Re GAD
[2017] VSC 515
•1 September 2017
| 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 “GAD” |
---
JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 August 2017 |
DATE OF RULING: | 1 September 2017 |
CASE MAY BE CITED AS: | Re GAD; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
MEDIUM NEUTRAL CITATION: | [2017] VSC 515 |
---
CRIMINAL LAW — Crimes Mental Impairment — Application for 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 | Ms R Sleeth | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Mr D Bruno | Department of Health and Human Services (Legal Branch) |
| For the Office of Public Prosecutions | Ms L Wilkinson at the Office of Public Prosecutions | |
| For the Attorney-General | Mr A Hoel | Victoria Government Solicitor’s Office |
HIS HONOUR:
Introduction
GAD,[1] the applicant, was alleged to have murdered [redacted] by stabbing him [redacted] in [redacted] 2007. A judge directed a verdict of not guilty by reason of mental impairment. The stabbing occurred while the applicant was psychotic, a condition of long standing. At the time his compliance with taking prescribed medication had been poor and he had consumed a significant amount of alcohol. Since July 2008 the applicant has been subject to a custodial supervision order at the Thomas Embling Hospital (‘TEH’).
[1]Pursuant to s 75 of the Act, an order was made prohibiting the publication of evidence, reports or information that would enable the identification of the applicant, his past or present places of residence, his employer and his general practitioner.
GAD has applied for extended leave from TEH pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He is seeking extended leave on the conditions set out in a revised leave plan signed by Dr James Belshaw,[2] consultant psychiatrist, and filed in accordance with s 57A of the Act.
[2]The initial leave plan was signed by Dr Kevin Ong (who gave oral evidence at the hearing on 24 August 2017). On 28 August 2017 the court received the revised leave plan, adding only clause 7 ([31] below), signed by Dr James Belshaw because Dr Ong was on leave.
The Secretary to the Department of Health and Human Services (‘the Secretary’), the Attorney-General and the applicant’s treating team are supportive of the application for extended leave.
This is not GAD’s first application for extended leave. On 27 February 2015, Lasry J first granted the applicant extended leave for a period of 12 months. On 25 February 2016, Jane Dixon J granted him a further period of extended leave.
The current application for further extended leave was filed on 30 December 2016 and originally listed for hearing before Jane Dixon J on 22 February 2017. However, on 20 February 2017, the Chief Psychiatrist suspended the applicant’s extended leave pursuant to s 58(1) of the Act. On 21 February 2017, the Secretary filed an application to revoke extended leave with this Court and, on 22 February 2017, the applicant’s extended leave was formally revoked. I briefly refer to the circumstances in which extended leave was revoked below.
On the same day that her Honour revoked the applicant’s extended leave, Jane Dixon J also adjourned his application for further extended leave (filed 30 December 2016) to 14 March 2017. It is that adjourned application that has brought the matter before me. Despite the current application having its genesis before the revocation of extended leave, and being styled as an application for ‘further extended leave’, in substance it is an application for a fresh grant of extended leave under s 57 of the Act.
Relevant legal principles
In considering whether to grant this application, the Court must be 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 him being granted extended leave, as required by s 57 of the Act.
The meaning of ‘serious endangerment’ requires the consideration of both the gravity of the harm that might be caused by the applicant if he were to relapse and become psychotic again, and the probability of that occurring. 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. [3]
[3]See In the Matters of Major Reviews of Percy, Farrell and ‘RJO’ [1998] VSC 70 (Eames J) at [56]; cited with approval in NOM v DPP & Ors [2012] VSCA 198 (Redlich and Harper JJA and Curtain AJA) at [63] (‘NOM’). (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 that legislated by 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 contained 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(2) provides that the court cannot grant an application for extended leave 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) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the Court considers necessary.
In accordance with s 38C of the Act, the Office of Public Prosecutions gave notice of this hearing to relevant family members and victims of the incident. The Office of Public Prosecutions also notified them of the opportunity to make a report on the conduct of the applicant and its impact on them. Affidavits filed by the Office of Public Prosecutions satisfy me that no reports have been received from any of the victims or family members of the applicant.[4]
[4]The further affidavit of Louise Wilkinson from the Office of Public Prosecutions filed 30 August 2017 indicated that no reports had been filed but also that some of the letters sent had not yet been collected by their intended recipients. In the circumstances, granting the applicant extended leave should not be delayed for that reason alone.
Psychiatric history
The applicant’s personal and psychiatric history has been set out in detail in the reasons of Lasry J dated 27 February 2015 and Jane Dixon J’s reasons dated 25 February 2016.
In summary, the applicant has a well-established diagnosis of chronic paranoid schizophrenia, partly in remission. He has been suffering from chronic auditory hallucinations since 1990 which, providing he maintains the prescribed medical treatment and management, do not currently impact on his behaviour in a disruptive manner or increase his risk profile as a result of experiencing them.
The applicant was first granted extended leave on 27 February 2015 after an 11-month transition to [redacted] Community Recovery Program (‘CRP’). He resided at CRP accommodation for almost two years as a full-time resident until 1 February 2017 when he completed his transition to a [redacted] flat in an outer [redacted] suburb of Melbourne. During that latter phase he was living independently at the flat with the support of his treating teams at the Community Integration Program (‘CIP’) and the local Mobile Support and Treatment.
The applicant experienced significant difficulty adjusting to permanent independent living in his flat, commencing on 1 February 2017. Several psychosocial stressors were noted. These include the loss of intense support from staff members, building therapeutic relationships with a new team of clinicians, travelling longer distances to attend work and other appointments, and significant loneliness due to decreased opportunities for social engagement in a less structured living environment.
Within only weeks of permanent relocation to the flat, the applicant was reported to have experienced an increase in intensity of his auditory hallucinations as well as feeling distressed and insomnia leading to disorganisation and a decrease in self-care. He admitted to missing at least one dose of medication and reported hearing voices urging him to have a drink although denied any alcohol consumption. Of concern, however, a can of beer was located in his refrigerator at the unit although he stated it had been brought there by a friend and he denied consuming any alcohol himself. Breathalyser testing administered as soon as practicable revealed no trace of alcohol in his system.
This rapid deterioration in the applicant’s mental state led to his leave being suspended by the chief psychiatrist on 20 February 2017 and he was re-admitted to the TEH on the same date.
Current psychiatric evidence
The Court has received the following three reports in support of the application, which satisfy the requirements under ss 40(2)(a) and 40(2)(ab):
1.Report of Dr Anthony Barnes, senior psychiatry registrar at the Jardine Unit of the TEH, dated 9 August 2017[5];
2.Report of Dr Kevin Ong, consultant psychiatrist at the CIP at Community Forensic Mental Health Service, dated 28 July 2017[6]; and
3.Report of Alarna Spierings, case manager at the same facility, dated 3 August 2017[7].
[5]Exhibit C.
[6]Exhibit A.
[7]Exhibit B.
If the Court were to grant the application, it is proposed that the applicant would live on a full-time basis at a supported residential accommodation facility located in a suburb [redacted] of Melbourne, treatment locations and his employment, subject to any changes approved by the authorised psychiatrist.
At the supported residential facility the applicant would live among numerous other residents and have his own bedroom with a private ensuite. The facility provides regular weekly activities and has a number of community in-reach services. Staff are trained to administer and oversee the taking of medications. Meals and food would be fully provided as part of the cost of his accommodation. He has been residing at the facility three nights a week for at least the past three months.
Dr Barnes’ report
Dr Barnes has been the senior registrar in the Jardine unit of TEH since February 2017 where the applicant currently resides. He also knew the applicant briefly during an earlier 6-month rotation in 2015. In his report, Dr Barnes briefly recites the personal and psychiatric history of the applicant. He notes that the applicant has a primary diagnosis of chronic schizophrenia, previously complicated by alcohol abuse, and that despite his compliance with treatment in the past 10 years, the applicant has never experienced full remission of his positive symptoms.
Overall, Dr Barnes expressed the following opinion that:
[The applicant] has an elevated baseline risk of violence on account of numerous historical factors that are not amenable to change. However, his immediate and future risk of perpetrating violence is significantly lowered by the absence, or mitigation of remaining dynamic risk factors via the CIP’s management plan, and the enduring presence of protective factors such as his stable, supported accommodation and other community linkages. [The applicant’s] prosocial attitudes, improved insight into his illness and abstinence from substance use are additionally protective.
…
More recently, [the applicant’s] ability to cope with stress has been observed to worsen his psychotic symptoms and prompt non-compliance with medication and potential relapse into problematic alcohol use.
Significant steps have been undertaken to manage these risk factors since [his] re-admission to hospital in February 2017. These most notably include his change to a more supportive accommodation environment where his medications are supervised, and he has ready access to social contact and local communities familiar to him.
The risk of interpersonal violence should remain low as long as [the applicant] adheres to the proposed CIP management plan, and remains well engaged with his specified community contacts and supports.[8]
[8]Exhibit C, [61]-[65].
Dr Barnes concludes that the risk of future violence presented by the applicant are adequately moderated with the structure and safeguards implemented by the CIP. Accordingly, Dr Barnes supports the application for extended leave subject to additional levels of supervision and monitoring being in place and with appropriate interventions being able to occur if a high-risk scenario were to develop in the community.
Dr Ong’s report
Dr Kevin Ong, who is the applicant’s current supervising psychiatrist at the CIP, is also supportive of the application for extended leave. He has also treated the applicant in the Jardine unit. His report focused on the applicant’s progress since Dr Nicholas Owens’ report dated 23 January 2017, especially in regard to updated risk analysis. In addition to providing his written report, Dr Ong also gave evidence before me and responded to questions from the parties and from myself.
Dr Ong noted that the applicant is currently well with no evidence of relapse in psychosis. Should the applicant be granted extended leave, Dr Ong and the CIP team would be responsible for providing psychiatric treatment and supervision to the applicant.
If extended leave were to be granted, it is proposed that the applicant would be reviewed monthly by his case manager or registrar and three-monthly by a consultant psychiatrist. There would also be regular communication between the CIP case manager and his community linkages including the accommodation facility, his general practitioner and his employer of some two years with whom CIP has an established relationship. He would be subject to random breathalyser tests and urine drug screens. Assuming good progress in the next 12 months, linkages would be made to his local area mental health service in preparation for possible placement on a non-custodial supervision order.
In the first three months of extended leave a more intensive period of review is planned. His case manager would see him on at least a weekly basis, an intended practice that was confirmed in oral evidence from his case manager (Ms Spierings). Features of the intended, more intensive management for the first three months were incorporated in the revised extended leave plan filed after evidence was given.[9]
[9]See clause 7 of the revised leave plan at [31].
Dr Ong explained that since the re-admission to TEH, several measures have been taken to minimise the risk of further relapse. These include relocating him to a more supportive accommodation, ongoing and close monitoring of his medication compliance, his mental state and alcohol consumption.
Importantly, Dr Ong agreed with Dr Barnes’ overall risk assessment of the applicant and opined that despite the relapse in February 2017, his risk of serious endangerment to himself or the community appears to be low. Given the foregoing, Dr Ong is also supportive of the application for extended leave.
As delegate of the authorised psychiatrist, Dr Belshaw proposed the following leave plan pursuant to s 57A of the Act:
1. That the Applicant be supervised by the authorised psychiatrist of the VIFMH (Victorian Institute of Forensic Mental Health) or their delegate.
2. That the Applicant resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate.
3. That the Applicant abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or their nominee.
4. That the Applicant complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or their nominee.
5. That the Applicant abstains from the use of alcohol and from use of illicit drugs.
6. That the Applicant not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate of the VIFMH.
7. That the Applicant attend minimum of weekly in-person contact with his case manager (or other member of his treating team, if the case manager is unavailable), for the first three months of Extended Leave, save for any unforeseen circumstances such as illness or emergency.
Ms Alarna Spierings’ report
Ms Alarna Spierings is the case manager responsible for overseeing the applicant’s treatment at CIP who has reviewed the applicant on a monthly basis. She, likewise, concludes that the applicant has consistently engaged in frequent reviews with the CIP and confirms the applicant has indicated that he is willingness to continue to accept support, supervision and treatment from the CIP should he be granted extended leave. She is similarly in support of the application based on all the information.
In addition to providing her report, Ms Spierings also gave evidence before me and responded to questions from the parties and from myself. She had assisted the applicant in his attempt to transition to independent living culminating in the need for him to return to TEH in February 2017. Ms Spierings was one of the persons who had detected his decline. She explained that since his readmission to TEH the applicant recommenced weekly three night leave. After considering a number of facilities, the supported residential facility to which it is proposed he relocates for extended leave was selected. He has been living there three nights per week since late May 2017 and the experience has been positive.
Most importantly for the current application, Ms Spierings was able to describe in practical terms how the support now to be provided by the supervising psychiatrist, the CIP team, herself, staff at the supported residential facility, the applicant’s general practitioner, the applicant’s employer and the financial management by State Trustees would knit together to form both a supportive network and an effective early-warning system should anything begin to go wrong.
Analysis and conclusion
The applicant has a diagnosis of chronic paranoid schizophrenia which resulted in him killing [redacted] in 2007. Since that time, the applicant has progressed through the rehabilitative program offered by Forensicare at the TEH. His illness has been relatively stable save for one relapse most likely triggered by moving to less social and supportive accommodation in February 2017 which resulted in a suspension of his extended leave. However, this relapse did not heighten his risk of violence by prompting any violent ideation and it resolved quickly after his re-admission to the TEH.
Since re-commencing transition to community living he has adapted well into his new accommodation and has been fully compliant with treatment and his leave requirements. He has also been provided with additional medication monitoring from staff at the supported residential facility as well as regular treatment and supervision from the CIP team.
During evidence, Dr Ong and Ms Spierings were questioned upon issues of concern, namely:
·The risks of alcohol use;
·Potential financial stressors;
·The likelihood and means of the support persons or agencies (accommodation staff, employer, general practitioner) sounding the alarm should there be signs of relapse or potential relapse; and
·The level of management to be provided during the initial phase of extended leave.
As a result I was satisfied by the responses that much thought and care has been given to each of these issues to mitigate the risks of endangerment, to either the applicant or members of the public, associated with the applicant’s psychiatric condition.
The applicant’s current mental stability, abstinence from drugs and alcohol, engagement with the new accommodation facility, employment and other community linkages mean that he currently poses a low risk to himself and to the community. From the reports filed by the Secretary it appears that there is little further to be gained by the applicant remaining in the Jardine unit and accessing three overnight leaves per week.
As well as I can judge, extended leave on the proposed leave plan would not seriously endanger the applicant or the public. Accordingly, and observing the requirement under s 39 that the restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community, I will grant the applicant extended leave on the conditions set out in the (revised) leave plan dated 28 August 2017.[10]
[10]In addition to ordering extended leave on the conditions as expressed, an order will be made modifying the terms of a suppression order made under s 75 of the Act on 24 August 2017 and there will be no order as to costs. Between the date of hearing the application and the date of making orders and publishing reasons the Court gave the parties the opportunity to object to any of the proposed additional orders. No objection was received.