Re HR
[2023] VSC 152
•28 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 05336
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of a review of the non-custodial supervision order of HR (a pseudonym)[1] |
[1]To ensure that there is no possibility of identification, 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: | 28 March 2023 |
DATE OF RULING: | 28 March 2023 |
DATE OF JUDGMENT: | 30 March 2023 |
CASE MAY BE CITED AS: | Re HR |
MEDIUM NEUTRAL CITATION: | [2023] VSC 152 |
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CRIMINAL LAW – Mental Impairment – Review of non-custodial supervision order – Whether appropriate to revoke non-custodial supervision order – Reviewee’s current mental state stable – Reviewee not likely to endanger themselves or another person if released – Non-custodial supervision order revoked.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms O Ridley | Victorian Legal Aid |
| For the Secretary, Department of Health | Mr DA Bruno | - |
| For the Attorney General | Ms J Buxton | Victorian Government Solicitor’s Office |
HIS HONOUR:
On 16 April 2020 the Court made an order varying a custodial supervision order (‘CSO’), which then applied to HR, to a non-custodial supervision order (‘NCSO’). At that time in April 2020, HR had successfully completed a number of consecutive grants of extended leave from 2017. The Court was satisfied in April 2020 that an NCSO was appropriate and met the stipulations of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). Since 2020 HR has remained on a NCSO and the Court now reviews that order pursuant to the Act.
For reasons which I will now briefly explain, I am satisfied that it is appropriate to revoke the NCSO. In doing so, I note that the Attorney-General and the Secretary to the Department of Health, who were each represented by Counsel, submitted that NCSO should be revoked. Counsel for the Secretary made helpful submissions which were adopted by the Attorney-General and Counsel for HR to the effect that the evidence established that it was no longer appropriate to maintain the NCSO and that there is adequate support in the community to assist HR.
HR has a longstanding history of bipolar affective disorder that was first diagnosed in his twenties. He required a number of admissions to mental health facilities often on an involuntary basis over the years, however, he remained stable and compliant with medication in the decade preceding the index offence, which occurred in 2010.
Tragically in 2010, HR fatally stabbed his domestic partner in the context of developing persecutory ideation and also injured a daughter of his partner. As a result of that incident, HR was charged with offences and, in March 2011, Curtain J directed that a verdict of not guilty by reason of mental impairment be returned on the charges of murder and intentionally causing injury. A CSO, with a nominal term of 25 years, was imposed.
As I have already noted, in April 2020 the CSO was varied to a NCSO. The current review was directed by the Court under s 32(5) of the Act. Section 33(1) of the Act gives the Court powers to confirm, vary or revoke the order. In deciding whether or not to revoke the order, this Court must apply the principle set out in s 39(1) of the Act that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The Act stipulates a number of matters to which the Court must have regard in reviewing a NCSO. In aid of that task the Act requires a number of reports and other matters to be taken into account in the course of the review.
Section 40(1) of the Act provides that in deciding whether or not to revoke a NCSO, 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 provides that the Court cannot order that a person be released unconditionally, or significantly reduce the degree of supervision to which a person is subject, 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.
I am satisfied based on the affidavits of Julie Carpenter, a legal practitioner of the Office of Public Prosecutions, sworn 22 March 2023 and 28 March 2023 that the persons required to be notified have been notified or reasonable steps have been taken to inform them of the review. I am satisfied that notice has been effected in accordance with the Act.
In considering the review, and what course the Court should take, I have had regard to three expert reports. The first is a report of Dr Asiri Rodrigo, consultant psychiatrist at Forensicare, dated 7 March 2023. Dr Rodrigo is a psychiatrist who has personally examined HR and provided a report on his medical state.
Next I have had regard to a report of Dr Rajeev Swamy, a consultant psychiatrist at Northern Area Mental Health Service (‘NAMHS’), dated 22 February 2023. Although Dr Swamy has only relatively recently begun to treat HR, he has provided a report following consultations with him and after reviewing the material in the possession of NAMHS. I have also had regard to the report of Maria Kyvernitakis, a senior mental health clinician at NAMHS, dated 24 February 2023. Ms Kyvernitakis has supervised HR during the course of his NCSO.
I have also had regard to a report of Dr Leah George, psychiatry registrar at Forensicare, dated 25 July 2022, which was filed as an annual report under s 41(3) of the Act. That report is also referred to in the report of Dr Rodrigo.
I propose briefly to refer to some of that evidence, but I have had regard to it all.
Dr Rodrigo has been HR’s supervising consultant psychiatrist in Forensicare’s NCSO program since December 2022. His report mainly addresses the period since July 2022, noting that earlier annual reports filed with the Court under s 41(3) of the Act summarise his progress since April 2020.
Dr Rodrigo notes that HR currently receives case management and treatment through NAMHS and is supervised by the NCSO team at Forensicare. He notes that HR attends appointments with his case manager, Ms Kyvernitakis, every three weeks, and with a consultant psychiatrist every six weeks. He is compliant with his medications which includes Olanzapine, an anti-psychotic medication, sodium valproate, a mood stabiliser, and other medications. There have been no recent changes to the medications being taken by HR.
It is noted that Forensicare has received progress reports in August and December 2022 from NAMHS in which no issues in relation to HR’s mental state were reported and I note that is a consistent theme across all of the material, that HR’s mental state has been stable. He has been compliant and actively engaged with his treating team.
On 28 October 2022, HR was reviewed by Dr Sadia Khan, a consultant psychiatrist at Forensicare, along with other staff. HR’s two daughters also attended the review. HR reported a good relationship with his NAMHS team, compliance with medication and no mood and psychotic symptoms. He advised that his alcohol consumption is limited to no more than two standard drinks twice weekly, and some weeks he abstains from alcohol completely.
I note that in October 2022, HR’s daughters, who were present at the review, expressed some anxiety about the sufficiency of NAMHS to meet HR’s ongoing level of care. I will return to that topic shortly.
On 23 January 2023, Dr Rodrigo reviewed HR, reported no mental health symptoms, noted that HR demonstrated good insight, was able to identify his early warning signs for relapse, and HR believed that either himself or those around him would be able to recognise these signs and contact NAMHS if they present in the future. HR otherwise reported good professional supports through NAMHS and his general practitioner, along with regular social contact with his daughters and brother, attending a men’s group and walking group each week, and visits with his NDIS support worker multiple times per week.
On 28 February 2023, HR attended a case conference with Dr Rodrigo, Ms Kyvernitakis, and his daughters, to discuss future case management. In the event his NCSO is revoked, Ms Kyvernitakis stated that HR will remain case managed by NAMHS for the foreseeable future. HR consented to open communication between NAMHS, his NDIS worker and his general practitioner to minimise the risk of early warning signs going unnoticed and to put in place contingency plans should he relapse. In the circumstances both of his daughters expressed their support for the NCSO to be revoked.
HR lives independently in Preston and has adequate funds to maintain his lifestyle. Dr Rodrigo notes that overall, HR is in good physical health, has self-reported some memory difficulties but denied any issues with remembering appointments or getting lost. He scored within a normal range on the Montreal cognitive score.
Dr Rodrigo conducted a risk assessment. Based on that assessment, HR has a high loading, for historical or static risk. He does not have any current clinical risk factors, and in terms of future risk management, HR has a partial risk factor in personal support, however he has several professional supports with whom he regularly engages and regular contact with his daughters and brother.
Stress remains another identified partial risk factor and a vulnerability for HR in the future. However, continuous engagement with supports and adherence to medication reduces that risk. Dr Rodrigo concluded that HR presents as a low risk of future violence in the short to medium term. Dr Rodrigo referred to a period of between six and 12 months but noted that the risk was not increased or did not change in the event that the NCSO was revoked. Dr Rodrigo concluded that HR’s risk of engaging in violence over the next six to 12 months is low.
Dr Rodrigo’s report includes the following:
For risk management factors of the HCR-20, he scored partially on two items in this domain. [HR] has several established professional supports outside of his NCSO who he actively engages with including AHMS, NDIS support workers, and GP. He has expressed that he plans to continue to engage with these services and continue to take prescribed mental health medication regardless of his legal status. [HR] lives in his own two-bedroom property with no mortgage. He has access to adequate funds to maintain independent living. Although it is true that his daughters and brother had superficial relationship with him, [HR] has nonetheless maintains regular contact with them. The item of personal support therefore remains partially present and of moderate relevance. [HR] has maintained engagement with treatment and supervision during the previous 12 months and worked with services to devise appropriate plans for ongoing engagement with treatment regardless of being subject to an NCSO. The item of stress remains an area of vulnerability for [HR] that has been associated with relapses. His engagement with services including NDIS as well as consistent adherence to medication reduces this vulnerability. I consider that this risk item remains partially present and of moderate significance.
…
Further violent offending would most likely occur in the context of destabilisation of his mental state leading him to develop elevated mood and persecutory delusions. Destabilisation of his mental state would most likely be precipitated by suboptimal compliance with psychotropic medication and disengagement from mental health services in combination with psychosocial stressors such as interpersonal conflict within his family. The risk of this occurring is low, given his improved understanding and acceptance of his illness, good adherence to treatment, and the presence of multiple supports who continue to proactively work towards maintaining his mental wellness.
…
His overall violence risk rating, informed by the structured professional judgement tool, HCR-20 was deemed to be low. The most likely risk scenario of [HR]’s future risk of violence is if he were to become unwell in his mental state and suffer an acute relapse. The risk of such deterioration in mental state is low if he remains on treatment, continue to maintain psychosocial stability, and continues his regular engagement with the treating team. Regular monitoring and treatment are available to him through Northern AMHS and his GP, along with informally, through his NDIS support workers with whom he has good relationship with. In the event of revocation of [HR]’s NCSO, he will continue to engage with the professional supports available to him and continue to take medication prescribed for him for the management of bipolar affective disorder. His treating team can obtain forensic specialist advice at any point to assist them in their management of HR by contacting the local AMHS’s Forensic Clinical Specialist, and by referring HR to Forensicare’s Community Mental Health Service intake for a secondary or primary consultation.
In summary, Dr Rodrigo concludes by recommending that the NCSO be revoked given the sustained improvements in HR’s mental state, insight, risk profile, and engagement with supports in place, there is limited utility for forensic oversight into HR’s care.
I have also had regard, as I have noted, to Dr Swamy’s report. Dr Swamy supports the revocation of HR’s NCSO, and concludes that in his opinion:
[HR] does not present as a danger to himself or to the community given his stable mental state over a significant period of time, his compliance with treatment recommendations, and his level of engagement with his treating team and other psychosocial supports.
Ms Kyvernitakis, in her report, also supports the revocation of the order and notes her observations of sustained mental stability on the part of HR, and his agreement to continue with treatment through the NAMHS long-term.
Based on this evidence, I am satisfied that it is appropriate to revoke the order. I have had regard to all of the matters required to be taken into account under s 40, and I note that although HR has a longstanding illness, his current mental state is stable and has been so for an appreciable period of time. He currently reports no mental health symptoms. He has good insight and has a very positive attitude towards treatment.
Having regard to his current mental state, his demonstrated willingness to engage in treatment, the support of NAMHS and HR’s general practitioner, his NDIS workers, and his family, I am satisfied there are enough supports in place to identify any deterioration in mental health, should it arise, or any alteration to the risk factors that might require an increase in HR’s care. I am satisfied that in the event of revocation of the order, HR is not likely to endanger anyone in the community or himself because of his mental impairment, and that it is unnecessary to maintain the order in order to protect people from any danger that may exist.
In the circumstances, I am satisfied that it would not be appropriate to maintain the order. That maintenance of the order would not be consistent with reducing the restrictions on HR’s freedom and personal autonomy consistent with the minimum necessary for the safety of the community. For those reasons, I order that pursuant to s 33(1)(d) of the Act, the NCSO in respect of HR be revoked.
I am satisfied that it is appropriate to make an order maintaining the confidentiality of the position. I am satisfied that the progress of HR, particularly on the NCSO, has been enhanced by his therapeutic engagement and publication of his name or the circumstances of the offending would put at risk that therapeutic development and would not be consistent with the purposes of the Act or the protection of the community. Although there is a very high importance placed on the decisions and orders made by this Court being open, and that the community have full access to the decisions, I am satisfied that it is appropriate that there be a non-publication order.
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