Re BT (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 05306

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

and

IN THE MATTER of an application by BT under section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order and a further review of a non-custodial supervision order under section 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2021
DATE OF JUDGMENT:	14 September 2021
CASE MAY BE CITED AS:	Re BT (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 562

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CRIMINAL LAW – Mental impairment – Review of a non-custodial supervision order (‘NCSO’) – Application for revocation of NCSO – Good progress by applicant on NCSO – Psychotic illness of applicant in remission for many years following stabilisation on clozapine – Supervising psychiatrist supportive of revocation – Treating team unable to advocate for revocation due to limited contact with applicant and residual concerns about risk of relapse in face of stressors – Risk posed by applicant low whether NCSO in place or not – Principle of parsimony – NCSO revoked – Suppression order made – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 33, 38C, 39 and 40.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Fitzgerald	Victoria Legal Aid
For the Secretary to the Department of Health	Ms E Frawley	Legal Services Branch, Department of Health
For the Attorney-General	Ms A Haban-Beer	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms L Wilkinson	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant (‘BT’) was the subject of a custodial supervision order (‘CSO’) that was varied to a non-custodial supervision order (‘NCSO’) on 11 June 2019.[1] She now applies for revocation of the NCSO. This application is brought alongside a further review of the NCSO pursuant to s 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
[1]Application by BT [2019] VSC 409 (Tinney J) (‘Application by BT’).

BT’s application to revoke the NCSO is supported by the Secretary to the Department of Health (‘the Secretary’). The position of the Attorney-General is that the NCSO ought to be confirmed and brought back for further review.

The Director of Public Prosecutions (‘the Director’) was excused from attendance at the hearing, having discharged her obligation to notify the family members of BT and the victim of the index offence, pursuant to s 38C of the Act. I note that the Court has not received any reports from these individuals.

Background

On 3 April 2011, when aged 23 and in the grip of a psychotic illness, BT poured methylated spirits on her father and set him alight, resulting in serious injury to him. Her deluded thoughts had her act in the belief that her father had sexually abused her when she was a child.

On 16 March 2012, a consent mental impairment hearing proceeded before Kaye J[2] in this Court. BT was indicted on one charge of intentionally causing serious injury. At the conclusion of the trial, his Honour found BT not guilty because of mental impairment. On 27 April 2012, Kaye J, having declared BT liable to supervision under Part 5 of the Act, made a custodial supervision order with a nominal term of 20 years, expressed to commence on 3 April 2011. BT was committed to Thomas Embling Hospital (‘TEH’), where she progressed well through treatment, having been stabilised on clozapine. She was eventually granted unsupervised leave in the community. On 29 June 2017, she was granted extended leave by a judge of this Court.[3] On 13 June 2018, BT was granted further extended leave by another judge of this Court.[4] On 11 June 2019, the CSO was varied by me to a NCSO.
[2]As he then was.
[3]Re BT [2017] VSC 400R (T. Forrest J, as he then was.)
[4]Re T [2018] VSC 336R (Emerton J, as she then was.)

Amongst the other orders I made on 11 June 2019, I directed that the matter be brought back to the Court for further review on or before 11 June 2020. On 20 May 2020, with the consent of all parties, Taylor J extended the date for the hearing of the further review to 11 June 2021. In due course, a hearing date of 4 June 2021 was fixed for the review. By notice dated 12 May 2021, BT commenced an application for revocation of the NCSO.

The law

The revocation application is made by BT under s 31 of the Act and the further review was directed under s 32(5).

Section 33 of the Act provides:

(1)On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), 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 subsection (2) more than once.

Section 39(1) of the Act provides:

(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.

Section 40(1) provides:

(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and

(d) the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and

(f) any other matters the court thinks relevant.

Section 40(2) sets out certain preconditions to the making of orders, including an order that significantly reduces the degree of supervision to which a person is subject. I am satisfied that all of the requirements of s 40(2) have been met in this case.

The interplay between ss 39(1) and 40(1) was addressed by the Court of Appeal in NOM v Director of Public Prosecutions (Vic) (‘NOM’):[5]

Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[6]

[5](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA) (‘NOM’).

[6]Ibid 633 [47] (citations omitted).

In Re BK,[7] Kaye J[8] described the process of revoking a NCSO as a particularly serious step which:

removes the last means by which the court can supervise the treatment and disposition of the Applicant. In effect it leaves the Applicant significantly to his own devices in maintaining his regime of treatment. Accordingly, I would only grant an application to revoke the Applicant’s non-custodial supervision order, if I were well satisfied, by sufficiently cogent evidence, that the Applicant would not endanger the community or himself were I to do so.[9]

[7][2015] VSC 214R (Kaye J).

[8]As he then was.

[9]Ibid [41].

Their Honours in NOM noted that, while considerations relating to community safety in ss 39(1), 40(1)(c) and (d) may be given greater prominence in the court’s overall balancing of relevant factors, they must not be elevated to the status of a decisive factor.[10] In making a determination, the Act does not require ‘psychiatrically underwritten guarantees that persons subject to [supervision] orders pose no possible danger’.[11] The relevant consideration is whether there is a ‘real as opposed to fanciful’ chance of endangerment as a result of a NCSO being revoked.[12]
[10]NOM 634 [49].
[11]Ibid 640 [65].
[12]Re Friedman (a pseudonym) [2019] VSC 251 (‘Friedman’) (Niall JA) [69].

Expert evidence

Four expert reports were tendered to the Court in the proceeding. These were the reports of:

i. Dr Rose Clarkson and Dr Sobia Khan of the Victorian Institute of Forensic Mental Health (‘Forensicare’), dated 22 August 2020 (‘annual report’);

ii. Dr Conor Daly, dated 3 May 2021;[13]
[13]Exhibit B.

iii. Dr Sobia Khan, dated 6 May 2021;[14] and

iv. Chloe Harman, dated 6 May 2021;[15]

[14]Exhibit A.

[15]Exhibit C.

Dr Khan, Dr Daly and Ms Harman were called to give evidence during the hearing.

I note that the annual report was received by the Court pursuant to s 41(3) of the Act. I have considered the annual report on this application and further review.

Annual Report and Report of Dr Khan

Dr Khan, a consultant forensic psychiatrist employed full time at Forensicare, has been responsible for BT’s supervision in the community since the variation of her CSO to a NCSO in June 2019. In preparing her most recent report, Dr Khan had access to the Forensicare clinical file, correspondence and quarterly reports from BT’s treating team, the Eastern Area Mental Health Service (‘EAMHS’), and information from direct supervision reviews with BT.

Dr Khan set out the personal and psychiatric history of BT in some detail, noting the steady progress of the applicant through the various phases of her treatment, the efforts she had made to reconnect with family, the fact of her having formed a relationship with a male co-patient in 2013 which is still ongoing, and the consideration being given by the couple to starting a family.

The report summarised the progress of the applicant in the almost two years since the modification of the CSO to a NCSO. Amongst the other material considered were the regular progress reports from EAMHS which were invariably positive. Dr Khan summarised changes which had taken place to BT’s treating team, and her apparent ability to deal well with some changes. She had informed her treating team in early 2021 of her decision not to pursue her plans to start a family for now. In March 2021, the applicant’s partner had a serious accident requiring admission to an intensive care unit and extensive treatment. This had been a stressor to BT, but she identified various strategies to cope with the stress, and indicated that she remained in a good mental state with no early warning signs.

Dr Khan indicated that at a case conference with parties including the EAMHS treating team, future risk scenarios including the impact of possible pregnancy on BT’s mental health, and stressors within her intimate and non-intimate relationships were discussed, in light of the applicant’s desire to seek revocation of the NCSO. Dr Khan stated:

Whilst (sic) NCSO team acknowledged the significant period of [BT’s] stability in mental health, low risks in the community and her good level of insight, her treating team expressed their concerns over withdrawal of forensic oversight given her future plans of starting a family and resultant impact on her treatment plan. The treating team were concerned over management of stress during a pregnancy and childbirth. The treating team expressed anxiety over the recent recommendations from (sic) Royal Commission to replace the current Mental Health Act 2014 with a new Act and lack of clarity over how this new Act would apply to [BT’s] situation. Whereas they have previously expressed that the NCSO was no longer required, their current position was that it had a role to play especially if [the applicant] were to become pregnant and needed review of her treatment plan.[16]

[16]Exhibit A, [81].

Dr Khan assessed BT’s risk of future violence using the Historical-Clinical-Risk-Management-20, Version 3. Noting the presence of historical risk factors which are considered to be static and unmodifiable, Dr Khan summarised the promising position insofar as dynamic risk factors are concerned. He stated:

In my assessment, her risk of interpersonal violence remains low. This risk will remain low if she is appropriately treated for her mental illness and remains abstinent from substances. Life stressors are likely to present challenges which may lead to periods of vulnerable mental states, although given her good response to Clozapine, and engagement with treatment providers in the community, a risk of full relapse of her mental illness is less likely. She would require additional support, monitoring and multidisciplinary input when she decides to start a family.[17]

[17]Ibid [90].

Turning to her opinion and recommendations, Dr Khan noted:

The offence occurred in context of [BT] experiencing acute psychotic symptoms secondary to a partially treated Schizophrenic illness, substance abuse and significant life stressors. Her psychiatric treatment was established during her stay at Thomas Embling Hospital subject to a Custodial Supervision Order. She showed good clinical remission of her psychotic symptoms on Clozapine and achieved further functional recovery with psychiatric rehabilitation. Her stability continued during her extended community leave. She was placed on a Non-Custodial Supervision Order in June 2019. Since being on an NCSO, she has remained stable in her mental state and in remission of her psychosis, and has engaged well with her new treating team, despite multiple changes in clinicians and life stressors including delays in her plans to start a family, dealing with a pandemic, reunification with her family especially her father and her partner’s health challenges.
[The applicant’s] risk of interpersonal violence is low and has been low for several years. Since her offence, she has had no issues with violent or disorganised behaviour. She has been abstinent from substances since 2011 and continues to show good insight into the deleterious effects of substances on her health and behaviour. Her psychotic illness has been in full remission on Clozapine. [BT] continues to tolerate this medication well, with a clear intention to continue with psychiatric medications for life. [The applicant] has established prosocial and supportive social networks around her including her family, friends and professional services. At various points in her recovery she has accessed psychological supports to boost her wellbeing and is currently reengaged in couples’ therapy to manage stressors within her intimate relationship. [The applicant] has been employed as a consumer advocate and support work (sic). [BT] recognises the role of stress in aetiology of mental illnesses and relapses. She has developed strategies to minimise stress in her life, and adaptive ways to manage stress. She is well engaged with her treating team and has shown a capacity to work therapeutically with them despite changes in clinicians.[18]

[18]Ibid [91]-[92].

Dr Khan concluded her report as follows:

Based on my discussions with [BT’s] treating team and having looked at all the material available to me including my direct reviews with her, I am of the view that [BT] is well managed by her area mental health service where all aspects of her psychiatric illness and psychosocial rehabilitation needs are addressed. Her risk of offending is directly and causally related to an abnormal mental state due to a partially treated mental illness and substance intoxication. It is therefore my view, in light of ongoing stability in [BT’s] mental health, low level of risk of violence, and her good level of engagement with mental health and GP services, that her ongoing mental health treatment can be adequately provided to her by her area mental health service and under the compulsory treatment powers of the Mental Health Act 2014 , if she meets criteria for its use. I do not believe further forensic oversight of her psychiatric treatment is required. However, if her treating team requires forensic specialist advice and consultation in the future, this is available to them via the Forensic Clinical Specialist Program at EAMHS, which is a program that Forensicare centrally coordinates and which is delivered in partnership with local specialist mental health service providers. I therefore respectfully invite the court to consider a revocation of her NCSO.[19]

[19]Ibid [95].

Evidence of Dr Khan

Exhibit A was tendered through the witness, with only minor changes. Dr Khan confirmed the good compliance of the applicant with the CSO and NCSO over the years. There have never been any concerns as to her capacity and willingness to take her medication. Since being in the community, she has coped well with stressors, which gave the witness confidence that if the NCSO was revoked, BT would continue to be able to cope. Dr Khan expressed the view that it was a ‘huge’ step that the applicant had now been able to reconnect with her father, the victim of the index offence.[20] The safeguards in place as detailed in her report were, believed the witness, sufficient to manage any risks she posed, even in the absence of an NCSO.
[20]Transcript 16.

In terms of risk assessment, Dr Khan confirmed that to her mind, the risk posed by BT would not change if the NCSO was revoked. Any relapse, in the unlikely event it occurred, would be picked up at an early stage.

Dr Khan reiterated her recommendation that the NCSO be revoked. When asked to comment on the position of the treating team in being unable to advocate for that course, she pointed out that previous treating clinicians who had had longer periods of time working with BT had been supportive of revocation. As for the current team, they had only recently taken on the treatment of the applicant, through no fault of theirs or the applicant’s, and it is difficult for new clinicians to feel confident to express definitive opinions given the complexity of the case. As for the concerns expressed by the treating team about possible changes to the Mental Health Act 2014 (‘MHA’), Dr Khan considered it to be appropriate to consider the criteria of the current legislation.

In justification of her recommendation for revocation, Dr Khan pointed out that the applicant has demonstrated a good level of compliance with her CSO, extended leave and NCSO, has had a lengthy period of stability, has been in full remission of her symptoms for many years, has expressed no desire to come off the medication, and has a strong level of insight into her illness. Her only act of violence, namely, the index offence, came during a period of abnormal mental state, and she has not been violent since then.

Dr Khan considered that there would be a huge therapeutic benefit in the revocation of the NCSO, ‘in terms of recognising and validating [BT’s] long journey through a forensic mental health system’.[21] Recognising her stability would be ‘a huge milestone’ for her.[22]
[21]Ibid 22.
[22]Ibid 22.

In cross-examination by Ms Haban-Beer for the Attorney-General, Dr Khan indicated that changes in treating teams are not unusual in area mental health services. It is important, she considered, to look at the overall period of time BT had been with the service, and not just with the individual clinicians. The service has a collective knowledge of her, and she has demonstrated an ability to work therapeutically with a variety of clinicians, adapting quickly to change.

In cross-examination by Mr Fitzgerald for the applicant, Dr Khan confirmed that the applicant fully accepts that she has a lifelong illness and that she will need to remain on clozapine for the rest of her life. She regards it as her responsibility to ensure she does everything required in connection with her medication. Her partner is well aware of the need for the applicant to remain in a stable mental state. Dr Khan, in her dealings with the applicant and her partner over two years, has been consistently struck by their realisation of the need to balance things, including their desire to start a family, with the needs of their respective mental illnesses. On the matter of the stressors to which the applicant may be exposed in future, including relationship stressors, Dr Khan considered that BT has demonstrated that she recognises stress, manages it and copes with it. In addition, she has a number of networks of support, professional and social, to which she could have recourse if necessary. These include her family relationships, which she has worked systematically and hard to repair. There has been no evidence of illicit substance abuse since before the index offence. Her primary diagnosis is that of schizophrenia, with no evidence for a secondary diagnosis of substance abuse disorder. In relation to the applicant’s stable management on clozapine, Dr Khan indicated that generally speaking, patients who have responded as well to clozapine as BT has will maintain remission. Indeed, their functional abilities will improve, as has been seen in the applicant’s case.

On the matter of possible media publicity, this would be likely to cause distress to her and potentially have a negative impact on her recovery.

In response to some questions from me, Dr Khan indicated that if the NCSO was revoked, the applicant would continue to be supervised by the EAMHS. Were she to withdraw from that service without making other arrangements for her ongoing care, which would be an improbable scenario in her case, it would raise red flags for the EAMHS and steps would be taken to rectify the situation. Dr Khan considered it unlikely that the applicant would disengage from her treating service in light of her conduct over a period of time.

Report of Dr Daly

Dr Daly is the treating consultant psychiatrist for BT through the Maroondah Continuing Care Team, (‘MCCT’) a community mental health treatment facility comprising psychiatrists, doctors and case managers. The applicant’s first contact with MCCT was on 14 June 2019. She has been well engaged with the service since that time, amongst other things taking part in monthly medical reviews in connection with her clozapine medication. Dr Daly had himself only joined MCCT at the end of February 2021, and by the time of his report dated 3 May 2021 had only met BT once on 23 March 2021, but he had reviewed all of her file.

Dr Daly noted that on review on 23 March 2021, there had been discussion about an event in which the partner of the applicant had sustained injuries in a fall and had ended up in hospital. The relationship itself had been quite stressful, but BT appeared to be doing her best to manage it. She had navigated the fall incident well. The applicant discussed with Dr Daly her desire to have the NCSO revoked. She indicated that she would still attend the clinic and take clozapine. As she put it, ‘No way I wouldn’t take my clozapine. It is my responsibility’.[23]
[23]Exhibit B, 5.

Dr Daly indicated his impression that ongoing challenges for the care of the applicant include ongoing relationship stress, family planning issues and the potential for relapse into substance misuse. Protectively, however, ‘she has excellent insight, appears to be proactive in her recovery including with her medication and is keen to get back into the workforce’.[24]
[24]Ibid 6.

Dr Daly indicated that he had no concerns about BT’s compliance with treatment. Centrally, her compliance with clozapine has been ‘exemplary’.[25] Her comments about her need for the medication have been evidence by her being proactive in organising her clozapine reviews over the last two years. Furthermore, following a perinatal consult which suggested the possibility of reducing her clozapine dose, it was the applicant who had decided against such a reduction.
[25]Ibid 7.

Dr Daly noted the extensive supports BT has in the community, with whom she adequately engages.

On the question of risk, Dr Daly stated:

On current presentation there currently appears to be a low risk of self -harm, suicide or harm to others. The main risk is one of potential mental state deterioration, relapse into a psychotic state and subsequent recidivism. Longer term these risk do appear to be low and are mitigated by good insight, apsychotic mental state, absence of illicit substance use and extensive supports. [26]

[26]Ibid 7.

Dr Daly outlined the potential stressors for the applicant which would increase the risk of relapse, including relationship stress. Further exploration of the intimate relationship of the applicant is required. A decision by the applicant and her partner to start a family would also increase the risk of relapse.

On the question of whether the NCSO should be revoked, Dr Daly indicated that since he had only recently met her, he was not in a position to advocate for revocation. He noted that there are a number of ‘potential issues’[27] that could lead to relapse.
[27]Ibid 8.

Dr Daly also noted the recommendation of the Royal Commission into Victoria’s mental health system to repeal the MHA and enact new legislation. Dr Daly expressed uncertainty about how assertively the applicant would be able to be treated by MCCT should she deteriorate in future. Until these items are more clearly understood, she should remain on her current order.

In his evidence before me, Dr Daly confirmed the truthfulness and accuracy of his report. He sought to provide no update, having had only brief telephone contact with BT since the time of his report. He agreed that in terms of assessing risk to the community posed by a patient, Dr Khan has more expertise than him. She has been a psychiatrist for longer, and has known the applicant for longer.

Dr Daly accepted that the applicant has coped well with stressors in the past, and that in respect of the family planning issue, she has been open and honest about her plans.

If the NCSO was revoked, Dr Daly would remain her psychiatrist, although a further change would be possible. As for what would occur should the applicant withdraw from the service, he agreed that there would be a ‘multitude of options’[28] open to the treating team.
[28]Transcript 51.

In cross-examination on behalf of the Attorney-General, Dr Daly stated:

I know I don’t know her that well, but from the various services involved, she has been well engaged. She’s got insight, and as mentioned, the illicit substances don’t seem to be an issue, and there’s various other aspects, with employment, and so forth, stable accommodation.[29]

[29]Ibid 54.

During cross-examination by Mr Fitzgerald, Dr Daly confirmed that, as revealed by his review of the notes of others who have previously treated her, the applicant has had a very good history of compliance with medication, has shown a clear insight into her illness and her need to remain on clozapine, and has been very proactive in maintaining appointments and other aspects of her treatment. As for her relationship, it has been going for seven years. It has had its ups and downs, but BT has, when necessary, sought relationship and other counselling and support. There would be no reason to suppose she would not continue to do so in future if the NCSO was revoked.

To the knowledge of Dr Daly, there had been no reason in the past for anyone to seek to have recourse to the MHA in treating the applicant.

Dr Daly indicated that if the NCSO was revoked, he would continue to do everything that he could to assist BT in the continuation of her recovery. As for the applicant, in light of the manner in which she has responded to treatment and to medical and other advice in respect of her treatment, Dr Daly had no expectation that her attitude would be likely to change in the event of the NCSO being revoked.

Report of Chloe Harman

Ms Harman, a registered psychiatric nurse employed as a case manager at MCCT since February 2021, was allocated as BT’s Case Manager at that time. As at the time of her report in early May, Ms Harman had not yet had extensive contact or involvement with the applicant. Her report was based on face to face interactions over the preceding two months and the notes to which she had had access. The frequency of her contacts with BT is determined by her level of need, but was usually once per fortnight.

Ms Harman discussed the support she gave to the applicant through the period when her partner had suffered a serious injury. These events had caused trauma, stress and carer-burden to BT but she demonstrated resilience and an ability to support herself through adversity. She demonstrated an ability to utilise coping strategies and seek support throughout the period.

Ms Harman noted that BT continues to function at a high level. She is maintaining employment, managing her finances, has stable accommodation, and is in a long-term relationship that she is dedicated to working on. She is adherent to treatment, has no symptoms of her illness, and is an active participant in the Consumer Advocacy Group working with current Forensicare inpatients. She is proactive in following up appointments and the requirements of treatment, and is cognisant of the benefits of remaining compliant with treatment, and the risk of deterioration should she become non-compliant.

In terms of risk, Ms Harman considered BT’s overall risk to the public to be low. To her mind, she does not present a danger to herself or the community. That would change should she become non-compliant with medication or otherwise become unstable or unwell. There are potential stressors including ongoing relationship stress and potential deterioration should she and her partner decide to start a family. That last risk could be ameliorated by ongoing mental health support, closer monitoring, and input from perinatal psychiatry which could be provided through regular contact and referrals from MCCT.

In respect of the question whether BT’s NCSO should be revoked, Ms Harman stated:

It is worth noting that [BT] makes a compelling case for consideration of revocation, particularly her current stability in mental state, responsiveness and commitment to treatment and supervision, relative low risk, and her good level of insight.
However, this writer also acknowledges that there is consideration also to the potential destabilising factors such as relationship stress and potential relapse relating to starting a family, as outlined above. Furthermore, the treating team at Eastern Health MCCT has only known [BT] a short period of time, and as such, the treating team is currently not in a position to advocate for revocation.[30]

[30]Exhibit C [7.1]-[7.2].

In her sworn evidence before me, Ms Harmon expanded on her opinions expressed above as to the compelling case for consideration of revocation. She described the overall commitment of the applicant to her pursuit of remaining stable, her continued engagement with the necessary services, and her commitment to herself, her partner and her family as being ‘really quite admirable’.[31]
[31]Transcript 65.

As for the misgivings expressed in paragraph [7.2] of her report, she agreed with the evidence of Dr Khan that BT has coped well with stress.

In respect of her relatively recent contact with BT, Ms Harmon noted that ‘turbulence’ within the treating teams in area mental health services is not uncommon and something outside BT’s control. However, she has been receptive to change and very open, honest and willing to ‘engage with new faces’, which Ms Harmon described as ‘a testament to her willingness to remain well-engaged and remain, I think, committed to her recovery and her continued progression through this journey that we’re taking’.[32]
[32]Ibid 66.

In cross-examination by Ms Haban-Beer, when it was put to Ms Harmon that it would be ‘more beneficial in an ideal scenario’[33] for her to have a longer period of time with BT, she said this was potentially so, but:

I would suggest that, yeah I think that we’ve had, despite being the short period of time we’ve been able to work with [the applicant], we’ve been able to observe a correlation in the reports and the collateral information we’ve reviewed and the interactions we’ve had with [her] directly.[34]

[33]Ibid 69.

[34]Ibid 69.

As Ms Harmon put it, the attitude of the treating team in being unable to support revocation was ‘somewhat of a more conservative approach based on our lack of time spent with her face to face’.[35]
[35]Ibid 70.

In cross-examination by Mr Fitzgerald, Ms Harmon indicated that in the short time she had worked with BT, they had developed quite decent rapport, which was a testament to the applicant’s willingness to engage with new faces and is a good reflection on her and her ability and willingness to engage with the service.

Ms Harmon indicated that the stressful situation caused by the hospitalisation of the applicant’s partner in March 2021 provided an opportunity for the treating team to see firsthand how she responded to stress. She was able to navigate the situation and safeguard her own mental health. Ms Harmon also expressed confidence that BT is aware of her relapse signs and would notify relevant people if those signs presented themselves.

Submissions for the Secretary

Ms Frawley submitted at the outset that it would be appropriate for the NCSO to be revoked. She took me to the legal framework in the Act, highlighting s 39 and then taking me through the s 40 factors. In respect of s 40(1)(c) and (d), she took me to the expert evidence showing that BT presents a low risk of harm to herself and others, and that the risk would not change in the event of the revocation of the NCSO. She submitted that in those circumstances, the revocation of the order would not be likely to lead to the applicant endangering herself or others, and that the NCSO is not needed to protect people from any danger posed by BT.

Ms Frawley submitted that were the order to be revoked, there would remain adequate resources available to the applicant. Ms Frawley summarised these resources.

In support of revocation, Ms Frawley noted that BT has been in the community full-time since 2017, and for a good deal longer than that on a more restricted basis without there being any real concern for her mental health.

Ms Frawley also pointed to the evidence of Dr Khan as to the therapeutic benefit of revocation.

In respect of the position of the treating team, that, submitted Ms Frawley, was a function of the team’s lack of knowledge as a result of their short involvement with BT. It was submitted that that was a matter outside the control of the applicant, and that even if the Court did confirm the order and set a review in six to twelve months to see how the relationship progressed, there may be further changes in the treating team in the interim.

As to the possibility of changes in the MHA, that was entirely speculative. In illustration of that, Ms Frawley pointed out that following recommendations by the Victorian Law Reform Commission in 2014 in relation to the MHA, no changes have as yet been made.

As for the matter of the stressors possibly to be faced by the applicant in future, she has shown herself well able to cope with stressors.

Turning to the principle of parsimony set out in s 39, Ms Frawley submitted that the evidence of Dr Khan would indicate that even were I to revoke the NCSO, the risk to the community will remain the same, that is low, as it is now.

Ms Frawley submitted that the treating team’s position could in some respects be said to come within the ambit of what the Court of Appeal said in NOM at paragraph [65] concerning technical and unlikely risks. Ms Harman had frankly described the treating team’s approach as a conservative one. Ms Frawley noted that the Court of Appeal in NOM stated, ‘Supervision is a restriction on liberty and autonomy and it can only be justified where it’s found to be necessary’.[36] The Court’s task, she submitted, ‘is not a conservative approach’.[37]
[36]NOM [71].
[37]Transcript 81-2.

Submissions for the Attorney-General

Ms Haban-Beer submitted in respect of the consideration in s 40(1)(d) and (e) of the Act that whilst the risk posed by the applicant is low now, that will remain so only as long as she continues to be managed. As things stand, she continues to receive treatment and supervision including quarterly supervisory meetings with Forensicare. Whilst there would still be an avenue for Forensicare support if the order was revoked, there would be no compulsion for that to occur.

Turning to s 40(1)(f), Ms Haban-Beer pointed to the fact that the treating team is not supportive of revocation. This, she submitted, is ‘no small thing’[38] where the application was to have BT come off the supervision order completely. Ms Haban-Beer submitted that the view expressed by Dr Daly and Ms Harman represented not only their personal views but that of the AMHS for whom they work, in light of Ms Harman’s evidence that the view she indicated was also the view of her managers. Ms Haban-Beer acknowledged that the view of the treating team does suggest a cautious approach, but that approach was reflective of the approach the ‘on the ground treating team’ considered to be appropriate.
[38]Ibid 83.

When asked how the Court should view the evidence of Dr Khan compared with that of the treating team, counsel submitted that the former has a different role, as a forensic supervisor and not as a member of the treating team. Ms Haban-Beer described it as a ‘difficult situation’ for the Court and the parties, because whilst there is positive evidence to support revocation, the evidence cannot be characterised as ‘all completely positive’ because the treating team - the people who have the most contact with the applicant and must manage her medication and any daily concerns which might crop up - have not supported revocation. Ms Haban-Beer did accept that the evidence is overwhelmingly positive, but submitted that because of the position of the treating team, the evidence is ‘equivocal’.[39]
[39]Transcript 87.

In respect of the concern expressed by Dr Daly about the possible amendments to the MHA, Ms Haban-Beer acknowledged that what would happen in this regard was speculative, and should not play a part in the Court’s consideration.

Touching on the question of stressors to which the applicant has been exposed since the commencement of the NCSO, Ms Haban-Beer conceded that she has coped well with these stressors, but submitted that Dr Daly pointed to some possible future stressors which could lead to a deterioration in her mental state.

When Ms Haban-Beer was reminded of a portion of my decision on 11 June 2019 summarising the good progress of the applicant since her stabilisation on clozapine, and asked whether it would be unreasonable for the Court to conclude that the promising picture then painted of the applicant’s conduct had been justified in the years since the making of the NCSO, she indicated that that would not be an unreasonable conclusion.

While accepting the evidence was very positive as to how the applicant had handled herself, Ms Haban-Beer described the decision to be made by the Court as an ‘holistic one’,[40] in which regard should be had to all of the factors. Looked at holistically, taking into account all of the evidence, Ms Haban-Beer submitted that the principle of parsimony ‘would not be offended by confirmation of the NCSO’.[41] She urged me to confirm the NCSO, but to order a review in a ‘relatively short period of time’.[42]
[40]Ibid 92.
[41]Ibid 93.
[42]Ibid 93.

Submissions for the applicant

Mr Fitzgerald described the case as ‘a shining success story for Forensicare, for the whole infrastructure of non-custodial supervision orders, and for [BT] herself’.[43] He elaborated on the ways in which the applicant fully complied with treatment, abstained from the use of illicit drugs, restored relationships with her family, sought meaningful employment, developed a successful intimate relationship, and in every respect, rebuilt her life.
[43]Ibid 94.

In response to the submission for the Attorney-General as to the significance of the fact that the treating team have not advocated for revocation, Mr Fitzgerald countered with the submission that it is highly significant that those charged with the supervision of the applicant no longer see the need for the NCSO. That, he submitted, is more determinative evidence. Indeed, he submitted that the good rapport able to be developed between the applicant and those in the treating team in such a short time would indicate that their lack of advocacy for revocation should not be a factor which concerns the Court. There is nothing to suggest that the applicant would not continue to work with them. Nor is there any evidence to indicate that anyone had come ‘close to opening the Mental Health Act in this case’.[44]
[44]Ibid 96.

He submitted that it was speculative to consider possible changes to the MHA and that I should remove that matter completely from my consideration.

Mr Fitzgerald made the point that the comparatively shallow base of rapport, as he put it, between the treating team and BT was nothing to do with her, but everything to do with ‘the fact that they’ve been thrust into that situation because of the exigencies of the service they work for’.[45] Furthermore, he submitted that there would be no guarantee that in six or twelve months, there may not be another treating team in place, or that even more frequent changes may not occur.
[45]Ibid 96.

Mr Fitzgerald submitted that the applicant has an intellectual, profound and personal understanding of the need to continue to comply with clozapine, and therefore, every incentive to do so. So, too, does she understand the need to remain free of drugs and to continue to comply with treatment, as she has always done. He urged the Court to look at past experience as a predictor of future behaviour in her case. To suggest that she would fail to comply in future would be to rely on speculation. A consideration of the evidence of those who have worked with her and supervised her would warrant a conclusion that she will continue to comply with treatment and continue to try to progress her life, have a family and live in a positive way in the community.

In addition to seeking revocation of the NCSO, and no matter the outcome of that application, Mr Fitzgerald sought an ongoing suppression order pursuant to s 75 of the Act.

Analysis

Pursuant to s 39(1) of the Act, in deciding whether to exercise the judicial discretion contained in s 33(1)(d) to revoke the applicant's supervision order, the Court is required to 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.

As explained by the Court of Appeal in NOM:

A supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person's freedom and autonomy. So much is clear from various remarks during the parliamentary debates of the Bill to the Act, including more specific comments that 'no person should be deprived of his or her liberty unless it is absolutely necessary’…[46]

[46]NOM [68].

In the decision of Niall JA revoking an NCSO in Re Friedman,[47]his Honour expanded on the remarks of the Court of Appeal as follows:

Picking up an observation from NOM, Priest JA stated in Re MP (No 2), that 'supervision under the Act is a restriction on liberty and autonomy, and can only be justified where it is found to be necessary'. The word 'necessary' does not appear in the Act and is not a statutory test for the revocation of an NCSO. It can have different meanings in different contexts. What I understand from the reasons of the Court of Appeal in NOM is that there must be some positive reason to retain a supervision order having regard to the safety of the community.[48]

[47]Re Friedman (a pseudonym) [2019] VSC 251 (Niall JA).

[48]Ibid [53].

I approach the task with which I am faced on the understanding that no onus or burden of proof rests on any party to this proceeding.[49] Furthermore, the authorities indicate that the principle in Briginshaw v Briginshaw[50] would apply to my reasoning.[51]
[49]NOM [72].
[50](1938) 60 CLR 336.
[51]NOM v DPP (2012) 38 VR 618; In the matters of the major reviews of Percy, Farrell and RJO (1998) 102 A Crim R 554, 564 (Eames L); PL (No 4) [2004] VSC 21R (Kaye J); In the matter of SKD [2009] VSC 363 (Whelan J).

Before turning to the considerations set out in s 40(1), it is worth noting some observations I made more than two years ago when I published my reasons for varying BT’s CSO to an NCSO:

Every indication on the evidence is that the serious mental illness which caused BT to carry out the index offence has been in remission for many years, once she was stabilised on clozapine. There have been no repetitions of violent behaviour by her. From an early time since her admission to TEH, she developed considerable insight into her illness, and awareness of the early warning signs of a possible relapse. She quickly developed a strong understanding of the role illicit drug use played in her illness, and of the imperative to never use illicit drugs again. She has readily and consistently complied with not only the requirements of medication, but the need for other treatment. She has embraced all that has been required of her during her recovery. Over a number of years, culminating in the last two years of extended leave, she has made very impressive steps towards reintegration into the community outside hospital. She has formed a long-term and stable relationship. She has made a new home for herself outside the hospital. She has developed an array of supports and interests. In difficult circumstances, she has reconciled with her mother and one of her sisters, with realistic hopes of reconciling also with her father and younger sister in time. She has accepted change, and thrived under the pressures that change and other possible stressors have applied to her.
…
The significant step which would be represented by the variation I am requested to make has been a long time coming, and is the culmination of years of careful treatment and supervision of BT, and, on her part, years of compliant, stable, and appropriate behaviour. [52]

[52]Application by BT, [77] and [79].

To my mind, it is clear that the promising picture painted above of the applicant’s conduct to that point has, through the passage of a further period of two years, and the behaviour of the applicant throughout that period, been shown to have been justified, as was acknowledged by Ms Haban-Beer for the Attorney-General.

Returning to the matters contained in s 40(1) of the Act, the nature of BT’s mental illness is clear, and has been well-understood for many years, as has been the direct connection between her illness and the index offence.

As for the question whether if released from the NCSO, she would be likely to endanger herself or others, the expert evidence was clear that she presents a low risk of self-harm or harm to others, as has been the case for some year now, and that risk would not change if the NCSO was revoked.

Whilst Dr Daly, from the applicant’s treating team, did not feel able to advocate for revocation due to the limited contact he had had with the applicant and the potential for future stressors to lead to a relapse, he expressed no concerns about her compliance with treatment, and noted her ‘exemplary’ compliance with clozapine. He considered BT to have good insight into her illness and the need to remain compliant with medication. In light of her proven history, Dr Daly had no expectation that BT’s attitude to treatment would be likely to change were the NCSO revoked. Furthermore, were the applicant to withdraw from treatment, there would be a multitude of options open to the treating team to rectify the situation.

There is no doubt that the index offence which led to the making of a CSO in this matter in 2012 occurred as a direct result of the psychotic illness from which the applicant suffered at that time. That illness has been in remission since the applicant was stabilised on clozapine early on in her time in custody. From that time, the applicant has been compliant with medication and treatment, and has for many years expressed a firm commitment to remaining so, considering it to be her own personal obligation. She has made steady progress and her illness has been in remission for many years. She has lived a stable and satisfactory life in the community, having taken substantial steps to repair damaged family relationships, develop and maintain a long-term intimate relationship, and enjoy stable accommodation and rewarding employment. She has navigated the challenges of being in a long-term relationship and contemplating parenthood, and the other challenges which have come her way, in a balanced manner. She has remained free of illicit drugs.

Whilst I acknowledge the fact that BT’s treating team have felt unable to advocate for revocation, in light of their relatively recent involvement with the applicant, and the possibility that stressors to which she may be exposed in future may lead to a deterioration in her mental state, it seems to me that the overall evidence would indicate that there is no reason to suppose that BT’s stable trajectory of rehabilitation which she has maintained in the face of many challenges over the years will be likely to be interrupted by a descent back into psychotic symptoms. Her single-minded devotion to her treatment and the numerous personal and professional supports of which she is and will remain the beneficiary should guard against this, even in the absence of the strictures of the NCSO.

Applying the principle of parsimony inherent in s 39 of the Act, and having regard to the matters set out in s 40(1) of the Act, I am satisfied that the continued supervision of the applicant under an NCSO is no longer justified. To my mind, the revocation of the applicant's NCSO pursuant to s 33(1)(d) of the Act is appropriate in the circumstances of the present application.

Conclusion

For the above reasons, I order that the NCSO made by the Court on 11 June 2019 be revoked pursuant to s 33(1)(d) of the Act.

I further order pursuant to s 75 of the Act that:

(a) any evidence given in the proceeding;

(b) the content of any report or other document put before the Court in the proceeding; and

(c) any information that might enable BT or any person who appeared or gave evidence in the proceeding to be identified –

must not be published until further order of the Court.

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Citations

Re BT (No 2) [2021] VSC 562

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

R v Wardlaw (Ruling No 2) [2019] VSC 409

Re Friedman (a pseudonym) [2019] VSC 251

In the matter of SKD [2009] VSC 363

[2021] VSC 562

14 September 2021