Makin v Commissioner of Police, NSW Police Force

[2015] NSWCATAD 147

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Makin v Commissioner of Police, NSW Police Force [2015] NSWCATAD 147
Hearing dates:	22 May 2015
Decision date:	14 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Kelly, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Firearms licence application – mental illness – public interest – assessment of risk
Legislation Cited:	Firearms Act (NSW) 1996 ss 11(3)(a), 11(4)(b), 11(7)
Cases Cited:	Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Category:	Principal judgment
Parties:	Michael Albert Makin (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: M Makin (Applicant in person) Lindsay Taylor Lawyers (Respondent)
File Number(s):	1510107

Judgment

Introduction

1. The respondent, the Commissioner of Police, NSW Police Force (the respondent), has decided to refuse the application for a firearms licence Category ABG made by Michael Albert Makin, the applicant, on 30 October 2014. The applicant seeks the review of an internal review decision dated 6 February 2015 affirming the respondent’s decision to refuse the application made on 31 December 2014.

2. The issue in this case is whether it is in the public interest to grant the application, taking into account the applicant’s mental illness, bipolar disorder.

3. For the reasons that follow, I have decided to affirm the decision under review.

The relevant law

4. The Firearms Act (NSW) 1996 (the Act) prescribes the regime for firearms licensing. The principles and objectives of the Act confirm that firearm possession and use is a privilege that is conditional on the over-riding need to ensure public safety by imposing strict controls on the possession and use of firearms.

5. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said:

“Where there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

6. Section 11(3)(a) says that a licence must not be issued unless the respondent is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to peace.

7. Section 11(4)(b) of the Act says that the respondent must not issue a licence to a person if the respondent has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of any previous attempt by the applicant to commit suicide or cause a self-inflicted injury.

8. Section 11(7) says that the respondent may refuse to issue a licence if the respondent considers the issue of the licence would be contrary to the public interest.

The Evidence

9. The following evidence was before the Tribunal:

1. Two medical reports by Dr Iyer, psychiatrist, from Gosford, dated 8 May 2013, a Medical Specialist Assessment Form Signed by Dr Pek Ang, psychiatrist, from Broadmeadow, dated 16 March 2015, and an article entitled “Mental Disorder & Homicide in Australia” published by the Australian Institute of Criminology in November 1999. (Exhibit A1)

2. A bundle of documents paginated from 1 to 124 including an application and correspondence from the applicant explaining why he had applied in 2012 for a permit for a pistol, baton and cuffs (pages 1 to 7), and medical records relating to the applicant (pages 7 to 124), including records about the applicant’s treatment by Dr Cantor, psychiatrist. (Exhibit R1)

3. A “Brief of Evidence” filed by the respondent (Exhibit R2).

4. A report by Dr Ang dated 10 February 2014 (Exhibit R3).

5. Oral evidence from the applicant and from Dr Cantor, psychiatrist from Noosa Heads, Queensland, who treated the applicant from 18 October 2007 until 11 February 2010. Dr Cantor gave his evidence by telephone.

The applicant’s firearms history

10. The evidence before the Tribunal shows that the applicant has the following history relating to firearms permits or licences:

• a Minor’s Firearms Permit from 17 February 1987 to 30 January 1988;

• a Target Pistol licence from 28 March 1994 to 5 April 1999;

• a Category ABG firearms licence issued on 30 April 2011, due to expire on 23 June 2016, issued for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control for Category AB and Firearms Collector for Category G;

• a Probationary Pistol licence for one year, issued on 30 April 2011;

• on 7 July 2012 Category H (for the genuine reason of Target Shooting) was added to the Category ABG firearms licence;

• the applicant had 14 firearms registered to his licence;

• on 18 October 2012, police conducted an inspection of the applicant’s firearms safe storage and found they met the legislative standard;

• on 23 January 2013 the applicant’s application for a Commissioner’s Permit to authorise use of a concealed pistol (including prohibited pistols – short barrel length) was refused;

• on 8 April 2013 an internal review affirmed that refusal on the grounds that the applicant intended to possess or use a firearm for the purpose of the protection of people or property and not in the public interest;

• on 9 April 2013 the applicant’s firearms licence was suspended following concerns that the applicant had admitted in his Commissioner’s Permit application regarding a personal history question;

• the applicant later advised that he had been diagnosed with bipolar disorder in 1997 but had not been treated or had an episode since 2008;

• consequently, the applicant was requested to provide a psychiatric report;

• Dr Iyer, psychiatrist, provided a report to the Manager Firearms Registry, dated 8 May 2013;

• on 12 June 2013 a special condition was imposed on the applicant’s licence requiring periodic psychiatric reviews every six months, to provide a letter to the Firearms Registry;

• on 18 June 2013, the applicant advised that he would comply with the special condition;

• on 9 July 2013 the suspension of the licence was lifted;

• on 16 July 2013 following a re-assessment, the Manager, Licensing, Firearms Registry, revoked the applicant’s firearms licence on the grounds of unsound mind and not in the public interest;

• on 13 September 2013 an internal review affirmed the revocation decision;

• on 24 April 2014 this Tribunal affirmed the revocation decision;

• on 30 October 2014, the applicant applied for a Category ABG firearms licence for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control for Category AB and Firearms Collector for Category G;

• on 31 December 2014 that application was refused on the grounds of attempted self-harm and public interest.

The applicant’s medical history and the medical evidence

11. The evidence establishes that the applicant has the following medical history. He was diagnosed with Bipolar Disorder in 1997, having first suffered Depression in 1996. He suffered his first Manic Episode in 1997. He had another Manic Episode in 2000 “in the context of having been punched in the face, and hit the back of his head which may have caused his headaches”. In 2001 he had another Manic Episode and was hospitalised. In June 2009 he had another Manic Episode. On that occasion, having been refused admission to hospital twice, the applicant overdosed on methadone and benzodiazapam, rang the ambulance, and was admitted.

12. He has tried antidepressants and anti-psychotics which he has found do not suit him.

13. Dr Iyer was the applicant’s treating doctor from 1 July 2010 until 23 August 2011. Dr Iyer examined the applicant on 29 April 2013 at the request of Recovre and The Manager, Firearms Registry, and provided two reports dated 8 May 2013. The doctor said that he had last reviewed the applicant on 23 August 2011. The applicant informed him “that his mental state had been stable and he did not require further psychiatric treatment”. The doctor wrote:

“He described his manic episodes being hyperactive and accelerated speech. He was not aggressive, suicidal or any self-harm ideations. He was treated with various psychiatric medications, but eventually his episodes spontaneously remitted.

“He had also developed intractable headaches for which he had consulted a neurologist. His headache responded to Methadone, which he has been taking since 2003. At present he was on tablet Physeptone (Methadone) 100mg daily. He felt that his headache was well controlled on this dosage and also he was convinced it had also stopped him from having any further relapses of his Bipolar Disorder.

14. Dr Iyer wrote that he had not personally witnessed any signs of the applicant’s illness. He opined that “At present he is not impaired. His mental state is stable and he is quite rational, insightful and is aware that should he have any early symptoms of his Bipolar Disorder he will seek treatment. In his present state of mind he is fit to possess and use firearms.” The doctor said that Bipolar Illness is a relapsing condition and it is possible that in the future the applicant may have a relapse.

15. Dr Iyer’s opinion was that if the applicant maintained “his current stability he is not likely to put public safety at risk if he were in possession of a firearm. However, should he have a relapse of his illness then his behaviour could become unpredictable.” The doctor noted that the applicant had not posed any safety risk in the past. In Dr Iyer’s opinion, it would be to the applicant’s advantage to attend for periodic psychiatric reviews and monitoring of his mental state. “Should he show any early symptoms of relapse of his bipolar condition then he can be treated immediately so that he does not go into a florid state”.

16. Dr Pek Ang first saw the applicant some time before his report dated 10 February 2014 and is currently the applicant’s treating psychiatrist. In that report, the doctor said that the applicant was asymptomatic and his diagnosis was “Bipolar Disorder, in Remission”. He was on Methadone 80 mg daily “for Headaches” and has been recently trialling Fentanyl 30mcg 3rd-daily. He agreed that six monthly visits would be desirable.

17. In the “Medical Assessment Report Form Public Passenger Vehicle Driver” dated 16 March 2015, Dr Pek Ang stated that the applicant’s Bipolar Disorder was “well controlled” “with lifestyle measures with adequate sleep, regular routine, abstinence from Alcohol”. The doctor noted that the applicant was taking Methadone 80mg daily “for Headaches” and said that the applicant had antipsychotic medication to take “if he notices he is going high”. The doctor said that the applicant has “excellent insight & compliance with treatment” and was “well over many years now”.

18. Dr Cantor gave the following evidence. The applicant is likely to suffer from Bipolar Disorder for the rest of his life. He is treated primarily by medication. Even with the use of medication, there is the possibility of some form of relapse, Depression or Manic Episodes. Doctor Cantor said that he cannot say how severe that would be or when it would occur. He anticipated the future course of the condition would follow the course it has in recent years.

19. Dr Cantor believed that the applicant has demonstrated an ability to manage the symptoms of Bipolar Disorder. It is likely that there will be relapses but with the applicant being relatively capable of managing his condition, hopefully it will be attended to more quickly and be less severe than it otherwise might be. The applicant displayed better than average capacity to manager the disorder. There is always the possibility a relapse could catch him unawares. Dr Cantor cannot be sure that the applicant will manage it effectively.

20. The applicant’s overdose of Benzodiazepam on its own was not dangerous but the combination with Methadone was possibly fatal. The applicant’s explanation for the overdose was an inability to deal with symptoms without medical intervention. Dr Cantor would not want to say that the applicant was habitually having problems with self-management.

21. The applicant was being treated primarily with Methadone for his Bipolar Disorder. The option of increasing the dose was more complex than for a conventional medication.

22. With Mania in particular, Dr Cantor said that it is easy for people’s wisdom to lapse so that their capacity to monitor their own behaviour can be undermined and they can start enjoying the Manic Episodes rather than take medication. When questioned by the applicant, Dr Cantor said that Manic Episodes come on gradually. Mania can be “quite seductive and enjoyable at times, particularly at a mild level”.

23. Dr Cantor said that people may need to be admitted when suffering Depression but in his practice they are relatively few. It is not uncommon in the case of a Manic Episode because the capacity to co-operate with treatment is too chaotic and inpatient care is necessary.

24. Hospitalisation for depression is for the welfare of the patient because of the risk of suicide, or, in a minority of cases, because of a risk to others. In that situation, there may be personality issues such as a tendency to violent problem solving behaviour.

25. Mr Zoppo told Dr Cantor that the Tribunal has to be satisfied that there is virtually no risk if the applicant is granted a firearms licence. Dr Cantor said that he could not say that there was virtually no risk if the applicant was granted a licence. The highest he could take it was that it was a relatively low risk, and certainly a low risk compared to other sufferers of Bipolar Disorder. Even with the average member of society he would hesitate to say it was close to no risk. If he were to devise public policy with no risk, no-one would be licensed.

26. Notwithstanding the applicant’s good character, no violent history, his Bipolar Disorder puts up the risk considerably. His peaceful and responsible nature reduces the risk but does not take it below an average risk.

27. Dr Cantor expressed the opinion that Bipolar Disorder is difficult to manage at the general practitioner level and that psychiatrists are better able to manage it. He recommended a long-term treatment relationship with a psychiatrist if possible. In the applicant’s case, his unusual treatment of Methadone made the case unusually complex to treat his illness, manage the risks and optimise his general quality of life.

28. Dr Cantor said that the frequency of the applicant’s consultations would depend on his health. If he was stable, the consultations could be reduced to every second or third month. Dr Cantor repeated this opinion when questioned by Mr Makin about seeing Dr Ang every 12 months. Dr Cantor said that if the applicant was in an unstable phase, it would need to be a couple of times a week or he may need to be hospitalised. Dr Cantor said that in the long term, it is difficult to get into the state sector. It is highly rationed. The private sector is “OK”.

29. When questioned by the applicant, Dr Cantor agreed that the applicant was discharged from Nambour General Hospital the day after he overdosed. He referred the applicant to a Professor at Toowong Private Hospital for stabilising. Nambour General Hospital had recommended a medical review but regrettably that hospital was under-resourced.

The applicant’s evidence

30. The applicant said that he had never broken the law, he had had a firearms licence for a lot of years with no issues and was extremely careful. He understood the dangers. When he is Manic, he is not different from a person who is drunk. He has a lapse of judgment and would say things that he would not normally say. He does not get violent, even during his first Manic Episode several years ago when he was facing financial difficulties, was diagnosed with Depression and was off work. He described the circumstances of an incident which resulted in a confrontation with his wife and despite some conflict, he was not violent.

31. The applicant talked about his firearms history. He said that he had never been hunting but would like to do so with his friends and son-in-law. His current medication is 80 mg of Methadone daily. Dr Ang prescribed an anti-psychotic if he starts to become manic or sleepless. He is not keen to take an anti-psychotic long term but will take it in the short term to avoid Manic Episodes.

32. When cross-examined, the applicant said that he did not disclose his Bipolar Disorder condition in his 2011 licence application because he did not feel that he was being treated at that time. He did not consider seeing Dr Iyer was treatment. It was advantageous to see him. Dr Iyer was not changing his medication. He was being treated with Methadone for a headache. He had suffered no significant episode since 2009 and was very aware of his mood swings. He was very careful if he was lacking sleep or suffering from insomnia. He would cut back the number of shifts he was doing. He described how he felt during the onset of mania and said that he would go to doctors and ask to be admitted.

33. When I asked him about taking Methadone to treat his Bipolar Disorder, the applicant said that he had not thought of that as treatment. He does not get headaches very often. If he stopped taking Methadone, they come back pretty bad. He has tried to get off it. There is a stigma being on it. He tried other medication but it affected his Bipolar Disorder. Methadone has worked well.

Conclusion

34. I find that the applicant has no criminal record. He has no history of violence or dishonesty. He has held firearms licences since being diagnosed with Bipolar Disorder in 1996 or 1997, until 5 April 1999 and from 30 April 2011 until mid-2013, without any incident occurring that reflects adversely upon him.

35. I do not accept that the drug overdose incident in 2009 was an attempt by the applicant to commit suicide or cause a self-inflicted injury. Having been refused admission to hospital three or four times over about three days, he overdosed in order to achieve that end and to be treated for his Bipolar Disorder. He was not aware of the potentially fatal effect of taking the two drugs together.

36. Dr Cantor was an impressive witness. He was knowledgeable and measured in his responses to questions, as is apparent from the summary of his evidence set out above. He treated the applicant over about three years, which included the Manic Episode in 2009. He assessed that there was an average risk if the applicant is granted a firearms licence.

37. I prefer Dr Cantor’s assessment to that of Dr Iyer or Dr Ang. I find that the applicant has not disclosed to either Dr Iyer or Dr Ang that Methadone has been prescribed, not only for his Headache, but also for his Bipolar Disorder, and that he has been taking it for that purpose for many years and had difficulties with authorities when he was living in Queensland because he was taking it for that purpose. It is an unusual treatment for that condition, as Dr Cantor said.

38. In making those findings, I have taken into account Dr Iyer’s note that the applicant was convinced Methadone had also stopped him from having any further relapses of his Bipolar Disorder. In context, given that Dr Iyer said that the applicant was treated with various psychiatric medications, but eventually his episodes spontaneously remitted, Dr Iyer did not consider that Methadone was a treatment for Bipolar Disorder. He was simply recording the applicant’s “belief”.

39. In the Medical Check Form Dr Cantor filled in about the applicant on 7 January 2011, the doctor says: “In 2000 he became dependent on panadeine forte and was prescribed methadone for this. This was found to have a mood stabilising effect so he has remained on this for his bipolar disorder. He still gets mood fluctuations but to a lesser degree.”

40. Handwritten clinical notes at page 21 of Exhibit R1, state: “Recently moved up from S Wanting me to prescribe … Methadone has had mood stabilising effect ... since 2001.” In the overall context of the 13 pages of clinical notes, I find that the note was made in 2007 and probably by Dr Cantor.

34. Dr David Storor, consultant psychiatrist, provided a second opinion dated 11 September 2008, about the applicant’s Methadone dosing, “specifically” about transferring “to Physeptone tablets and secondly whether it would be appropriate for the dosing of his Methadone to be adjusted as required from the point of view of his mood state due to his Bipolar Disorder rather than from the point of view management of his opioid dependence”.

35. Doctor Wellard, a psychiatric registrar, commented in his report of 22 June 2009, that: “Unfortunately, (the applicant) has been telling medical staff his Bipolar is being treated with methadone”. “As there is no firm evidence of methadone being an evidenced based treatment for bipolar, (the applicant) is coming up against resistance in the public sector”.

36. In a letter to Professor Harvey Whitegood dated 22 June 2009, Dr Cantor thanked the professor for agreeing to admit the applicant “c hypomania for stabilisation … He has been stable for some years on methadone which was found by default (during treatment for pain) to stabilize his mood”.

37. The report of Dr Peter Georgius, a Pain and Rehabilitation Specialist, dated 6 November 2009, reports that the applicant was reviewed for his headaches. The doctor noted that the applicant had been using Methadone to control his mania as well as his headaches and told the doctor that he has had a Manic Episode while on Methadone and felt that there was no need to continue with Methadone and wished to stop using it. The doctor encouraged the applicant to wean himself off Methadone under supervision and requested that Dr Cantor be advised when that was initiated.

38. In his report of 28 November 2008, Dr Cantor referred to trying to assist the applicant “negotiate with the Drug Dependency Unit, Queensland Health, regarding mutually acceptable management strategies given his unusual need for methadone for mood stabilisation”.

39. The above evidence shows that the applicant would have been well aware that he was taking Methadone to treat his Bipolar Disorder for many years. Although his condition has been stable for about five years, it is because he is taking Methadone, as well as managing his lifestyle to minimise episodes.

40. He said that he had no reason to see a psychiatrist since 2009. He gets his Methadone prescription from his general practitioner. It was his idea to see a psychiatrist.

41. I am unable to determine whether the applicant deliberately did not disclose that Methadone was being prescribed for his Bipolar Disorder to Doctors Iyer and Ang or did not disclose it as he said, because his condition was stable and he did not regard taking Methadone as treatment. Neither explanation is satisfactory. Dr Cantor said that the applicant’s unusual treatment of Methadone made the case unusually complex to treat his illness, manage the risks and optimise his general quality of life. If his “treating” psychiatrists did not know of his “unusual treatment”, they could not make reliable assessments of his condition or the risks of that condition, to the applicant or to anyone else.

42. The applicant’s failure to disclose his condition in the 2011 licence application reinforces my concern about his judgment. He was taking Methadone and seeing Dr Iyer at that time. His seeing Dr Iyer and later Dr Ang, psychiatrists, shows that he knew that he had a mental illness, although it was stable.

43. The applicant said that if he had firearms, he would take them to the police if he felt unwell. He also said that if he felt unwell he will go to hospital and tell them he has firearms and they will admit him. He would know he was unwell before his judgment was impaired. He loves his wife and daughter and would not do anything to put their lives at risk. He claimed even if he is manic, he still knows what is right and wrong and mental illness does not make a killer.

44. While the applicant may be well-intentioned, his ability to make such a judgment may be impaired if he becomes unwell, based on the evidence of Dr Cantor.

45. I do not consider that the imposition of conditions such as requiring the applicant to see a psychiatrist at particular intervals and providing a report stating that there were no concerns held is appropriate in this case. In addition to the problem of resources to enforce the conditions, their efficacy would depend on the applicant attending the doctor and the doctor being prepared to write a letter and doing so in a timely fashion. A condition could not take into account the unpredictability of the applicant’s condition or that immediate action may be essential.

46. For the above reasons, I find that the issue of the licence to the applicant would be contrary to the public interest.

47. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

14 July 2015 - Cover sheet updated

Decision last updated: 14 July 2015