Re Friedman (a pseudonym)
[2019] VSC 251
•18 April 2019 (revised)
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 04627
IN THE MATTER of a review of a non-custodial supervision order under s 33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
and
IN THE MATTER of Leon Friedman (a pseudonym)[1]
[1]To ensure that there is no possibility of identification of the reviewee, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the reviewee.
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2019 |
DATE OF JUDGMENT: | 18 April 2019 (revised) |
DATE OF REVISED JUDGMENT | 3 May 2019 |
CASE MAY BE CITED AS: | Re Friedman (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 251 |
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CRIMINAL LAW – Crimes mental impairment – Further review of non-custodial supervision order – Whether reviewee would be likely to endanger himself or others if order revoked – Non-custodial supervision order revoked – Suppression order made – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 31, 33, 39, 40 – Mental Health Act 2014 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms S Dhanji | Victoria Legal Aid |
| For the Secretary of the Department of Human Services | Mr D Bruno | For the Secretary of the Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms K Maikousis | Office of Public Prosecutions |
| For the Attorney-General for the State of Victoria | Mr J Stoller | Victorian Government Solicitor |
HIS HONOUR:
Introduction
This is an edited version of the restricted reasons for judgment the Court delivered in relation to the review under s 33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) of a non-custodial supervision order (‘NCSO’) made in respect of Leon Friedman. On 18 April 2019, the Court made an order that the NCSO be revoked. A suppression order was also made under s 75 of the Act. The restricted version is not suitable for publication because it sets out information that could enable the identification of Friedman, the victims or Friedman’s family members, or their respective places of residence. These reasons provide only such details as necessary to provide the relevant facts and context for my reasons. Accordingly, this edited version allows, to the extent possible, the publication of reasons without undermining the suppression order.
This is a review, under s 33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’), of a non-custodial supervision order (‘NCSO’) made in respect of Friedman.[2]
[2]Justice Bell made a suppression order on 24 April 2017 pursuant to s 75(1) of the Act prohibiting publication of any matter which might directly or indirectly enable the identification of Friedman, the victims, any members of Friedman’s family or their respective places of residence. I shall make a similar order.
The NCSO was made by a judge of the Court in May 2008 after Friedman had been found not guilty of intentionally causing injury and recklessly causing injury by reason of mental impairment. The NCSO was subsequently reviewed and confirmed on three occasions by Whelan J,[3] Zammit J[4] and, most recently, by BelI J.[5]
[3]Orders made on 15 October 2010.
[4]Orders made on 28 April 2016.
[5]Orders made on 24 April 2017.
The Secretary to the Department of Health and Human Services (‘the Secretary’), the Attorney-General, the Director of Public Prosecutions (‘the Director’) and Friedman were all represented on the review. I record that Friedman was not present in Court. I am satisfied that Friedman was informed by his lawyers of his right to attend the review and elected not to attend.[6]
[6]Act ss 36(1), (2). I note that Friedman did not attend the review hearings before Zammit J and Bell J.
Relevantly, on a review of an NCSO, the Court has the power to confirm the order, vary the conditions or to revoke the order.[7] Friedman and the Secretary submitted that the NCSO should be revoked. The Attorney-General submitted that the order and its conditions should be confirmed. No party submitted that the Court should confirm the order but amend the conditions.
[7]Act s 33. The Court also has the power to vary the order to a custodial supervision order, although that power is not relevant in the present case.
The Director filed an affidavit of a legal practitioner within the Office of Public Prosecutions deposing that the victims of the index offence and two of his siblings had been notified of the hearing of the review. Another one of Friedman’s siblings was unable to be located. No reports were filed by family members. A sibling of Friedman was present in Court during the hearing. The Director was excused and took no further part in the review.
For the reasons that follow, I am persuaded that the NCSO should be revoked.
Procedural history
The index offence occurred when Friedman, whilst impaired by psychosis, stabbed one victim in the face, and accidentally cut another on the forehead with a knife. As a result, both victims suffered serious injury.
A judge of the Court directed that a verdict of not guilty of intentionally causing serious injury and recklessly causing serious injury by reason of mental impairment be entered. The judge declared Friedman liable to supervision under the Act and made a NCSO for a nominal term of 20 years. The NCSO was subject to the following conditions:
(a) That Friedman be subject to the supervision of the authorised psychiatrist of Victorian Institute of Forensic Mental Health (‘Forensicare’) or his or her delegate.
(b) That he continue to reside at his current address or any other address as directed by the authorised psychiatrist of Forensicare or his or her delegate.
(c) That he abide by the lawful directions of the authorised psychiatrist of Forensicare or his or her delegate.
(d) That he comply with treatment, testing, and attend appointments as directed by the authorised psychiatrist of Forensicare or his or her delegate.
(e) That he abstain from the abuse of alcohol and from use of illicit drugs.
(f) That he not leave the State of Victoria without the written permission of the authorised psychiatrist of Forensicare or his or her delegate.
The judge also ordered pursuant to s 27(2) of the Act that the matter be brought back for review in two years and five months’ time.
On 15 October 2010, on the first review, Whelan J confirmed the NCSO and ordered that the matter be brought back for further review at the end of five years. On 28 April 2016, Zammit J confirmed the NCSO and ordered that there be a further review within 12 months’ time.
On 24 April 2017, a review of the NCSO was heard before Bell J and the NCSO was again confirmed. At the time, Friedman’s treating clinicians supported a revocation of the NCSO on the basis that the supervision order was not well understood by him, had no practical importance for his treatment and management, and caused him a level of distress which was potentially an impediment to his recovery.
Justice Bell confirmed the NCSO, finding that while its revocation may have been ‘administratively or therapeutically’ more ideal, it was legally necessary that it be confirmed due to the level of risk that Friedman presented at that time. His Honour noted that, while the clinicians supported revocation, their risk assessments of Friedman indicated that Friedman was a moderate risk of endangerment to himself and others. His Honour directed that the matter be brought back for a further review within two years’ time, and made a new non-publication order relating to identification of Friedman, his family or the victims under s 75 of the Act.
Applicable legislation
The present review of a NCSO is governed by s 33 of the Act, which relevantly provides:
(1) On an application under section 31 for … revocation of a non-custodial supervision order or … on a further review of a non-custodial supervision order directed under subsection (2) … the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order; or
(d) revoke the order.
(2) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(3) A direction may be given under subsection (2) more than once.
The overarching principle to be applied in the exercise of the court’s discretion is provided by s 39(1) of the Act, which states:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) of the Act sets out the matters to which the court must have regard in deciding whether to confirm, vary or revoke the order. It relevantly provides:
In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to —
(a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
Section 40(2) of the Act sets out that the court cannot revoke a supervision order unless it:
(a) has obtained and considered 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 order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) …
(e) has obtained and considered any other reports the court considers necessary.
Section 41(3) provides that if a supervision order is made in relation to a person, the appropriate person must arrange to have prepared and filed with the court, at intervals of not more than 12 months, a report containing a statement of any treatment, therapy or counselling the person has undergone or services that person has received and any changes to the prognosis of the person’s condition or the person’s behavioural problems and the plan for managing the condition or problems. The purpose of such a report is to assist the court in determining any application or undertaking any review in respect of the person to whom the report relates.[8] A copy of the report is required to be given to the Attorney-General.[9]
[8]Act s 41(3A).
[9]Ibid s 41(3B).
Notification of family members
I am satisfied, on the basis of the evidence filed by the Director, that the relevant family members and victims have been notified of this application. No reports have been received from any of the victims or family members of Friedman.[10]
[10]Ibid s 42.
As will appear, the family of Friedman is supportive of the revocation of the NCSO.
Psychiatric history
Friedman’s psychiatric history is set out in detail in the previous judgments of this Court, as well as in a number of psychiatric reports previously filed in this proceeding.
In summary, Friedman was born in Vietnam and is now 44 years of age. He has three siblings also residing in Australia, and another sibling in Europe. Both of his parents are now deceased. Friedman receives a disability support pension and has a long-term stable living arrangement in the community at a supported residential service (‘the SRS’).
Friedman has a longstanding history of treatment-resistant schizophrenia which pre-dates the index offence, having first been diagnosed in 1995.[11] Between Friedman’s initial diagnosis and the index offence, he had several admissions as an inpatient at psychiatric hospital units where he presented with various psychotic symptoms, including auditory hallucinations, persecutory delusions, thought disorder and disturbed behaviour. While it is unclear whether Friedman had a history of alcohol or substance abuse,[12] it appears that these admissions and the index offence were both preceded by non-compliance with medication.
[11]There are some discrepancies in the material available as to whether Friedman was diagnosed in 1995 or 1996.
[12]Friedman’s Forensicare psychiatrist, Dr Sobia Khan, noted in her report dated 20 February 2019 that there are some conflicting reports on this issue.
Following the index offence, Friedman was admitted to the Thomas Embling Hospital (‘TEH’), where he continued to experience auditory and visual hallucinations. He was recommenced on Clozapine (an anti-psychotic medication), his condition stabilised and he was granted bail in March 2007.
Between 2008 and 2014, Friedman was compliant with treatment and his illness remained stable. However, in September 2014, Friedman was admitted to Werribee Mercy Psychiatric Unit following a relapse of his psychotic symptoms. Notably, there were no issues with non-compliance with treatment leading up to the incident, and a suggested cause was a change in the visiting schedule of one of Friedman’s siblings.[13]
[13]Report of Dr Sobia Khan, forensic psychiatrist at Forensicare, dated 20 February 2019, 4 [28].
In 2014, Friedman sustained major injury when he was struck by a train after falling from a station platform. The details surrounding this incident are unclear, however, it is possible that Friedman may have lost his balance while attempting to watch a train arriving at the station, causing him to fall in front of the slowing train. There is no conclusive evidence to suggest that the incident was a suicide attempt or otherwise motivated by psychotic symptoms. The evidence does not permit a definitive finding as to cause.
As a result of the incident, Friedman suffered extensive physical injuries and a severe acquired brain injury (‘ABI’). This was compounded with the fact that Friedman already suffered with a level of cognitive impairment prior to the accident. His behaviours proceeded to vacillate throughout 2015 and 2016, culminating in four admissions to psychiatric hospitals and an incident in January 2016 involving Friedman stabbing a co-patient in the cheek with a pencil, which occurred in the context of ongoing psychotic symptoms and poor executive functioning relating to his ABI.
During a neuropsychology assessment in November 2016, it was observed that Friedman continued to suffer with moderate to severe cognitive deficits relating to his ABI that were likely to persist into the future. Accordingly, it was recommended that he receive ongoing case management and assisted living.
With regard to the interaction between Friedman’s mental impairment and his ABI, Dr Ed Theologis[14] was of the view in February 2017 that:
more focused attention to [Friedman’s] ABI issues would improve his quality of life and also reduce his chances of psychotic relapse, due to reduction in ‘cognitive stress’ that could be achieved by [a] carefully crafted ABI–focused program.[15]
[14]Consultant Psychiatrist and Clinical Director at the Austin Health Brain Disorder Program.
[15]Report of Dr Ashok Sing, consultant psychiatrist at the community mental health service, dated 27 February 2019, 3.
In late 2016, Friedman’s daily Clozapine dosage was reduced from 600mg to 550mg due to concerns regarding a persistent high serum Clozapine level and ongoing constipation (a side effect of his medication).[16] Over the course of the following months, there was a marked increase in concerning behaviours exhibited by Friedman, including adopting odd postures, waking up during the night and preparing for the day as if it were morning and throwing himself on the ground and remaining there until police were called.
[16]Report of Dr Sobia Khan, forensic psychiatrist at Forensicare, dated 20 February 2019, 6 [35].
In January 2017, Friedman’s treating team made a decision to return his daily dosage of Clozapine to 600mg which resulted in a greater stabilisation in his overall behaviour that was maintained up until the time of his last review before Bell J on 24 April 2017.
Friedman continued to attend all of his NCSO appointments as required.[17] The quarterly reports provided by Friedman’s community team recorded a stable mental state since the changes to his medication in 2016, although he has not gained any meaningful insight into his mental illness or NCSO conditions.[18] This lack of insight has had little impact on compliance with medication and monitoring arrangements, due to ongoing supervision and support by residential care staff.[19]
[17]Ibid 6 [37].
[18]Ibid.
[19]Ibid.
In February 2018, Friedman presented to Sunshine Hospital emergency department after being found by bystanders wandering on the road.
Evidence on the review
The Court has received the following material, which has been prepared since the last review and was filed on this review:
(a) two reports of Dr Sobia Khan, Consultant Psychiatrist, Forensicare, dated 20 February 2019 and 5 April 2019;[20]
[20]The second report was filed with leave after the hearing in response to questions from the Court as to the content of the current conditions under Friedman’s NCSO.
(b) report of Dr Ashok Singh, Consultant Psychiatrist at the relevant community mental health service, dated 27 February 2019;
(c) report of Bronwyn Lancaster, Case Manager at the community mental health service, dated 28 February 2019; and
(d) letter from Nicolette Ingram, Clinical Neuropsychologist Registrar at the community mental health service, dated 19 February 2019.
Dr Khan, Dr Singh and Ms Lancaster all gave evidence before me and were cross-examined on their reports.
In addition, I have had regard to the report of Dr Clarkson dated 30 July 2018 which was prepared pursuant to s 41(3) of the Act.
Submissions
As already noted, the Secretary, the Attorney-General and Friedman were all represented on the review.
The Secretary and Friedman each submitted that the NCSO should be revoked substantially for the same reasons.
Friedman submitted that the NCSO should be revoked unless the Court was satisfied that continuation was necessary for the protection of the public or Friedman. He submitted that Friedman’s condition was stable, that there had been no recent episodes for concern and that he has the support of a supportive treatment care team and family, all of whom favoured revocation.
Friedman submitted that the supports in place are adequate to identify the risk of harm and to respond to it promptly to mitigate any risk safely and effectively. In that respect, it was submitted that Friedman is in a stable and familiar accommodation and has a stable medication and treatment plan, all of which are funded and are not dependent upon the continuation of the NCSO.
It was submitted that the NCSO plays a minimal protective role given his stable condition and voluntary compliance with medication and treatment. Friedman was largely unware of the operation of the order and it played no role in his decision-making. It was acknowledged that the minimal role played by the NCSO meant that, correspondingly, the extent to which his freedom and autonomy was impacted was reduced. Nevertheless, it was submitted that it remains a legal constraint on his autonomy which was not justified.
The Secretary submitted that Friedman’s impairment is currently stable and he is in a highly structured environment, with adequate support to manage any risk that his condition may pose. To the extent that there was any future risk of a deterioration in Friedman’s condition, this could be addressed under the provisions of the Mental Health Act 2014 (‘Mental Health Act’).
The Attorney-General submitted that, because of the ongoing nature of Friedman’s presentation, his remitting/relapsing schizophrenia, the seriousness of the index offence and the existing risk of future harm, albeit low, it was appropriate for the NCSO to remain in place. The Attorney-General referred to the relapse of psychotic symptoms in 2014 when his medication was reduced, the incident with a fellow patient in 2016 and the wandering episode in February 2018, as all supporting a finding that there remains a material risk of harm if his chronic condition deteriorated. In those circumstances, the conclusion reached by Bell J that there remained an important role for the NCSO to remain in the background remained apposite.
The current level of supervision and care arrangements
In her second report dated 5 April 2019, filed with leave after the hearing, Dr Khan explained the current directions to which Friedman is subject. As noted above, the NCSO directs that Friedman be under the supervision of the authorised psychiatrist, or his or her delegate, and authorises the giving of directions to Friedman. I note that a breach of conditions can lead to an apprehension under s 30 of the Act.
Dr Khan explained that, generally speaking, a person under an NCSO is supervised by Forensicare and receives clinical treatment from the relevant local area mental health service. As a general rule, a person subject to supervision is required to see:
(a) a consultant psychiatrist or registrar approximately once every three months;
(b) a NCSO Clinical Liaison Officer at intervals deemed necessary; and
(c) the treating consultant psychiatrist approximately once every three months and their case manager approximately monthly.
Consistent with general practice, the current directions require Friedman to comply with the following:
(a) attend reviews with either a consultant psychiatrist or registrar at Forensicare at intervals as determined by Forensicare (currently taking place every three months);
(b) see his Forensicare NCSO Clinical Liaison Officer once every three months and his Forensicare NCSO Clinical Liaison officer typically has contact with Friedman’s treating service, the community mental health service, on a monthly basis;
(c) attend at least three monthly reviews by his treating psychiatrist at the community mental health service;
(d) monthly clozapine monitoring by the community mental health service. Monitoring of urine screens for illicit substances is provided for, however these will only be carried out where there is concern about substance use; and
(e) the community mental health service provides three monthly review reports to Forensicare.
Friedman is required to reside at an address as directed by the authorised psychiatrist or his or her delegate. Originally, the order of a judge of the Court made in May 2008 required Friedman to live at a supported residential service in Brunswick. In March 2011, Forensicare approved a change in accommodation to the SRS.
The SRS provides supported accommodation. It provides 24-hour supported care with on-site carers who attend to the residents including assisting with daily living and, in the case of some residents including Friedman, assist with the administration of medication. I note that the community mental health service has a number of patients who reside at the SRS.
In addition to clinical treatment from the community mental health service, Friedman was referred for assessment to the Community Brain Disorder Assessment and Treatment Team. Arising from that assessment, Friedman receives clinical care from an occupational therapist, a neuropsychologist, a physiotherapist, an incontinence nurse and services from Morecare which provides additional carer and allied health support. That support includes funding for a carer to visit for three hours, twice per week. These services are funded by the Transport Accident Commission (‘TAC’) as a result of the brain injury sustained in the train accident. Funding for these services is ongoing.
A comprehensive Psychosocial and Physical Health plan has been developed in conjunction with his healthcare providers, accommodation workers and community carers. This plan provides a detailed regime for supporting Friedman in the community.
As part of his care arrangements, Friedman is currently instructed by his carers not to leave the SRS unaccompanied. He is compliant with that instruction.
Consideration
In NOM v Director of Public Prosecutions (‘NOM’),[21] the Court of Appeal observed that a supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with a person’s freedom and autonomy.[22] The Court went on to say that supervision is a restriction on liberty and autonomy and can be justified only where it is found to be necessary.[23]
[21](2012) 38 VR 618.
[22]Ibid 641 [68].
[23]Ibid.
Picking up an observation from NOM, Priest JA stated in Re MP (No 2),[24] that ‘supervision under the Act is a restriction on liberty and autonomy, and can only be justified where it is found to be necessary’.[25] The word ‘necessary’ does not appear in the Act and is not a statutory test for the revocation of an NCSO. It can have different meanings in different contexts. What I understand from the reasons of the Court of Appeal in NOM is that there must be some positive reason to retain a supervision order having regard to the safety of the community.
[24][2018] VSC 299.
[25]Ibid [25].
In that context, the continuation of an NCSO cannot be justified merely because its practical impact is minimal. As explained in NOM:[26]
the fact that the nature or degree of legal restrictions on a particular individual’s liberty may be regarded as inane, facile or practically ineffectual cannot justify preservation of the status quo where the restriction is not the minimum necessary to accord with the safety of the community.[27]
[26](2012) 38 VR 618.
[27]Ibid 642 [71].
Although an NCSO will necessarily entail some restriction on a person’s freedom and autonomy, NOM does not stand for the proposition that the extent of restriction will always be the same. It is necessary to calibrate the level of restrictions that would result from the continuation of the order. Correspondingly, it is appropriate to consider the change to the individual’s freedom and personal autonomy that would result from a revocation of the order.
The application of the overarching principle prescribed by s 39 of the Act must be undertaken having regard to each of the specified matters in s 40.
In relation to the interaction between s 39 and s 40(1), the Court of Appeal held in NOM[28] that:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[29]
[28]Ibid.
[29]Ibid 633 [47] (citations omitted).
I turn now to the issues to which I must have regard under s 40 of the Act.[30]
[30]Set out at [15] above.
Nature of impairment
Friedman has significant mental impairment as a result of both his treatment-resistant schizophrenia and his ABI with associated cognitive deficits. Only the former was relevant to his offending, however the combination of the two has a significant impact on his level of functioning. All of the parties submitted that in assessing the nature and extent of Friedman’s impairment, it is necessary to have regard both to his schizophrenia and his ABI.
At the time of the index offence in 2006, Friedman was experiencing a relapse of his psychosis which was preceded by a period of non-compliance with medication.
Following the accident resulting in Friedman’s ABI, his mental state and behaviours fluctuated. Of note is an assault in mid-January 2016, when Friedman stabbed a fellow patient in the cheek with a pencil. Dr Khan identified in her report dated 20 February 2019 that this was the last recorded violent incident for Friedman.
In February 2018, Friedman presented to the Sunshine Hospital emergency department after being found wandering on the road by bystanders. Since this last episode, Friedman has not engaged in any similar behaviour. There has been no recent evidence of psychotic symptoms and Friedman is responding well to treatment.
The combination of his medical conditions significantly restrict his capacity for personal autonomy. As a result, he requires supported accommodation and assistance with daily living.
Thus Friedman has a chronic life-long condition that is presently stable.
Relationship between impairment and offending
Friedman was found not guilty of intentionally causing injury and recklessly causing injury by reason of mental impairment and, at the time of the offending, the relevant impairment was his schizophrenia. It follows that that there was a direct connection between his schizophrenia and the offending conduct.
Risk of harm to himself and others
Relevantly, s 40(1)(c) of the Act requires the court, in deciding whether or not to revoke an NCSO, to have regard to 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. Again, I take into account the impairment caused by both the underlying chronic schizophrenia and the ABI. Section 40(1)(c) of the Act embodies a fundamental question on this review: will revoking the NCSO expose Friedman, or other members of the community, to a risk of harm?
In NOM,[31] the Court of Appeal observed that sub-s 40(1)(c) is concerned with the likelihood or probability that the person would expose themselves or other persons to harm or injury. Their Honours observed that the focus is upon the extent of the chance, risk or peril of some harm materialising, rather than the gravity of the harm that might ensue.[32] A court is required to consider whether the person is, or would if released be, likely to endanger themselves or other persons.[33] The phrase ‘likely to endanger’ requires an assessment whether the identified harm is likely to occur.
[31](2012) 38 VR 618.
[32]Ibid 637 [58].
[33]Ibid.
The word ‘likely’, in a statutory setting, is very sensitive to context.[34] In some contexts it can mean more likely than not, ‘odds on’ or more than a 50% chance. Yet in other contexts, the phrase ‘reasonably likely’ is said to reflect ‘a chance of an event occurring or not occurring which is real — not fanciful or remote’.[35] I note the contrast with s 57 of the Act, which deals with grants of extended leave from a place of custody and which requires the court to be satisfied that the safety of the forensic patient or members of the public will not be seriously endangered as a result of leave being given.
[34]RJE v Secretary to the Department of Justice (2008) 21 VR 526, 534 (Maxwell P and Weinberg JA).
[35]Ibid 535 [28].
In my view, the matter to which regard must be had is whether there is, in the event the order is varied or revoked, a real as opposed to fanciful chance that the person, another person or the community generally will be endangered.
Friedman has a relevant history of harming others. Most obviously, as a result of his schizophrenia, he committed the index offence. Subsequently, in January 2016 he stabbed a fellow patient with a pencil. This incident occurred when he had been hospitalised and, as Dr Khan explained, it was associated with ongoing psychotic symptoms, impulsivity and poor executive functioning related to his ABI, possible interpersonal conflict and lack of access to his room as a coping strategy. During the period 2015 – 2016 he had four admissions to psychiatric hospital lasting between 1 to 20 days. At least some of these admissions were pursuant to a community treatment order under the Mental Health Act.
In addition, Friedman has posed a risk to himself. In February 2018, Friedman presented to the Sunshine Hospital emergency department after being found wandering on the road by bystanders.
In determining whether Friedman is likely to endanger himself or the community, his diagnosis of a major mental illness and a severe ABI are relevant risk factors. They fall to be considered alongside Friedman’s traumatic childhood experiences, scant employment history, cognitive deficits relating to his ABI, chronically poor insight into his illness, history of non-compliance with medication and violent and impulsive behaviours.
However, the medical evidence and recent positive history clearly identify a number of factors that mitigate Friedman’s risk of endangering himself or the community. These include his contemporary compliance with medication, positive engagement with treatment, improved functioning relating to his ABI and strong community and family supports. Also relevant is Friedman’s long-term stable living arrangement in the community, where he is well supported and enjoys positive relationships with staff and co-residents alike.
Friedman has enjoyed a period of relative stability following his last review before Bell J in April 2017. However, it remains of some concern that as recently as February 2018, he was involved in an incident requiring police attendance and resulting in his admission to a hospital emergency department.
Although any prediction as to future behaviour is an imperfect exercise, it must take into account all of the relevant factors. The central issue is the risk of harm rather than the severity of any harm that may ensue. Critical to any assessment of risk is the stability of the care arrangements, the extent to which Friedman will remain compliant with his medication regime and the relationship between those matters and the NCSO.
Friedman continues to enjoy a stable living arrangement at the SRS. This accommodation is fully supported by staff who assist Friedman with day-to-day tasks, including supervising medication, social activities, shopping, cooking and transport. Friedman informed Dr Khan that he is ‘well looked after’ at the SRS, and gets along well with staff and co-residents. He particularly enjoys interacting with his neighbour who also speaks Vietnamese.
Friedman is strongly supported by his family, with whom he maintains regular contact. Dr Khan noted that Friedman’s family have been ‘vigilant’ in monitoring and acting on concerns regarding Friedman’s mental health in the past.
Compliance with Friedman’s medication is maintained through carers at the SRS. The treatment regime for Clozapine is heavily monitored. He is prescribed a 28 day course of the drug. It is administered by carers and monitored by his treating practitioners. As Dr Singh explained, Clozapine is generally subject to a strict compliance regime. Initially a patient is prescribed Clozapine for 18 weeks and is monitored on a weekly basis. After 18 weeks patients are monitored on a monthly basis. In the event that a patient misses three days of medication he or she would be taken to hospital to titrate the patient to the relevant therapeutic level.
Although presently stable, Friedman’s compliance with medication depends on the level of assistance he receives.
Quarterly reports provided by Friedman’s treating team to Dr Khan all indicate that Friedman has poor insight and understanding of his NCSO conditions but had been passively compliant with all treatments and supervision arrangements. Further, they indicate that beyond his review appointments, Friedman is otherwise unaware of a court order or NCSO conditions, and is unable to articulate his diagnosis or identify his medication other than to request for it each day.
Medical opinions as to risk
Dr Khan conducted a thorough risk analysis of Friedman and opined that there are a number of historical risk factors of concern. These factors include Friedman’s diagnosis of a major mental illness, traumatic childhood experiences including the death of his mother and father, violent behaviour relating to the index offence and an assault on a co-patient, cognitive deficits relating to his ABI, impulsive behaviours when unwell and non-compliance with medication. Additionally, Friedman has a chronically poor understanding of his illness related to his ABI that is unlikely to improve over time.
However, weighing against these factors, Dr Khan notes that there are a number of protective factors that moderate Friedman’s overall risk of future violence. These factors include Friedman’s regular contact and positive engagement with his treating team, contemporary compliance with medication, a long-term supported and stable living arrangement, familiarity and good rapport with staff at the SRS, assistance in accessing the community through Morecare, and strong family supports.
Taking all of these factors into account, Dr Khan considered that Friedman’s overall risk of harm to himself and others is low. She noted that Friedman’s support services will remain in place irrespective of the NCSO, and concluded that these services are well equipped to detect early warning signs of deterioration and respond accordingly.
In his written report Dr Singh was more circumspect, saying:
Due to complexities relating to [Friedman’s] case in terms of presence of chronic psychotic illness, probable pre-existing Low IQ, acquired brain injury, fibromyalgia and chronic pain, I would say [Friedman’s] overall risk is mild to moderate.
The factors which mitigate this risk is [Friedman’s] compliance with prescribed medications, absence of drug and alcohol use, and continued support from family and the residential staff and continued engagement with the community mental health services.[36]
[36]Report of Dr Ashok Singh dated 27 February 2019, 4.
In his oral evidence, Dr Singh explained that his assessment of a mild to moderate risk was based on history and static factors, but that once his current circumstances are taken into account, including his stable accommodation, proper support, good response to medication and an understanding that he needs to take medication, all combined to reduce to the risk to low. Dr Singh emphasised that, given the chronic nature of the illness and the extent of disability arising from the ABI, a risk will always remain.
Ms Lancaster is Friedman’s case manager at the community mental health service and has been involved in Friedman’s care since 18 October 2017.
In her written report, Ms Lancaster noted that:
[Friedman’s] levels of supports are ensuring that he poses as minimal risk to self and others as possible. He has a chronic long term psychotic illness, probable pre-existing low intellectual ability, Fibromyalgia and [ABI]. The complexities of this indicate that he will always require a 24 hour supported accommodation option. That he will always require the extra supports from an Area Mental Health Service and a range of Physical Health clinicians. His linkage with the [TAC] will ensure that he always has access to additional funding when required. Also that he will be regularly reviewed and any changes to supports that are required can be implemented by his support workers.[37]
[37]Report of Bronwyn Lancaster dated 28 February 2019, 5.
Ms Lancaster observed, similarly to Dr Khan and Dr Singh, that the NCSO has little influence over Friedman given that he does not have any capacity to understand it, and expressed the view that the NCSO should be revoked. In particular, it was Ms Lancaster’s view that ‘meeting the order’s requirements has no positive impact [on Friedman]’.[38]
[38]Ibid.
On the basis of the expert evidence, I am satisfied that the risk that Friedman is, or would be, a danger either himself or others within the community is low.
Need for protection
Section 40(1)(d) requires the court to take into account the need to protect people from the danger that the person may pose.
It is not possible to eliminate all risk of harm that Friedman may pose. Given that risk, albeit low, and his level of dependency, it is essential that there be mechanisms in place to support Friedman and protect from harm. It is the opinion of Dr Khan that ongoing medical supervision and stability of Friedman’s mental state are essential in managing his risk of future violence. I accept that evidence.
The consideration which the Act compels me to have regard to is the need to protect people from danger. The continuation of an NCSO is only justified to the extent that it may provide a measure of protection against the risk of harm that has been identified. There is no punitive element to an NCSO. These aspects find reflection in the overarching principle, which s 39 establishes.
It is logical to commence with the supports that are in place which serve a protective function before considering whether there is a need, by way of NCSO, to protect people from any danger that Friedman may pose.
The evidence establishes that there are substantial and broadly based protective measures in place. First, Friedman has stable supported accommodation which provides 24-hour care. The evidence shows that he is content and comfortable with good social interaction and very strong family support. Although he is required to reside at the SRS as a condition of the NCSO, it is clear that he is happy to live there, has no reason or intention to leave and his decision to remain at the SRS is entirely unrelated to the obligation imposed by the NCSO.
Further, he has a treating team organised under his care plan that involves care from both health professionals at the community mental health service and other health professionals. This level of care ensures support in daily living and compliance with his medical regime. He is well cared for in this respect. Significantly, the evidence establishes that, should there be any non-compliance on his part with his medical regime or any deterioration in his behaviour or mental health, it is very likely to be identified early and met with an appropriate medical response.
In my view, the supports that are in place are adequate in managing any risk that Friedman poses.
It was also submitted that in the event Friedman disengaged from his treatment services, any deterioration in his mental state could be addressed under the Mental Health Act.
The Mental Health Act provides for a regime of voluntary and involuntary treatment for mental illness. I note that, in the present case, Friedman has been subject to community treatment orders under that Act including orders which have required him to have inpatient care.
The Court of Appeal has held on two occasions that the potential operation of the Mental Health Act is a matter that may be taken into account in making an order to revoke or vary an NCSO.[39]
[39]NOM (2012) 38 VR 618, 636 [56]; Fowler v Secretary to the Department of Health (2014) 43 VR 530, 538 [26].
It is relevant because the Mental Health Act regime may provide additional support, both voluntary and involuntary, which may mediate the risks that a person may present in the community by reason of mental impairment.
However, the regime under the Mental Health Act is not a substitute for, nor does it obviate the importance of, supervision by this Court under the Act. As explained by Redlich JA in Fowler v Secretary to the Department of Health (‘Fowler’),[40] a person on an NCSO is subject to the ultimate supervision of the court, regular reviews and reporting and an NCSO can be varied or revoked only by the court.[41] The requirement for supervision ensures that Forensicare, although not administering treatment, retains regular oversight of treatment. By contrast, the coercive powers in relation to a community treatment order is a decision of a psychiatrist with oversight by the Mental Health Review Board rather than the court. It has a maximum term of 12 months and must be affirmatively renewed.
[40](2014) 43 VR 530.
[41]Ibid 537–8 [20]–[27].
Notwithstanding the differences, the fact that a person has been successfully managed for a sustained period of treatment under the Mental Health Act may become important on an application to revoke an NCSO, but it does not of itself necessarily provide grounds for revocation.
In the circumstances, I take into account the potential role for the exercise of powers under the Mental Health Act as an additional level of protection against the risk of harm either to Friedman or other members of the community. The need for that additional level of protection is significantly reduced by the existing level of care currently afforded to Friedman.
I am persuaded that the NCSO currently plays a minimal role in Friedman’s care arrangements. The NCSO is not a factor that impacts upon his behaviour largely because he lacks the capacity to understand or appreciate the existence of the NCSO or the obligations that it imposes. Dr Khan, Dr Singh and Ms Lancaster each said that the NCSO has little practical effect on Friedman’s risk due to his lack of understanding.
At times, the submissions of the Secretary and Friedman tended to suggest that an NCSO lacks utility unless the person who is subject to the order understands its terms and it serves as an incentive or a directive to comply with the obligations it imposes. Indeed, there was a focus in the oral evidence on whether Friedman understands, or is capable of understanding, the terms of the order. In some cases, a person who is subject to an NCSO will understand its terms and will be astute to comply with it in order to avoid the consequences that may flow from disobedience to with its terms. However, there will be many circumstances in which the person who is subject to an NCSO has no capacity to understand the order or the need to comply with it. An NCSO does not lack utility simply because the person does not understand its import.
The purpose of an NCSO is to authorise supervision by the court, generally through the active supervision by the authorised psychiatrist and the imposition of protective or therapeutic conditions. Often these will centre around treatment and reporting conditions.
However, in recent times the supervision has not been influencing the level of care or the response to any issues that have arisen. I am satisfied that the current arrangements provide the necessary response to any deterioration in Friedman’s condition and will provide appropriate protection.
In the present case, I am satisfied that the existing care regime and the level of support that Friedman enjoys at the SRS, both professional and familial, means that, to the extent that there is a risk of harm, Friedman and the community are currently reasonably protected by reason of the supports in place and irrespective of the conditions imposed by the NCSO and the supervision which it authorises.
As noted by Bell J at the last review, those conditions include requirements relating to Friedman’s residence and treatment.[42] While it appears that Friedman’s current circumstances, including his residence and treatment regime, will continue if the NCSO is revoked, it is important to note that they would continue on a voluntary basis without oversight from Forensicare.
[42]The conditions also include a prohibition against abuse of alcohol and use of illicit drugs, although the material does not indicate whether compliance with this condition is closely monitored.
Resources
There are a variety of ongoing resources that are available to support Friedman in the community. These include supported accommodation at the SRS, the provision of care under his care plan, and clinical treatment provided through the community mental health service.
To a significant extent, these resources are funded by TAC and will continue indefinitely. As Dr Khan explained, the misfortune suffered by Friedman as a result of the train accident has led to lifelong support through TAC funding which is not usually available for other people with mental disorders or learning disability on an NCSO. Dr Khan observed that the level of resources were certainly greater than those available under the NDIS.
In addition, Friedman has the support of his family including regular visits.
Conclusion
I am satisfied that it is appropriate to revoke the NCSO.
The matters set out in s 40(1) are not criteria that condition the exercise of the power, rather they are matters that the court must have regard to in determining whether or not to exercise the power to revoke the NCSO. I have had regard to those matters. My consideration has been guided by the principal that restrictions on Friedman’s freedom and personal autonomy should be kept to the minimum, consistent with the safety of the community.
I have had regard to the two reports of Dr Khan who is the person having the supervision of Friedman. Dr Khan’s first report also serves the function of a report for the purposes of s 41(3) of the Act. A point forcefully made by the clinicians was that, in the event that the NCSO was revoked, there would be little or no practical change in his living arrangements and no change to any response should there be a change in Friedman’s condition. He would remain in the same supported accommodation and would have the same level of support in everyday living that he currently enjoys.
In reaching my conclusion, I have been particularly influenced by the fact that the NCSO is predicated on ongoing supervision by Forensicare and that the responsible supervising psychiatrist, Dr Khan, is of the view that there is no longer a need for ongoing supervision and in her opinion the NCSO should be revoked. That said, I recognise that the question is one for the court which has ultimate responsibility for the supervision order.
The evidence clearly establishes that Friedman needs to live in a supported care environment and he needs supervision in the performance of everyday tasks such as taking his medication, leaving his home and attending appointments. I am satisfied that there are in place significant support and resources that are conducive to the ongoing stability of Friedman’s impairment.
In Fowler,[43] at first instance the primary judge recognised the objective that persons under supervision should, where possible, eventually be returned to the community through a graduated process of reduced supervision, as appropriate. In the present case, no submission was put that the existing supervision regime, which the evidence suggests reflects a standard level of supervision, might be gradually reduced by altering the directions that the authorised psychiatrist or his delegate has given.
[43](2014) 43 VR 530.
Notwithstanding that there has been no graduated reduction in the level of supervision, I am persuaded that ongoing supervision is no longer necessary.
Although Friedman is generally oblivious to the operation of the NCSO and it does not significantly affect his day-to-day living, I am satisfied that ongoing supervision and the fact that quarterly attendance on Forensicare is productive of some anxiety on Friedman means that the current NCSO constitutes a burden on his personal autonomy and liberty.
On the other hand, I am not satisfied that the continuation of the NCSO is necessary to protect the public or to protect Friedman. Supervision provides no meaningful additional protection against harm. In the circumstances, I am persuaded that the continuation of the NCSO is not justified.
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