Re DG; (No 2)
[2018] VSC 469
•22 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 06907
| IN THE MATTER of an application under s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and – |
| IN THE MATTER of an application for extended leave by “DG” |
---
JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2018 |
DATE OF JUDGMENT: | 22 August 2018 |
CASE MAY BE CITED AS: | Re DG; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 469 |
---
CRIMINAL LAW — Crimes Mental Impairment — Application for further extended leave — Whether the safety of the applicant or members of the public will not be seriously endangered — Application granted — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 39, 40, 57.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Meehan | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Mr M McLay | Department of Health and Human Services |
| For the Office of Public Prosecutions | No appearance | |
| For the Attorney-General | Ms Kretzenbacher | Victoria Government Solicitor’s Office |
HIS HONOUR:
Introduction
DG (‘the applicant’) has applied pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) for a further grant of extended leave from custodial supervision, permitting him to remain in the community, subject, broadly, to the same conditions as applicable to an existing grant ordered just under 12 months ago.[1] The applicant has been the subject of a custodial supervision order (‘CSO’) since July 2008.
[1]Re DG; an application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2017] VSC 515 (1 September 2017), [3].
The Secretary to the Department of Health and Human Services, the Attorney-General and the applicant’s treating team are supportive of the application for further extended leave.
At the hearing of this application I announced that I was satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed further extended leave on the conditions set out in the leave plan filed by the Secretary. Accordingly, I made the orders sought. Below are my reasons for making the orders.
Applicable legislation
The current application is made pursuant to s 57 of the Act, which provides:
(1)An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a)In the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b)In the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services.
(2)The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
The notion of serious endangerment requires a court to consider both the gravity of harm that may occur if the applicant were to harm himself or others in the community, and the probability of that harm eventuating. Thus, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[2]
[2]See In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J); cited with approval in NOM v DPP & Ors [2012] VSCA 198, [63] (Redlich and Harper JJA and Curtain AJA); See also NOM at [54]-[65] generally on serious endangerment.
The overriding principle to be applied in the exercise of the Court’s jurisdiction to grant extended leave is identified in s 39 of the Act which provides:
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 a minimum consistent with the safety of the community.
The matters to which the Court must have regard in deciding whether to grant extended leave are specified in s 40(1) of the Act, namely:
(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.
In addition, s 40(4) provides that the Court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered:
(a) the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person's mental condition; and
(ii) the possible effect of the proposed further grant on the person's behaviour; and
(b) the leave plan filed under s 57A.
Section 38C of the Act requires the Director of Public Prosecutions (‘the Director’) to notify victims and family members of an application for extended leave ‘if the granting of the application would significantly reduce the degree of supervision to which the person is subject’.
In this case, the Director advised that she did not intend to notify victims or family members of the hearing on the basis that it was anticipated that the grant of further extended leave, if granted on the terms proposed, would be in similar terms to the current grant, and would not result in a significant reduction in the degree of supervision to which the applicant would be subject. In my opinion that course is justified in these circumstances.
Background
The circumstances that gave rise to the making of the CSO in relation to the applicant are set out in the previous judgments delivered by this Court.[3]
[3]IMO an application for a grant of extended leave by GWD [2015] VSC 60R (27 February 2015); Re DG;an application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2016] VSC 65R (25 February 2016); Re DG; an application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2017] VSC 515 (1 September 2017).
In summary, the index offence occurred in February 2007 when the applicant killed a co-resident at a caravan park in regional Victoria by stabbing him while impaired by paranoid schizophrenia. It appeared that the applicant had consumed a significant amount of alcohol on the day of the killing and had not been compliant with his medication. Contemporary medical reports set out the medical and personal history of the applicant leading to the index offence.
On 23 June 2008, Curtain J found the applicant not guilty of murder by reason of mental impairment. On 18 July 2008, Cummins J declared him liable to supervision and committed him to a custodial supervision order for the nominal term of 25 years, which was to commence on 13 November 2007. The applicant was then transferred to the Thomas Embling Hospital (‘TEH’).
On 27 February 2015, the applicant was first granted extended leave for a period of 12 months to reside at the Austin Community Recovery Program (‘Austin CRP’).
On 25 February 2016, Jane Dixon J granted the applicant a further period of extended leave. On 1 February 2017, he was discharged from the CRP and transitioned into independent living at a property in suburban Melbourne. The applicant suffered a relapse following this transition, leading to the chief psychiatrist suspending his leave on 20 February 2017. On 22 February 2017, Jane Dixon J granted an application by the Secretary to have the applicant’s leave revoked. Prior to his extended leave being revoked, the applicant had filed an application for further extended leave which ultimately came before me on 24 August 2017.
On 1 September 2017, I granted the application for extended leave for a period of 12 months upon being satisfied that the proposed leave would not seriously endanger the applicant or a member of the community. I made a suppression order prohibiting any publication of information that would enable the identification of the applicant, his past or present places of residence, his employer or his general practitioner from being published.
Following the grant of extended leave, the applicant transitioned to full-time residency at a supported residential facility (‘the supported facility’). All meals are included and regular activities are provided for residents at the supported facility. The applicant has a private bedroom with an ensuite and his medication is administered and supervised by staff members.
On 10 May 2018, the applicant filed this application seeking a further grant of extended leave for 12 months subject to substantially the same conditions as the existing grant.
Psychiatric history
In summary, the applicant is a 56 year old man with a well-established diagnosis of paranoid schizophrenia (in partial remission) and co-morbid alcohol use disorder (in sustained remission). The predominant symptom of his schizophrenia is auditory hallucinations. While he still suffers from auditory hallucinations, he has reported a decrease in their intensity and effect on his behaviour. The applicant’s alcoholism has also resulted in cognitive deficits, which were recently diagnosed.
Dr Anthony Barnes stated in his report to the Court last year that the applicant’s relapse in February 2017 was due to his loss of access to support staff, travelling longer distances for work and significant loneliness as a result of the less structured living arrangements. This resulted in an increase in the intensity of the applicant’s auditory hallucinations including voices urging him to drink, disorganisation, decreased self-care and at least one instance of non-compliance with medication.
Upon re-admission to the TEH, the applicant’s mental state improved rapidly and he transitioned to the Jardine Unit within 24 hours. The applicant was subsequently granted three overnight leaves per week at the supported facility. In mid-2017, the applicant’s treating team again supported him being granted extended leave subject to additional supervision and monitoring to prevent the destabilisation of the symptoms of his schizophrenia. Evidence given by the treating team led me to grant the applicant extended leave on 1 September 2017.
The applicant has largely abstained from alcohol since his admission to the TEH. Two incidents regarding alcohol use have occurred in the last three years, one being the applicant’s consumption of a mixed drink of beer and lemonade on Christmas Day 2015, which he self-reported and for which he expressed great remorse, and the other being the discovery of a can of beer in the applicant’s fridge in February 2017, which the applicant denied belonged to him. Notwithstanding these incidents, all breathalyser tests since the applicant has been on extended leave have returned negative results for alcohol consumption.
Current psychiatric evidence
The Court received the following two reports in support of the application for further extended leave, which satisfy the requirements under ss 40(4)(a) and 40(4)(b) of the Act:
(a) Report of Dr James Belshaw, Consultant Forensic Psychiatrist at CTT, Community Forensic Mental Health Service (‘CFMHS’) dated 25 July 2018.[4]
(b) Report of Ms Nicole Barnes, Case Manager of the applicant at CTT, dated 19 July 2018.[5]
[4]Exhibit A.
[5]Exhibit B.
By letter dated 6 August 2018, Forensicare stated that the report of Dr Belshaw also fulfilled the requirements of s 41(3) of the Act, which requires that Forensicare as supervisor of the order is required to file an annual report in relation to the applicant.
Dr Belshaw’s report
Dr Belshaw has been the applicant’s treating psychiatrist since August 2017 and has interviewed him on eight occasions in that time.
In his report, Dr Belshaw provided a history of the onset of the applicant’s diagnosed condition of treatment resistant schizophrenia, the progress of his condition and treatment through the period of custodial supervision, his previous transition to community supervision on extended leave, the suspension of that leave and return to custodial supervision in February 2017 and his second transition toward community supervision culminating in the new grant of extended leave in September 2017. Dr Belshaw reviewed the applicant’s medical and substance use history.
Dr Belshaw addressed the past 12 months. In particular, he made observations concerning the applicant’s medication compliance and the absence of any apparent alcohol use; the benefit to the applicant of a structured environment at his accommodation; the likely cause of a change in Clozapine serum blood levels; a decrease in the applicant’s attendance at Alcoholics Anonymous meetings and why that was not a significant concern; his increase in attendance at his place of work and its benefits; the applicant’s recent success in obtaining funding and support under the National Disability Insurance Scheme (‘NDIS’); two areas of clinical concern for the CTT team (the applicant’s level of smoking and its financial and other consequences); some recent abdominal pain and weight loss and its management; and two particularly positive observations (lack of any irritability, aggression or violence despite a continuance of auditory hallucinations, and his continued apparent abstinence from alcohol use).
Dr Belshaw assessed the past 12 months of extended leave as being successful with no change to the applicant’s mental state and no behaviours of concern.
Having reported on his examinations of the applicant’s mental state conducted on
8 May and 5 June 2018, Dr Belshaw summarised the historical and dynamic risk factors relevant to the probability of the applicant engaging in future violence, and the best means of moderating those risks. It was his view that --
… [the applicant’s] overall risk for future violence is low. The main area for ongoing input to maintain this low risk of future violence will be supporting the applicant to continue his reintegration into the community by supporting him to continue and expand his working repertoire, engage in other meaningful occupational or educational activities that he identifies are of interest to him, ensuring the stability of his physical health and helping him to manage the conjoined issues of financial disorganisation and tobacco (nicotine) dependence. At this stage this input can be provided by the CTT team directly, or indirectly via referrals to associated supportive services.
A less likely, but historically key risk scenario for violence would include a sustained return to alcohol abuse or non-compliance with medication, leading to psychotic relapse. The risk of this scenario will be mediated via the current levels of service provision, via the CTT team and associated services ….[6]
[6]Exhibit A, [68]-[69].
Dr Belshaw supported the grant of a further 12 months of extended leave on conditions annexed to his report. Those conditions are -
(a) That the Applicant be supervised by the authorised psychiatrist of the VIFMH (Victorian Institute of Forensic Mental Health) or their delegate.
(b) That the Applicant resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate.
(c) That the Applicant abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate.
(d) That the Applicant complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate.
(e) That the Applicant abstains from the abuse of alcohol and from the use of illicit drugs.
(f) That the Applicant not leave the State of Victoria without the permission of the authorised psychiatrist or their delegate of the VIFMH. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH.
In answer to questions put to him at the hearing, Dr Belshaw gave a persuasive explanation why the word ‘abuse’ rather than ‘use’ should appear in the fifth condition at sub-paragraph (e) above. In short, it is considered that requiring abstinence from ‘abuse’ promotes candour from the applicant in reporting any use of alcohol (which is desirable) and is more consistent with what can be objectively monitored by the CTT team and others.
Ms Barnes’ report
Nicole Barnes has been the applicant’s CTT mental health case manager since March 2018. She also supports the applicant’s application for further extended leave on behalf of the CTT team. Ms Barnes provided a clear picture of the applicant’s life at the supported facility, his place of employment and his employer’s observations about him, his family, social and community supports and the methods used to monitor his use of alcohol. It is apparent that his level of cigarette smoking is a concern in part because it consumes much of the applicant’s disposable income but also because of its impact on his health and the impact of the drugs taken to address his schizophrenia. Ongoing efforts are being made to assist him to reduce that use.
Ms Barnes confirmed that the applicant has maintained compliance with his medication and developed reasonable insight into his mental illness and need for ongoing treatment. She added that the applicant has attended all scheduled appointments, consistently engaged with the CTT team and is accepting of ongoing support, supervision and treatment from the CTT team.
Ms Barnes also recommends that the applicant continue to reside at the supported facility and that if any move be anticipated it should be discussed and approved by the CTT team. She also recommends continued communication between the CTT team and staff at the supported facility, monthly blood serum tests to monitor compliance with medication, ongoing random breathalysers and that the applicant continue to maintain structure to his routine and socialise.
Analysis
The applicant has a diagnosis of paranoid schizophrenia, which is in partial remission. He has also been diagnosed with alcohol abuse disorder, and borderline intellectual disability and cognitive defects as a result of years of alcohol abuse. At the time of the index offence in 2007, the applicant was floridly psychotic, acting under the influence of auditory hallucinations and paranoid ideation as a result of non-compliance with prescribed medication. The applicant also admitted consuming a significant amount of alcohol prior to the offence.
Since the applicant’s admission to the TEH, his treatment regime has been re-assessed, his medication levels adjusted and his mental state relatively stabilised, save for a short period of decline during the period of transitioning to independent living. The applicant’s schizophrenia is partly in remission and his alcohol use disorder in sustained remission. According to Dr Belshaw, it is unlikely that the residual psychotic symptoms will ever reach full remission, nonetheless, the applicant’s hallucinations appear to no longer have an impact on his functioning or the activities of his daily life.
I accept Dr Belshaw’s considered view that, in the environment in which he currently lives and works and with the supports he presently enjoys, the risk that the applicant would endanger himself or a member of the public because of his mental impairment is low.
I take into account, as I must, the need to protect people from such danger as the applicant represents together with the principle that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community. I have also paid careful attention to the suite of resources available to the applicant for his treatment and support in the community: they include, the CTT team (psychiatrists and case manager); the staff at his supported accommodation; his general practitioner; his employer; and (in the near future) a case worker and support co-ordinator allocated to him under the NDIS.
Having regard to the criteria set out in s 40 of the Act, and all of the clinical evidence in detail, I am satisfied that the criteria set out in s 57(2) of the Act exist in this case. In accordance with the principles set out in s 39 of the Act, further extended leave is granted on the conditions sought under the leave plan.
0
3
0