Re CMX

[2014] QMHC 4

MENTAL HEALTH COURT

CITATION:

Re CMX [2014] QMHC 4

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF CMX

FILE NO/S:

36 of 2014

DELIVERED ON:

18 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2014

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr J Sundin

ORDER:

I shall hear the Parties as to the form of orders.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where the Appellant appeals a decision of the Mental Health Review Tribunal – where the decision of the Mental Health Review Tribunal confirmed the Appellant’s forensic order and declined to amend or revoke a monitoring requirement – where the monitoring requirement obliged the Appellant to wear a GPS tracking device when accessing unescorted leave – where the reporting and treating psychiatrists opined the Appellant’s mental health was stable and his identified risk factors were not unacceptable – where both Respondents conceded there was insufficient material before the Mental Health Review Tribunal to find the monitoring condition was appropriately imposed – whether the monitoring condition should be set aside

Mental Health Act 2000 (Qld), s 4, s 5, s 8, s 9, s 203, s 309, s 493

COUNSEL:

J Crawford for the Appellant

J Tate for the Director of Mental Health           

B McMillan for the Attorney-General for Queensland

SOLICITORS:

Queensland Advocacy Inc for the Appellant
Crown Law for the Director of Mental Health

Crown Law for the Attorney-General for Queensland

1. BODDICE J:  By Notice of Appeal filed 31 January 2014, CMX appealed a decision of the Mental Health Review Tribunal (“the Tribunal”) of 29 November 2013 confirming his forensic order, and declining to amend or revoke a monitoring requirement imposed by notice by the Director of Mental Health (“the Director”), and confirmed by subsequent notices.

1. The grounds of appeal are:

“(a)The Tribunal placed insufficient weight on the treating team’s evidence that the monitoring condition was not necessary;

(b)Having regard to ss 4 and 5 of the MHA, there was no expert evidence that the monitoring condition was necessary to:

(i)treat or protect the patient;

(ii)protect the community;

(iii)address the needs of the victim of the alleged offence;

(c)The Tribunal failed to consider, or place insufficient weight on, the principle of least restrictive practice under s 9 of the MHA;

(d)The Tribunal failed to adequately safeguard the patient’s rights and freedoms when balanced against the rights and freedoms of other persons as required by s 4 of the MHA;

(e)Inclusion of the monitoring condition restricts the patient’s access to approved limited community treatment, without sufficient justification, in contravention of s 8(d) ‘achievement of maximum potential and self-reliance’ and s 8(h) ‘provision of treatment’;

(f)Due to the lack of replacement parts for the GPS monitoring device, the patient must wear the monitoring device 24 hours per day if he is to maximise his unescorted off ground leave, in contravention of s 8(a) ‘same human rights’ and s 8(h) ‘provision of treatment’;

(g)The Tribunal failed to consider, or place insufficient weight on, any harm the monitoring device may be doing to the patient;

(h)In the circumstances, the Tribunal should have revoked the monitoring condition under s 203(2)(f) of the MHA.”

Background

1. On 26 February 2009, this Court found the Appellant to be suffering from unsoundness of mind at the time of offences of murder, rape and indecent treatment of a child under 16, who was a lineal descendant under his care, all alleged to have been committed between 30 December 2007 and 2 January 2008, and serious assault, wilful damage and assault police, alleged to have been committed on 8 December 2007. 

1. The Appellant was placed on a forensic order requiring his detention at The Park High Security Program. Subsequent reviews have confirmed the forensic order.  They have also approved limited community treatment, although the conditions have, over time, been amended to include both escorted and unescorted leaves of absence, on a staged, graduated basis.  There have been no reported breaches during any approved leaves of absence.

1. The practical effect of the condition imposed by the Director is that the Appellant is required to wear a GPS monitoring device whilst exercising his approved unescorted off-ground leave.  That condition has been continued by the Director by further notices on 17 December 2013, and 28 February 2014.

Psychiatric history

1. The Appellant, who was born on 28 January 1968, has bipolar affective disorder (with a differential diagnosis of schizoaffective disorder or substance induced psychosis).  His first history of psychotic episodes or major mood disorder occurred in December 2007, although he has reported experiencing intermittent fleeting psychotic-like symptoms since childhood.

1. On 8 December 2007, the Appellant was admitted to hospital following an incident in which he attempted to purchase jewellery by a credit card that he stated was “God’s credit card”.  He became agitated when spoken to by police and required restraint.  This incident led to the Appellant being charged with the offences of serious assault, wilful damage and assault police.

1. On admission, the Appellant was noted to be elevated in mood with grandiose delusions.  He was assessed as suffering from a manic episode with psychotic symptoms.  He settled on medication and was discharged on 21 December 2007.  At that time, he reported being well.  However, the Appellant subsequently revealed he had failed to divulge to hospital staff ongoing delusions and auditory hallucinations.

1. On 31 December 2007, the Appellant was arrested and charged with murder, rape and indecent treatment of his 10 year old daughter.  He was initially detained in the Arthur Gorrie Correctional Centre.  On 4 January 2008, he was transferred to The Park High Security Unit.  On admission, he was described as having prominent command auditory hallucinations, which he ascribed to God who he said was instructing him to harm himself and others, and to undertake bizarre acts.

Offences

1. The more serious offences occurred against a background of a deteriorating mental illness.  The Appellant reported becoming increasingly agitated within days of his discharge from hospital, with a dramatically reduced need for sleep.  He also reported hearing voices from God requiring him to undertake a special mission. 

1. On the night of 30 December 2007, the Appellant visited his parents and made wild accusations, including a statement that someone close to him “is going to die tonight”.  He talked of odd themes of rape and murder.  He subsequently reported hearing voices, instructing him to do various acts.  This episode culminated in the alleged rape and murder of his daughter.  She had been strangled and stabbed in the chest with a knife.  Her hands had been bound with rope.  Her head had been roughly shaved, and she was wrapped in a blanket tied around her ankles.

Tribunal decision

1. Prior to the decision the subject of this appeal, the Tribunal had extended the terms of the Appellant’s approved limited community treatment from being limited to leaves of absence on the grounds of The Park to unescorted leaves of absence for planned activities approved by the treating psychiatrist.  Access to that approved unescorted leave was initially subject to lengthy delay as a consequence of the intervention of a body known as the Forensic Leave Panel.  Subsequently, the Director imposed, as a condition of any unescorted leave, that the Appellant wear a GPS monitoring device.  The Appellant complied with this condition when accessing unescorted leaves of absence.  These occasions were limited by difficulties with accessing the monitoring equipment.

1. The imposition of the monitoring condition was agitated before the Tribunal in its review on 29 November 2013. Whilst no application, under s 203(2)(f) of the Mental Health Act 2000 (Qld) (“the Act”), had been lodged with the Tribunal to remove the monitoring condition, the effect of that condition, and the appropriateness of that condition, were the subject of evidence. The Appellant gave evidence the requirement was excessive and restrictive. His treating psychiatrist, Dr Mann, described it as unnecessary, and as creating frustration for the Appellant.

1. In Dr Mann’s opinion, the Appellant, who had been symptom free for many years, did not constitute any risk which raised a need for a monitoring device.  He had accessed thousands of hours of on-ground leave without incident.  Dr Mann considered the greatest risk from the requirement he wear a monitoring device was that the device would malfunction, potentially embroiling the patient in a process of clarifying what had occurred to the ultimate detriment of the patient.

1. Dr Mann noted the patient had had off-ground leaves wearing the monitoring device on three occasions since 17 November 2013.  There was zero benefit from its use, and significant difficulties as only two trained and accredited staff were allowed to attach the device.  The device also needed consumable attachments which were limited in number, restricting the Appellant’s access to the device.

1. Dr Mann opined there was no absconding risk, no risk to the patient’s family, and the risk of illicit drug use had been addressed by the patient.  Past reviews by a number of psychiatrists, the Forensic Leave Committee, and the Limited Community Treatment Review Committee had not seen any need to recommend the use of a monitoring condition.

1. After considering the evidence, the Tribunal concluded it was appropriate to confirm the forensic order, and to confirm ongoing approved limited community treatment on a graduated basis.  It declined to make any order in relation to the monitoring device condition.  The Tribunal said:

“The Tribunal noted the comments of Dr Mann about the decision of the Director of Mental Health and reasons in support of the use of monitoring device. It explored with Dr Mann whether the use of a monitoring device may provide evidence to the Tribunal in the same way as uterine drug screens can establish a history of a patient abstaining from the use of a illicit substances. The monitoring device records may show that the patient has travelled to the places that he said he went and not mislead his treating team. Further, the reasons for a monitoring device may not only focus on the risk posed by an individual patient, but may provide confidence to those outside the treating team that the processes and procedures for security at a particular Authorised Mental Health Service live up to those that are being expressed by the Service. In short, providing objective evidence that what is said is also being done. The Tribunal considered whether the monitoring condition should be addressed or altered. It concluded that the current conditions of limited community treatment approved by the Tribunal, sufficiently addressed the question of unacceptable risk for the patient. Therefore, it would not include in the Limited Community Treatment, a condition for use of a monitoring device. However, given the potential for positive information that the patient was doing what he said he was, being confirmed through GPS tracking and of other issues which may be outside immediate risk issues of this patient but related to the overall management of the secure facility, the Tribunal decided it was not required to alter or remove the condition of a monitoring device under s 203(2)(f) of the Mental Health Act 2000. Therefore, the Tribunal confirmed the Forensic Order and left the Limited Community Treatment unaltered and made no order in relation to the existence of the monitoring device provisions.”

The appeal

1. The appeal is by way of rehearing.  This Court has power to confirm or set aside the Tribunal’s decision.  The Court is to determine the appeal by reference to the state of affairs which exists at the time of the appeal hearing.  In the event the decision of the Tribunal is set aside, the Court may make a decision the Tribunal could have made on the review application.

1. Section 203 of the Act sets out the powers of the Tribunal on review:

“Decisions on Review

1.On the review, the Tribunal must decide to confirm or revoke the Forensic Order for the patient.

2.If the Tribunal confirms the Forensic Order, the Tribunal may decide to make one or more of the following orders;

(a)     an order that the patient have limited community treatment subject to the reasonable conditions the Tribunal considers appropriate;

(b)     an order approving limited community treatment for the patient subject to the reasonable conditions the Tribunal considers appropriate;

(c)     an order revoking an order or approval for limited community treatment for the patient;

(d)     an order that the patient be transferred from one authorised mental health service to another authorised mental health service;

(e)     an order that the patient be transferred from a mental health service to the forensic disability service;

(f)     an order amending or revoking a monitoring condition included in the patient’s treatment plan under this section;”

1. Whilst the appeal is against the Tribunal’s decision of 29 November 2013, its utility has been complicated by the Director issuing further notices continuing the monitoring condition.  The most recent notice was dated 28 February 2014.

1. As the notice the subject of the appeal has been superseded by a subsequent notice, a conclusion open on the appeal is that the appeal would have no utility as the Tribunal has yet to review the February notice.  That review has been deferred as a consequence of this appeal. 

1. The parties jointly submit that against that background, this appeal ought properly to be determined on the basis of a consideration of the issues raised on the appeal, rather than on a determination of the utility of the appeal itself.  That stance is appropriate in the circumstances, particularly as the February order continues the order made on 13 November 2013.

Legislative Scheme

1. The scheme of the Act is to ensure that any mental health treatment imposed on an offender, pursuant to a forensic order, properly balances the protection of the community, and the needs of the victim of any alleged offence, against the patient’s rights and freedoms, and the rights of others. Maximisation of the patient’s potential and self-reliance is central to this scheme. The Act recognises the least restrictive practices should always be adopted in respect of patients.

1. The Director, pursuant to s 309A and s 493A of the Act has issued a Resource Guide. Chapter 9 of that Guide provides principles relevant to the imposition of a monitoring condition. According to that Guide, monitoring conditions are “intended to support the risk management of particularly high risk patients”.

1. Such a condition may be required by the Director only if it is the least restrictive mechanism to address the risks associated with the patient accessing limited community treatment, and if there is no alternative avenue for addressing those risks.  There is to be consultation regarding the potential clinical impact on the patient of such a condition, prior to any requirement being imposed by the Director.

1. The Guide provides criteria for the imposition of such a condition.  This criteria includes the patient’s forensic history indicating a need for increased monitoring, any change to limited community treatment being at a critical point (such as transitioning from escorted to unescorted leave), significant issues being identified relevant to the patient’s risk in accessing limited community treatment (such as a high risk of absconding or violence), and there being no other mechanism to manage that identified risk.

Evidence

Imposition of the monitoring condition

1. The Director provided a report dated 16 May 2014 outlining the material relied upon, and the basis for, his decision to apply the monitoring condition.  According to that report, the factors that impacted on that decision were:

“●At the time of discharge from the RBWH Mental Health Unit, ten days prior to the index offence, CMX was deemed to be well with no active signs of mental illness.

●After discharge into the community he was non-compliant with treatment and abused illicit substances.

●At the time of his arrest, it was discovered that there were other potential victims.

●There have been two episodes of illicit drug use during his admission at The Park High Security Program.”

The Appellant’s case was considered to embody “a number of high risk or contentious issues, community interest and a high likelihood of attracting police attention if absent without permission”.  The Director considered the static or historical factors in respect of the Appellant, and the seriousness of any offending that may occur should he relapse, were of such significance that they outweighed the immediate risk assessment provided by the treating psychiatrist. 

1. The Director reviewed the condition subsequent to the Tribunal’s decision.  After noting the Tribunal had not amended or revoked the Director’s decision, and after considering numerous updates from the treating psychiatrists regarding the impact of the monitoring condition on the Appellant, the Director declined to remove the condition.  Whilst the Appellant had been compliant and had adhered to the terms of the order, the Director decided not to remove the condition “having regard to the historic and static risk factors; most notably CMX’s history of illicit substance use and non-compliance”.

Treating Psychiatrist

1. Dr Mann opined the Appellant’s mental illness was stable, and the Appellant continued to show good insight into the existence of his illness and the need for treatment.  He was compliant with all aspects of his treatment plan.  He behaved responsibly and proactively, and participated in rehabilitation activities. He did not represent a high risk to others. He had not attempted to abscond from any mental health facility in the past.  Dr Mann assessed his current risk to others, and of absconding, as low.

1. Dr Mann opined:

“Given the absence of current morbid symptomology, the stability of his mental state, his negative UDS results since July 2011, his successful transition into EFTRU and ongoing utilisation of unescorted leaves, the treating team propose that CMX be allowed to have unescorted off-ground leave without wearing a GPS monitoring device.  The treating team have found no clinical benefits of CMX wearing the GPS monitoring device.  The treating team have not found any evidence the use of a GPS monitoring device is beneficial in mental health treatment or risk management.  CMX’s mental state has been stable and he has been compliant with the LCD conditions of his leave for the past three years without incident.”

Reporting Psychiatrist

1. Dr Grant provided a report dated 24 May 2014. He had previously provided a report to the Mental Health Review Tribunal dated 13 December 2012.  That report contained a comprehensive risk assessment, and a full background history.  The report of 24 May 2014 is to be read in conjunction with that earlier report.

1. In his most recent report, Dr Grant opines the Appellant suffered from a probable schizoaffective psychosis (with a differential of bipolar affected disorder with psychotic features).  That psychosis was now in remission with treatment.  There had been no evidence of significant symptomlogy at all since late 2008.  A potential diagnosis of drug-induced psychosis was no longer relevant as the extent and persistence of the Appellant’s psychotic symptoms ruled out a drug-induced psychosis as an appropriate diagnosis.  A past history of cannabis abuse was also in remission.  There was no evidence of a personality disorder or other significant psychopathic traits in his personality.

1. Dr Grant’s previous risk assessments revealed the Appellant was in the moderate to low group risk category for any future sexual violence, with no evidence of psychopathy.  An instrument combining a mixture of static and dynamic factors along historical clinical and risk management dimensions rated the Appellant as low risk for future violence, and as being highly unlikely to commit further sexual offences when not suffering from psychosis.  If he was to become psychotic, sexual offending would be possible.  Such offending would be motivated by delusions, hallucinations and other psychotic phenomena.  In that event, the harm to victims would be potentially severe, and may progress to life threatening violence.

1. Dr Grant opined that in the context of ongoing effective treatment and control of the psychosis, future offending behaviour was unlikely to recur.  Warning signs of increasing risk would be any indications of relapsing psychosis, with a less significant warning indication being a recurrence of any abuse of drugs.  Dr Grant noted the Appellant’s last positive urine test for cannabis was in 2011.  Subsequent to that test, he had undergone a further alcohol and drug course. 

1. In respect of the Appellant’s current position, the Appellant reported he had remained stable mentally, with his mood generally good, although he was finding the processes in regard to the GPS monitoring very frustrating and upsetting.  He had had no psychotic symptoms of any description and had not used any cannabis, other illicit drugs or alcohol since 2012. 

1. The Appellant now reported good insight into the fact he must never use illicit drugs in the future.  He also exhibited good insight into the possible role of cannabis at the time of his index offences.  All urine drug screens, for more than three years, have been clear.   Such testing was undertaken randomly, at a minimum of once a month, and sometimes closer to one another.

1. Dr Grant noted the Appellant reported enjoying a lot of unescorted leave on campus, as well as unescorted off-ground leave.  All such leave had been completed without incident.  The Appellant maintained very regular contact with his parents and children.  His relationship with his children was said to be stronger than ever.  He was hopeful that in the future he may be able to enjoy overnight leave at his mother’s new house near PTS.  He had commenced contact with the mental health team based at PTS.

1. The Appellant reported having completed approximately 3,000 hours of on-ground unescorted leave, and more than 100 leaves into the community since wearing the GPS device.  He had been forced to wear the device effectively 24 hours per day, and to take responsibility for charging it, because the authorities were unable to guarantee replacing his unit daily prior to any unescorted leave.  There would otherwise be times where he had been unable to access such leave because of technical issues in regard to applying the device. 

1. The consequence of his obligation to charge the device was that the Appellant had to spend two hours a night lying stationary charging the unit whilst he was wearing it.  The Appellant found wearing the device a mental burden.  He worried he may accidently send off some kind of alert when getting dressed, or undertaking such similar innocent activity.  He also worried about the stigma attached to wearing the GPS device in public.  He believes people would unfairly regard him as a paedophile or serial sex offender.

1. The Appellant also told Dr Grant he could not understand why he was being forced to wear the GPS device.  He had never attempted to abscond in the past, and there was no logic in being required to wear the devise as there were no exclusions zones in terms of where he was not permitted to go when off-grounds.  He was  concerned the requirement would inhibit his progression to overnight leave as the isolation of his mother’s residence meant the GPS monitoring would not be able to operate unless a piece of equipment was set up somewhere near the house.

1. In Dr Grant’s assessment, the risk associated with granting the Appellant unescorted off-ground leave is low.  He has never absconded in the past, despite hundreds of opportunities to do so, and there was no evidence of any inappropriate behaviour, either on-ground or off-ground.  He has close relationships with his children and parents.  He has developed realistic and sensible plans for his longer term rehabilitation, and placement into the community on a graduated basis.

1. Dr Grant opined there was no clinical indication for the use of a GPS monitoring device in the Appellant’s management, or in the prevention of risk.  Not only did such a device add nothing to his clinical management or risk reduction, it had the effect of hindering his rehabilitation.  It was a source of stress, a potential cause for stigma and a restriction on his graduation to overnight leave. 

1. There was also no logic in applying a GPS monitoring condition in his case.  The Appellant’s offending history did not indicate its necessity.  He does not have a past history of predatory sexual assaultive behaviour in the community, or any particular situations that could be effectively monitored by GPS devices.  As there was no clinical indication or utility in such a condition, Dr Grant opined the application of GPS monitoring to the Appellant exceeded his clinical needs.

Appellant’s submissions

1. The Appellant submits the criteria for the imposition of a monitoring condition has not been met in the present case.  The evidence of the treating psychiatrist, and of the reporting psychiatrist, was that a monitoring condition was not required to manage an absconding risk or other reoffending type risk.  No high risk factors were identified by the treating or reporting psychiatrists.  

1. Whilst there were higher risk levels should he become non-compliant with medication or treatment, that higher risk was dependent upon the Appellant becoming psychotic or otherwise seriously mentally unwell. The Appellant was medicated, and mentally stable. He had never refused any prescribed treatment during his treatment at The Park to date.

1. The Appellant also submits there was no evidence there was a risk that any deterioration in the Appellant’s mental state would not be quickly identified by his treating team.  The Appellant remained a resident at The Park. He was regularly assessed by his treating team.  Any deterioration in his condition is likely to be identified promptly, and to result in a suspension of any approved leave.  The imposition of a condition of GPS monitoring would not alter those risk factors.  It also would not improve identification of any risk factors.

1. There was also no evidence the imposition of a GPS monitoring condition would improve identification of actions by the Appellant, contrary to his leave conditions.  There was no evidence a GPS monitoring condition would provide evidence the Appellant was not doing what he was supposed to do, or would provide other information relevant to the management of a secure facility.

1. Finally, the Appellant submits no consideration has been given by the Director to the impact on the Appellant of a requirement of continuous monitoring.  The Appellant has been humiliated and stigmatised by the GPS monitoring condition.  Such devices are routinely used in the community by individuals subject to the Dangerous Prisons Sexual Offenders Act.  There have also been occasions when the monitoring devise has lost contact with its satellite receiver.  This necessitates the Appellant move into open space limiting the types of activities he may lawfully engage in, such as watching a movie.

Respondent’s submissions

1. The Director and the Attorney-General submit the material placed before the Tribunal was insufficient to support any finding that a monitoring condition had properly been applied in the present case.  Both Respondents submit this Court ought to give consideration to the matters to be considered by the Director in imposing a monitoring condition, and by the Tribunal in undertaking a review of the imposition of such a condition.

Assisting Psychiatrists

1. Dr Sundin and Dr Lawrence advise I ought to accept the clinical opinions that a monitoring condition lacks utility and is punitive in the present case.  Such a condition is counter productive to good therapeutic care, and the principle of the least restrictive measure.

Discussion

1. At the commencement of the hearing, counsel for the Attorney-General conceded the evidence before the Tribunal, and before this Court, was insufficient to establish the Appellant posed an unacceptable risk if the monitoring condition imposed by the Director was revoked as a term of any approved limited community treatment. Having regard to the evidence of Dr Mann before the Tribunal, and the evidence of Dr Mann and Dr Grant before this Court, that concession is properly made. 

1. There is simply no evidence to support a conclusion the risk factors posed by the Appellant were unacceptable without the imposition of a monitoring condition.  There was no evidence to support a conclusion the imposition of a monitoring condition would in any way improve, let alone alter, those risk factors.  There was also no evidence revoking a monitoring condition would render any risks posed by the Appellant unacceptable.

1. Against that background, the decision of the Tribunal that it was not required to alter or remove the monitoring condition was contrary to the evidence. Whilst there was no formal application by the Appellant for revocation of that condition, its appropriateness was squarely raised on the evidence. The Tribunal accepted that was so by considering whether it should impose a monitoring condition on any approved limited community treatment. The Tribunal concluded it was not necessary. There was an obligation on the Tribunal, in those circumstances, to remove the condition imposed by the Director. Its continued imposition breached the fundamental principle that the least restrictive practices be adopted where appropriate.

1. The importance of the Tribunal considering the appropriateness of that condition was highlighted by the circumstances in which it had been imposed by the Director. The Tribunal, in an earlier decision, had approved unescorted leaves of absence as part of limited community treatment. There was no suggestion at that hearing that there were risk factors necessitating the imposition of a monitoring condition. It is not suggested there was any change in the Appellant’s circumstances from the date of that hearing to the date of the Director’s decision to impose a monitoring condition. That background should have caused the Tribunal to carefully consider whether the issue of unacceptable risk, raised by s 204 of the Act, justified the imposition of a monitoring condition.

1. It is not an appropriate use of the Director’s power for the Director to impose a further condition on any approved leaves of absence when that condition could and ought to have been raised before the Tribunal.  The exception to that course is where there is an identified material change of circumstance after the Tribunal hearing justifying the exercise of the Director’s discretion. Absent such a change of circumstances, it is incumbent upon the Director to raise the need for such a condition before the Tribunal, as part of the consideration of the terms of any approved limited community treatment.  The appropriateness of such a condition may then be properly considered at that time. 

1. As has been evidenced in the present case, the failure to do so can have the practical consequence of depriving a patient of access to approved limited community treatment, in circumstances where there is no justification for the imposition of the monitoring condition. Should the Director consider there are factors necessitating the imposition of a monitoring condition in accordance with the Resource Guide, evidence to that effect should be led before the Tribunal.  That evidence would include evidence from the treating team as to the particular risk factors, and from the Director as to the reasons for a monitoring condition, and as to the impact that monitoring condition would have on the particular risk factors.  Evidence should also be led to establish that the imposition of such a condition represents the least restrictive practice, and that there is no other way to render what is said to be an unacceptable risk, acceptable.

1. Should there be a material change in circumstances after the Tribunal’s decision, the Director, in accordance with his statutory discretion, should properly consider whether that change of circumstance requires the imposition of a monitoring condition.  In that event, as part of that decision, a specific record should be kept of the evidentiary basis for that conclusion. Relevant matters will include the relevant change of circumstance, the relevance of those changed circumstances to the patient’s risk factors, the fact that without the monitoring condition those risk factors are unacceptable, the way in which the imposition of a monitoring condition represents the least restrictive practice, and that there is no other means of rendering the unacceptable risk, acceptable.

1. Whenever the question of the imposition of a monitoring condition is being considered by the Director, it is a vital importance the Director give specific consideration to the impact such a condition may have on the patient. The relevant material to ensure that factor is properly considered would include not only material evidencing that the patient has been specifically given the opportunity to raise any concerns but also material evidencing that the treating team has been consulted and given the opportunity to address any perceived unacceptable risk.  That material should also evidence any benefits of a monitoring condition in respect of those risks, and the practicality of the imposition of the monitoring condition including the likely impact on the patient’s mental health and the patient’s accessibility to approved limited community treatment.

Conclusion

1. The evidence placed before the Tribunal did not provide any justification for a continuation of the monitoring condition imposed by the Director.  That condition ought to have been revoked by the Tribunal.

1. The evidence placed before this Court does not establish any proper basis for the imposition of a monitoring condition.  The opinions of Dr Mann and Dr Grant, which I accept, establish the Appellant’s mental health is stable, his identified risk factors are not unacceptable, and there is a lack of any identified benefit from the imposition of a monitoring condition in respect of his identified risk factors. 

1. The evidence placed before this Court establishes the imposition of a monitoring condition is to the detriment of the Appellant’s ability to continue to enjoy approved limited community treatment on a staged, graduated basis.  Such a condition does not constitute the least restrictive practice.  There is no basis for it to remain.  That condition must be set aside.

1. I shall hear the parties as to the form of orders.