Re CM
[2023] VSC 194
•13 April 2023
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not restricted. Suitable for publication. |
CRIMINAL DIVISION
S CR 1998 1503
| IN THE MATTER OF a major review pursuant to s 35(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| BETWEEN |
| ‘CM’ |
| and |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA |
| and |
| SECRETARY TO THE DEPARTMENT OF HEALTH |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2023 |
DATE OF ORDER: | 27 February 2023 |
DATE OF JUDGMENT: | 13 April 2023 |
CASE MAY BE CITED AS: | Re CM |
MEDIUM NEUTRAL CITATION: | [2023] VSC 194 |
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CRIMINAL LAW – Mental impairment – Custodial supervision order made 15 June 1998 – First review of custodial supervision order – Major review – Evidence uncontested – Safety of reviewee and members of the public would be seriously endangered if order varied to a non-custodial supervision order – Custodial supervision order confirmed – No grant of extended leave sought – Further major review ordered in 3 years’ time – Suppression order made – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 27, 35, 36, 38C, 39, 40 and 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Unrepresented | |
| For the Attorney-General | Ms J Greenham | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health | Mr D Bruno | Department of Health |
HER HONOUR:
Introduction
On the morning of 11 November 1997, CM,[1] who was then aged 20, stabbed and killed a fellow worker. Later that day, CM was arrested and charged with murder. In the weeks that followed, he showed signs of severe psychotic illness and was diagnosed with schizophrenia.
[1]A suppression order pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) has been made and the name of the reviewee has been anonymised to prevent his identification. Other persons have been anonymised for the same purpose, and certain redactions have been made to the published form of this judgment.
On 18 April 1998, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) commenced.[2] Section 25 abrogated the common law defence of insanity; however, the common law continued to apply to any offence committed prior to the commencement of the Act. On 12 June 1998, a jury found CM not guilty of murder by reason of insanity. Pursuant to the transitional provisions, the verdict was treated as a finding of not guilty by reason of mental impairment under the Act.
[2]All references to section numbers in this judgment are a reference to this Act unless otherwise stated.
On 15 June 1998, O’Bryan J placed CM on a custodial supervision order (‘CSO’) committing him to custody in the Rosanna Forensic Psychiatry Centre. At the time, Thomas Embling Hospital had not yet been built. CM was one of the first people to be sent there when it opened in April 2000. He has remained there ever since.
Section 35 requires the court that made the supervision order to undertake a major review of the order at least 3 months before the end of the nominal term of the order.[3] Given this major review is the first time the CSO has been reviewed by the court,[4] it is necessary to set out the background in some detail.
[3]The Act s 35(1)(a).
[4]The Act at the time did not give the court the power to direct a review of a custodial supervision order pursuant to s 27(2). This is dealt with below at [26]-[31].
Index offending
The reviewee, CM, was born on 13 July 1977. At the time of the incident, CM was living with his girlfriend, DP, in a flat in Wangaratta. He was working as a farm labourer on a property in Myrrhee, owned by ME.
The deceased was 27 years’ old and was also working as a farm labourer on the same Myrrhee property. He was a placid, quiet man who avoided fighting and confrontation. He was well known and liked in the local community. There was no history of animosity between the deceased and CM.
On the night of 10 November 1997, CM argued with DP. The next morning, he overslept and she drove him to work. The argument continued in the car, but when DP dropped him off he was smiling and she thought he was acting normally. CM was wearing his black handled knife in a sheath on his belt.
CM usually worked on the platform behind the tractor, ‘training’ the hops. Because he had not come to work, the deceased was performing this task. ME was driving the tractor. CM arrived in the field at approximately 10.50 am. ME told CM that when they reached the end of the row, he could come up onto the platform and the deceased could get down. The tractor reached the end of the row, and the deceased climbed down. CM walked up to the deceased, stabbed him in the chest with the black handled knife, and then commenced walking away. ME called on CM to stop, but CM ignored him and continued walking. ME drove to a public telephone and called police and ambulance services. He then returned to the property, and met with CM who was walking out. He asked CM why he did it, and CM answered, ‘I had to get him before he got DP’.
Police attended and located CM walking along the roadway. He was arrested peacefully, and informed police that he had left the knife behind. The knife was subsequently located near to where the deceased was killed. CM participated in a short taped interview. He told police he had killed the deceased. CM was placed in a holding cell and later assessed by a Forensic Medical Officer, who concluded he was fit to be interviewed. CM then participated in a record of interview. When asked why he did it, CM said he would not have the faintest idea. He said he just did it, and he does not know why he did it.
A post-mortem examination of the deceased revealed he died from a single stab wound to the chest. The stab injury was approximately 14 cm in length, and the force necessary to inflict the injury was described as moderate to severe.
At the time of the incident, CM had no formal history of mental health problems. A statement by his mother, made shortly after the incident, described CM as having a traumatic childhood. He was born in Beechworth, but his parents separated when he was a baby, and he moved with his mother and older sister to Melbourne. Thereafter, he contracted Meningitis and was gravely ill, spending nine days in hospital, including six days in intensive care.
His mother then moved back to the Wangaratta area, where she remarried and had two further sons. CM’s stepfather rejected CM and his sister, and subjected them to emotional abuse. CM’s sister was sexually abused by her stepfather, and his mother could not rule out the possibility that CM may also have been abused. This period correlated with the beginning of CM’s behavioural problems, including learning difficulties. [Redacted], and the marriage ended.
CM’s mother then formed a de facto relationship with another man and they lived in [redacted]. This man did not physically harm any of the children, but he showed no interest in them. At school, CM was ostracised and bullied by other children. His mother was struggling to cope with four children and was emotionally unstable. She separated again in 1992 and moved back to Wangaratta with her children. About 8 months later, she formed another relationship, which CM resented. He objected violently and his mother asked him to move out. CM reacted by destroying everything he owned. CM then moved into hostel accommodation, aged approximately 16. He maintained contact with his mother, who observed his mental health deteriorate. He also used marijuana for about 6 months, and drank alcohol. She advised him to see a counsellor, but he refused.
Prior to the offending, CM continued to show signs of mental instability. He believed people ‘had it in for him’ and were talking about him. He was often aggressive and angry. He believed his girlfriend was cheating on him. He would talk about seeing spaceships and talking to spaceships. His mother pleaded with him to seek professional help, but he ignored her pleas.
CM’s girlfriend who had been with him for about five months, said CM spoke about having visions. He found these distressing and could not understand what was happening to him. He became more irritable and bitter towards his family. He told DP about an episode he had while using marijuana, where he devised a way of killing everyone in the room without touching them. At the time of their relationship, he no longer used marijuana and seldom drank alcohol. DP also recommended to CM that he seek help, but he felt he could not discuss his problems with anyone else.
Psychiatric assessments
Dr Douglas Bell
On 18 November 1997, less than a week after CM was remanded into custody, he was transferred from the Melbourne Assessment Prison to the Rosanna Forensic Psychiatry Centre as a security patient under the Mental Health Act 1986. He was seen by Dr Bell, who described him as ‘clearly showing evidence of severe psychotic illness, namely schizophrenia, consisting of a wide range of symptoms including persecutory and grandiose delusions, auditory and visual hallucinations and passivity of thought’. CM referred to himself as ‘the Shard’, which he described as another name for God. He considered himself to be the ‘eighth parallel force of the whole universe’, and his death would lead to the end of the universe. He believed he was the subject of a conspiracy to kill him by people he referred to as ‘the Service and the Assassins who want to destroy the Shard’. CM told Dr Bell that he believed the deceased was part of this conspiracy. CM showed signs of delusional misidentification, in that he believed various female nurses were in fact his former girlfriend, who in turn he believed to be a member of ‘the Service’ who wanted to kill ‘the Shard’. He described himself as having a bionic ear, by which he could hear all that his persecutors were saying. He believed he had been fed arsenic by other members of ‘the Service’ while in prison. His affect oscillated between periods of relative calm, and intense fear and belligerence.
CM was commenced on the antipsychotic Chlorpromazine. As at 29 December 1997, his symptoms had responded considerably to treatment. He had reached a point where he was able to discuss his current circumstances in a logically coherent and meaningful way, although there was continuing evidence of a degree of psychotic disturbance.
Dr Bell assessed CM as fit to stand trial by reference to the ‘Presser criteria’.[5] It was his opinion, based on background information and the severity of psychotic symptoms evident shortly after CM was received into custody, that CM had available a defence of ‘not guilty of murder on the grounds of insanity’. He concluded that, ‘at the time of the offence, [CM] was suffering from a disease of the mind, on account of which he was unable to know the nature and quality of his actions nor their wrongfulness with a satisfactory degree of composure.’
Dr Ruth Vine
[5]The ‘Presser criteria’ derive their name from the decision of Justice TW Smith in R v Presser [1958] VR 45, wherein his Honour identified seven criteria to determine unfitness to stand trial. These criteria were incorporated into s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Dr Vine interviewed CM on 31 January 1998 at the Rosanna Forensic Psychiatric Centre. CM told Dr Vine that he believed the deceased was having sex with his girlfriend, and the deceased intended to kill him and then go off with his girlfriend. He believed both the deceased and his girlfriend were SAS officers, and he knew his girlfriend was from the SAS by the code-markings on her shoes. He also believed his girlfriend was not who she claimed to be, but was in reality a different woman. He believed the deceased had been threatening him, and it was ‘either him or me’.
Contrary to other material, CM said he had relatively few problems at school, excelled at sport and had friends. He attended secondary school until half-way through Year 11. He described his stepfather as ‘savage’. His mother asked him to leave home at age 15, and he spent time in supported youth accommodation in Wangaratta. CM had no previous psychiatric history or significant contact with the criminal justice system.
CM denied the presence of any psychiatric illness, and attributed his problems to the medication he had been given. He said he had received visits from his father, mother and sister. He said his mother had been very interested in crystals and natural healing, and he believed himself to be a ‘Reiki channeler’ who could pass power from himself to another person through touch. CM believed he had a shard or crystal in his brain which formed his life force.
Dr Vine opined that CM’s presentation was consistent with a diagnosis of schizophrenia. CM had responded somewhat to treatment, but nonetheless remained fixed in terms of his original beliefs, and lacked insight into the nature of his illness and the need for treatment. She had no doubt that CM would satisfy the criteria for a finding of not guilty on the grounds of mental impairment on the basis that although he was aware of the nature of his act, he was unable to reason with any degree of composure about the rightness or wrongness of his actions. Dr Vine noted that the ‘Crimes (Mental Impairment) Act’ is likely to be proclaimed by the time of his court hearing, and CM may well be the first person to come under the provisions of that Act. CM did not believe he was mentally ill and was reluctant to plead guilty on that basis. He was aware of the nominal term of 25 years for murder, and was concerned that the Act may be interpreted such that those found not guilty would nonetheless be detained for a considerable period of time.
Professor Mullen
Professor Mullen examined CM on 22 April 1998. CM’s state of mind had improved considerably, but he remained psychotic. He still believed he was being monitored and in potential danger from a group he referred to as the ‘SAS’. CM believed this organisation continued to remove thoughts from his mind; disrupt his capacity to think; and insert thoughts, intentions and even actions into his mind and body. He denied any continued hallucinations, but described hearing members of the ward staff speaking of detailed plans to kill him, which Professor Mullen safely assumed were continuing auditory hallucinations. CM also believed he could read others’ minds.
Professor Mullen described CM as having a disturbed and disrupted family background. For most of his childhood and adolescence, CM’s stepfather abused him emotionally and physically. There was also a history of childhood sexual abuse. There were repeated periods during CM’s childhood where he was placed in foster care, due to the instability of his home life. There was a family history of mental instability, and CM’s mother had apparently been treated on a number of occasions for psychological problems. CM’s schooling was disrupted by frequent changes of residence, and he had a history of learning difficulties. He had basic literacy and had been employed in various unskilled and semi-skilled occupations.
In Professor Mullen’s opinion, CM had an illness of a schizophrenic type. Based on the accounts of CM’s family and friends, this illness had been present for some months prior to the killing. This illness would have severely disrupted CM’s understanding of the world, and his capacity to make judgments and to understand the true nature of his actions. In his opinion, CM was mentally impaired at the time he killed the deceased.
Procedural history
On Friday 12 June 1998, CM’s trial was listed in this Court before O’Bryan J. The sole determination for the jury was whether CM was not guilty by reason of common law insanity. Both parties agreed that this was the only available verdict. Dr Bell and Professor Mullen gave brief evidence, and Dr Vine’s report was read to the jury by agreement. After a very short trial which occupied the morning, a jury found CM not guilty on the grounds of insanity.
Following the verdict, his Honour declared CM liable to supervision and requested the necessary s 47 certificate, which was provided on Monday, 15 June 1998. Dr Bell, who at that time was CM’s treating psychiatrist, gave further evidence as to CM’s then-current circumstances. Dr Bell stated CM continued to suffer from schizophrenia, and while there had been dramatic improvement, there continued to be evidence of active illness. CM continued to have persecutory delusions, and occasional auditory hallucinations. He had a very significant degree of ‘deficit syndrome schizophrenia’, which is a state in which a person’s general capacity to think with a degree of motivation, initiative and spontaneity is very dramatically impaired. These deficits impair a person’s basic social skills, their capacity to care for themselves and to function satisfactorily in a normal social environment. CM required both continuing control of the active features of his disease, and also a ‘very assertive ongoing rehabilitation programme’. He was on medication, which he took voluntarily. At this juncture, CM was contained in the security ward at Rosanna Forensic Psychiatric Centre, which was a secure psychiatric hospital. Dr Bell gave evidence that Rosanna was the only such facility at that time, but ‘(t)here is a new high security forensic hospital being built on the old Fairfield Hospital site. That should open, we hope, early next year’.
On 15 June 1998, pursuant to s 26(1), O’Bryan J made a supervision order in respect of CM committing him to custody in section M6 of the Rosanna Forensic Psychiatry Centre, which was then an ‘appropriate place’ pursuant to s 26(2)(a)(ii). The nominal term was 25 years. At this time, the Act did not include the following two sub-sections: section 28(4), which mandates that the court must declare the day from which the nominal term runs, and section 28(5), which gives the court discretion to effectively take into account ‘pre‑sentence detention’ when declaring a commencement date under s 28(4). Thus, the nominal term of the CSO commenced on the day O’Bryan J made the order, being 15 June 1998.
Further, at the time CM was placed on a CSO, s 27(2) was as follows:
In the case of a non-custodial supervision order, the court may direct when making the order that the matter be brought back to the court for review at the end of the period specified by the court.
Thus, there was no power to for the court to direct that a custodial supervision order be brought back to the court for review.
In 2002, the Act was amended and s 27(2) now provides:
When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period specified by the court.
In the second reading speech, the then Minister for Health explained that in many cases, a major review of a CSO will not occur for 25 years. The new provision extended the power of review to all supervision orders, and allowed the courts to take a more proactive approach to reviewing detention under the Act.[6]
[6]Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2001, 2189 (John Thwaites).
Relevant legislation and legal principles
The purpose of the major review is to determine whether CM can be released from the CSO.[7] On a major review, the court must vary the order to a non‑custodial supervision order (‘NCSO’), unless satisfied on the evidence available that the safety of the person subject to the order, or members of the public, will be seriously endangered as a result of the release of the person on a NCSO.[8] If so satisfied, the court must confirm the CSO or vary the place of custody.[9] If the CSO is confirmed, the court may grant extended leave, subject to the provisions of the Act.[10]
[7]The Act s 35(2).
[8]The Act s 35(3)(a)(i).
[9]The Act s 35(3)(a)(ii).
[10]The Act s 35(4).
Section 39(1) sets out the guiding principle to be applied in determining whether to vary a CSO:
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.
Sections 40(1)(a)-(e) outline the matters to which the court must have regard in deciding whether to vary a CSO or to grant extended leave. Those matters include the nature of the person’s mental impairment; the relationship between the impairment and the offending; whether the person is, or would if released, be likely to endanger themselves, another person, or other people generally because of their mental impairment; the need to protect people from such danger; and whether there are adequate resources available for the treatment and support of the person in the community. Section 40(1)(f) requires the court to have regard to ‘any other matter the court thinks relevant’.
Finally, s 40(2) provides that the court cannot significantly reduce the degree of supervision to which CM is subject, unless it has first obtained and considered the psychiatric reports and other materials stipulated by that subsection.
The reviewee’s position
Prior to the hearing, the Court was informed that the reviewee was aware of the proceedings but declined to attend. He also declined to be legally represented by Victoria Legal Aid. Nonetheless, the Court arranged for a video link to Thomas Embling Hospital (‘Thomas Embling’), so the reviewee could attend if he wished. At the commencement of the hearing, the reviewee was not present.
In his most recent report, Dr Dubow, the reviewee’s treating psychiatrist, stated:
[CM] has chosen not to attend the hearing. The social worker discussed this matter with him on 14, 15, and 19 December 2022. I discussed this matter with him on 23 January 2023. I also invited him to discuss the preparation and purpose of this report in December 2022. On all occasions he has declined to be involved and has not provided a reason.
Dr Dubow gave evidence at the hearing in conformity with this opinion. He said he did not expect the reviewee to attend. Unexpectedly, the reviewee later attended the hearing via video link. He watched part of Dr Dubow’s evidence, and told the Court he did not wish to say anything. He then left the hearing room. He returned briefly, and politely informed the Court that he did not want to say anything about the order or what he would like to see happen. He stated that he wished to leave the hearing, and again left the hearing room.
Section 36(1)(a) provides that a person has the right to appear before the court in person at any hearing in which the court is considering making, varying or revoking a supervision order in respect of the person. In my view, a major review is such a hearing, as it invites consideration of whether the supervision order should be varied or revoked. Pursuant to s 36(2), if the person decides not to appear before the court, the court must satisfy itself that they have been informed of their right to appear.
Based on the evidence of Dr Dubow and the brief appearance of the reviewee, I was satisfied that CM had been informed of his right to appear.
The position of the other parties
The Secretary to the Department of Health (‘the Secretary’) and the Attorney‑General of Victoria (‘the Attorney-General’) submitted that the appropriate outcome of the major review is confirmation of the CSO. Both parties respectfully submitted that the length of the next review period, and whether a suppression order should be made, were matters for the Court upon which they took no position.
Notification of family members and victims
Section 38C requires the Director of Public Prosecutions (‘the Director’) to give notice of certain hearings under the Act to family members and victims of the index offence, including a major review hearing.[11] As is customary in these matters, the Director was excused from the hearing and expressed no view as to the appropriate outcome of the major review.
[11]The Act s 38C(1)-(2)(a).
The deceased’s mother, sister and two brothers were notified of this review. The deceased’s mother made a report pursuant to s 42. On behalf of the family, she wrote that after [the deceased’s] death, their lives changed forever. They experienced, and continue to experience, grief, loss and a great void in their lives. They strongly object to CM being released from his CSO. They are concerned that if he was released into the community, CM would be vulnerable to resuming an unstable life, and the safety of the community and their family would be put at risk.
The family of CM were not contacted, as the Office of Public Prosecutions had no known contact information. Pursuant to s 38C(7), notice of a hearing need not be given to a person whose whereabouts have not, after reasonable inquiry, been ascertained. The affidavit material filed by the Director does not provide evidence of what inquiries, if any, were made to ascertain the whereabouts of CM’s family. However, the most recent report of Dr Dubow states that CM has not wanted contact with his family for many years, and contact from his mother is significantly destabilising. In all the circumstances, it was appropriate to continue with the hearing.[12]
[12]See In the matter of ‘PK’ (No. 1) [2006] VSC 184.
Summary of CM’s progress on the CSO
1998 to 2015
Pursuant to s 41(3), annual progress reports authored by an ‘appropriate person’ have been received by the Court.[13]
[13]At the time the CSO was made, the ‘appropriate person’ was the Department of Human Services, now the Department of Health.
CM’s initial progress was positive. Dr Carroll, in his report dated 12 July 1999, stated that CM had progressed well over the past year and had moved in fairly rapid succession from the very structured acute ward, M6, to the long term rehabilitation ward and then to the M5 ward. CM had been attending several groups on the ward including an educational one about his illness, and was described as ‘an enthusiastic participant in the M5 program’. He was receiving treatment with the oral antipsychotic, Clozapine. He had at times developed paranoid ideas of persecution, but they were not compelling or dominant, and he had been free of them for several months. His social skills had improved, although he still had some difficulty recognising appropriate interpersonal boundaries. He had escorted on-ground and off-ground leave, which he had been using without any major problems. He was understandably struggling to come to terms with the long-term nature of his incarceration, but there had been no episodes of physical or verbal violence. Dr Carroll anticipated that by the time of the move to Fairfield in March 2000,[14] CM would be suitable for on‑ground unescorted leave.
[14]Thomas Embling Hospital ultimately opened one month later, in April 2000.
By the time of the next report, authored by Dr Lester and dated 8 September 2000, CM was at Thomas Embling. Dr Lester wrote that CM had maintained a stable mental state, was fully compliant with his medication and was benefitting from his continuing psychiatric treatment, psychological counselling and psychosocial rehabilitation programs. He had shown increasing insight into his illness and displayed an increasing ability to deal with various stresses that had arisen within his family. He also displayed an increasing level of interpersonal maturity. The plan was for CM to continue with his treatment and programs as detailed in his Individual Service Plan, which was reviewed on a three-monthly cycle.
In December 2001, CM’s paranoid schizophrenia remained in remission, but he had experienced a number of ‘severe personal stressors’ which had contributed to the development of an episode of major depression. With support and medication, CM made a complete recovery. CM continued to build strong intra-ward relationships, which contributed to an ongoing paucity of community links or interests. He had used escorted leave appropriately and without incident, and was aiming to re-establish accompanied leave with his family. CM needed to work on curbing his exuberance and impulsiveness in social situations, which while not constituting a significant risk factor, would reduce his prospects of successful community reintegration.
In early 2003, [redacted]. CM’s escorted leave continued without incident. He also had accompanied leave with his mother and stepfather, which proceeded without incident and formed an important part of his support network. CM’s relationships with co-patients and staff were positive, and he continued to cooperate with medical and psychotherapeutic treatment. CM expressed a desire to gain employment towards the end of the next 12-month period, should he achieve and maintain unescorted leave successfully.
The report of 1 July 2004 noted CM’s progress had ‘varied’ over the preceding 12 months. This report marks the beginning of what became an overall downward trend. CM had been granted two unescorted leaves in September 2003, which he managed reasonably well. In February 2004, the State Trustees assumed control of his finances. CM found this very stressful and shortly afterwards, he experienced an exacerbation of his psychotic symptoms and self-harmed in response to command hallucinations. His medication regime was changed and he initially responded well, but then experienced a further exacerbation of his symptoms. He did not experience any positive symptoms after March 2004, but suffered significant anxiety on several occasions. He continued to access escorted community leave only. CM’s goals were to work toward regaining unescorted community leave, and focus on improvements in his ability to manage anxiety, as well as improving his social skills and understanding.
In October 2004, CM’s mental state had destabilised and he was transferred to the Canning Unit, a more supported and locked ward of Thomas Embling. By April 2006, CM’s mental state had restabilised, but he showed little motivation to move beyond the highly structured and supportive environment he was in. The focus of those treating him was to find a very supported placement for CM in the community. CM required intensive preparation and support to transition to such a placement (if one could be found), and it was considered highly likely that if the process were too quick or inadequately supported, CM’s mental state would deteriorate, placing himself and others at risk. It was the view of Dr Brennan, who authored the 2006 annual report, that CM needed to remain on the CSO.
In September 2007, CM was transferred from the Canning unit to the Daintree rehabilitation unit. CM continued to experience auditory hallucinations of others calling him a homosexual and mocking him, which caused him great distress and led him to withdraw from others. His dose of Clozapine was increased in an attempt to better control his symptoms. In late 2008, CM’s psychotic symptoms worsened, and he was transferred back to an acute ward. In April 2009, he was transferred to the Bass unit, which is a sub-acute and early rehabilitation ward within Thomas Embling. By December 2009, CM was on 950 mg of Clozapine, which was described by his then-treating psychiatrist, Dr Brennan, as a ‘very high’ dose. Despite this, CM continued to experience disabling symptoms, including auditory hallucinations. He had low levels of motivation which translated into poor self-care. He was largely bereft of interests and activities, despite multiple interventions.
Unfortunately, throughout 2010-2012, CM remained chronically disabled by anxiety and a belief that others were talking about him. At times, this manifested in panic attacks. He remained on Clozapine, on doses of between 750-800 mg per day. Due to his anxiety, CM led a very restricted life and frequently retreated to his room. He accessed some escorted community leave to attend to basic shopping and personal needs. Dr Brennan attempted to have CM identify other activities they could help facilitate, but CM struggled to identify any areas of interest. CM had persistent difficulties with motivation and social relationships. He required a high level of nursing staff support to maintain adequate hygiene. He maintained a low level of contact with his mother, [redacted]. Her visits would make CM very anxious. Unfortunately, both medication and psychology interventions had produced little gain. CM did not have the skills to move into a community setting and continued to require the high level of support and structure available at Thomas Embling.
The report of Dr Reid, dated 10 July 2015, stated there had been some modest indicators of possible improvement. CM remained in the Bass unit. At times, CM raised concerns that others were talking about him, however Dr Reid considered that this was not necessarily suggestive of a relapse of psychosis. Rather, in CM’s case, it was likely this particular symptom was related to his anxiety. It was noted CM appeared to respond better to interventions that were related to physical activity rather than cognitive demand. CM started taking brief cycling trips with the occupational therapist, which progressed very well. Following this, CM displayed some improved motivation to develop his leave further. CM maintained good relations with other patients and staff, although he tended to readily engage in friendly physical contact, which received a variable response from other patients and staff. Overall, while progress had been slow, there were modest indicators of possible improvement which offered some hope.
Reports and evidence of Dr Dubrow
Dr Dubow is a consultant forensic psychiatrist at Forensicare, and has been CM’s treating psychiatrist since February 2016. Dr Dubow authored seven annual reports, and his final report dated 24 January 2023 satisfies the requirements of both ss 40(2) and 41(3).
In his 2016 report, Dr Dubow noted that CM had some activities: he did woodwork, attended the gym and occasionally cycled around the hospital grounds. He continued to be quiet and kept to himself. He continued to suffer anxiety, but there had been some promising progress in relation to this condition. CM had requested unescorted leave, and this had gone well. CM had successfully gone for walks by himself in a nearby park, and dined in a nearby restaurant.
In his 2017 report, Dr Dubow noted that CM’s anxiety had decreased significantly. CM was coping well with unescorted leave, and had a newfound confidence and sense of competency. He had worked closely with his primary nurse, who had adopted a very firm but encouraging approach. CM continued to do woodwork, attend the gym and occasionally cycle. He also attended groups on anxiety, social skills, cooking and ‘healthy lifestyles’. The primary focus of treatment was to encourage CM to take on progressively more independent tasks in the community, thereby reducing his anxiety and increasing his self-confidence. It was anticipated that any progress would be slow.
At the time of Dr Dubow’s 2018 report, CM’s anxiety and persecutory delusional beliefs continued to be of concern to those treating him. These experiences increased, resulting in the suspension of CM’s unescorted leave during the first six months of the review period. In the second six months, CM’s experiences decreased and his unescorted leaves were reinstated. CM expressed a wish to be discharged from Thomas Embling. While this was unrealistic, CM was granted leave to visit a community psychiatric facility. CM found the facility too cramped and was less keen on being discharged after that visit. CM’s sole activity was attending a pottery class. His medication was unchanged, and he remained cooperative and socially isolated.
During 2019, CM
engaged in behaviours which had undermined his progress. CM had been granted fairly extensive unescorted leave to a range of destinations. However, while on unescorted leave, CM would often describe concerning experiences, including interactions where random women would approach him and offer to have sex with him. This resulted in CM’s leave reverting to supervised leave at times. During 2019, CM attended a pottery class as part of unescorted leave in the community. In December 2019, CM asked personal questions of his teacher and she asked that he cease attending class. A student nurse reported similar behaviours by CM later that month. According to Dr Dubow, an unfortunate consequence of CM’s increased social confidence had been a tendency for CM to make comments towards women, which had been experienced by the women as having unwelcome sexual undertones. Dr Dubow opined that it is probable these behaviours were not ‘badly motivated’, but rather a consequence of poor social judgment which is a frequent feature of people with schizophrenia. CM’s unescorted leave was limited to the adjacent parklands, and all other leaves were attended by staff.
The main treatment focus planned for CM for 2020 was psychological, with the aim of reducing CM’s socially inappropriate behaviour. CM had previously received extensive psychological treatment in this regard, but with no obvious benefit. The Covid-19 pandemic then struck. CM did not leave Thomas Embling for most of 2020, due to COVID-19 restrictions and his poor mental state. Dr Dubow noted that the considerable and ongoing disruption caused by COVID-19 appeared to have a greater psychological impact on CM compared to the other residents in his unit. During 2020, CM had periods where he was psychotic. For example, he would imagine himself to be a Ninja warrior, and speak incoherently of a world inhabited by multiple Ninja warriors to which he belonged. He would execute elaborate karate-style movements in the courtyard, explaining that this was to keep women safe from the threats posed by men.
On other occasions (in which he was not psychotic), CM expressed similar concerns. Dr Dubow stated that while these concerns were not psychotic in nature and are probably best understood as an anxiety phenomenon arising in part from CM’s own history of abuse, they had the potential to evolve into psychosis and/or lead to confrontations. The latter eventuated in December 2020. Dr Dubow noted:
In December 2020 [CM] believed a fellow patient had inappropriate intentions towards a female nurse and he abused this patient and threatened to kill him. Fortunately, this patient had the insight to appreciate that [CM’s] actions arose from his illness, and he assisted staff in defusing this incident.
In his most recent report of January 2023, Dr Dubow noted:
[CM’s] progress over the past 24 years has been typical of patients with severe schizophrenia. The ‘positive’ or psychotic symptoms of his illness such as delusions and hallucinations have been mostly under control. However, the negative or deficit symptoms of his illness have gradually increased in their intensity. These symptoms include apathy, lack of initiative, impoverishment of thought, poor self-care and a decreased need for human interactions and the capacity to accomplish and manage those interactions.
[CM] has also suffered from significant anxiety to a degree which is unusual in patients with prominent negative symptoms. His anxiety is related to his history of childhood neglect and abuse. It has always been most evident when he has had contact with his family. Additionally, when he becomes anxious, he has often made references to his past. At times when he is anxious it appears that he is experiencing flashbacks from his past. It has not been possible to explore these experiences with him because of his enduring anxiety and avoidance and his difficulty in talking about complex emotional issues.[15]
[15]Dr Dubow’s report dated 24 January 2023, [20]-[21].
CM remains heavily medicated. He takes anti-anxiety, antidepressant, mood stabilising and antipsychotic medication daily.[16] He remains on a high dose of Clozapine, currently 825 mg per day. Dr Dubow noted that these medications have significant side effects, and that CM has previously required hospital admission to treat physical complications caused by his medication regimen.[17]
[16]Ibid [34]
[17]Ibid.
CM has refused to see his mother for many years. In the past, when he permitted his mother to visit, her behaviour was very inappropriate and staff believed that she was psychiatrically unwell. On occasions when his mother would telephone, CM would become anxious to the point of incoherence. Since approximately 2018, CM has requested that he not receive calls from his mother. He has no other contact with any family members.
CM has been involved in approximately 20 incidents over the past three years, all of which have been heavily related to his ongoing and severe mental illness. These incidents have included threats to kill, minor assaults like punching, and inappropriate touching of residents and staff. Regarding the bearing that these incidents may have on CM’s future risk, Dr Dubow opined:
While the severity of these incidents have not been extreme and have not required an enduring admission to an acute unit, the potential that a similar incident in the future might result in a severe outcome is significant.[18]
CM is otherwise withdrawn and spends long periods in his room. He has not used his escorted leave for approximately four months except for medical reasons. CM remains in Bass unit at Thomas Embling.
Viva voce evidence of Dr Dubow on 27 February 2023
[18]Ibid [41].
In evidence at the hearing, Dr Dubow said that CM has been mostly disengaged for the past 18 months. Recently, he was very physically unwell and spent approximately two weeks in hospital. However, CM greeted Dr Dubow positively upon his return to Thomas Embling, and Dr Dubow is hopeful that a more meaningful treatment phase may follow.
CM continues to experience symptoms of schizophrenia. He takes it upon himself to be the protector of women in general, nursing staff in particular. On occasion, CM’s concerns may have some basis in reality. However, he holds a delusional belief that he is part of an extensive ninja network. CM engages in frenetic karate-style moves in the courtyard, which objectively look very bizarre. In CM’s mind, this is his way of keeping the women on the ward safe from the predations of men. Dr Dubow said that, ironically, these active beliefs seem to be most prevalent when CM is slightly better and feels more animated.
CM continues to experience negative symptoms which are equivalent to a form of dementia. CM’s intellectual functioning - including memory, executive thinking, planning, initiative, attention and concentration - are all significantly impaired. He requires substantial encouragement from staff to engage in self-care. He has overwhelming anxiety, which is unusual in schizophrenia, and his anxiety is often physically palpable.
CM is compliant with his medication regime. As to the effectiveness of his medication, Dr Dubow opined:
[CM] has a very, very severe illness. I think without the medication, he’d be significantly worse. It’s difficult to say the medications haven’t worked. I think sometimes an illness is inherently so severe that it’s simply untreatable effectively with medication.
As to the risk CM presents to himself and the community, Dr Dubow stated that terms such as ‘high’ are problematic. In his opinion:
[T]hese terms are problematic and they don’t really, at all, indicate a probability. So, if you ask any mental health professional what does high, moderate or low means in the sense of a probability, there is no answer. So, I take a much more pragmatic view. [CM] has been on Bass [Unit] for many, many years, and as best I know, it’s really been free of incidents. There have been occasional verbal outbursts. So I think within Bass, his risk is low. But were [CM] to be living in the community, then I think his risk would be high.
Dr Dubow confirmed his view that the CSO should continue, and said CM is far from ready for extended leave. The next unit ‘down’ in terms of progress is the Daintree unit, but to reside there, a patient must be self-sufficient in terms of shopping, cooking and self-care. CM does not have the necessary skills to reside in the Daintree unit. Dr Dubow said they will be encouraging CM to have some leave in the community, accompanied by nursing staff, and for the foreseeable future any leave will be accompanied. Dr Dubow opined that with hindsight, CM should not have been having unescorted leave in 2019 prior to the ‘pottery class incident’, given the severity of his illness.
From a realistic clinical point of view, Dr Dubow considered it very likely that in five years’ time, the position will be similar. Dr Dubow was asked if there was any risk to CM if the next major review is ‘too soon’, and Dr Dubow responded that given CM had attended and seemed to be engaged, there is also a clinical case for keeping him engaged in the process.
Finally, Dr Dubow stated that if CM’s name or these proceedings were reported or published in any way, and CM became aware that anything was being said about him in the media, that would have a ‘dramatic and negative’ effect on CM. Any publicity would be very damaging for CM, and he would not have the ability to put what was being said into context.
Analysis
Turning to each of the s 40(1) matters, it is evident CM has a well-established diagnosis of schizophrenia,[19] and the commission of the index offence occurred in the context of CM experiencing acute schizophrenia.[20]
[19]The Act s 40(1)(a).
[20]The Act s 40(1)(b).
CM suffers from a particularly severe form of schizophrenia. In evidence, Dr Dubow agreed that throughout his time at Thomas Embling, CM has not progressed as they would have hoped. In Dr Dubow’s opinion, this is a reflection of the seriousness of his illness. For approximately one-third of sufferers, schizophrenia is unfortunately a deteriorating illness, and that is simply the nature of the illness. CM’s illness accounts for a ‘huge part’ of his overall deterioration over time, but his anxiety and overwhelming trauma are also significant factors.
The unchallenged evidence of Dr Dubow is that if CM was in the community, then his risk of harm would be extremely high. Dr Dubow opined that were the risk to materialise, then it is necessary to reference the index offence, and it is difficult to ignore the possibility that such an offence could recur. I am satisfied that CM continues to pose a high risk of future violence, and the harm that would eventuate should CM’s risk materialise would likely be severe.[21]
[21]The Act s 40(1)(c) and (d).
CM is very reliant on the staff in the Bass unit for his continued care. According to Dr Dubow, there is simply no community facility available for CM, and Thomas Embling is uniquely and best placed to provide CM with the supports he requires. There are currently no resources for the treatment and support of CM in the community.[22]
[22]The Act s 40(1)(e).
I have had regard to the principle of parsimony found in s 39(1). On the available evidence, I am satisfied that the safety of CM and members of the public would be seriously endangered if he were to be released onto an NCSO at this time. Therefore, pursuant to s 35(3)(a)(ii), the CSO must be confirmed.
The appropriate review period is somewhat difficult to determine. On the one hand, I accept Dr Dubow’s evidence that little is likely to change in the next five years. However, CM has no history of court-ordered reviews, and in those circumstances, it is not known if they may have any positive impact on CM. He was not expected to attend this review, however he did attend briefly, and Dr Dubow regarded this as a positive development. More generally, regular reviews by the Court are consistent with a fair and transparent system of supervision, and help ensure the Court remains proactive when reviewing detention under the Act. Given the history and circumstances of this matter, I find it is appropriate for the Court to take a more proactive approach to reviewing CM’s ongoing detention. I have therefore determined that a further major review should be conducted in three years’ time.
Conclusion
The custodial supervision order is confirmed.
A further major review will be conducted in 3 years’ time.
Pursuant to s 75 of the Act, until further order of the Court, no person shall publish or broadcast, or cause to be published or broadcast, by means of radio, television or by any other means, any evidence given in the proceeding, the content of any report or other document put before the Court in the proceeding, or any information which might directly or indirectly enable the identification of the reviewee. I am satisfied it is in the interests of justice to do so. Those interests include that the reviewee suffers severe schizophrenia, and any identification of him, or publication of his location or progress, would be very likely damaging to his mental health.
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