Minister for Mental Health v Paciocco

[2016] NSWSC 1530

Supreme Court

New South Wales

Medium Neutral Citation:	Minister for Mental Health v Paciocco [2016] NSWSC 1530
Hearing dates:	18 October 2016
Date of orders:	18 October 2016
Decision date:	18 October 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Order made pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”) appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and directing the defendant to attend those examinations. Order made pursuant to clauses 10 and 11(1) of Schedule 1 of the MHFP Act that the defendant be subject to an interim extension order from 19 October 2016 for a period of 28 days. Parties granted leave to approach the Manager of Listings to obtain a final hearing date. Stood over to the Registrar on Monday, 14 November 2016 at 9:00am.
Catchwords:	FORENSIC PATIENTS – defendant found unfit to be tried – limiting term due to expire – application to extend status as a forensic patient – interim extension order – whether defendant poses unacceptable risk – whether risk cannot be adequately managed by other means
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Attorney General NSW v Doolan by his tutor Jennifer Thompson No 2 [2016] NSWSC 107 Attorney General of New South Wales v Doolan [2015] NSWSC 1773 Attorney General State of New South Wales v XY [2014] NSWSCA 466 New South Wales Minister for Mental Health v BB [2015] NSWSC 1418
Category:	Procedural and other rulings
Parties:	Minister for Mental Health (Plaintiff) Steven Mark Paciocco (Defendant)
Representation:	Counsel: Ms A Bonnor (Plaintiff) Ms S Kluss (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2016/303965

EX TEMPORE Judgment

1. HIS HONOUR: By Summons filed 12 September 2016, the plaintiff, the Minister for Mental Health, sought three orders. The first is an order pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the “MHFP Act”), appointing two qualified psychiatrists, psychologists or registered medical practitioners to conduct separate examinations of the defendant and directing the defendant to attend those examinations.

2. The second form of relief sought is an order, pursuant to clauses 10 and 11(1) of Schedule 1, that the plaintiff be subject to an interim extension order from 19 October 2016 for a period of twenty-eight days.

3. The third form of relief sought is an order pursuant to clause 7(1)(a) of Schedule 1, that the defendant be subject to an extension order for a period of five years from the day on which the order commences.

4. This judgment deals with so much of the Summons that sought the first two of those orders. For reasons I will outline, the matter had to be dealt with on an urgent basis because on 19 October 2016 the limiting term applying to the defendant expires. This urgency imposed constraints both upon the parties in the preparation of material and the provision of submissions and upon the Court in giving these reasons.

Pseudonym

5. At the outset, Counsel for the defendant submitted that it was appropriate for the Court to use some form of pseudonym in its published reasons when referring to the defendant. The basis for this contention is that s 162 of the Mental Health Act 2007 (NSW) (the “MHA”) provides that a person must not, except with the consent of the Mental Health Review Tribunal (the “Tribunal”), publish or broadcast the name of any person to whom a matter before the Tribunal relates, who appears as a witness before the Tribunal in any proceedings, or who is mentioned is otherwise involved in any proceedings under the MHA or the MHFP Act. either before or after the hearing is completed.

6. Counsel for the defendant referred to the judgment of Basten JA in Attorney General for the State of New South Wales v XY [2014] NSWSCA 466 which, in relation to the proceedings before the Court of Appeal concerning the MHA, his Honour determined that where s 162 was applicable, it was not appropriate for the Court to make an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) but considered it appropriate to publish a judgment that did not use the respondent’s name (at [185] to [187]).

7. Subsequently, in New South Wales Minister for Mental Health v BB [2015] NSWSC 1418 Bellew J at [8] adopted that approach.

8. However, in Attorney-General of NSW v Doolan [2015] NSWSC 1773 at [59ff], and following, Adamson J considered the matter in some detail. Her Honour noted that s 149 of the MHA only made s 162 applicable to “any proceedings of the Tribunal”. Her Honour concluded that as the proceedings before her did not constitute “proceedings of the Tribunal”, (which is also the case here), s 162 was not applicable.

9. In these circumstances and otherwise having regard to the considerations of open justice, I do not propose to adopt the course of anonymising the defendant’s name in this judgment.

Mental Health Forensic Provisions Act

10. Schedule 1 of the MHFP Act provides a scheme for the extension of the status of the person as a forensic patient. Clause 1 confers on the Court the power to make an order for the extension of the person’s status as a forensic patient where an application is made in accordance with clause 2.

11. The description in clause 2 of the circumstances in which an extension order can be made is critical to any such application. The Court was advised by Counsel for the Minister for Mental Health that effective from 28 September, clause 2 of Schedule 1 was amended so that it provides as follows:

“(1)   A forensic patient can be the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:

(a)   the forensic patient posed an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and

(b)   the risk cannot be adequately managed by other less restrictive means.”

(2)   The Supreme Court is not required to determine where a person who is of serious harm to others is more likely or not nor to determine that the person poses an unacceptable risk of causing serious harm to others.”

12. Division 1 of Part 2 of Schedule 1 deals with applications for an extension order. Clause 3 empowers the Minister to apply for an order. Clause 4(1) provides that the application may be made in respect of the forensic patient only if the forensic patient is subject to either a limiting term or an existing extension order.

13. As I have said, the limiting term applicable to the defendant is due to expire tomorrow, 19 October 2016. Clause 4(2) provides that the application may not be made more than six months before the end of the forensic patient’s limiting term or the expiry of the existing extension order. It follows from what I have already said that this provision has been satisfied.

14. Clause 5 provides that an application for an extension order must be supported by documentation that addresses the criteria referred to in clause 7(2) to the extent relevant to the application, and includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the risk of the forensic patient causing serious harm to others, the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.

15. In this respect the Minister relied upon a report of psychiatrist, Dr Kerri Eagle, to which I will refer.

16. Clause 6(4) requires that there be a preliminary hearing into any application that is filed within twenty‑eight days of it being so filed. Clause 6(5) provides that if, following the preliminary hearing, the Court is satisfied that “the matters alleged in the supporting documentation would, if approved, justify the making of an extension order”, then the Court must make an order appointing two psychiatrists, psychologists or medical practitioners to examine the defendant and directing the defendant to attend those examinations.

17. Clause 10, which is found within Division 3 of Part 2 of Schedule 1, confers on the Court the power to make an interim extension order, that being the order sought in paragraph 2 of the Summons. It provides as follows:

“The Supreme Court may make an order for the interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:

(a)   that the limiting term or extension order to which the forensic patient is subject will expire before proceedings are determined, and

(b)   that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.”

18. Clause 11(1) confers on the Court the power to fix a term from which an interim extension order operates but it is not to exceed twenty-eight days from the date specified in the order. The interim extension order may be extended for various periods but the total amount cannot exceed three months (clause 11(2)).

19. Clause 7(1) confers on the Court the power to determine an application for an extension order by making the order or dismissing the application. Clause 7(2) specifies the criteria to which regard is to be had. It provides:

“7 Determination of application for extension order

…

(2)   In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a)   the safety of the community,

(b)   the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient,

(c)   the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b),

(d)   any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

(e)   any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

(f)   any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,

(g)   the level of the forensic patient’s compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),

(h)   the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

(i)   any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.”

20. One matter of particular significance to the determination of this application is so much of clauses 6(5) and 10 which direct the Court to have regard to the “matters alleged in the supporting documentation” and whether those matters “if proved” would justify the making of an extension order. To the extent that the supporting documentation sets out the factual matters and opinions of health professionals, the Court does not at this point engage in any considered evaluation of whether those factual matters and opinions are well-founded but instead proceeds on the basis that they will be proved.

Index Offence

21. It is necessary to explain now the defendant came to be a forensic patient. On 20 April 2014, arising out of an incident which I will describe, he was charged with wounding with intent to cause grievous bodily harm, in the alternative, reckless wounding and assaulting an officer in the execution of his duty. He was refused bail.

22. On 20 April 2015, Flannery DCJ found that the defendant was unfit for trial and referred him to the Tribunal (see s 14 of the MHFP Act).

23. On 24 July 2015 the Tribunal determined that the defendant was unfit to be tried but could not reach a finding on the balance of probabilities as to whether he would become fit to be tried within twelve months of the Court’s finding of unfitness.

24. On 23 October 2015 the Tribunal determined that the defendant was unfit to be tried and would not become fit to be tried within 12 months of the Court’s finding of unfitness.

25. As a consequence of these findings, on 18 July 2016 a special hearing commenced in the District Court before Judge Jeffreys. On 20 July 2016, his Honour dismissed the charge of wounding with intention to inflict grievous bodily harm but instead made a finding that, on the limited evidence available, the defendant committed the offence of reckless wounding as well as the offence of assault officer in execution of his duty (see s 22(1) of the MHFP Act).

26. On 8 September 2016, his Honour ordered, pursuant to s 24 of the MHFP Act, that the defendant be referred to the Tribunal and also imposed a limiting term of two years and six months, to date from 20 April 2014 which, as I have said, expires tomorrow, 19 October 2016. When making those orders his Honour published reasons. His Honour summarised the facts as found by his Honour on the evidence available about what occurred on 20 April 2014 as follows:

“On the special hearing I found that on 20 April 2014 Rachel Ghan and Dominic Tan were on their way to the airport and walked across the road towards the 7-Eleven service station located at the corner of Parramatta Road and Pyrmont Bridge Road, Camperdown. While waiting for a taxi Rachel noticed a male, the accused, at her right side. The accused approached her and Dominic Tan and asked where they were going. Dominic Tan replied that they were going to the airport. The accused replied, ‘I need a lift, I need a lift, I have money, I have money.’ He opened his jacket and was rummaging through his jacket and then Rachel Ghan said:

“Just then he pulled out something, I’m not sure what it was. He then reached out with his left hand extended his arm and hit my right shoulder. I felt something sharp in my right shoulder and I immediately felt pain.’

I am satisfied beyond reasonable doubt that the offender used a Swiss army knife which he was found to have in his possession when he was arrested and that with that knife… caused the wound to Rachel Ghan.

Rachel Ghan said, “As I felt pain my right shoulder the male was laughing at me.” Rachel Ghan then ran away and she noticed as she ran that the male had gone after Dominic Tan. Dominic Tan then went towards the 7-Eleven store. The male then began walking in Rachel Ghan’s direction and then she ran to Dominic Tan and they both ran into the 7-Eleven store. When they were inside the 7-Eleven store the doors were locked and Rachel Ghan looked outside and she could see the accused standing close to the glass.”

27. In his judgment, Judge Jeffreys said that on examination of Ms Ghan she was found to have an injury which was a laceration to the top of her right shoulder. The laceration was about one centimetre long and three centimetres deep, travelling down and back. His Honour noted that there was no evidence of damage to deep vascular or nerve structures, or of a wound puncturing into the chest cavity. His Honour noted when the accused was spoken to by the police he stated, “I stabbed the bitch.” According to his Honour, at some point while being spoken to by the police, the accused, who, as I will explain, had both legs amputated from the knee down, had his prosthetic legs and was using crutches. The police officer said that he saw the accused holding a Swiss army knife in his right hand as he left the front door. He was requested to drop the knife. After a period he did drop the knife. However, at some point the defendant swung his right crutch in an upward motion against the police officer’s face.

28. Three other matters should be noted about the circumstances relating to these offences. The first is that, in the material that was tendered for this application, there is evidence that the defendant had stated to his mother on the morning of the offence that “I think I will kill someone today”.

29. Second, there is evidence that when he was later interviewed by the police and asked why he was at the police station the defendant stated, “Coz I stabbed a woman coz she’s Asian and shouldn’t be going out with a white guy. I tried to kill her. I want to go to a gaol.”

30. Third, in his remarks delivered when he imposed the limiting term, Judge Jeffreys briefly described the accused’s background as follows:

“It is quite clear that the accused has been known to the Mental Health Services of Sydney from his late teens. The primary diagnosis was paranoid schizophrenia. The accused has a history of poor impulse control with low frustration tolerance levels. He is prone to aggressive outburst, often with little provocation directed at both himself and others. He has great difficulty in reasonably and rationally dealing with matters and at times his mind is greatly impaired. According to the material before me his condition is chronic in nature.”

History of Self Harm

31. As stated, placed before the Court on this application was a report of Dr Eagle, psychiatrist, dated 12 October 2016. As noted, that report constitutes material which generally the Court is required to receive on the basis that the matters stated in that report will be proved and then to consider whether they justify the relief sought by the Minister.

32. The report itself provides a useful synthesis of a number of other documents setting out the personal and medical history of the defendant. It indicates the defendant was born in November 1972 and according to Dr Eagle grew up in “an abusive, dysfunctional household”. Doctor Eagle noted that the defendant first had contact with Mental Health Services when he was about nineteen years of age.

33. In 1994 the defendant was reported to have jumped from a third storey building in a suicide attempt in response to paranoid delusions. In 1995 he was admitted to hospital after being restrained from jumping from a bridge. He was at that time diagnosed with schizoid paranoia disorder. In 1996 he jumped between two trains which led to him having a bilateral below the knees amputation. Doctor Eagle states that the defendant has been admitted on multiple occasions to in-patient psychiatric unit at Concord, a centre for mental health and Royal Prince Alfred Hospital. He has had twelve admissions to Royal Prince Alfred Hospital and his admissions range from weeks to several months. According to Dr Eagle, since 2012 the defendant appears to have had a period of sustained deterioration, during which time he was admitted to the Royal Prince Alfred Hospital from 5 November 2012 to 15 November 2012, Concord Centre for Mental Health, from 23 November 2012 to 15 February 2013, Concord Centre for Mental Health from 3 March 2013 to 26 April 2013, as well as admissions from 6 August 2013 to 16 September 2013 and in December 2013.

Criminal Record

34. Doctor Eagle’s report also contained a synthesis of the various documents attached to the other affidavits concerning the defendant’s interactions with the police force. She noted that he was charged with common assault in relation to an incident that occurred on 22 February 2006. Apparently the defendant entered an Australian post office and attempted to withdraw some money but had insufficient funds available. He yelled, “I want my money from the account,” and swung a closed right fist to the victim over the counter.

34. On 5 March 2006 the defendant entered a ‘BP’ service station and attempted to purchase some items and his card was declined. He started swinging one of his crutches through the wire on one of the security doors towards the victim and he said, “[n]ext time when I get out of gaol I will kill you.”

35. Doctor Eagle noted that in 2007 the defendant was charged with shoplifting in relation to an accusation that he stole a packet of cigarettes and then punched the shop attendant in the eye when he was confronted. Doctor Eagle noted that around 8 May 2008 he was charged with damaging property and assault occasioning actual bodily harm when he allegedly approached the victim and asked a neighbour of his mother where his mother was. The victim did not know the defendant. He was alleged to have thrown two or three closed fist punches and tried to bite the victim on the ear.

36. Doctor Eagle also noted that the defendant was charged with assault in connection with an incident on 6 October 2012 where he was alleged to have threatened and abused a twelve year old girl who was walking to school. It is unnecessary to set out the precise words said. They would not only have been offensive but extremely frightening to a person of that age.

37. Doctor Eagle noted that the defendant was charged with destroying or damaging of property in relation to an incident on 20 November 2012 in which he was alleged to have thrown a glass bottle through the kitchen window of the victim and uttered threats.

38. It is also noted that he was charged with an offence of assaulting police in relation to an incident in February 2014 when he is alleged to have screamed at a neighbour and expressed a desire for them to fall off the roof they were on. When the police attended the defendant extended his right arm with a closed fist and punched a police officer.

39. None of the offences led to any custodial sentence being imposed. Generally they were dealt with by orders being made under s 32 of the MHFP Act. She stated:

Diagnosis and Assessment of Harm

41. As is to be expected Dr Eagle was asked to give a diagnosis of the medical conditions that the defendant suffers from. Dr Eagle diagnosed him as having schizophrenia characterised by relapses of acute psychosis which give rise to a thought disorder, distressing and bizarre delusions, referential ideation and auditory hallucinations.

42. Dr Eagle also diagnosed him as having a major depressive disorder, a major substance abuse disorder as well as antisocial and borderline personality traits. Dr Eagle concluded that the combination of his illness and his personality, his vulnerability, his problematic behaviours and his substance abuse gave rise to a complex presentation.

43. In relation to the risk of harm that he might pose, Dr Eagle stated as follows:

“According to a structured professional judgment approach, I am of the view that Mr Paciocco falls within a category of persons at a high risk of violent reoffending in the short, medium and longer term. The dynamic factors contributing to that risk include his ongoing symptoms of mental illness; his lack of insight particularly into his violent offending behaviour; his ongoing affective, cognitive and behavioural instability; evidence of persistent violent ideation and his treatment resistance.”

44. Dr Eagle said that his clinical risk factors are highly susceptible to fluctuation over time and his overall stability in terms of his mental state and emotional regulations is likely to have a substantial impact on his risk of violent offending.

45. For reasons I will explain and, perhaps, critical to the outcome of this application concerns the question that Dr Eagle was asked about other forms of management including involuntary detention or treatment under the MHA.

“e.   Please provide your opinion as to the need for ongoing management of Mr Paciocco as a forensic patient. In answering this question, please provide your opinion as to whether the risk of Mr Paciocco causing serious harm to others can be adequately managed by the following and if not, the reasons why not in each case:

i.   continuation of his forensic patient status. In your opinion is Mr Paciocco likely to comply with your recommended management strategies in the absence of a forensic order?

In my opinion, Mr Paciocco’s risk of serious harm to others cannot be adequately managed in the absence of a forensic order and he is unlikely to comply with recommended management strategies in the absence of that order.

ii. classification as an involuntary patient under the Mental Health Act 2007, including classification as an involuntary patient and placement at a rehabilitation facility such as Bloomfield Health Campus of Orange Health Service for a period of up to two years;

[Mr Paciocco] has a history of aggressive behaviours in inpatient units requiring treatment in an intensive psychiatric unit. These aggressive behaviours have continued in custody, despite the restrictive environment. I am of the view that in the initial period following discharge from custody, Mr Paciocco’s risk of relapse and de‑stabilisation by the new environment is substantial. His risk of aggression has been observed to increase when his mental state deteriorates. I am of the view that his risk of aggression is unlikely to be able to be adequately contained by the environment of a civil rehabilitation facility such as Castlereagh Unit. In addition, Mr Paciocco’s presentation is complex and requires specialised forensic input.

iii.    a guardianship order; and/or

Assuming Mr Paciocco were considered to be permanently incapacitous in relation to decisions regarding his care and treatment, I do not believe that his risk of harm to others can be adequately managed by a guardianship order. Mr Paciocco requires assertive psychiatric, forensic and psychological input in a secure setting. This cannot be achieved by the appointment of a guardian alone.

iv.   being free of any coercive orders and voluntarily attending a rehabilitation facility such as Bloomfield Health Campus or voluntarily being accommodated in a facility such as Denroma House in Marrickville.

I do not believe Mr Paciocco’s risk of serious harm to others can be managed as a voluntary patient in any setting, at this stage.”

46. Of particular significance is the answer given in this passage by Dr Eagle to question e(ii). It is somewhat difficult to understand what Dr Eagle is referring to in her answer where she refers to the “initial period following discharge from custody”. The question posed to Dr Eagle asked her to take as an assumption or at least an alternative scenario, that the defendant would be classified as an involuntary patient and, therefore, detained under the MHA. If the reference by Dr Eagle to discharge from custody was meant to be a reference to his being released from all forms of detention then that would be inconsistent with the assumption or alternative scenario that was put to her.

47. Counsel for the Minister submitted that properly analysed the reference to “custody” is a reference to correctional custody so that Dr Eagle was addressing a comparison between the defendant continuing to be a forensic patient and the defendant being detained as an involuntary patient. With some hesitation, I think that analysis is correct. Of perhaps more significance is that the statement of Dr Eagle that the defendant’s risk of aggression is unlikely to be able to be adequately contained by the environment of a civil rehabilitation facility such as the Castlereagh unit.

48. This is a matter to which I will return but at least one part of Dr Eagle’s report appears to proceed on the premise that the risk of harm that Dr Eagle has identified is better addressed by there being at least the potential for the detention of the defendant in an institution such as a forensic hospital which may be more unlikely if he is an involuntary patient.

Unacceptable Risk of Causing Serious Harm

49. Clause 2(1)(a) in Schedule 1 to the MHFP Act enables the Court to make an extension order if it is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient. Clause 2(1)(b) also then addresses whether the risk can be adequately managed by other less restrictive means.

50. In considering whether the defendant poses an unacceptable risk of causing serious risk to others if he ceases to be a forensic patient, it appears to be common ground that at least that part of the test set out in clause 2(1)(a) poses a comparison between them ceasing to be a forensic patient and their being released into the community. A comparison between the position that would pertain if the defendant continued to be a forensic patient and other less restrictive means is required by clause 2(1)(b).

51. The analysis by Dr Eagle, if accepted, would, in my view, clearly support a conclusion that would justify a finding that clause 2(1)(a) is satisfied. Her conclusion is supported by a consideration of the combination of his mental health history and the forms of violence that he has engaged in, namely, random attacks upon individuals over a sustained period of time.

52. In opposing the making of that finding, Counsel for the Defendant pointed to a number of matters including the circumstances surrounding the index offence which although she accepted were clearly distressing for those involved did not, she submits, in the scheme of things, involve serious harm given the nature of the wound that was inflicted. Counsel also noted that his general history was not such that he had ever been the subject of a custodial sentence and that generally speaking his interactions with police and law enforcement had been dealt with by the Local Court and assessed and determined under s 32 of the MHA.

53. There is some force in these points. However, it must be said, especially in relation to the index offence, that the fact that more serious personal harm has not resulted appears to be more a result of good fortune than any deliberate act on the part of the defendant. It may be that in a given case a wound of 1 cm by 3 cm is not significant but equally such a wound if administered in the right place can be fatal.

54. A consideration of the criminal history of the applicant, particularly the deterioration that occurred in the immediate period prior to his being arrested for the index offence, bears out the analysis of Dr Eagle.

55. The matters alleged in the material supporting the application would, if proved, certainly justify a conclusion that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

Risk Cannot Adequately be Managed by Other Less Restrictive Means

56. By far the most difficult aspect of this application concerns whether the Minister has satisfied clause 2(1)(b) of Schedule 1. The requirements of the MHFP Act require that consideration be given to the matters alleged in the supporting documentation. However, that material does not flesh out in much detail the relevant scenarios that would transpire if this application were to be refused and the other means of dealing with the defendant and his mental condition.

57. For example, it has been and still is open until the end of tomorrow for the Tribunal to make a determination that the defendant should be classified as an involuntary patient under s 53 of the MHFP Act. Even if that were not to occur, it would be open at least for the procedures for the classification of a person as an involuntary patient under the MHFP Act to be engaged.

58. To that end, Counsel for the Defendant submitted that even if they were not engaged by others, her instructions were that the defendant would engage those procedures himself. I am dubious as to what weight can be afforded to that but nevertheless it bears out that the analysis required by clause 2(1)(b) in this case is one which requires an assessment of the risk of the defendant continuing to be managed as a forensic patient compared primarily with the risks posed if he is to be managed as an involuntary patient dealt with under the MHA.

59. One difficulty that has arisen is that much of the submissions that were put on this aspect came from the bar table. They cannot be considered, especially bearing in mind the stricture that the Court is required to consider the matter on the basis of the matters asserted in the supporting material having been proved.

60. The material that answers that description is the extract from Dr Eagle’s report that I have set out above. Further, the Court has the benefit of the detailed analysis undertaken by Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (“Doolan No 2”) at [96ff] in which her Honour compared and contrasted the regimes for the treatment of mentally ill people under the MHFP Act compared with the MHA.

61. For present purposes, four particular differences should be noted. The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]).

62. The second difference relates to release. Her Honour noted that with a forensic patient the Tribunal may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]).

63. The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient “to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan” (Doolan No 2 at [115]).

64. The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118]).

65. Broadly, her Honour also noted (at [121]) that “[g]enerally speaking the onus in the [MHFP Act] is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted.” Her Honour then stated that “[b]y contrast, the onus in the Mental HealthAct is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted.”

66. When I return to the test posed by s 2(1)(b), Adamson J’s analysis in Doolan No 2 considered in the context of the statement by Dr Eagle that I have set out above, is significant. I have noted Dr Eagle’s assessment that the risk of the defendant’s aggression is unlikely to be able to be adequately contained by the environment of a civil rehabilitation facility such as the Castlereagh unit, but instead is better addressed by his detention in a forensic unit. This must be seen in a context that generally speaking if the defendant is a forensic patient then a movement of him to a forensic unit is a matter that can be addressed in the context of the risk he poses to others whereas the circumstances in which that could be justified for an involuntary patient are much more circumscribed.

67. In the end result, I am satisfied that the matters alleged in the supporting documentation, if proved, are capable of demonstrating to a high degree of probability that the risk posed by the defendant cannot be adequately managed by other less restrictive means, that is, means other than the continuation of his status as a forensic patient.

68. It follows that I am obliged to make the order sought in paragraph 1 of the Summons for the examination of the defendant by two qualified psychiatrists. Further, the Court will make order 2 in the Summons being the interim extension order and will do so for a term of twenty eight days.

69. In making that assessment I have had regard to the criteria in s 7(2) and specifically the safety of the community and the various reports that have been provided on this application. In that regard, I note that Counsel for the defendant referred to the statement by one of the defendant’s psychiatrists concerning his recent good compliance with his obligations.

70. I have considered that material but, nevertheless, consider that the order is justified. Section 7(2)(h) requires that I have regard to the views of the Court to impose liberty or such other information that is available. I have discussed the judgment of Judge Jeffreys above.

71. Accordingly, I will make orders 1 and 2 in the Summons. I will grant the parties leave to approach the manager of listings to obtain a final hearing date for the matter with an estimate of one day.

72. I list the matter before the Registrar on Monday, 14 November 2016 at 9am.

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Decision last updated: 02 November 2016