In the matter of SKD
[2009] VSC 363
•4 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 1415 of 1995
IN THE MATTER OF s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
and
IN THE MATTER OF “SKD”
NOTE: This matter is the subject of a non-publication order made 21 August 2009. The publication of these edited reasons is excepted from that order.
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2009 | |
DATE OF REASONS: | 4 September 2009 | |
CASE MAY BE CITED AS: | In the matter of “SKD“ | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 363 | |
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CRIMES MENTAL IMPAIRMENT – Application for revocation of non-custodial supervision order - Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr I Freckelton SC | Mental Health Legal Centre Inc |
| For the Attorney-General | Ms E Gardner | Victorian Government Solicitor’s Office |
| For the Department of Human Services | Ms L Torres | Department of Human Services |
| For the Director of Public Prosecutions | Ms J Carpenter | Office of Public Prosecutions |
HIS HONOUR:
Introduction
In 1994 the applicant strangled [a close relative]. She was charged with murder, but was found not guilty by reason of insanity and made subject to detention at the Governor’s pleasure. When the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) came into operation she was deemed to be on a custodial supervision order. In 2003 she was granted extended leave. On 26 April 2005 she was granted a non-custodial supervision order. She now applies pursuant to s 31(1)(a) of the Act for revocation of the non-custodial supervision order. The effect of revocation is the removal of the last means by which the Court can supervise the treatment and disposition of the applicant. The issue I must determine is whether it is appropriate to take that step now.
Part 5 and Part 6 of the Act make provision for notification of specified persons and also make provision for appearances on applications of this kind. On this application senior counsel appeared on behalf of the applicant, and counsel also appeared on behalf of the Director of Public Prosecutions, the Attorney-General, and the Secretary of the Department of Human Services. Counsel for the DPP dealt with the notification requirements and was then excused. I am satisfied the notification requirements have been met. Counsel for the Secretary led evidence and tendered reports but otherwise advised that the Secretary did not take any position on the application. Counsel advised that the application was unopposed by the Attorney-General.
Evidence on the application
Apart from material concerning the notice requirements, the evidence on the application is constituted by:
•An affidavit of the applicant sworn 21 August 2009, and an affidavit of her brother also sworn 21 August 2009;
•A report by Dr [ABC], Psychiatry Registrar, [XYZ] Clinic, […], prepared on 13 May 2009; a report by Ms [DEF], Senior Social Worker-Case Manager, [XYZ] Clinic, […], prepared 22 May 2009; a report by Dr [GHI], Psychiatrist, [XYZ] Clinic, […], dated 7 August 2009; and a report by Dr Shannon Reid, Consultant Psychiatrist, Victorian Institute of Forensic Mental Health (Forensicare) dated 15 May 2009; and
•Oral evidence from the applicant, Dr [GHI], Dr Reid, and Ms [DEF].
Applicable principles
The applicant suffers from schizophrenia. In the course of the hearing I was referred to the Court of Appeal decision in RDM v Director of Public Prosecutions,[1] and to the decision of Eames J in In the matters of major reviews of Percy, Farrell & RJO.[2] After the hearing, counsel for the applicant forwarded copies of some other decisions concerning revocation of non-custodial orders in relation to schizophrenics whose index offence was homicide, being: In the matter of TDD,[3] In the matter of “PSG”,[4] In the matter of “LN”,[5] and Re an application for revocation of a non-custodial supervision order by “CMA”.[6]
[1][1999] 2 VR 270 (“RDM”).
[2][1998] VSC 70 (“Percy”).
[3][2004] VSC 504R (“TDD”).
[4][2005] VSC 325R (“PSG”).
[5][2006] VSC 62 (“LN”).
[6][2004] VSC 147R (“CMA”).
Section 40 of the Act sets out matters to which the Court must have regard when deciding whether to revoke an order. Those matters are:
(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.
Section 39 of the Act is also important. It provides that when considering (among other things) revocation of a supervision order, 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.
I am mindful of the fact that every case in this area is different. There are, however, some principles set out in the decisions on similar cases to which I have been referred which are of importance. They are:
1.Parliament wanted the assessment of dangerousness to be made by a judge, not by psychiatrists, however much the judge may rely on expert opinions in informing himself or herself.[7]
2.It is open for a judge to conclude that the chronic nature of schizophrenia, the possibility of future changes in treatment or personal circumstances, and a lack of clear support controls in the Mental Health Act 1986 creates a risk of serious endangerment if all controls are removed, even where the psychiatric evidence is strongly supportive of the application for revocation.[8]
3.To the extent the Court needs to be satisfied of matters bearing on relevant questions, the standard of proof is the civil standard, but given the serious consequences of a mistake being made the Court must be satisfied in accordance with the precepts laid down in Brigginshaw v Brigginshaw.[9]
4.Revocation of a non-custodial supervision order is a particularly serious step. The principal consideration is the protection of the community and the applicant.[10] The Court is entitled to take a cautious approach, as each case history is demonstrative of the terrible tragedy that could occur if a revocation was ordered without sufficient care.[11]
I also note that the time periods which this applicant has spent on custodial and non-custodial orders are comparable to the time periods which had elapsed in the other cases provided by counsel for the applicant where revocation was ordered.
[7]RDM at 287, per Winneke P quoting Eames J in Percy.
[8]RDM per Winneke P at 287, Charles JA at 290, Chernov JA at 291.
[9]LN at [10].
[10]PSG at [44].
[11]TDD at [27].
Counsel for the applicant accurately encapsulated the critical issue when he submitted that “it’s a matter of gauging when the risk is acceptable …”.
Applicant’s history
[Paras 9 to 22 (inclusive) have been deleted to prevent identification. In substance, the relevant history set out was as follows.
The applicant is in her late 40s. Her first contact with mental health services was in the mid-1980s. She was diagnosed as schizophrenic and treated for that condition between the mid-1980s and the index offence. She became non-compliant with treatment. She developed persecutorial delusions towards her family. In 1994 she killed a close family member.
She was found not guilty by reason of insanity in 1995 and was treated in custody until granted extended leave in 2003. A “breakthrough” in her treatment occurred in 2001 when she commenced treatment with Clozapine.
She suffered relapses requiring hospital admission on two occasions in 2003. In 2005 she became subject to a non-custodial supervision order.
She had a tempestuous personal relationship in 2005 and 2006 which did not lead to mental deterioration.
She reported unusual perceptions in 2005 and olfactory hallucinations in April 2006, but has otherwise been stable since the making of the non-custodial order.
Her brother began living with her in 2007. She works part time. In 2008 she was referred to [XYZ] Clinic, with the Forensicare psychiatrist, Dr Reid, retaining overall supervision of her case. At [XYZ] Clinic her case worker is [DEF]. She has been seen by psychiatric registrars and is now being treated by a psychiatrist, Dr [GHI].]
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The applicant gave notice of this application for revocation of her non-custodial supervision order on 19 March 2009.
Psychiatric opinions
Dr Reid’s opinion of the applicant’s progress is very positive. In his report he says that she has a very good level of insight regarding her illness and the need for supervision and treatment in the future. She understands that she will require anti-psychotic medication for the foreseeable future and she has demonstrated an understanding of the early warning signs of relapse. She has, he says, a positive and cooperative attitude towards treatment and supervision and she has shown some capacity to cope with significant stresses in her life. He expresses the opinion that the risk of harm to others or herself is “currently low”. He goes on:
“It would be expected that if [the applicant’s] Non Custodial Supervision Order was revoked that she would continue to have regular contact with the staff of her local area mental health service who are engaged in the provision and monitoring of her psychiatric treatment. It would therefore not be expected that in this circumstance there would be a significant alteration to the treatment and monitoring structures that are currently in place with respect to [the applicant’s] psychiatric illness. It would also not be expected that the risk associated with [the applicant] will increase significantly if her Non Custodial Supervision Order was revoked.”
Dr [ABC]’s report indicates that the applicant’s mental state and functioning have been stable since commencement of management at [XYZ] Clinic. Ms [DEF]’s report and her oral evidence were to the same effect.
Dr [GHI]’s report was written after she had seen the applicant on one occasion, 13 July 2009, and before she saw her on a second occasion on 10 August 2009. She also expressed the opinion in that report that her mental state and functioning had remained stable.
In her oral evidence Dr [GHI] said that she had only seen the applicant twice and that she had told her that she “would need time to work with her”. She referred to the fact that the applicant does still consume alcohol and expressed the view that “ideally” it would be better if she did not drink at all. In relation to the risk of harm to herself or others, Dr [GHI] said the following:
“At present that’s no risk at all, but in view of the nature of the illness of schizophrenia it’s prone to relapses and remission and there’s always the ongoing risk, but at the moment there’s no risk … .”
When asked whether the applicant would continue treatment voluntarily if the order was revoked, she responded: “At the moment she has said she will, but we cannot predict the future”. When asked about the steps that would be taken if the applicant were a voluntary patient and her condition deteriorated, Dr [GHI] said:
“It can be dealt with as long as she resides within the area where we are in. Once she moves out of area we will not be able to assist her unless she’s reported to the other area mental health service, but as your Honour said that is she’s voluntary, if we do a home visit and she denies the symptoms and she doesn’t want to see the case worker or the treating team, we wouldn’t be able to.”
Dr [GHI] was questioned in relation to the issue of response to a deterioration at some length by senior counsel for the applicant. It seemed to me that Dr [GHI] would not accept that it can be assumed that the applicant, if she was a voluntary patient and became non-compliant with treatment, would necessarily meet the criteria in s 8 of the Mental Health Act 1986 for involuntary treatment. At one point Dr [GHI] said:
“If she deteriorates, she stops – let’s say she stops treatment and she gets out of area then they have to start the whole criteria again, and if she denies the symptoms or she doesn’t want to be treated, sometimes we can’t access the person. That’s the problem we have at the moment in the community.”
Later she said:
“If the patient’s voluntary, your Honour, sometimes when they go the patient refuse to open the door, we can’t do anything. So sometimes that is the problem we have in the community, that’s a real practical problem.”
Throughout her evidence Dr [GHI] repeatedly emphasised that when dealing with schizophrenia there is always a possibility of relapse and that the future is unpredictable.
Dr [GHI], in her oral evidence, also referred to her interview with the applicant on 10 August and indicated that there were aspects of that interview which caused concern to her. She said that when mention was made of the index offence she felt the applicant’s attitude changed and that she put on dark sunglasses in Dr [GHI]’s room and put on her beanie.
Dr Reid gave oral evidence after Dr [GHI]. He indicated that it was common for people to be uncomfortable when discussing the index offence. He said he was not concerned at moderate alcohol consumption. He agreed that whilst relapse was possible, the crisis assessment team acting under the Mental Health Act would have “a high degree of focus upon her given her history” if there were to be a deterioration. He expressed the opinion that there was a very low likelihood that she would become non-compliant and that the systems in place were adequate to deal with it if she did.
In his oral evidence Dr Reid also referred to the significance of the revocation. He said that “philosophically” it had become important to the applicant as a means of demonstrating that she had moved on. He expressed the opinion that because of this, revocation would assist with management of her mood state and further community integration.
Whilst Dr Reid said he did not “directly” disagree with anything said by Dr [GHI], my assessment was that he is more positive and confident than she is. He, of course, has had more extensive dealings with the applicant than has Dr [GHI], as Dr [GHI] herself emphasised.
I asked Dr Reid whether there was any harm in delaying revocation and he responded: “I don’t think there’s harm in waiting longer, but I would not expect that the situation would change from here”.
The applicant gave evidence orally herself. She presented exactly as she is portrayed in the reports; as a stable person who has insight into her mental illness and who is cooperative and compliant with treatment.
Submissions of the applicant
On behalf of the applicant it was submitted that insight was the key issue, and that Dr Reid was the person in the best position to assess risks. It was submitted that the applicant had demonstrated good insight and was cooperative. It was submitted that the relationship with [XYZ] Clinic would continue and that it was extremely unlikely that she would disengage from treatment. It was also submitted that the applicant has the support of her brother. It was submitted that in these circumstances, particularly given the requirement in s 39 to apply the principle that restrictions should be kept to a minimum, this was a case where revocation should be ordered.
Assessment of the relevant criteria
The requirement in s 39 of the Act that the Court must apply the principle that restrictions be kept to a minimum is a very important requirement. But in this case it has to be said that the only practical restriction currently affecting her freedom and personal autonomy is the requirement that she submit to treatment. This is something which she maintains she will do anyway. There is of course a difference between undertaking treatment voluntarily and being required to do so by law, but currently, given her own expressed intentions, the restrictions placed upon her freedom and personal autonomy by the non-custodial supervision order are not great in practical terms. I accept that “philosophically” becoming a voluntary patient is seen as important by her.
Turning then to the matters to which I must have regard under s 40, the position seems to me to be as follows.
The nature of the applicant’s mental impairment is schizophrenia. This is a mental condition characterised by remissions and relapses. The applicant has had a number of relapses in the past, including in the relatively recent past. A serious relapse is likely to occur if the applicant becomes non-compliant with treatment. The applicant’s non-compliance with treatment was the critical factor in the commission of the index offence itself. The relationship between the applicant’s schizophrenia and the index offence is very close.
When considering whether the applicant is likely to endanger herself or another if the order is revoked, and the need to protect people from such danger, it is important to remember that the relevant inquiry is the likelihood of danger, not the likelihood of harm. Danger means liability or exposure to harm. Danger exists when there is a risk of harm. Notwithstanding the very positive evidence as to the applicant’s progress, which is, as her counsel submitted, a credit to her and her clinicians, my conclusion is that removing the applicant from supervision entirely at this time would be likely to endanger herself or others and that there is a need to protect people from that danger.
I have reached this conclusion by reason of the combination of the following factors present in this case:
(a)The inherent nature of schizophrenia, and in particular the ever present possibility of relapse.
(b)The fact that it was a relapse, as a result of the applicant becoming non-compliant with treatment, that led to the homicide which is the index offence. The applicant had been diagnosed as schizophrenic a number of years before the index offence and had been treated for that condition for a number of years before then. She became non-compliant with her treatment, and there were tragic consequences.
(c)There were two relapses in 2003 which required hospitalisation. These relapses occurred whilst she was being treated on Clozapine.
(d)The applicant has experienced some delusions and hallucinations, and some persecutorial thoughts towards her family, since commencing treatment on Clozapine in 2001. The most recent such experience was in April 2006.
(e)The applicant is now being primarily treated by a psychiatrist who has only seen her twice, and who has indicated that she needs time to work with her.
(f)I am not satisfied on the evidence that recourse to s 8 of the Mental Health Act 1986 will be a reliable and effective response to a deterioration in the applicant’s mental condition if she were a voluntary patient.
I am not satisfied that in the case of this particular applicant, given her history, there are adequate resources available for treatment and support in the community were her mental condition to deteriorate significantly.
In this particular matter it is relevant that the applicant was a person who had long been diagnosed as a schizophrenic and who had been under treatment for a long period before she became non-compliant and suffered the mental deterioration which led to the death of an innocent person.
Conclusion
For the reasons I have given, I am not prepared to revoke the non-custodial supervision order in this case.
Dr Reid’s report contained an appendix with proposed conditions should the non-custodial supervision order remain in place. If the applicant wishes to have the current conditions replaced by those conditions, I will hear an application for variation under s 32(1)(c). Otherwise, I will confirm the order under s 32(1)(a) of the Act.
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