of condition (ix) – which was the requirement to provide samples of his urine as directed. At the hearing on Monday 31 July, the Chief Psychiatrist also advised that the subject person had failed to comply with a direction to provide a further sample of his urine on Friday 28 July.
The hearing was unable to conclude on 31 July due to unavailability of expert evidence about the urine testing processes and results. The Tribunal adjourned the hearing to Tuesday 1 August 2023.
In order to properly understand the pathology results for the urine samples, the Tribunal required the Chief Psychiatrist to provide copies of the two most recent urine screens provided prior to 25 July 2023 for the resumed hearing on 1 August 2023, and to make a pathology expert available to answer questions about the urine test process and results.
When the hearing resumed on 1 August 2023, Dr Charles Appleton[3] was available to provide evidence in relation to the urinalysis results. In addition, the subject person’s urine screens for 20 June and 11 July 2023 had been provided. The Tribunal noted that the urine sample provided by the subject person on 11 July showed positive for dexamphetamine.
[3] Dr Appleton is the head of biochemistry and toxicology at the Queensland Medical Laboratory, and also head of toxicology for the Healius group of laboratories which includes Laverty Pathology.
On the second day of hearing, therefore, the Tribunal was considering three alleged breaches by the subject person of his conditions of release:
(a)In the days prior to 11 July 2023 having taken an unprescribed substance, contrary to condition vi;
(b)Failing to provide a sample of his own urine on 25 July 2023 as directed, and instead providing synthetic urine, in contravention of condition ix; and
(c)Failing to provide a sample of urine on 28 July 2023 as directed, in contravention of condition ix.
After taking evidence about each alleged contravention, the Tribunal heard submissions about what findings of fact it should make, and whether those facts amounted to a contravention of the conditions of release. A summary of the evidence, submissions and our findings of facts are set out below.
The 11 July 2023 test result - dexamphetamine
Dr Appleton explained that the combination of results shown in the pathology test for 11 July 2023 indicated that the subject person had taken either dexamphetamine or lisdexamfetamine which metabolise in the body to amphetamine. Both substances could be prescribed, often for a teenager or adult with attention deficit hyperactivity disorder, but there was no evidence of such a prescription for the subject person.
In relation to this alleged contravention of condition vi, the subject person advised the Tribunal[4] that he had on one occasion, and possibly on more than one occasion, taken a dexamphetamine tablet provided by a friend, because he had a bad headache. He said he did not ask what the tablet was until after he had taken it. He admitted that it was not prescribed for him. He also did not disclose taking this tablet to the pathology service when providing the urine sample on 11 July 2023.
[4] Transcript of Hearing on 1 August 2023, page 52, line 32ff
The Tribunal was satisfied that prior to 11 July 2023 the subject person contravened condition (vi) of the conditions of release, by consuming an unprescribed substance. There were no submissions that the Tribunal should reach a different conclusion.
The alleged synthetic urine sample on 25 July 2023
The subject person denies that he provided a synthetic urine sample on 25 July 2023. His only explanation for the pathology result that shows synthetic urine is that his sample must have become inadvertently switched with that of somebody else, or perhaps the testing is incorrect. The subject person’s initial description of the collection process[5] was that the process had seemed normal. He did not point to anything that he observed to happen during the provision of the sample which was suggestive of the usual chain of custody or process having miscarried, other than observing that the lady who was overseeing the process spoke with him quite a bit about having some work done on her car. He said that the lady had watched him provide the urine sample.[6]
[5] On 31 July 2023
[6] Transcript of hearing on 1 August 2023, page 90, line 29
The subject person requested that some kind of audit be conducted of the samples collected on 25 July 2023, to see if his sample had been mislabelled. He submitted that if he was going to cheat on a test, he would not have relied on a sample that did not show the medications required, and certainly would not have used fake urine but would have obtained a sample from a real person. The subject person submitted that the testing results were inaccurate because they did not show some of the prescribed medications he was taking.
The Tribunal heard evidence from Dr Appleton on behalf of Laverty Pathology that the testing was conducted in accordance with the Australian and New Zealand Standard – AS/NZS 4308. Dr Appleton described the arrangements for provision of the sample and the chain of custody. He pointed out that because the standard requires each sample to be provided and labelled in the presence of the person providing the sample, the possibility of mislabelling is protected against. Dr Appleton also spoke about the uric acid reading in the sample having been a flag for further examination. He explained there are a variety of tests conducted to distinguish a synthetic or manufactured urine from real urine. Dr Appleton explained that of six subsequent tests conducted, the sample provided was well outside the normal range for four of those tests. At this point, he said, the analyst smelt the sample and noted it had no odour. Dr Appleton said real urine has a distinctive odour[7], which intensifies over time. The Tribunal asked Dr Appleton whether, with reference to his expertise, there was anything in the way the sample had been stored, transported, heated or cooled, that could explain the pattern of results. He could offer no other explanation. The Tribunal asked Dr Appleton if there was any evidence of labels having been replaced, or seals interfered with, and he said there was not. Dr Appleton explained that the testing conducted pursuant to the standard focussed on illicit substances and did not include testing for other drugs, which the subject person may have been prescribed.
[7] Unless very dilute, which this sample was not. Transcript of hearing on 1 August 2023, page 58, line 17ff
The subject person said that notwithstanding the pathology results and Dr Appleton’s evidence the Tribunal should refer to the required standard of proof being the balance of probabilities, and ‘give him the benefit of the doubt’.[8] This submission was supported by the subject persons partner, his relative and the person he resides with.
[8] Transcript of hearing on 1 August 2023, page 87, line 16ff
The representatives of FOCIS, the Victims of Crime Coordinator (VOCC), and the mental health team, submitted that the evidence of Dr Appleton should be accepted.
The Tribunal accepted Dr Appleton’s evidence, which was not contradicted by any expert or other evidence during the hearing.
The Tribunal was satisfied that the subject person contravened condition (ix) of release by failing to provide a urine sample as directed on 25 July 2023, and instead providing a sample of synthetic urine.
The failure to provide a sample on 28 July 2023
In relation to the alleged contravention of condition ix by failing to provide a sample of urine on 28 July 2023, the subject person conceded that he had not provided a sample of urine on 28 July 2023 as directed but said that this was because when he arrived at Laverty Pathology in Garran around 4:30 or 4:45pm that day he was advised that the centre ceased collecting urine samples at 3:00pm[9]. He said there was a sign to that effect. He says he called the mental health team at around 5:30pm and left a voicemail that the collecting service was closed. He said that to his knowledge it was not possible to give a urine sample for drug testing at any Laverty Pathology centre in Canberra on a weekend, and so he had planned to give the required sample on the following Monday. He said that although he has been to the Garran facility on many occasions, this was the first time he had attended later in the afternoon and realised that a sample could not be provided after 3:00pm. The subject person’s partner said she had been with him and confirmed this account of events.
[9] Transcript of hearing on 1 August 2023, page 78, line 42ff
The mental health team advised[10] that at around 8:28am by text message and voicemail, the subject person had been directed to attend the Laverty facility and provide a urine sample for drug testing. Late in the morning – around 11 or 11:30am – the subject person called the mental health team back and he was advised to attend the testing facility “at least an hour before closing time” (thought to be 5:00pm), which would mean before 4:00pm. It was acknowledged by the mental health team that the subject person left a voicemail at 5:32pm, but this was not recovered until the following Monday. The mental health team was unable to provide any evidence to the Tribunal to contradict the subject person’s evidence that the urine collection was unable to take place after 3:00pm on the Friday, or at any other Laverty Pathology site later that day or over the weekend.
[10] Transcript of Hearing on 1 August 2023, page 76, line 15ff and page 77, line 20ff
The subject person submitted that he had tried to provide the sample within the required eight-hour window after being given the direction, but it had been not possible as he had not known that by arriving after 3:00pm he would not be able to provide a sample. This submission was supported by his partner, his relative, and the person he resides with.
The representative from FOCIS submitted that this was a technical breach of failing to provide the sample within the required eight-hour period but noted that there were circumstances that contributed to the breach that should be taken into account.
The representatives from the mental health team initially submitted that if the subject person had arrived at Laverty Pathology before 4:28pm he would not have breached the condition of release, but later acknowledged they did not know whether urine samples could only be collected prior to 3:00pm.
The representative of the VOCC submitted that although the circumstances of the day had been difficult, this was still a breach of the conditions of release.
The Tribunal was not satisfied that on 28 July 2023 the subject person failed to provide a urinalysis sample as required by condition ix – that is, within eight hours of being directed. The evidence as to timing is finely balanced: it is suggested the subject person received the direction at “around 8:28”, was given further information at around 11:00am, and arrived at “about 4:30”[11].
[11] Accepting the subject person’s most favourable estimate as to timing
It was not open to the mental health team to direct the subject person to provide the sample by 4:00pm, as this would have been less than the eight hours’ notice specified in the conditions of release. In any event, the Tribunal is satisfied that it was impossible for the subject person to provide the required sample if he had attended after 3:00pm but prior to 4:28pm.

What should the Tribunal do as a consequence of the findings of contravention?

The Tribunal made the above findings on 1 August 2023, and then heard submissions on what orders the Tribunal should make as a consequence.

Section 182(5) of the MH Act empowers the Tribunal when conducting its review to “as it considers appropriate” amend or revoke any condition on an order of release or impose any other condition the Tribunal considers “appropriate”. These powers are available whether or not a current condition of release has been contravened.
In addition, if satisfied that a person has contravened a condition of an order of release, section 182(6) provides that the Tribunal may order that the person be detained in custody until the Tribunal orders otherwise.
Section 182 does not set out the matters the Tribunal should consider when deciding whether it is “appropriate” to take actions under sections 182(5). Nor is there any express statutory guidance as to when the power to order a person be returned to custody should be exercised. There is only a procedural requirement that the Tribunal must, if there is a registered affected person, take into account any statement by the registered affected person and the views of the victims of crime commissioner.
It seems to the Tribunal that, at a minimum, the Tribunal when exercising its discretionary powers under section 182 must consider the factors set out in section 180(3) of the MH Act. These are the factors to which the Tribunal must have regard when initially reviewing the detention and considering the release of a person. In addition, the principles contained in section 6 of the MH Act, although generally phrased, may be relevant to the Tribunal’s exercise of its discretion in the specific case.
VOCC had provided a written submission to the review hearing on 25 May 2023, and relied upon that submission as well as further oral submissions. The VOCC submitted[12] that the Tribunal should give consideration to the public risk factors, and specifically the individual history of the subject person which demonstrated the known influence of drug use on future offending.
[12] Transcript of Hearing on 1 August 2023, page 100 ff
We also take into account that the affected person has previously expressed concern about the subject person residing in the community.
The subject person took responsibility for his breach of conditions of release by taking the dexamphetamine but did not accept the Tribunal’s conclusion that he had provided a synthetic urine sample on 25 July 2023. His submissions about what orders the Tribunal should make were consequently based on the assumption that he had contravened only one condition of release, and that in an inadvertent way.
He submitted that he should remain living in the community, that he was happy to provide daily urinalysis, and that it would be very detrimental to his mental health to be detained in custody again. The subject person explained the pain he is in with his back injury, and his need to obtain medication for that injury. On occasions he has gone some days without sleep. He submitted that his plans for back surgery would be delayed if he was detained in custody. No details of scheduled surgery were provided.
The subject person was clearly disappointed and frustrated that he has not been provided by ACT Mental Health with access to treatment from a psychologist, or referral to other programs or supports to deal with his psychological issues. He said that he would now take steps to arrange the psychologist himself.
The person with whom the subject person resides, together with the subject person’s partner and a family member, were united in their submissions that the subject person should remain living in the community albeit with more frequent urinalysis and greater support.
The mental health team submitted[13] that they would not like to see the subject person returned to custody but would like to continue working with him. They did not suggest any change to the conditions, but said they were willing to work with the subject person to better support him, if he told them the support he needed.
[13] Transcript of Hearing on 1 August 2023, pages 100, 105 and 106
When questioned about the subject person’s compliance with the condition to participate in counselling, training, therapeutic and rehabilitation programs as directed by the Chief Psychiatrist, and to attend upon the mental health team every fortnight, the mental health team indicated that when attending fortnightly for his depot the subject person consistently presented himself as well and indicated that he was not concerned with his mental state. They submitted that the subject person had not self-identified any need for further supports or treatment.[14]
[14] The subject person’s family surmised that the subject person might have downplayed his need for additional supports, in order to meet an expectation that he presents as “well” to authorities.
The mental health team said the subject person has not had a psychiatric review since being released from custody: an appointment scheduled for 24 July had been rescheduled for later in August. The mental health team said this was because the appointment was cancelled because the subject person had a bad headache. The subject person said he had not been notified of that appointment until the day in question.
The mental health team said that despite the subject person being released from custody some nine weeks earlier, there had been no time to put together a care plan.
The representative from VOCC submitted[15] that there had been no substantial changes proposed to the conditions of release. Despite the subject person’s most recent offending occurring against the backdrop of those conditions and concerns raised that community-based supports were inadequate, prior to the recent offending. The VOCC submitted that there should be greater visibility of the subject person’s compliance with substance use conditions, with an increase to weekly urinalysis. The VOCC also submitted that the community mental health team should be required to report to the Chief Psychiatrist at least monthly. The VOCC emphasised the role of drug use in increasing the risk of reoffending.
[15] Transcript of Hearing on 1 August 2023, page 101 ff; and written submission dated 25 May 2023
The representative from FOCIS agreed that development of a care plan was standard practice across all community recovery services and submitted that it would be developed in a collaborative way requiring significant input from the subject person. It was submitted that the model set out in the conditions of release - of the subject person being directed to participate in programs or counselling – was not part of the health care and support provision by mental health services.
The representative of the public advocate declined to make submissions on these issues.
The Tribunal considered the factors set out in section 180 of the MH Act, and while doing so had regard to the principles set out in section 6, as summarised below:
a) Detention in custody is a last resort and ordered only in exceptional circumstances
For the reasons that follow, the Tribunal considers that the current circumstances are exceptional.
We consider that the subject persons release from a year in custody – an extensive period from any perspective – was not adequately prepared for. The supports, programs and testing regimes required to treat and manage the subject’s mental health and psychosocial criminogenic factors were simply not put in place, despite conditions of release that anticipated that they would be.
It is clear from the contraventions found proved that currently his drug use is insufficiently managed. Only two months after being released from custody he is taking unprescribed substances and taking significant steps to avoid detection. The Tribunal is very concerned that the subject person obtained synthetic urine and used it. The Tribunal concludes that he feared a genuine test would be positive and used synthetic urine to avoid this outcome. This contravention shows little commitment by him to his recovery from drug use and a high level of dishonesty.
We are satisfied that the subject person as a long-time user of unprescribed substances knows how to access support for his drug usage, but there is no indication he has requested or arranged any such support despite the obvious need to do so. The Tribunal has no confidence that he will do so voluntarily, which increases his risk of offending.
It is also clear that the mental health team and FOCIS do not perceive the health system as having a role in “directing” the subject person to participate in any programs or accept any supports in relation to drug use. This philosophy is consistent with the principles set out in section 6 of the MH Act, which emphasise the subject person’s right to self-determination in relation to treatment. In addition, in relation to the provision of services by the mental health team, section 6(j) provides:
(j) services provided to a person with a mental disorder or mental illness should—
(i) respect the informed consent of the person to the person’s assessment and treatment, care or support including consent as expressed in an advance consent direction; and
(ii) support and allow the person to make the person’s own decisions; and
(iii) be provided in a way that considers and respects the preferences of the person, including those expressed in an advance agreement; and
(iv) promote a person’s capacity to determine the person’s recovery from mental disorder or mental illness; and
(v) seek to bring about the best therapeutic outcomes for the person and promote the person’s recovery; and
(vi) be therapeutic or diagnostic in nature for the benefit of the person, and never administered as punishment or for the benefit of someone other than the person; and
(vii) be delivered in a way that takes account of, and continues to build on, evidence of effective assessment and treatment, care or support; and
(viii) be provided in a way that ensures that the person is aware of the person’s rights; and
(ix) facilitate appropriate involvement of close relatives, close friends and carers in treatment, care or support decisions in partnership with medical professionals; and
(x) acknowledge the impact of mental disorder and mental illness on the close relatives, close friends and carers of people with a mental disorder or mental illness; and
(xi) recognise the experience and knowledge of close relatives, close friends and carers about a person’s mental disorder or mental illness; and
(xii) promote inclusive practices in treatment, care or support to engage families and carers in responding to a person’s mental disorder or mental illness; and
(xiii) promote a high standard of skill and training for the people providing treatment, care or support.
The Chief Psychiatrist thus has a complicated responsibility, in regard to a person who is a voluntary patient but subject to conditions of release which provide a role to the Chief Psychiatrist, in terms of what treatments can be offered or directions it should issue. These challenges will need to be grappled with more proactively than has occurred in the recent past.
The subject person also has a responsibility to ensure that when living in the community he takes actions and puts in place arrangements to minimise any risks he poses to community safety. These include at a minimum abstaining from unprescribed substances and pursuing those treatments and programs identified by himself or experts in the field as necessary for his continued recovery. Regrettably, he has not shown in recent months that he is willing and able to take those steps which we are satisfied are necessary to avoid a likely risk to public safety[16].
[16] The Tribunal notes that at the sentencing hearing on 3 April 2023, his solicitor submitted (at page 45) that the subject person planned on attending his GP the day after release to obtain a mental health plan for psychologist appointments. This clearly did not happen, and instead the subject person criticises the mental health team for not arranging a psychologist.
The current circumstances demonstrate that since release from custody there is somewhat of an impasse between the subject person and the health teams, as to what programs supports and treatments are needed, what should be undertaken, and who should arrange and pay for them.
This impasse will need to be resolved by the collaborative preparation of a care plan or its equivalent, prepared individually. Whatever the Tribunal finds to be an acceptable plan for the subject person on release from custody, that plan will need to be implemented, and the implementation and compliance will need to be measurable and reliably measured[17].
b) The nature and extent of the person’s mental illness including the effect it is likely to have on the person’s behaviour in the future
[17] The Tribunal is concerned that there was insufficient rigour by the Chief Psychiatrist in reviewing the drug test results, in that the presence of dexamphetamine was detected in the pathology results for 11 July 2023 but this was not raised with ACAT as required under the MH Act. If release is ordered in the future a more rigorous approach to interpreting the results of drug testing must be undertaken. At the minimum, a clinician with knowledge of the subject person’s prescription medication and the ability to interpret pathology results must be given this task.
The subject person has an established history of a mental illness. Past diagnoses have included schizophrenia, mixed personality disorder, PTSD, associated anxiety and depression, and substance abuse disorder.
The most recent medical opinion (provided in [2023] while he was in custody) is that the subject person suffers from schizophrenia, which is currently well treated and not symptomatic[18]. The evidence before the Tribunal suggests the subject person’s mental illness is currently well-treated by fortnightly depot, however review by a psychiatrist is overdue.
[18] Report of FOCIS clinical psychologist to Tribunal, 22 May 2022
When the subject person is unwell, this mental illness can affect his behaviour to the extent that he has previously killed someone.
We note that the subject person has in the past been diagnosed with substance abuse disorder. This is not a part of his current diagnosis, although we also note that while in custody the subject person declined to undergo urinalysis testing on several occasions, and the recent breach which we have found proven suggest non-prescribed substance use is a current issue.[19]
c) Risk to the subject person’s health or safety, and whether the person would be likely to do serious harm to others, if released
[19] Report of FOCIS forensic psychiatrist and clinical psychologist to Tribunal, 11 November 2022
While it is not expressly referred to in this factor, we have considered the risk to the subject person’s health and safety if he were again detained in custody. Apart from the delay to his back surgery caused by further incarceration, the subject person was graphic in explaining his fear that he would not survive a further stint in custody.
We have also considered the risk to public safety that the subject person poses if released – and specifically whether that is so high a risk as to be described as a finding that he is “likely to do serious harm to others”.
We are satisfied that the subject person has been using unprescribed substances since his release from custody, and possibly while in custody.
The VOCC made cogent submissions about the established role of substance abuse in contributing to criminal behaviour. In this specific case, the evidence before the Supreme Court in [date] was that a contributor to the subject person’s mental impairment for his serious offending was his use of non-prescribed substances. The consistent medical opinion is that substance use has been destabilising for the subject person in the past.
A consideration of the recent offending history demonstrates the point.
According to the ACT Mental Health Tribunal report of November 2022, after being permitted to reside in the community in 2019, the subject person in 2022 began to miss or delay mental health appointments and urine drug screens, culminating in his arrest in May 2022 and his being charged with a serious offence of violence. When arrested by the police he was in possession of two drivers’ licences which were not his, and a quantity of methamphetamine. He was subsequently convicted of these offences.
The Tribunal relies on the findings and evidence before the courts which identified that drug usage contributes to the subject person’s risk of offending and deteriorating mental health.
The Tribunal is satisfied that if the subject person remains living in the community under current conditions of release, as underpinned by the current practical arrangements, the subject person is on an almost inevitable trajectory to further violent offences.
d) Views of the VOCC and registered affected person
We have noted above the views expressed by the VOCC in their written and oral submissions, and view previously expressed by the registered affected person.
e) The nominated term
The term nominated by the Supreme Court in [date] will expire on [nominated term].

Conclusion

For these reasons, on 3 August 2023, the Tribunal revoked the order for release from detention, and ordered that the subject person to be detained in custody until further order of the Tribunal.
The parties were notified of these orders decision by email on 3 August 2023. The Tribunal was later advised that as required by the orders, the subject person surrendered himself to the AMC and was re-admitted to custody by close of business that day.

………………………………..

Presidential Member MT Daniel
For and on behalf of the Tribunal