In the matter of XY

Not Restricted

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 04627

IN THE MATTER of a further review of a non-custodial supervision order pursuant to section 33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- and –

IN THE MATTER of ‘XY’

This proceeding is subject to a suppression order concerning the identification of the victim, the applicant and members of the families of the applicant and the victim.

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2016
DATE OF JUDGMENT:	28 April 2016
CASE MAY BE CITED AS:	In the matter of XY
MEDIUM NEUTRAL CITATION:	[2016] VSC 183

CRIMINAL LAW – Crimes mental impairment – Further review of non-custodial supervision order - Application for revocation of non-custodial supervision order – Whether applicant would be likely to endanger himself or others if order revoked – Application refused – Suppression order made - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 31, 33, 39, 40 – Mental Health Act 2014 (Vic).

APPEARANCES:	Counsel	Solicitors
For the Reviewee	Ms Z Broughton	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Ms S Varney	Department of Health and Human Services
For the Attorney-General	Mr D McCredden	Victorian Government Solicitors Office
For the Director of Public Prosecutions	Ms L Wilkinson	Office of Public Prosecutions

HER HONOUR:

Introduction

This proceeding comes before the Court pursuant to an order made by Whelan J on 15 October 2010 pursuant to s 33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) for a further review of a non-custodial supervision order (‘NCSO’).

The purpose of the review is to determine whether the NCSO should be confirmed and XY remain on it. On a review of a NCSO, the Court may confirm, vary or revoke the order. By email dated 31 March 2016, XY, through his solicitor, indicated that XY wanted to make an application for the revocation of his supervision order, a course of action which is opposed by the Secretary to the Department of Health and Human Services and the Attorney-General. While no formal application was made at the conclusion of the hearing, counsel for XY indicated that XY did not pursue an order to be released from the NCSO but sought an order that the NCSO be confirmed and reviewed in 12 months. The Attorney-General submits that the Court should vary XY’s NCSO to a custodial supervision order (‘CSO’).

Background

The background of this matter is detailed in previous reasons delivered by J. Forrest J on 23 May 2008. By way of summary, the index offence took place on 28 October 2006 when XY, without warning, stabbed his brother, David, in the face, and also accidentally cut his three months old niece on the forehead with a knife. As a result, both victims suffered serious injury. The evidence before J. Forrest J suggests that XY was suffering from an acute relapse of paranoid schizophrenia and paranoid delusions regarding his brother David at the time of the attack preceded by a period of medication non-compliance.[1] As a result, he did not know that the conduct he was engaging in was wrong and could not reason with a moderate degree of composure about the wrongfulness of his actions.
[1]Dr Lloyd’s report dated 28 May 2015.

On 18 March 2008, the matter proceeded as a consent mental impairment hearing before J. Forrest J. On 23 May 2008, XY was found not guilty by reason of mental impairment and was released on a NCSO for the nominal term of 20 years.

On 15 October 2010, Whelan J confirmed the NCSO and directed that the matter be brought back for a further review at the end of five years. That review came before the Court on 13 October 2015. After being informed of XY being admitted to hospital, the matter was adjourned to 1 December 2015 for a further directions hearing. On 1 December 2015, I requested the parties provide an update with regard to XY’s progress and further adjourned the matter to 10 February 2016. The substantive hearing was adjourned to 4 April 2016.

Applicable legislation

The Court’s power in relation to the review of or an application for a revocation of an NCSO can be found in s 33(1) of the Act, which relevantly provides:

33.Variation or revocation of non-custodial supervision order
(1)On an application under section 31 for variation or revocation of a non-custodial supervision order … or on a further review of a non-custodial supervision order directed under subsection … the Court must, by order—
(a)confirm the order; or
(b)vary the conditions of the order; or
(c)vary the order to a custodial supervision order; or
(d)revoke the order.

(2)Unless the Court revokes the order, the Court may direct that the matter be brought back to the Court for further review at the end of the period specified by the Court.
(3)A direction may be given under sub-s (2) more than once.

Section 39 helpfully provides a guiding principle to be applied by the Court when deciding whether to revoke an NCSO:

(1)In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave 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.

This principle was considered by the judgment of the Court of Appeal in NOM v Director of Public Prosecutions (Vic) (‘NOM’).[2] The Court of Appeal held that s 39 involves ‘balance [in] the interests of the liberty of the detainee with protection of the community and in doing so assessing risk factors which, in turn, depend upon value judgments’.[3] At the forefront of the application of s 39 are two public interests of ‘ensuring the safety of the community’ and of ‘protecting the right to liberty of one of its members’.[4] Also inherent in the application of s 39 is the principle of parsimony, which requires the least infringement of liberty that is commensurate with the safety of the community.[5] That is, ‘[s]upervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary’.[6]
[2](2012) 38 VR 618.
[3]Ibid [21].
[4]Ibid [36].
[5]Ibid [61]-[71].
[6]Ibid [70].

Section 40(1) sets out a list of considerations that the Court must to when applying the principle in s 39. Those considerations 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.

I note that s 40(1)(c) and (d) also echo the public interest of community safety element in s 39. The Court is required not only to consider the gravity of the harm that might be done by the applicant if for some reason the applicant were to relapse and become dangerously psychotic, but also the probability of that occurring under s 40(1)(c).

In addition, s 40(2) provides that the Court cannot revoke a supervision order unless it:

(a)has obtained and considered the report of at least 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

(ab)in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the Court under s 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 of victims made under s 42; and
(da)in the case of an application for extended leave – has considered a leave plan filed under s 57A; and
(e)has obtained and considered any other reports the Court considers necessary.

Notification of family members and victims

In accordance with s 38C of the Act, the Director of Public Prosecutions gave notification of this hearing to the relevant family members and victims. I am satisfied, after reading the affidavit of Julie Carpenter dated 30 March 2016, that the Director has complied with its notification requirements under the Act.

Section 42 requires the Court to take into account reports provided by family members of the victims. No reports have been received from any of the victims or family members of XY.

Personal and psychiatric history

XY was born on 20 August 1974 in Vietnam and is now 40 years of age. He is a disability support pensioner who currently resides in supported accommodation in Footscray House. Both his parents are deceased. In addition to his older brother David, XY has two older brothers, Day and Tuan, and one younger sister, Gwen, in Australia, as well as another brother in Europe. At the time of the index offence, he was living with his brother David in Sunshine West.

XY has had a diagnosis of schizophrenia since 1995. His illness has been characterised by auditory hallucinations, delusions and bizarre behaviour. His relapse symptoms are characterised by seeing shadows and colours, increased disorganisation, poor sleep and loss of routine.

Prior to the index offence

Between 1995 and 2000, XY had several psychiatric admissions to various hospitals in Melbourne. It has been reported that his symptoms responded well to Clozapine.

In 1994, XY was treated by a private doctor and it is reported that his persecutory delusions responded to medication.

Between 11 May 1995 and 26 May 1995, XY was admitted to Footscray Psychiatric Hospital. During that admission, he reported hearing voices after ceasing treatment for a month. He also reported he believed there was a bomb buried in the ceiling of his family home.[7]
[7]Report of Dr Lukas Cheney psychiatry registrar at Victorian Institute of Forensic Mental Health (Forensicare) dated 14 September 2015.

Between 9 October 1996 and 28 October 1996, XY was admitted again to Footscray Psychiatric Hospital. He had a relapse with auditory hallucinations, perplexity, thought blocking and delusions whilst being on Pericyazine, 5mg/day. He was eventually discharged with Flupenthixol, 40mg/day (an increase from 20mg/day) and Trifluoperazine of 5mg/day.

On 14 January 1997, XY was re-admitted to Footscray Psychiatric Hospital. He was discharged on 5 February 1997. He had another relapse with auditory hallucinations, agitated and inappropriate speech and affect, with no overt precipitating factors. He attempted to jump off a building and was later found lying on the street. During the admission, he displayed prominent negative symptoms and was later discharged on Chloropromazine, 200mg/day, and Flupenthixole, 6mg fortnightly. XY was commenced on Clozapine on 19 May 1997.[8]
[8]Report of Dr Lukas Cheney, psychiatry registrar, Forensicare, dated 14 September 2015, p 4.

On 30 September 1997, XY was admitted to the Royal Melbourne Hospital. He was discharged on 22 September 1998. He was admitted to John Cade Unit at Royal Park for stabilisation of his mental state following an apparent lack of response of his symptoms to trials of conventional antipsychotic medication. During the admission, he was suspicious and behaved inappropriately. He was commenced on Clozapine, which appeared to have improved his mental state. His insight remained poor, and he was discharged on a total dose of 550mg of Clozapine.

From approximately 2000 to 2006, XY was treated by the Mid-West Mental Health Service and discharged to his general practitioner in 2006. On 29 October 2006, the index offence was committed, preceded by a period of treatment non-compliance. XY was acutely psychotic at the time and remanded in custody.

On 8 February 2007, XY was discharged from Thomas Embling Hospital (‘TEH’).

Since being released on NCSO

In March/April 2007, XY was released on bail and placed in temporary accommodation.[9] He was released to Ozanam House as an involuntary patient and treated by Inner West Area Mental Health Service. In November 2007, XY was transferred to the North West Area Mental Health Service on a community treatment order (‘CTO’).[10]
[9]Report of Negiby Mankir, Consultant Psychiatrist, Forensicare, dated 19 May 2008, p 4.
[10]Report of Dr Gaurev Diva, Consultant Psychiatrist, NWAMHS, dated 13 September 2010.

On 7 April 2008, XY was found not guilty of intentionally causing serious injury and recklessly causing serious injury by reason of mental impairment.

On 7 May 2008, XY was removed from a CTO and ceased to become an involuntary patient. On 23 May 2008, orders were made by J. Forrest J placing him on a NCSO with a nominal term of 20 years.

On 9 September 2009, XY was assessed as a low risk by Dr Ria Zergiotis in a Forensicare report.[11]
[11]Report of Dr Ria Zergiotis, Consultant Psychiatrist, Forensicare, dated 9 September 2009.

On 5 May 2010, XY was assessed by Dr Claire McInerney in a Forensicare report as being ‘acute risk of endangerment low’.[12]
[12]Report of Dr Claire McInerney, Senior Registrar, Forensicare, dated 5 May 2010.

On 22 September 2010, Dr Ria Zergiotis provided a further Forensicare report in which she noted that XY had been ‘fully compliant with the NCSO. The risk to himself and others over the last 12 months has been low’.[13]
[13]Report of Dr Claire McInerney, Senior Registrar, Forensicare, dated 22 September 2010, p 2.

On 15 October 2010, Whelan J confirmed the NCSO with a further review at the end of five years.

In November 2010, XY moved to Footscray House, a supported residential service, and commenced treatment with the Saltwater Community Health Clinic (‘Saltwater Clinic’).

In May 2012, XY commenced seeing Dr Sharmila Lawrence, Consultant Psychiatrist of the Saltwater Clinic.

In reports dated 7 June 2012 of Dr Yolish Singh from Forensicare and of Dr Grant Lester dated 26 June 2013 and 5 May 2014, XY was assessed as low risk of endangerment to himself and others.

On 13 September 2014, XY had a relapse of schizophrenia and was admitted to the Werribee Mercy Psychiatric Unit. He was admitted to hospital with psychotic symptoms, seeing colours, poor oral intake and disorganised behaviour. There was no clear trigger for the relapse. He was reportedly compliant with his medication at the time. XY was discharged on 2 October 2014. His Clozapine was increased from 500mg to 600mg at night. He was discharged back to Footscray House without an involuntary treatment order under the Mental Health Act 2014 (Vic) (‘the MHA’).[14]
[14]Report of Dr Kylie Lloyd, Consultant Psychiatrist, Forensicare, dated 28 May 2015, p 3.

On 18 October 2014, XY was hit by a train when it approached a platform on which he was standing. There has been no conclusive evidence that the accident was motivated by a psychotic phenomenon or a suicide attempt. He was treated at the Royal Melbourne Hospital and subsequently transferred to the Epworth Hospital Rehabilitation Centre as an inpatient for further rehabilitation.[15] His admission at the Epworth Hospital Rehabilitation Centre was from 11 November 2014 to 29 January 2015. He was discharged back to Footscray House.
[15]Ibid p 4.

On 10 March 2015, a neuropsychological assessment notes traumatic amnesia for up to 80 days and cognitive deficits in areas of attention, retaining complex information, processing and planning. The neuropsychologist could not tell whether the cognitive deficits predated the train accident as there had been no pre-accident assessment. It was noted that the cognitive deficits may improve with recovery.[16]
[16]Ibid p 4.

On 9 May 2015, XY was brought to the Western Hospital Emergency Department by his brother, Day, after being observed as withdrawn and reporting seeing colours in front of his eyes, and was discharged home within a few hours.[17]
[17]Report of treating psychiatrist, Dr Sharmila Lawrence, dated 18 September 2015, p 2.

On 28 May 2015, Dr Kylie Lloyd prepared a Forensicare report and assessed XY as low risk of endangerment to the community.[18]
[18]Report of Dr Kylie Lloyd, Consultant Psychiatrist, Forensicare, dated 28 May 2015, p 8.

On 14 September 2015, Dr Lukas Cheney noted in his report that XY was on 600mg of Clozapine. He considered that improved pain control had helped resolve XY’s psychotic symptoms and that XY was well engaged with the Saltwater Clinic. Dr Cheney considered XY’s risk to the community and to himself was low.[19]
[19]Report of Lukas Cheney, Psychiatry Registrar, Forensicare, p 10, [67].

On 18 September 2015, Dr Sharmila Lawrence, XY’s treating psychiatrist at Saltwater Clinic, provided a report in which she assessed XY as a minimal risk to himself and others.[20]
[20]Report of Dr Sharmila Lawrence, Consultant Psychiatrist, dated 18 September 2015, p 3.

On 21 September 2015, Amy Veitch, XY’s former case manager at the Saltwater Clinic, provided a report in which she assessed XY’s risk to himself and the community as low.

On 12 October 2015, XY was admitted to the Western General Hospital at the request of his brother, Day. He presented as agitated, suffering pain and seeing people in his eyes. After having been provided with medication, he was returned home to Footscray House.

On 15 November 2015, XY was admitted to Ursula Frayne Psychiatric Unit after being taken to the Western General Hospital by his brother, Day. There were reports of poor sleep, pain and visual hallucinations. During this admission, XY was prescribed 100mg twice daily of Amisulpride, which was added to his medication regime.[21]
[21]Report of Amy Veitch, Case Manager, dated 15 March 2016, p 2.

On 31 December 2015, XY was admitted to Werribee Mercy Psychiatric Unit after concerns from staff at Footscray House and his brother, Day. He remained an inpatient until 25 February 2016.

On 16 February 2016, whilst an inpatient at the Werribee Mercy Psychiatric Unit, XY stabbed a roommate in the corner of his eye with a pencil.

On 3 March 2016, XY was transported to the Western Hospital by his brother Day after complaining of pain and was discharged home in the morning.

On 4 March 2016, XY was admitted again to Ursula Frayne Centre. It was discovered that he was suffering partial obstruction to his bowel as a result of severe constipation. XY’s mental state improved after treatment for his constipation and he was discharged back to Footscray House.

Contemporary medical evidence

Whilst many medical reports have been compiled over the years, for the purpose of this review, six expert reports have been filed with the Court. The most recent reports are —

(1)Report of Dr Dilani Daluwatte, Psychiatry Registrar at Forensicare dated 15 March 2016. (Dr Daluwatte took over from Dr Lukas Cheney at the end of last year).
(2)Report of Dr Sharmila Lawrence, Consultant Psychiatrist at Saltwater Clinic dated 15 March 2016.

(3)Report of Amy Veitch, Case Manager of the Mercy Mental Health Program dated 15 March 2016.

Ms Veitch left the Service on 18 March 2016. The new Case Manager is Ms Hannah Young. Ms Young attended Court and gave viva voce evidence. As noted, all three clinicians recommend that the present NCSO be confirmed and that the matter be brought back for a further review in 12 months.

Dr Lawrence’s evidence

Dr Lawrence is a Consultant Psychiatrist at the Saltwater Clinic. She has been treating XY since the middle of 2012 on a quarterly basis. XY is also seen by a Psychiatry Registrar at the Saltwater Clinic on a monthly basis and his Case Manager every fortnight.

In relation to the train incident on 18 October 2014, Dr Lawrence’s evidence was that XY had been stable until September 2014. Dr Lawrence was XY’s treating psychiatrist at the time of his admission to hospital in September/October 2014 and following the train incident. Her evidence was that the amount of information XY gave about the circumstances surrounding the train incident were limited and that generally, the amount of information he provides is limited.[22] Dr Lawrence considered there was no suggestion that XY had not been compliant with his medication, and testing of his Clozapine levels were at a therapeutic level at the time of the train incident.
[22]Transcript (‘T’) 11, lines (‘LL’) 14–16.

Dr Lawrence considered that there had been no noticeable deterioration in XY’s cognitive function after the train incident in that, even pre-morbid, XY appeared to be of low intelligence.[23]
[23]T 12, line (‘L’) 29.

In relation to the admission on 15 November 2015 to the Ursula Frayne Psychiatric Unit, Dr Lawrence’s evidence was that this admission was extended because XY’s medication had been altered and there was a need to observe side-effects and XY’s response to the Amisulpride. Further, a prolonged admission was required to monitor his mental state and assess his risk profile.[24]
[24]T 14, LL 25–30.

In relation to the admission on 31 December 2015, Dr Lawrence noted that XY’s brother reported XY as being more withdrawn and complaining of visual hallucinations. XY denied any paranoid delusions. During the admission, XY was compliant with his medication and was initially managed as a voluntary patient in a low dependency unit on the ward.

On 16 February 2016, the planned day of his discharge, XY assaulted another patient with whom he was sharing a room by stabbing him in the inner part of the left eye with a pencil. XY reported to the staff that the co-patient was snoring and playing loud music, which he described as making his head feel worse and possibly worsening his hallucinations.[25]
[25]Report of Dr Lawrence, Treating Psychiatrist, dated 15 March 2016.

Subsequent to the 16 February 2016 incident, XY was transferred to a high dependency unit and made an involuntary patient under the MHA. XY was seen by Dr Lester, Consultant Psychiatrist at Forensicare, at the treating team’s request on 16 February 2016.

Dr Lawrence said that on a review of the progress notes following the 16 February incident, there was nothing documented by the nurses or doctors treating XY post-incident that suggested he had any psychotic beliefs that caused him to behave as he did.[26] Dr Lawrence said that it appeared to be an impulsive act, triggered by stimuli. Dr Lawrence’s evidence was that XY tends to isolate himself when he is agitated or distressed and that his room is his ‘safe haven’.[27] Dr Lawrence explained that the behaviour probably related to XY having difficulties coping with the stimuli created by the co-patient and ‘he lashed out’.[28]
[26]T 15, L 31; T 16, LL 1–2.
[27]T 16, L 12.
[28]T 16, LL 10-13.

Dr Lawrence considers that post the train incident in October 2014, XY’s coping mechanisms appear to have been ‘less’.[29] In addition, post the 16 February 2016 incident, XY appears to have limited ability to cope with the number of different stimuli that happen at the same time and he can get overwhelmed quite easily.[30]
[29]T 17, L 23.
[30]T 16, LL 22-26.

XY has his own room at Footscray House and there had been no reports of altercations with other residents at Footscray House.[31]
[31]T 17, L 14.

Dr Lawrence notes that XY’s admissions on 3 March 2016 and 4 March 2016 to the Western Hospital were related to the generalised pain arising out of XY’s train incident injury.[32] The 4 March 2016 admission also related to a partial obstruction of XY’s bowel due to severe constipation. XY’s mental state improved once his constipation was addressed and he was discharged on 8 March 2016 on a community treatment order.
[32]T 17, LL 4-5.

Dr Lawrence saw XY on 29 March 2016. She said that during the visit XY became more unsettled and anxious and had to be calmed down. Dr Lawrence explained that the behaviour was due to his routine being altered as he had a new Case Manager and appointments for blood tests had not been booked for the usual time. Dr Lawrence said that XY responded well to reassurances that she and the Case Manager gave him. Dr Lawrence prescribed him Diazepam 5mgs for one month, which will be reviewed.[33]
[33]T 20, LL 18-23.

Dr Lawrence’s evidence was that even though Registrars at Saltwater Clinic and Case Managers changed, XY copes well and has never refused to attend.

In the most recent written report dated 15 March 2016, Dr Lawrence said that:

Over the past 6 months, it has been increasingly difficult to treat [XY] in the community. This is due to the fact that his mental state can fluctuate quite rapidly within a short period of time and the ability to assess his mental state has been challenging due to his limited capacity to explain his symptoms consistently. Therefore if the community treatment team has concerns about deterioration in [XY]’s mental state, we have had to vary his Community Treatment Order to an In-patient Treatment Order and admit him to hospital. We have found that offering more assertive care in the community via an extended outreach service or CATT team has had limited benefit.
…
With regards to his risks, given the recent instability of [XY]’s mental state, I would say his risk profile both to himself and others is moderate. This is due to rapid fluctuations in mental state with little warning, poor impulse control and judgment possibly worsened by his recent brain injury as well as the difficulties for the treating team to get an accurate account from [XY] with regards to his symptoms and stressors.
…
[XY] is currently on a Community Treatment Order until 05/05/2016. We will continue to assess and monitor his mental state and prescribe his treatment. The treating team’s current recommendation is for his NCSO to continue and be reviewed in one year.

Dr Lawrence repeated this assessment in her vive voce evidence, recommending that XY remain at Footscray House for the next 12 months, should the NCSO continue and be reviewed in one year.[34]
[34]T 30, L 6.

In relation to XY’s future management, Dr Lawrence’s evidence was that a number of matters have been discussed to reduce any risk XY poses to himself and/or others and to provide him with the best possible care. This includes:

· XY’s pain management by way of referral to a specialist clinic.[35]
[35]T 24, LL 1-4.

· His referral to the Victorian Dual Disability Service, a service that provides specialist input in the management of patients with multiple disabilities such as acquired brain injury and mental health. The aim is for the dual disability service to provide input into the management of XY’s intellectual impairment following the train incident and his mental health issues. The dual disability service would provide a management plan. It would involve educating the staff at the Saltwater Clinic and Footscray House and putting the recommended behavioural strategies in place.

· Currently staff at Footscray House supervise XY on short walks in the community. The aim is to increase XY’s independence and safety. There have been concerns due to XY’s impulsivity that he may be a risk of running into traffic.[36] Further, a worker from the Transport Accident Commission (‘the TAC’) sees XY a couple of hours every day, working on road safety, and the aim is to assist him with using public transport independently.[37]
[36]T 28, LL 1-2.
[37]T 28, LL 13-22.

·The staff at Footscray House were described as risk averse in that if they have any concerns they contact the Saltwater Clinic.[38]
·XY will continue to be seen fortnightly by the Saltwater Clinic staff.
·XY’s general practitioner has started to make changes to XY’s pain management with the introduction of pain relief medication.[39]
·Forensicare is involved in XY’s management and provides quarterly reports.
·XY is on a CTO, which is due to expire on 5 May 2016. He will be reviewed by a psychiatrist prior to its expiry to determine if he should be maintained on a CTO.
·There are powers under the MHA to make variations to XY’s management. Such powers can be invoked very swiftly and orders varied.
·XY has always been compliant with his medications and has resided at Footscray House for five years and has his own room. Staff at Footscray House speak Vietnamese. XY’s arrangement with Footscray House will continue into the future.[40]
·XY has strong family support. His brother, Day, is very involved in his care and sees him once a week.
·XY has access to a daily worker from the Community Integration Team at the Epworth Hospital who provides support in respect of his train incident injuries.[41] His current medication regime is stable and has recently been augmented with the Diazepam.

[38]T 33, LL 22-28.

[39]T 31, LL 26-31.

[40]T 37, L 27.

[41]T 37, LL 13-14.

Dr Lawrence was satisfied that XY could go for short walks by himself in the local community.[42]
[42]T 28, L 24.

Dr Lawrence said that she was comfortable with XY’s current arrangement in that the Saltwater Clinic staff and Footscray House staff, liaise and contact one another if there are any concerns about XY’s behaviour and mental health. XY’s case manager, Ms Hannah Young, also provides him with ongoing assistance. Dr Lawrence explained that the difficulty in the last few months has been accurately assessing XY. She explained that XY does not have other factors like co-morbid substance abuse or personality factors. She expects that XY will be more stable in his mental state over the next few months, as staff have a better understanding of the physical pain and the impact it has on XY and that any current risk XY has to himself or others can be mitigated.[43] Dr Lawrence explained that if the current NCSO is varied to a CSO, in practical terms he would leave Footscray House and be placed in a locked environment. Dr Lawrence considers this would cause a deterioration in XY’s mental health.[44]
[43]T 30, LL 22-31; T 30, LL 1-5.
[44]T 30, LL 29-31.

Dr Lawrence considers it is not possible to assess whether it is XY’s schizophrenic illness or physical pain or other factors that have caused the recent admissions to hospital. However, she agreed that whether it was the pain, the mental illness or the traumatic brain injury, there remains a moderate risk that XY may be violent, either to himself or to others.[45] Dr Lawrence agreed that since the train incident XY has generally poor impulse control.[46]
[45]T 50, LL 30-31.
[46]T 52, LL 3-5.

Dr Lawrence is of the opinion that if XY is not progressing positively over the next six months it would cause her concern and could lead to his risk assessment being increased to high.[47] However, given that he is showing improvements with the new strategies, Dr Lawrence considers his risk assessment could be downgraded to low if he continues along this path.[48]
[47]T 52, LL 16-19.
[48]T 53, LL 7-13.

Evidence of Dr Daluwatte

Dr Daluwatte is the Psychiatric Registrar at Forensicare. Dr Daluwatte has not seen or treated XY. Her report was prepared on the basis of earlier reports and clinical notes. Dr Daluwatte spoke to Dr Lester, her supervising psychiatrist at Forensicare, for the purpose of preparing the report. Dr Lester previously treated XY at Forensicare and saw XY on 16 February 2016, the day XY assaulted the co-patient.

Dr Daluwatte notes XY has a history of violence, which includes the index offence and the incident on 16 February 2016, a history of early trauma and a traumatic brain injury, which may contribute to XY’s mood fluctuation and impulsivity.[49]
[49]T 58, LL 17-28.

Dr Daluwatte notes a number of positive factors that mitigate against the risk XY poses to himself and others. These include a stable environment; monitoring by a community mental health service; no history of illicit drug or alcohol abuse; no personality disorder; no delusions or hallucinations at the time of the 16 February 2016 incident; compliance with his medications; no evidence of ongoing psychotic scenes; a supportive family who has a good understanding of his mental health; and ongoing monitoring of his medical compliance.

Dr Daluwatte is of the opinion that since the traumatic brain injury in 2014, XY’s illness, paranoid schizophrenia, has been unstable. She considers ‘the recurrent illness will increase the risk of violence in the medium to long term’.[50] Dr Daluwatte goes on to say:

77)The risk can be mitigated by ensuring compliance with medication, assertive community psychiatric follow up and regular communication with [XY]’s brother who is able to identify early warning signs.
78)[XY] is appropriate to remain on a NCSO to allow a longer period of rehabilitation before our support is withdrawn.

[50]Report of Dr Daluwatte dated 15 March 2013, p3 at paragraph [76].

In her viva voce evidence, Dr Daluwatte considered XY was at low risk of harm to himself but moderate risk of harm to others.[51] Her evidence was that if XY’s pain and mental illness is not managed, the risk of his violence may increase.[52] Dr Daluwatte does not consider XY will come to harm if he goes out into the community by himself[53] and that he can be trusted to go for walks by himself, as he is currently allowed to do at Footscray House.[54]
[51]T 79, LL 10-13.
[52]T 79, LL 24-30.
[53]T 61, LL 21-22.
[54]T 61, LL 18-20.

Dr Daluwatte agreed with Dr Lawrence that the incident on 16 February 2016 was precipitated by stressors from the co-patient and an inability for XY to retreat to cope with the noise and irritation.[55] Dr Daluwatte considers that pain may be a stressor for XY.[56]
[55]T 62, L 22.
[56]T 62, L 23.

Dr Daluwatte supports the proposed referrals to the Dual Disability Service and a pain management specialist.[57] She also considers XY has a suitable level of contact with the Saltwater Clinic.[58]
[57]T 63, LL 21-22.
[58]T 63, L 27.

Dr Daluwatte does not consider that it is currently necessary for XY to be managed in a secure facility such as the TEH, notwithstanding the 16 January 2016 incident.[59] She notes that if a hospital admission is required, it is available without placing him on a CSO.[60] She also notes that transfer to a secure hospital facility could occur within the mainstream mental health system.[61] She is of the opinion that XY needs to be carefully monitored for the next six months.[62]
[59]T 66, L 7.
[60]T 65, LL 20-26.
[61]T 60, L30.
[62]T 80, LL 3-5.

Evidence of Hannah Young

Ms Young is XY’s current Case Manager. She commenced in this role with XY on 18 March 2016. As noted, Ms Amy Veitch was XY’s previous Case Manager and she prepared a report dated 15 March 2016.[63]
[63]Exhibit 3.

Ms Young sees XY weekly. Ms Young explained that she has regular contact with staff at Footscray House and that they call each other a lot.[64] Ms Young confirmed XY has a worker from the TAC and Epworth Rehabilitation Unit and that they see him daily for approximately two hours.[65] Ms Young said that the current plan is to ensure XY has a support worker with him to help him with community integration every day for approximately two hours.[66] In addition to contact with Footscray House staff, Ms Young has regular contact with XY’s brother, Day.
[64]T 91, LL 10-11.
[65]T 86, L 6.
[66]T 86, LL 26-27.

Ms Young had a sound understanding of the Dual Disability Service. She considers an assessment by the Dual Disability Service to be beneficial given the service’s expertise in mental health and intellectual disability/acquired brain injury. She explained that while there might be some delay in getting an in-person assessment, the Dual Disability Service provides a secondary consultation which can be completed in days. The secondary consultation would involve Ms Young and another individual involved in XY’s care to meet with the Dual Disability Service staff and provide a detailed history of XY and the issues he confronts. Following this, a decision is made as to whether XY needs to be assessed in-person and the Dual Disability Service would recommend immediate strategies for XY. In addition, decisions would be made about any further testing such as neuropsychological assessment.

Ms Young is the central figure in coordinating XY’s future care and assessment. She said that one of her aims is to ensure that she coordinates all services and supports for XY to ensure they do not fall away.[67]
[67]T 93, L 8.

Submissions

The Secretary’s position is that it would be appropriate for the NCSO to be confirmed and for XY to continue to be treated in the community by the local area mental health services as he has been since the NCSO was made in 2008.

Ms Broughton, counsel for XY initially sought an order that the NCSO be revoked. This was not pressed at the hearing.[68] Ms Broughton submitted that the NCSO be confirmed for a further period of time set by the Court. A period of six to 12 months was suggested as appropriate.
[68]T 127, L 1.

Mr McCredden, counsel for the Attorney‑General submitted that that Court should vary XY’s NCSO to a CSO on the basis of the following:

(a) the recent deterioration of XY’s mental state;

(b) the very recent incidence of impulsive, unexpected violence to a co‑patient exhibiting similar characteristics to the index offence;

(c) the increasing difficulty in treating XY’s illness in the community; and

(d) the heightened degree of risk of harm as indicated by XY’s treating team.[69]

[69]Outline of submission on behalf of the Attorney‑General at paragraph 1.3 dated 4 April 2016.

Secretary’s submissions

The Secretary submitted that in relation to the nature of XY’s mental impairment (s 40(1)(a)) and the relationship between that impairment and the offending conduct (s 40(1)(b)), XY has the diagnosis of schizophrenia, a longstanding illness dating back to 1995. While the evidence is that there was an acute relapse at the time of the index offence, neither Dr Lawrence or Dr Daluwatte were able to say the recurrence of the violence on 16 January 2016 was as a result of any recurrence of symptoms of schizophrenia.

The Secretary submitted that it is not possible to say that XY would be likely to endanger himself due to the impairment that he suffered at the time of his index offending. The incident on 16 January 2016 is better explained as a result of environmental stressors XY experienced and his inability to implement his coping strategy of withdrawal because he was sharing a room with the co‑patient, who was the source of stress and irritation.

In relation to s 40(1)(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, the Secretary submits that the evidence is such that neither doctor was able to commit themselves as to what might happen in the next month. Put another way, Dr Lawrence and Dr Daluwatte could not say at this stage whether the risk would go up or down. The Secretary noted that XY has not been recorded to have behaved aggressively at Footscray House where he has been for five years.

In relation to s 40(1)(d) — the need to protect people from such danger, the Secretary submits that there is a level of danger, but whether the public need protecting from it by way of a CSO depends on what resources for treatment and what support is available in the community (s 40(1)(e)).

The Secretary further submits that there are adequate resources available in the community, in particular the treatment XY has received from Saltwater Clinic. The staff from Saltwater Clinic has been particularly interventionist in the last six months and quick to act on information they receive from XY’s brother and Footscray House. Saltwater Clinic staff, in particular Ms Hannah Young’s evidence was that the Clinic is careful to seek information from Footscray House on a weekly basis, as this is an important source of collateral information about XY’s behaviour. The evidence is that this will continue and that the frequency of XY’s reviews by the Clinic is approximately fortnightly, with Ms Young attending on a weekly basis at the moment.

The Secretary submits that this regime has so far enabled Saltwater Clinic to intervene and assist XY and admit him to hospital when necessary and as a result he has not suffered any acute symptoms in the community and does not appear to have suffered acute symptoms whilst in hospital, other than the one incident on 16 January 2016.

The Secretary submits that there would be certain benefits to XY to remain in the community, being treated on an NCSO, as opposed to being transferred to the TEH, where he would be in a locked ward. In relation to the treatment benefits, the Secretary submits that XY would have access to pain management specialists and assessment from the Dual Disability Service. Dr Daluwatte’s evidence was that these services would not be available if XY were transferred to the TEH, nor would he have independent access to the community, at least for several months.

The Secretary submits that the Saltwater Clinic has demonstrated that it has an awareness of the provisions of the MHA which would enable it to provide XY with compulsory assessment and treatment when it appears to be necessary. Further, Saltwater Clinic has shown itself to be aware and responsive in relation to any behaviours of concern observed in XY, whether observed by XY’s brother or staff at Footscray House.

Finally, the Secretary submits that in light of the above matters, it is consistent with the principle of parsimony in s 39 for XY to continue to be treated in the community where he will have access to specialists’ advice in relation to pain and management of his dual disability and where he will continue to have access to community support such as his family, the rehabilitation worker from the TAC and the Epworth Rehabilitation Unit that he has been making use of over the last 12 months.

Reviewee’s submission

The reviewee seeks confirmation of the NCSO with a further review in 12 months. The reviewee notes that this submission is supported by the Department of Health and Human Services, Dr Lawrence, Dr Daluwatte, Ms Veitch and Ms Young.

Counsel for XY made the following observations:

(a) XY has never been subject to CSO. He has been on an NCSO since 23 May 2008 and has consistently been assessed as low risk, until March this year;

(b) there are adequate resources in the community that make the danger he poses manageable and not something that would necessitate the imposition of a more restrictive order;

(c) since the 16 February 2016 incident, a number of matters have changed in XY’s treatment regime, including: his medication has been augmented with Amilsulpride and the introduction of Diazepam; Footscray House has implemented a bowel chart to monitor his bowel movements to prevent XY from being constipated such as he was in during the recent admission in March of this year; there is the investigation into the referral and to the Dual Disability Service and pain management. Such resources and services would not necessarily be available if XY is placed on a CSO;

(d) there is an awareness by XY’s treating team and Footscray House of the stressors which gave rise to the incident on 16 February 2016 and they are now able to put in place protective factors to stop those from arising in the future;

(e) XY is best treated in a single room. This is available to him at Footscray House;

(f) it has only been a short period of time since the incident on 16 February 2016, and the Court should consider a review in six to 12 months’ time to assess the referral to any pain management clinic and the Dual Disability Service;

(g) staff from Footscray House and Saltwater Clinic have been managing XY’s mental health suitably;

(h) there are a number of steps that can be put into place in the community under the MHA that could deal with any increase in mental fragility, such as the secure placement if necessary, in circumstances where XY’s mental health deteriorates;

(i) actions can be taken swiftly under the MHA to admit XY on a temporary basis if necessary.

In conclusion, it is submitted on behalf of XY that despite the more frequent hospitalisations over the last six month period, given the considerable resources that he has in the community and that those resources are going to be augmented and improved, and that the staff and services working with XY have a greater awareness of XY’s condition, that in line with the principle of parsimony, pursuant to s 39, a confirmation of an NCSO would not result in endangerment to the community or to himself.

Submissions on behalf of the Attorney-General

The Attorney‑General submits that the key issue for the Court to consider is the probability of the risks to the community and also to XY himself.

The Attorney‑General is concerned that together with the increase in XY’s risk evaluation, from low to moderate, there appears to remain significant uncertainty about:

(a) the cause of XY’s relapses, noting that he has remained generally compliant with his medication during the relevant period;

(b) the extent to which the relapses may have been accompanied by psychotic symptoms; and

(c) the prospect that there will be further relapses, possibly without sufficiently early warning signs.

In relation to ss 41(c) and (d), the likelihood of endangerment and need to protect, the Attorney‑General submits that, in assessing XY’s progress and whether he is likely to endanger himself or others, the Court should have regard to the following matters:

(a) since October, XY has required four hospital admissions, on each occasion complaining about hallucinations and displaying relapse identified by his brother. Dr Lawrence observes that it has been increasingly difficult to treat XY in the community, because his mental state has been fluctuating quite rapidly and there have been challenges in assessing his mental state due to XY’s limited capacity to explain his symptoms consistently;

(b) the incident of 16 February 2016, which occurred without warning and while XY was in a low dependency unit at the Werribee Mercy Psychiatric Unit. XY’s explanation as to the incident have been varying and while the treating team has been unable to identify psychotic episodes as the cause of the attack, they have found XY to be a difficult man to interview;

(c) the incident on 16 February 2016 is concerning as it bears similarities to the index offence — that is, a stabbing to the face albeit with a pencil rather than a knife. XY’s actions were impulsive and unpredictable, and there were no apparent warning signs. In contrast to the index offence, XY was compliant with his medication at the time of the incident;

(d) XY’s relapses in the latter half of 2015 followed two earlier significant events: a relapse in September 2014, which is reported to have involved psychotic symptoms and disorganised behaviour on XY’s part including ‘running into traffic outside Footscray House’;[70] and a train incident where XY was hit by a train approaching the platform;

(e) the cause of XY’s train incident is unclear. Dr Lawrence notes that XY had apparently reported to doctors at the Western Hospital emergency department in May 2015 that he had jumped in front of the train ‘because he was told to by the voices’.[71]

[70]Report of Dr Daluwatte dated 15 March 2015 [24].

[71]Ibid.

In relation to the nature of XY’s impairment (s 40(1)(a)), XY has a diagnosis of paranoid schizophrenia, which has been managed for many years with medication. XY’s insight into his illness remains limited.

In relation to s 40(1)(b), the relationship between impairment and offending, the Attorney‑General submits that the medical evidence demonstrates that XY’s offending was closely linked to his illness, the psychotic symptoms he was experiencing at the time of ceasing taking medication. It is submitted that XY is now in a state of flux after a long period of stability. The Attorney‑General submits that XY’s impulsivity is a negative symptom of his illness, which appears to have been exacerbated by the traumatic brain injury. Dr Daluwatte said that in her view it is not possible to disentangle the brain injury and the schizophrenia in terms of its leading to impulsivity or exacerbating its impulsivity.

The Attorney‑General agreed with the proposition that it would be a prudent step to investigate more thoroughly the link between XY’s possible brain injury following the train accident and the recent deterioration in his mental state.[72]
[72]T 118, LL 1-3.

In relation to s 40(1)(e), adequate resources for treatment and support, the Attorney‑General agreed that there has been significant professional support in the community and that the Court should take into account the availability of the MHA provisions. However, the Attorney‑General submits that XY’s recent impulsivity and the rapid deterioration of his current mental state creates a substantial risk that further relapse may occur and that it may occur before adequate inpatient activity can be undertaken under the MHA.

The Attorney‑General agreed that XY’s brother continues to have a significant role in his life and appears to be available and able to continue to assist and that XY’s brother is a critical component when taking into account in considering the adequacy of resources for treatment and support.

The precedents

NOM is the leading case in the operation of the above provisions in the context of an application for revocation of an NCSO. Relevantly, the Court of Appeal held:

Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is a critical concept of endangerment … The terms of s 40(1)(c) requires a court to assess whether a person is ‘likely to endanger themselves or others’. This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the ‘chance’, ‘risk’ or ‘peril’ of it eventuating is minimal, then a person subject to a supervision order is not necessarily ‘likely to endanger’ himself or others under s 40(1)(c).
… It is an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible, that is the critical consideration, not the gravity of the harm that may eventuate.[73]

[73]NOM (2012) 38 VR 618, 637 [58]–[59].

As recognised in Fowler v Secretary to Department of Health and Ors (‘Fowler’),[74] NOM supports a contention that the entire regime provided by the MHA for the supervision and treatment of persons with mental illness is relevant to the question of whether an NCSO should be revoked. In Fowler, however, the Court of Appeal sounded a note of caution:

The effect of the above is the fact that a person has successfully received and been managed for a sustained period of treatment under the MHA does not necessarily provide grounds for the removal of an NCSO. Where coercive treatment continues to be required, the NCSO may take on more importance.
Each application for revocation should, of course, be evaluated on its own merits and in accordance with the criteria set out in s 40(1) of the [Act]. One consideration will be the fact that the person is subject to a treatment order under the MHA. But management of the person’s and the community’s safety from day to day by a treatment order under the MHA does not mean that an NCSO should not be retained. Whether the additional protections provided for under the NCSO regime are necessary will depend upon the circumstances of the particular case (footnotes omitted).[75]

[74](2014) VR 530.

[75]Ibid 538 [27]-[28].

NOM is the leading case in the interpretation of the concepts of ‘endangerment’ and ‘serious endangerment under the Act’. In NOM, the Court of Appeal was concerned with an application to revoke an NCSO, and consequently, the ‘likely to endanger’ test. It was appropriately conceded by the supervising psychiatrist in that case that non‑compliance could never be discounted. The court said in relation to that concession:

In the absence of any indication to the contrary, the apparent parliamentary intent behind the Act was that courts should decide on supervision orders and release arrangements because they would adopt a judicial approach to assessment of risk. Especially in light of the principle in s 39 of the Act (as hereafter discussed), a decision to confirm supervision orders should not ordinarily rest on the edifice of expert concessions that there may be a technical and unlikely risk that the persons subject to the orders may endanger themselves or others. It is unlikely that Parliament intended that judges invested with responsibility for evaluating risk and who had the benefit of expert opinion to assist them, might then refuse to revoke supervision orders because of an absence of any psychiatrically underwritten guarantees that persons subject to such orders pose no possible dangers. (Footnotes omitted.)[76]

[76]NOM (2012) 38 VR 618, 639-640 [65].

Accordingly, decisions to vary an NCSO to a CSO should not depend on psychiatric guarantees that the confirmation of an applicant on an NCSO poses no danger.

Finally, in relation to the statutory provisions and legal principles, it must inform one’s approach to determination of application such as these. NOM indicates that the court is to apply the civil standard of proof subject to the principle in Briginshaw[77] in which a comfortable level of satisfaction about the existence of facts, and in the case of influential reasoning – that conclusions are to flow from these facts.[78]
[77](1938) 60 CLR 36.
[78]NOM (2012) 38 VR 618, 647 [90]-[91].

Analysis

Dr Daluwatte, Dr Lawrence, Ms Veitch and Ms Young all recommended that the present NCSO be confirmed and that matter be brought back for a further review in 12 months.

Dr Lawrence has worked with XY since 2012 and recently assessed him on 29 March 2016. While Dr Daluwatte has not treated XY, she has conducted a thorough review of the clinical documentation.

The evidence is that XY has little insight into his illness or its relationship to the index offence.

The issue of identified possible triggers for deterioration in XY’s mental illness is complex. Currently it is not clearly understood what caused or triggered the deterioration in XY’s mental state. There is the potential traumatic brain injury post the train incident which may be having an impact on XY’s mental state. XY has been compliant with his medication since the NCSO was first put in place in 2008. However, there has been the need to alter his medication regime with the addition of Amisulpride and Diazepam to his pre-existing Clozapine.

In addition to the traumatic brain injury, Dr Lawrence and Dr Daluwatte agree that XY appears to have pain-related symptoms which affect his mental state. The pain, it seems, may be related to his injuries post the train incident, but also include matters such as his recent bowel obstruction due to serious constipation.

The stability of XY’s mental state has been deteriorating since September 2014, and in particular since October 2015, even though there has been compliance with his medication.

It is submitted by the Attorney-General that XY’s mental state is susceptible to rapid fluctuation and without obvious warning signs. However, the viva voce evidence of Dr Lawrence, Dr Daluwatte and Ms Young, is that XY’s treating team and staff at Footscray House have a better understanding in recent times of potential triggers. Importantly, there is an understanding and awareness of the role which pain appears to have on XY’s mental state and XY’s poor response to unwanted stimuli in circumstances where he is unable to remove himself, as was the case on 16 January 2016.

The evidence is that there are warning signs, that XY’s mental state may be fluctuating but that they have not been adequately identified in the past due to XY’s difficulties communicating and have gone, on occasion, unnoticed. The evidence demonstrates that the warning signs are often manifested with withdrawn behaviour, difficulty coping when his usual routine or supports were disrupted, difficulty coping when confronted with loud noises or sensory overload and difficulty articulating himself when confronted with stressful situations. XY’s brother and the staff at Footscray House and his treating team are better equipped at identifying the possible triggers. When Dr Lawrence saw XY on 29 March 2016, she gave evidence about XY becoming stressed because his usual routine in relation to giving blood had changed. This was quickly identified by Dr Lawrence and Ms Young and verbal reassurances and explanations were sufficient to calm XY and alleviate the stress.

Ms Young spoke about the Dual Disability Service being able to assist in communication strategies for XY, identifying environmental triggers and to put in place practical supports to recognise the triggers, including factors such as pain.[79] A secondary consultation can be organised quickly with the Dual Disability Service which could develop very specific strategies for XY and ‘all people’ involved in XY’s care and treatment on how to recognise triggers and respond.[80]
[79]T 89, LL 12-18.
[80]T 89, LL 26-30.

I’m satisfied that Footscray House is able to monitor XY’s pain, his sleep schedule and physical symptoms. Footscray House is staffed 24 hours a day and they have recently implemented a bowel chart for XY and have contact with pharmacies and XY’s treating team, including his general practitioner. XY’s brother remains in close contact with XY and Footscray House staff and this is unlikely to change in the foreseeable future.[81]
[81]T 91, LL 16-17.

I’m also satisfied that XY is able to be managed in the community with the assistance of the powers under the MHA, an NCSO and the supports XY currently has in place.[82]
[82]T 91, LL 23-25.

XY has demonstrated poor impulse control in the last five months. If the poor impulse control were to continue or increase there would be a risk of endangerment to XY and to others in the community. I am satisfied, however, that there is a much greater awareness of XY’s needs by the staff at Footscray House, his treating doctors and his Case Manager. I am satisfied that the individuals and teams involved in XY’s care and management are better able to identify the triggers and to put in place concrete strategies to avoid the triggers occurring and to minimise XY’s exposure to the triggers. A simple but important example is the institution of the bowel chart at Footscray House.

One of the main issues in this matter is the relatively short period that has elapsed since the deterioration in XY’s mental state, particularly in the last five months to the present day. Both Dr Lawrence and Dr Daluwatte assess XY’s risk of endangerment to himself and others as moderate (Dr Daluwatte having assessed XY’s risk of endangerment to himself as low), an increase from the previous assessments of low. However, all the clinicians agreed that they now have a somewhat clearer picture about the triggers and the need to assess the impact of factors such as the traumatic brain injury, pain and environmental stressors on XY’s mental state. Practical but critical steps have been implemented by the staff at Footscray House; XY accesses the community with a TAC or Epworth Rehabilitation Unit worker daily; XY has strong family support from his brother; XY’s brother is able to identify warning signs which have caused, and may cause, a deterioration in XY’s mental state; XY’s treating team at Saltwater Clinic is suitably managing XY’s care and will put steps in place to involve appropriate specialist teams in XY’s ongoing care and management; XY’s general practitioner is involved in his pain management and XY will continue to reside at Footscray House where he is known and he has his own room.

In the event that XY’s mental state deteriorates whilst on the NCSO, I am satisfied that it would be promptly and appropriately addressed and that the powers under the MHA, enable a swift response if necessary.

I note that the additional protections available under the NCSO in addition to the powers under the MHA. Under an NCSO, steps can be taken to locate XY if necessary, including obtaining police aid, if necessary. Considerations of gravity of potential harm are not sufficient to lift the reviewee’s level of risk to the serious endangerment category. This case is complex in that it is not clearly understood what the interplay is between XY’s traumatic brain injury, his pain and his mental illness. It seems, however, that XY’s pain and possible acquired brain injury are factors which impact on his mental illness and are likely to be factors that have caused the recent deterioration in his mental stability.

I accept the principle of parsimony reflected in s 39 militates in favour of continuing the current NCSO. I consider, in the current circumstances, that the NCSO, with the conditions previously attached, constitute the minimal restriction on XY’s freedom and autonomy consistent with the safety of the community.

I consider a further review should take place in 12 months’ time. At the review, the Court will be able to assess the additional services accessed for XY and any additional strategies and treatment provided to XY to assist in identifying potential triggers and minimising the effect that they may have on his mental illness. In particular, the Court will be able to review from further neuropsychological testing and access to the Dual Disability Service, the impact that XY’s traumatic brain injury has on his mental illness. I therefore direct pursuant to s 33(2) that the matter be brought back for review in 12 months. I also direct that the current conditions remain in place.

Further I make a non-publication order under s 75 of the Act until further order, prohibiting publication of the following:

(a) the names and addresses, or former addresses, of the reviewee, the victims and their relatives; and

(b) any information which might identify the names and address, or former addresses, of the reviewee, the victims and their relatives, except insofar as such information is contained in the written reasons for judgment.

Actions

Download as PDF Download as Word Document

Citations

In the matter of XY [2016] VSC 183

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

NOM v Director of Public Prosecutions [2012] VSCA 198

Lewis v Hall [2005] FCAFC 251

[2016] VSC 183

28 April 2016