In the matter of s35 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 In the matter of major review of: Barbara Kay Farrell
[1998] VSC 84
•30 September 1998
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1470 of 1998
IN THE MATTER OF SECTION 35 OF
THE CRIMES (MENTAL IMPAIRMENT
AND UNFITNESS TO BE TRIED) ACT
1997
A MAJOR REVIEW OF
BARBARA KAY FARRELL
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Note: The married name, and the address, of the Reviewee have been suppressed
from publication.
| JUDGE: | Eames, J. |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | 11, 12, 26 August, 18 September 1998 |
| DATE OF JUDGMENT: | 30 September 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 84 |
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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - major review under s. 35 - application for revocation of supervision order pursuant to Clause 4 , Schedule 3 - applicant/reviewee on extended leave for 13 years - whether safety of reviewee or public be seriously endangered by making of orders.
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| APPEARANCES: | Counsel | Solicitors |
| For the Attorney General | Miss B. King QC | Victorian Government Solicitor |
| For the Director of Public | Mr W.H. Morgan-Payler QC | Solicitor for the DPP |
| Prosecutions | ||
| For the Reviewee | Dr I. Freckelton | Victoria Legal Aid |
| For the Department of | Mr R. Punshon | Russell Kennedy |
| Human Services |
HIS HONOUR:
The reviewee, Barbara Kay Farrell, was arrested and detained in custody on 16 August 1972 and charged with the murder, that day, of Paul Hastings Kennedy, her former boyfriend, whom she had stabbed to death. She was at that time pregnant to Mr Kennedy. On 10 November 1972 her child was born and was placed for adoption. Ms Farrell is now aged 49 years and at the time of the killing she was 23 years of age and had no previous convictions. She had joined the Australian Navy at 19 years of age but was discharged from the Navy upon evidence emerging of her deteriorating mental health. Both she and the deceased man were suffering mental illnesses at the time of the death.
Ms Farrell was presented for trial in the Supreme Court on one count of murder and on 29 October 1973, by verdict of a jury, was found not guilty on the ground of insanity. The presiding judge, Little J, ordered that she be kept in strict custody until the Governor’s pleasure was known. On 20 December 1973 His Excellency the Governor ordered that the reviewee be kept in safe custody at Her Majesty’s Prison, Fairlie, or such other place as the Director General of Social Welfare might, from time to time, determine.
When first detained in custody Ms Farrell was extremely ill. She was certified and transferred from Fairlie Women’s Prison to the Mont Park Mental Hospital pursuant to s.52(1) of the Mental Health Act 1959. She absconded from that institution but was returned a few days later. There were to be a number of further abscondings in the following 15 months.
At her trial evidence was tendered that Ms Farrell suffered from a disease of the mind, namely, schizophrenia. At the conclusion of her trial, having been found not guilty on the ground of insanity, she was re-certified and placed in Ballarat Mental Hospital. In August 1975 she was returned to prison after being de-certified. Her situation has been constantly reviewed by the Adult Parole Board since 1975.
Ms Farrell remained as a forensic patient in psychiatric hospitals for some 13 years. She was placed on various anti-psychotic medications but continued to suffer symptoms of schizophrenia. Her history is set out in some detail in a report of the Adult Parole Board which was tendered before me. In 1980 trial leaves of absence were first granted, so that she might reside with her parents, but the Parole Board took the view that it would be premature to permit extended leaves at that time.
In January 1983 Ms Farrell married her husband, John, with the approval of the relevant Minister, and was given trial leave to reside with her husband. (I have made an order suppressing publication of the married name of the reviewee, and I will not use her married name in these reasons for judgment. I have also suppressed publication of her address.) In the years before her marriage, in 1983, Ms Farrell suffered many relapses in her condition, often the relapse coinciding with her failure to take medication which had been prescribed for her condition. She was frequently confined in what was then the Mont Park psychiatric hospital. In April 1983 whilst on leave, and residing with her husband, she inflicted serious stab wounds upon herself and was returned to Mont Park hospital. For some time after that incident the Parole Board ruled that she was not fit for release under supervision, the Board noting in subsequent annual reviews that she remained thought disordered, and mildly deluded, even when at her best, and required high doses of anti-psychotic medication.
In April 1985 Ms Farrell was placed on an extended leave program under medical supervision. She relapsed at least once each year thereafter, not necessarily due to non-compliance with medication, but her medication was significantly increased in 1987.
The Parole Board, in its 1991 review of her situation, noted that she had not been in a prison since 1978, and had been on leave, apart from periods of hospitalisation, since that year. From about 1991 the Parole Board in its annual reviews has consistently recommended the conditional release of Ms Farrell pursuant to s. 498 of the Crimes Act 1958, but those recommendations were not supported by the Attorney-General.
Ms Farrell's present situation is that she remains on extended leave under her custodial supervision order, and attends Rosanna Forensic Mental Health Centre on a monthly basis for a medical review by Dr Ruth Vine, the authorised psychiatrist at the Rosanna Centre. She is also seen, at home, on a weekly basis by a visiting community psychiatric nurse, Mr Pearce. For the past two years she has been on the relatively new drug, Clozapine, which has been effective not only in making her more relaxed but also in eliminating many of her previous dyskinetic symptoms which were produced by other drugs. At each visit to Dr Vine, the reviewee has blood taken for monitoring of her current treatment. The blood monitoring is confirmation of the fact that the medication is being taken, although that is not the purpose for the testing. She is tested to ensure that the dose level is appropriate. In her report dated 9 June 1998 Dr Vine stated:
“In terms of her illness (Ms Farrell’s), prognosis is grim. Although on Clozapine there has been some improvement, she continues to be a severely disabled woman. Nonetheless, it is now some 25 years since the offence, and it would be our opinion that the severity of (Ms Farrell’s) illness would mean that she would be able to be managed under the provisions of the Mental Health Act, and does not require to remain as a Governor’s Pleasure patient. The intrusion and the labelling inherent in her situation is a distress both to (Ms Farrell) and her husband and it is likely that this distress would be lessened, while the availability of monitoring would continue if her status were to change.”
Dr Vine said that the reviewee suffers from a chronic schizophrenic illness which has been only minimally responsive to treatment, but she has nonetheless managed to sustain reasonable self-care, appropriate relationships with others and the support and care of her husband. Since 1996 Ms Farrell has formed a supportive relationship with her daughter, which was arranged at the instigation of her daughter.
Dr Vine added that although the reviewee had no insight into her illness she had nonetheless been a compliant patient, co-operating both with the requirements of her treatment and with the maintenance of appointments.
In this case I had two matters before me. In the first place there was a major review to be conducted pursuant to s. 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (hereafter referred to as “the Act”). I published a separate ruling, on 18 September 1998, wherein I discussed the standard of proof which applies under that section. In that ruling I also concluded that s. 35 does not impose any onus of proof on a reviewee to satisfy the court that the release of the reviewee would not constitute a serious endangerment of the reviewee, or members of the public. In the event that I was not satisfied under s. 35 that it did constitute such serious endangerment then the status of the reviewee must be reduced from that of a custodial supervision order, to that of a non-custodial supervision order.
I also have a second matter before me, and that is an application brought by the reviewee pursuant to cl. 4 of Schedule 3 of the Act. In the event that the status of the reviewee is reduced to a non-custodial supervision order, by virtue of s. 35, the applicant then seeks to have the non-custodial order, itself, revoked, so that she would no longer be subject to any court imposed supervision order, at all.
THE MAJOR REVIEW UNDER S. 35
Clause 2 of Schedule 3 of the Act provides that an existing detainee is deemed to be the subject of a custodial supervision order under the Act. An existing detainee is defined to be a person who was subject to an order made under ss. 393 or 420 of the Crimes Act 1958. Ms Farrell was the subject of an order made by the court under s. 420. Section 35, therefore, comes into operation and provides as follows:
“35. Major reviews
(1)
At least 3 months before the end of the nominal term of a supervision order, the court that made the order must undertake a major review.
(2)
The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3) On a major review, the court - (a) if the supervision order is a custodial supervision order -
(i) must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or (ii) if so satisfied, must confirm the order or vary the place of custody; (b) if the supervision order is a non-custodial supervision order -
(i) may confirm the order; or (ii) may vary the conditions of the order; or (iii) may revoke the order.”
As to the principles which the court must apply s. 39 of the Act provides as follows:
“39. Principle to be applied In deciding whether to make, vary or revoke a supervision order or to remand a person in custody under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.”
Section 40 provides as follows:
“40. Matters to which the court is to have regard
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, the court must have regard to - (a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
(2)
The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it -
(a)
has obtained and considered the report of at lease one registered medical practitioner or registered psychologist, who has personally examined the person, on -
(I) the person’s mental condition; and (ii) the possible effect of the proposed order on the person’s behaviour; and (b) has considered the report submitted to the court under section 41(1) or (3) (as the case May be); and
(c) is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(e) has obtained and considered any other reports the court considers necessary.
(3)
Notice need not be given under sub-section (2)(c) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.”
Section 35(3) compels the variation of a supervision order to a non-custodial supervision order unless I am satisfied on the evidence available that the safety either of Ms Farrell or of members of the public will be seriously endangered were she to be released on a non-custodial supervision order.
The evidence is clear that neither the safety of Ms Farrell nor that of members of the public would be seriously endangered (nor endangered, at all) provided that Ms Farrell continued her course of medication with Clozapine. In the event that she failed to take the medication then her mental health would deteriorate and I am satisfied that there would then be some danger of harm to herself or members of the public: it may well amount to a serious danger of her harming herself, although I do not consider that there would be a serious danger of her harming others.
The critical question, then, is whether I am satisfied that if a non-custodial supervision order is made there is a serious risk of the reviewee failing to maintain her medical treatment so that her release would constitute serious endangerment of herself or members of the public.
I heard some apparently conflicting evidence from mental health specialists on aspects of this question, but ultimately I am persuaded that there is no significant disagreement between the psychiatrists who gave evidence before me on the critical question. All were in agreement that Ms Farrell’s release on a non-custodial supervision order would neither seriously endanger herself, nor others, because, although there was some risk that she might cease her medication that risk was minimal, provided her well-being was supervised. There was disagreement among the experts as to whether, on the one hand, the necessary supervision required that she remain on a non-custodial supervision order or, at least, a Community Treatment Order, or whether, on the other hand, she could be adequately monitored without either order being in place. One witness, psychiatrist Dr Lester Walton, was confident that neither order needed to be in existence to avoid such risk, but other witnesses suggested that it was appropriate that supervision should be pursuant to a formal order made either under the Act or the Mental Health Act.
The opinions of the expert witnesses that the release of the Reviewee, at least on a non-custodial supervision order, would not seriously endanger herself or the public are soundly based, notwithstanding some problems which arose in the past during her extended leave.
Ms Farrell had remained reasonably stable, on leave, between 1985 and 1991 but upon a reduction of her treatment in 1991 suffered a worsening of symptoms and was readmitted to Rosanna, then was stabilised on treatment and returned to live with her husband. She again was reasonably stable until 1994, when she was readmitted solely because she appeared not to be looking after herself, but was not otherwise found to require further treatment, and was released. She returned to Rosanna in 1996 but only for the purpose of changing her treatment to the new drug, Clozapine. Dr Vine said that Ms Farrell had improved significantly with Clozapine.
Dr Vine was of the opinion that it was necessary that Ms Farrell retain regular contact both with a psychiatrist and a community psychiatric nurse for the monitoring of her medication. She did not consider it was necessary that those services be provided as a forensic patient (ie, as a person remanded in custody for treatment, or transferred from a prison to an approved mental health service, pursuant to relevant sections of the Act or the Mental Health Act).
On behalf of the reviewee it was submitted that, upon review of the available evidence pursuant to s. 35(3), the court would be obliged to substitute a non- custodial supervision order for the present custodial supervision order which applies.
In my opinion, the very fact that the reviewee has been living in the community on extended leave for nearly 13 years is a persuasive indicator, of itself, that her release on a non-custodial supervision order does not create such serious endangerment. Although she has harmed herself on one occasion and has failed to maintain her medication at times, such problems have not occurred after she commenced to use Clozapine, and her reluctance to take medication, in the past, was primarily due to her concern about the very severe side effects which she suffered from other drugs. Those side effects have not occurred with Clozapine. I note that the reviewee’s husband, at times in the past, has himself encouraged her refusal to take drugs which had severe side effects. His opposition to her drug regime, at one time, extended, initially at least, to Clozapine. But the reviewee’s husband has sworn an affidavit stating that he now recognises that it is essential that his wife take that medication, and that he will support and encourage his wife's maintenance of her Clozapine medication. I accept that evidence. To the extent that there remains any concern on this issue it will be even further reduced by virtue of the fact that, as I will next discuss, I intend to maintain the non-custodial supervision order, at this stage.
Notwithstanding the opinion which Dr Vine expressed as to the limited insight into her condition which the reviewee holds, and notwithstanding the fact that there have been instances of non-compliance with medication, I am not satisfied under s. 35(3) that either the safety of the reviewee or of member of the public would be seriously endangered should her supervision order be reduced to a non-custodial one. As will emerge in the following section of these reasons, none of the factors which I must address under s. 40 lead to a conclusion that the custodial supervision order should be retained. Indeed, no party appearing before me submitted that I should be so satisfied. Accordingly, pursuant to s. 35(3)(a)(i), I will vary the supervision order from a custodial supervision order to a non-custodial supervision order.
As emerged in the final submissions of counsel for the respective parties (and I note that s. 37(2) provides that those entitled or allowed to appear are "parties" to the matters before the court), the only area of substantial dispute between the parties is as to the appropriateness of there being, additionally, a revocation of the non- custodial supervision order.
APPLICATION, UNDER SCHEDULE 3, FOR REVOCATION OF ALL SUPERVISION ORDERS
Were I to grant the application which is made under cl. 4 of Schedule 3 - for a revocation the non-custodial supervision order - the effect would be that Ms Farrell would be subject neither to a custodial supervision order nor to a non-custodial supervision order. Clause 4 of Schedule 3 reads as follows:
“4. Revocation of supervision order
(1) Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months May apply to the court that made the original order under which he or she was detained for revocation of his or her supervision order. (2) On an application under sub-clause (1) the court May revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order. (3) In considering an application for revocation of a supervision order in respect of an existing detainee the court May take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day.”
As to whether it would be appropriate not merely to vary the status of Ms Farrell to a non-custodial supervision order but also to take the next step and revoke all supervision orders, Dr Vine said that Ms Farrell could be adequately controlled under the provisions of the Mental Health Act 1986. In particular, she considered that Ms Farrell met the requirements for the making of a Community Treatment Order under s. 14 of the Mental Health Act 1986.
The address at which Ms Farrell lives brings her into the catchment area of Koonung Community Mental Health Service, at Box Hill, and Dr Vine was of the opinion that the authorised psychiatrist at that service, or the delegate of that psychiatrist, would be likely to make a Community Treatment Order, and would thereafter be able to maintain adequate supervision of Ms Farrell without her having the stigma of continuing status as a forensic patient, ie, one subject to court supervision. Dr Vine regarded the making of a Community Treatment Order as being “highly desirable”.
In the event that Ms Farrell’s supervision orders were entirely revoked and an order was not made by anyone else, Dr Vine said she, herself - invoking her powers under the Mental Health Act - would certify Ms Farrell as an involuntary patient, and transfer her to Koonung Clinic, whose staff would then have to make an assessment as to whether it was appropriate that a Community Treatment Order be made with respect to Ms Farrell. Dr Vine could not say with certainty that a Community Treatment Order would be made with respect to Ms Farrell by the authorised psychiatrist at Koonung. In those circumstances it would be inappropriate for Dr Vine to continue the treatment of Ms Farrell if she was no longer a forensic patient or subject to a supervision order. In the event that a Community Treatment Order was not made by an appropriate person at Koonung, or that such an order was overturned, on review, by the Mental Health Review Board, exercising its powers under the Mental Health Act, then Ms Farrell would be a voluntary patient (assuming she chose to attend the Koonung Clinic, at all). In those circumstances there would be some risk that she might cease her medication.
If, however, Ms Farrell remained under a non-custodial supervision order then, Dr Vine said (subject to any express condition imposed by the court with respect to the non-custodial supervision order) the forensic service at Rosanna would supervise Ms Farrell, but would have the ambition that she might be transferred to Koonung, in due course, and be treated under the Mental Health Act pursuant to a Community Treatment Order, with the non-custodial supervision order being eventually revoked by the court for that purpose.
The powers of the authorised psychiatrist at Koonung under the Mental Health Act are in some respects similar to the powers exercised by the psychiatric staff at Rosanna in dealing with a forensic patient under the Crimes (Mental Impairment and Unfitness to be Tried) Act. A practical difference is that, in Dr Vine’s opinion, the staff at Rosanna - knowing the forensic patients well - would be more inclined to act to return a patient to the hospital than might be the case if the treatment of the patient was transferred to Koonung under the Mental Health Act provisions. The psychiatrist at Rosanna would not wait for obvious signs of deterioration in Ms Farrell’s condition, Dr Vine said, whereas the staff at Koonung, knowing her less well, might do so. She considered the forensic service to therefore be a more responsive unit than Koonung could be, because although Koonung has a greater number of staff it has a much wider catchment area and a greater range of persons to whom it provides service. The suggestion that Koonung staff might be slower to respond in that way is a view not shared by Dr John Doherty, the former authorised psychiatrist of the Koonung Clinic.
It was plain that Dr Vine regarded supervision - at least by way of a Community Treatment Order - as being a necessary pre-condition for her opinion that Ms Farrell was not a danger to herself or the community. Dr Vine regarded Ms Farrell as not only needing the degree of supervision that a Community Treatment Order would give under the Mental Health Act but as meeting all the requirements of s. 14 so that such an order might be made. In effect, although Dr Vine argued that all supervision orders could be removed and Ms Farrell cease to have the status of a forensic patient, she contemplated that there would remain the degree of supervision of a Community Treatment Order to replace the court’s supervision.
As to whether Ms Farrell met the terms of s. 14, of the Mental Health Act and needed to be under a Community Treatment Order, her opinion was disputed by Dr Lester Walton, a consultant psychiatrist who was called on behalf of Ms Farrell, and who had treated Ms Farrell until 1990 whilst he was the psychiatrist in charge at Rosanna. Section 14(1A) of the Mental Health Act sets out the criteria for the making of a Community Treatment Order. By s.14(1) the Community Treatment Order provides for treatment without there being an involuntary admission to an approved mental health service; the patient becomes an involuntary patient and is obliged to accept the treatment provided. Failure to comply can lead to the involuntary detention of the patient in an approved mental health service. As to the requirements for making a Community Treatment Order, s.14 provides:
“14. Community treatment orders
(1)
If a person satisfies the criteria specified in sub-section (1A) and the authorized psychiatrist considers that a community treatment order is appropriate, the authorized psychiatrist May make a community treatment order instead of confirming the admission of the person to an approved mental health service as an involuntary patient or continuing to detain the person in an approved mental health service.
(1A) For the purposes of sub-sections (1) and (6), the criteria
are that -(a) the person appears to be mentally ill; and
(b) the person’s mental illness requires immediate treatment and that treatment can be obtained by making the person subject to a community treatment order; and
(c) because of the person’s mental illness, the person should be made subject to a community treatment order for his or her health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public; and
(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and
(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of that person’s freedom of decision and action.”
It was the opinion of all psychiatrists who gave evidence before me that Ms Farrell meets the criteria, save for one item on which they disagreed, namely, paragraph (d). On the one hand, both Dr Vine and Dr Doherty consider that Ms Farrell meets the requirement of that sub-section that she be a person who “has refused or is unable to consent to the necessary treatment for the mental illness”. Their opinion in this regard acknowledges that Ms Farrell is not presently refusing to take her medication (which must be administered orally), but they both believe that, because of her condition, she is incapable of giving an informed consent, and is merely complying with the directions of those who have the task of supervising her. Dr Vine considered that Ms Farrell had limited insight into her condition, and that affected her ability to consent, in a meaningful way, to her treatment. Dr Doherty agreed. Dr Walton, on the other hand, considers that Ms Farrell has neither refused, nor is unable to consent, to the necessary treatment and, accordingly, could not be made subject to a Community Treatment Order. In his view, if a revocation is made of her supervision order she would be a voluntary patient, at best, and could not be a person subject to a Community Treatment Order. She could, of course be certified and be subject to involuntary detention, in an emergency, without the need for there to be a Community Treatment Order. The Mental Health Act makes provision for such situations, if they come to the attention of the relevant authorities.
Dr Walton considered that there was no necessity for Ms Farrell to be supervised either by way of a court supervision order, under the Act, or by way of a Community Treatment Order, under the Mental Health Act (even if she met the criteria for a Community Treatment Order).
Dr Walton considered it unlikely that there would be any danger either to Ms Farrell or to members of the public were her supervision status under the Act to be revoked entirely. He considered that she had sufficient appreciation of her illness for her to be adequately controlled as a voluntary patient under the Mental Health Act. Those opinions of Dr Walton were, however, significantly qualified by the fact that he accepted that there was a need for Ms Farrell to be under care of a psychiatrist for an indefinite period, and for her condition to be closely monitored.
Dr Walton did, however, assert that a formal order, either by way of Community Treatment Order, or a supervision order from the court, was unnecessary. In the event that she failed to take medication then the provisions of the Mental Health Act would be adequate, in his opinion, to ensure that Ms Farrell was involuntarily detained and her medication recommenced, so there would be no risk to members of the public or to herself. Having said that, Dr Walton regarded Ms Farrell’s present treatment, by way of a monthly visit as an out-patient to Dr Vine and weekly visits by a community psychiatric nurse, as being appropriate, and said that “she needs to be closely monitored”, although not under an order either of the court or under the Mental Health Act.
In the event that Ms Farrell failed to comply with medication Dr Walton considered that any danger of a relapse, with a risk of harm to herself or to others, would not arise for a few weeks. In his opinion, it would not be something which would occur within a matter of hours, nor within a day or so. Dr Vine’s evidence, however, suggested that problems could arise within days if she ceased her medication.
Dr Walton agreed that one of the problems of schizophrenia is that the patient believes herself to be well and would prefer not to take medication. He considered that a sensible strategy would be, over a period of perhaps a year, to gradually transfer Ms Farrell’s treatment from the forensic psychiatric unit at Rosanna to the Koonung Clinic.
There was some common ground between Dr Vine and Dr Walton. Dr Vine considered that were Ms Farrell to be released on a non-custodial supervision order then there could be an appropriate transfer of that supervision from the Rosanna unit (under herself) to Koonung, over a period of time, with there being some shared responsibility between the two units for the supervision of Ms Farrell. She considered that close liaison, in that way, would be quite achievable.
Mr David Pearce, the registered psychiatric nurse, who is employed by Rosanna Forensic Psychiatry Centre as a community psychiatric nurse, had provided weekly visits to Ms Farrell since November 1995. He confirmed that Ms Farrell’s husband had co-operated with the visits and that a similar service could be provided from Koonung, but said that it would be important for him to maintain his relationship with Ms Farrell over a transition period.
Dr Peter Doherty had been, since 1991, director of clinical services of Larundel Hospital which managed Koonung Community Mental Health Centre. He was the authorised psychiatrist of Koonung, in addition to other positions which he had held until a matter of a few weeks ago, when he took up his position as Director of Psychiatry at Alfred Hospital. Although Dr Doherty's views are well informed as to the possible role with respect to Ms Farrell which Koonung might take in future, it does not follow, of course, that he could speak for the person who will take his place as the authorised psychiatrist at Koonung.
On Dr Doherty's evidence, it is clear that Koonung has adequate staffing and expertise in order for it to be responsible for the supervision and care of Ms Farrell in the event that I revoked the supervision order under the Act. He agreed with Dr Vine, and disagreed with Dr Walton, in that he considered that Ms Farrell fulfilled the criteria for the making of a Community Treatment Order, but he was also of the opinion that it would be appropriate that were she to be placed under the supervision of Koonung then there should be a gradual process of transferring her treatment from the Rosanna Centre to Koonung. Dr Doherty noted it was possible that there could be a challenge to a Community Treatment Order, before the Mental Health Review Board, and whilst he considered that the challenge would fail, were she to successfully appeal against such an order Ms Farrell would become a voluntary patient. In the event that the court made a non-custodial supervision order, with Dr Vine initially being the person responsible for the treatment, he saw no difficulty in there being a gradual transfer of responsibility for treatment obligations to the Koonung Clinic even whilst maintaining the overall control of the court by the non-custodial supervision order, with the supervisor of that order, as appointed by the court, being the Clinical Director of the Victorian Institute of Forensic Mental Health.
In the event that Ms Farrell did become merely a voluntary patient then Dr Doherty considered that there would be adequate monitoring of her situation and there would be a case manager assigned to her at Koonung. He was confident that the existing powers under the Mental Health Act would be adequate to ensure that non-compliance with medication would be responded to appropriately by her case manager. He said that because of her status and past history as a forensic patient Ms Farrell would be treated by a senior consultant psychiatrist at Koonung, and her progress would be closely monitored.
It is the view of Dr Vine, and one that I am satisfied is correct, that the continued treatment of Ms Farrell has been aided by the fact that there is an element of compulsion by virtue of her continuing status as a forensic patient, ie, one subject to a supervision order by a court. This is particularly relevant because in the past both Ms Farrell and her husband have expressed disagreement with relevant psychiatrists as to the need for the medication. As I have said, such disagreement extended to Clozapine, at one time, although it has less symptoms and side-effects than other medication. Notwithstanding any reluctance on their part to comply with medication, were Ms Farrell to cease medication both she and her husband know that her leave would be revoked and she would be returned to Rosanna. That is a significant incentive for compliance. It is true that much the same incentive might exist, also, in the event that Ms Farrell was under a Community Treatment Order, since failure to comply with directions under a Community Treatment Order could involve involuntary admission to an appropriate in-patient facility. I am less confident, at the moment, however, that the response to non- compliance would be as swift and certain under a Community Treatment Order as it would be under a non-custodial supervision order.
In the event that a supervision order was maintained Dr Doherty saw no difficulty in there being some form of joint responsibility for her treatment, shared between Koonung and the forensic unit. There would be appropriate communication and liaison between the two services. Were the court to specify that Ms Farrell was to remain on a non-custodial supervision order, with her treatment to be supervised by Dr Vine as the person nominated by the Clinical Director, then, Dr Doherty said, that would present no problem. Koonung would have no difficulty in the event that there was then a transfer and a sharing of responsibilities between the two units with the view to gradually moving Ms Farrell completely from the supervision of the forensic centre. The transition period might require up to a year. He suggested that if the court wanted to retain supervision, by way of a non- custodial supervision order, then it might request a report from the appropriate agency, after a year or so, to see whether it was then appropriate to remove the non-custodial supervision order.
I have received a certificate of available services as required by s. 47 of the Act. Section 26(3) provides that the court may not make a supervision order unless the Secretary of the Department of Human Services has certified that the necessary facilities or services are available. The certificate from the delegate of the Secretary states that such facilities and services as may be required for Ms Farrell under a supervision order are available for her, and those services are identified in the certificate as available from both Koonung Community Mental Health Service and Victorian Institute of Forensic Mental Health, which agencies would liaise together, the delegate certified, "to facilitate the gradual transfer of services for Ms Farrell's care and treatment to Koonung CMHS".
Within the terms of s. 35(3), I am not satisfied that there is a risk of serious endangerment of Ms Farrell or other members of the public so long as she maintains her medication. There is no appreciable risk that she would cease to comply with medication and, therefore, her status should be reduced to that of a person under a non-custodial supervision order. As I will discuss, I am not persuaded, with respect to the application under cl. 4 of Schedule 3, that the non- custodial supervision order should itself be revoked. An obligation, or onus, is cast on the reviewee under cl. 4, which is not placed upon her under s. 35. Dr Freckelton, counsel for Ms Farrell, conceded that even if I was satisfied under cl.4(2) of Schedule 3 that, should I revoke the order, neither the safety of Ms Farrell nor members of the public would be seriously endangered, I would still retain a discretion to decline to order revocation.
It was argued with some force by Dr Freckelton that if I revoked the non-custodial supervision order, exactly the same degree of supervision would arise as would have been provided under the non-custodial supervision order - given the evidence of Dr Vine and Dr Doherty that Ms Farrell would be immediately placed on a Community Treatment Order under the Mental Health Act. She would not, therefore, be left without supervision. Whilst there is the risk that any such order might be revoked by the Mental Health Review Board, Dr Freckelton submitted that that risk is remote in the case of Ms Farrell and even if that occurred then I should be confident that Ms Farrell would remain under close scrutiny, as a voluntary patient with Koonung. A decision would not be taken to remove the Community Treatment Order by the Mental Health Review Board, in any event, he submitted, without very careful consideration and clear evidence that that was appropriate. Therefore, so it was submitted, there would be no chance of non- compliance leading to harm to herself, or others - because there would be early intervention.
Dr Freckelton, counsel for Ms Farrell, noted that there has been no incident of violence or non-compliance for a considerable time, and the affidavits which I have received from the reviewee and her husband both stress that she will be compliant with medication. Notwithstanding her serious illness, the reviewee leads a normal and full life, taking an interest in such diverse matters as the theatre, football and horse racing and plays the piano with skill. She attempts to lead a normal life, and her husband deposed that it would facilitate his wife’s attempts to achieve normality were she to no longer be subject to supervision by the court, but be merely subject to the terms of the Mental Health Act, if required, like any other citizen. The reviewee has the support of her parents, also, as is disclosed in affidavits filed on behalf of the family of Ms Farrell. The revocation of any court supervision order would be consistent with the principle identified by s.39 of the Act, it was submitted.
Whilst there is force in those arguments, I remain of the opinion that the court should retain some supervision at this stage. I so conclude because although there are many positive signs to suggest that, in due course, the non-custodial order could be revoked, there are a number of unknown factors, at the moment. In particular, I do not know what attitude the incoming forensic psychiatrist at Koonung will adopt to the proposed gradual process of transferring treatment to that clinic. Furthermore, the effect of the evidence of all expert witnesses is that Ms Farrell does require the degree of supervision which exists at present, and all agree that if there is to be a transfer of responsibility for treatment from Rosanna to Koonung it needs to be gradual. That gradual process can take place under the framework of a non-custodial supervision order and the existence of the order avoids the possibility of a situation suddenly, and/or (arguably) inappropriately, arising whereby Ms Farrell is not subject to any direct supervision at all. If she became a voluntary patient and changed address nothing could be done to require her to attend another psychiatric clinic for assessment. In my view, it is appropriate to be cautious, having regard to the fact that although it was a very long time ago, and although Ms Farrell’s situation under her present regime of treatment is very different to the situation in 1972, she has the same illness today which at that time led to the death of a member of the public. I think it appropriate that the gradual transition to Koonung be monitored by the court by way of a non-custodial supervision order, both in the interests of Ms Farrell and of the community.
Pursuant to s. 42 of the Act I received reports from victims of the killing. The brother of the deceased submitted that it was inappropriate that Ms Farrell be released unless with supervision which maintained her status as a forensic patient. The widow of the deceased (who lived interstate) urged that Ms Farrell not be permitted to travel interstate without prior notification to responsible authority. I received and considered other reports from victims, too, but it is fair to say that none of the victims opposed a non-custodial supervision order being put in place.
Conclusion
I conclude that I am not satisfied that the safety of Ms Farrell or of members of the public will be seriously endangered as a result of her release on a non-custodial supervision order, pursuant to s. 35(3) of the Act. I will, therefore, vary the custodial supervision order to which she is presently subject, to that of a non- custodial supervision order. I have concluded, however, that I should reject the application for revocation of the non-custodial supervision order, which was sought pursuant to cl. 4 of Schedule 3 of the Act.
I discussed with counsel the conditions which might be imposed if I retained a non- custodial supervision order. Subject to any further submissions as to the proposed terms of those conditions, and pursuant to s. 26(2)(b), I will impose the following conditions to the non-custodial supervision order:
(i) That the supervisor of the non-custodial supervision order be the person from time to time holding the position of Clinical Director of the Victorian Institute of Forensic Mental Health (hereinafter referred to as "the Supervisor");
(ii) That Ms Farrell reside at her present address, or at such address as shall be agreed upon by the Supervisor, and shall not travel interstate without prior notification to the Supervisor of her intention to do so and of the address at which she will reside while interstate;
(iii) That Ms Farrell comply with the lawful directions of the Supervisor, or his nominee, as to treatment, counselling or services, at such places and at such times as the Supervisor or his nominee direct;
(iv) That not sooner than 2 February 2000, nor later than 26 February 2000, upon application by the Supervisor (fourteen days notice in writing of which application is to be given to Ms Farrell, and to the Court) the matter be brought back to the Supreme Court for directions as to the conduct of a review of the non-custodial supervision order, and the consideration of such other application as may then be made by any party.
Section 27(2) of the Act provides that the court may specify a time when the matter should be returned to the court for review of the progress of the non-custodial supervision order. The terms in which I have framed the condition require the Supervisor to initiate the review by making application to the court for a direction hearing to set a date for the review. The compulsory review at that time does not preclude Ms Farrell from exercising her powers under s. 31 to apply for variation or revocation of the non-custodial supervision order at an earlier time. Nor is the Supervisor precluded from earlier making such an application under that section.
The provisions of the Act all continue to apply in the period leading up to the compulsory review to be conducted by the court in 2000. Thus, in the event that the Supervisor was concerned that Ms Farrell had failed to comply with any of the conditions of the supervision order, and decided that it was appropriate to do so, application could be made to the court, at any time and upon 14 days notice, under s. 29, for a variation of the order. The court has power to issue a warrant for the arrest of the person subject to the order if that person fails to attend the hearing. Furthermore, s. 30 of the Act provides emergency powers for the apprehension and confinement in an approved mental health service of the person subject to the order when “the appropriate person” reasonably believes that to be necessary to ensure compliance with the order, and considers that the safety of the person or members of the public will be seriously endangered if the apprehension does not occur. The “appropriate person” is defined to include a supervisor of the person, a police officer, or an ambulance officer. It is these powers (rather than the similar powers under the Mental Health Act) which would be available for exercise under the non- custodial supervision order.
Finally, I note that whilst the Supervisor is the Clinical Director of the Victorian Institute of Forensic Mental Health that person will nominate others to undertake the treatment of Ms Farrell. Under the terms of my order it would be perfectly appropriate for the Supervisor to direct that the treatment be conducted both by staff at Rosanna and at Koonung, with an appropriate protocol being put in place to ensure that there was no confusion as to the respective responsibilities of each person so involved. It is the Supervisor who had the overall responsibility to ensure that, whoever provides the treatment, the order is complied with. Under this condition, I anticipate that the gradual process of transferring treatment from Rosanna to Koonung may occur so that when the court reviews the matter in 2000 a revocation of the order may be readily achieved, if that seems appropriate.
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