Re JF
[2017] VSC 142
•12 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 05335
| IN THE MATTER of an application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
| and | |
| IN THE MATTER of JF | |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2017 |
DATE OF RULING: | 12 April 2017 |
CASE MAY BE CITED AS: | Re JF |
MEDIUM NEUTRAL CITATION: | [2017] VSC 142 |
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CRIMINAL LAW – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Application to revoke non-custodial supervision order – Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Ms L Torres | Department of Health and Human Services |
| For the Attorney-General for the State of Victoria | Ms D Costaras | Victorian Government Solicitor |
| For the Director of Public Prosecutions | Ms L Wilkinson | Office of Public Prosecutions |
HER HONOUR:
Introduction
This is an application to revoke a non-custodial supervision order (“NCSO”), pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act).
The index offence occurred on 25 July 2009. The applicant was suffering from a psychosis at the time of offending.
On 20 September 2010, she was found not guilty by reason of mental impairment of five counts of attempted murder, and one count of arson. On 22 November 2010, she was declared liable to supervision under an NCSO, with a nominal term of 12 and a half years. The order is due to be reviewed by 22 February 2023.
By notice dated 17 November 2016, the applicant applies for revocation of the NCSO.
The conditions of the NCSO are as follows:
(a) The applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“Forensicare”) or their delegate;
(b) She continue to reside at a specified address, or at any other address as agreed by the authorised psychiatrist;
(c) She comply with the lawful directions of the authorised psychiatrist or his nominee, or any case managers appointed by them;
(d) She comply with treatment and tests and attend appointments as directed by the authorised psychiatrist or his nominee, or any case managers appointed by them;
(e) She abstain from the abuse of alcohol and use of illicit drugs;
(f) She comply with random drug tests, as requested by the authorised psychiatrist; and
(g) She not leave the state of Victoria without the written permission of the authorised psychiatrist.
Forensicare and the applicant’s current treating team are all supportive of the revocation application.
The Attorney-General, and the Secretary to the Department of Health and Human Services, also support the application.
Relevant statutory provisions
The revocation application is made under s 31 of the Act.
On such an application, s 33 of the Act gives the court the following options:
(a) Confirm the NCSO;
(b) Vary the conditions of the NCSO;
(c) Vary the NCSO to a custodial supervision order; or
(d) Revoke the NCSO.
In considering whether to make, vary or revoke an NCSO, 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 (s 39).
This principle was considered by the Court of Appeal in NOM v Director of Public Prosecutions.[1] The Court of Appeal held that s 39 requires the court to “balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments.”[2]
[1]NOM v DPP [2012] VSCA 198 (“NOM”).
[2]NOM at [21].
Section 40(1) requires the court to have regard to the following matters:
(a) the nature of the person's mental impairment or other condition or disability;
(b) the relationship between the impairment, condition or disability and the offending conduct;
(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;
(d) the need to protect people from such danger;
(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) relevantly provides that the court cannot revoke an NCSO, or significantly reduce the degree of supervision, 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.
Notification of family members and victims
The Act requires the Director of Public Prosecutions to notify victims and relevant family members of the applicant of the hearing (s 38C). Having read the affidavit of Louise Wilkinson, dated 21 March 2017, I am satisfied that the DPP has complied with his notification requirements under the Act.
The court is required to take into account any reports provided by family members and victims (s 42). In this case, the victims and family members of the applicant are the same people. Three such reports were received, one from the applicant’s ex-husband, and one from each of her daughters. All three reports are highly supportive of the application to revoke the NCSO.
The applicant’s history
The applicant is a 54-year-old Serbian woman, who lived in Bosnia before migrating to Australia at the age of 34 as a refugee.
Her first contact with psychiatric services occurred in 2007, when she was admitted to Maroondah hospital with florid psychotic symptoms. There were no clear precipitants for her admission, other than that her mother had died that same year. While at the hospital, she displayed ongoing psychotic symptoms, including auditory hallucinations about being spoken to by the television and having received a “signal” to go to hospital. She was treated with anti-psychotic medication, and subsequently discharged on a Community Treatment Order (“CTO”), due to concerns about her compliance with medication.
A further psychiatric admission occurred in May 2009, when the applicant presented with psychotic and affective symptoms, including paranoia, religious preoccupation, decline in self-care, and overspending. She was also reported to be very guarded about her symptoms, which made it difficult to assess her. She was again discharged on a CTO.
When the applicant was reviewed on 24 July 2009, she was noted to be anxious, but not psychotic. By the following day, when she committed the index offence, she was floridly psychotic. She reported experiencing auditory hallucinations involving her deceased mother and a Macedonian priest commanding her to burn the house down, because members of the Croatian Army were going to torture her family. She also reported feeling controlled by her mother. It was while she was in that psychotic state that she tried to burn down the family home while family members were inside.
The applicant has had four more psychiatric admissions since the index offence. The first one appeared to be due to an accommodation crisis, however, the next three were due to ongoing concerns regarding her mental health, despite compliance with treatment. She commenced on Clozapine treatment in May 2010, and was managed by the Mobile Support and Treatment Service, an intensive community support team. She remained on a CTO.
In October 2010, the applicant returned to her family home.
In March 2011, she was admitted to Maroondah Hospital, following reports of paranoid ideation regarding her husband’s fidelity, and auditory hallucinations of her mother’s voices. She appeared to be compliant with medication.
In August 2011, she was admitted to the Maroondah Community Care Unit of Eastern Health. She remained living at that facility until November 2015, spending some nights at the family home. She was in a relatively stable state, although she continued to experience some auditory hallucinations of her mother’s voice; however, those appeared to be of a “commentary”, rather than a “command” nature.
The applicant was discharged from the CTO in August 2012.
In November 2015, the applicant was discharged to her own private accommodation in Dandenong. She was initially managed in the community by the Dandenong Mobile Support and Treatment Team of Monash Health, between 2015 and November 2016. Because she was not known to the Monash Health service, she was provided with a high level of support of care from the Mobile Support and Treatment Team. They conducted home visits and generally provided more intensive care.
She was then assessed as not requiring the extra support, due to her stable condition. Accordingly, since November 2016, she has been under the care of the Dandenong Continuing Care Team (“DCCT”) of Monash Health.
Evidence in support of the application
In considering the revocation application, I had before me the following written evidence as to the applicant’s current condition:
(a) Report of Dr Grant Lester, supervising psychiatrist at the NCSO team of Forensicare, dated 6 March 2017;
(b) Report of Dr Virendra Kothari, consultant psychiatrist at DCCT, dated 16 March 2017; and
(c) Report of Mr Gim Seang Lim, case manager at DCCT, dated 27 February 2017.
All three reports are supportive of the revocation application. I also heard oral evidence from Dr Lester and Dr Kothari, as well as the applicant’s eldest daughter.
The applicant has a diagnosis of schizoaffective disorder, which is in partial remission with some ongoing auditory hallucinations. At the time of her offending in 2009, she was floridly and acutely psychotic. There was a clear and direct relationship between her mental impairment and her offending conduct.
Her current medication includes Clozapine (an anti-psychotic) and Venlafaxine (an anti-depressant).
There has been no evidence of any exacerbation of her psychotic symptoms, or hospital admissions, in the last 12 months. She has been fully compliant with her medication, as borne out by regular serum testing. She has abstained from alcohol and illicit substances. There have been no incidents of violence, or breaches of the NCSO.
The applicant has good insight into her condition, and accepts that her symptoms were caused by her mental illness. She understands that she has a life-long illness that will require ongoing medication.
She spends three to four nights a week staying at the family home, and the rest of the week at her apartment in Dandenong with her son. Despite divorcing from her husband in 2013, they continue to enjoy a supportive relationship.
The applicant receives a disability pension. Her assets and financial affairs are administered by a firm of solicitors under a VCAT financial administrative order.
The applicant’s condition is in partial remission. Dr Lester explained that it is not uncommon for an illness such as hers never to go into full remission. However, people in such a state are still able to lead very productive and safe lives in the community. Dr Lester believes the applicant will be able to do this, as she has learned to compartmentalise her symptoms; they do not affect her day-to-day life unless they become stronger.
As at November 2015, her condition had improved to such an extent that Dr Lester had recommended that if her mental state and medication compliance did not significantly change in six months, he would support revocation of the NCSO. It is now 16 months later, and there has been no deterioration.
Although the applicant still experiences some auditory hallucinations, they are no longer powerful and commanding in nature. Neither of the psychiatrists was concerned about that residual symptom.
The applicant’s family are very involved in her care, and provide a high level of personal and practical support to her. The hearing was attended by her ex-husband and daughter. Family members frequently attend her medical appointments. They all have a good understanding of her illness and its symptoms.
Before the hearing, based only on the written reports, I did have some concerns about several aspects of the application. Importantly, it was not clear on the basis of the reports precisely who would be managing the applicant’s psychiatric care, if the NCSO was revoked, and on what basis. However, as a result of the oral evidence of Dr Lester and Dr Kothari, that concern was alleviated. The following will occur upon revocation of the NCSO:
(a) The applicant will continue to receive monthly blood tests, and be reviewed by a psychiatric registrar on a monthly basis. That is a requirement for all persons on Clozapine, irrespective of whether or not they are on any type of supervision order;
(b) The applicant’s primary psychiatric care will continue to be provided by her current consultant psychiatrist, Dr Kothari, and the current DCCT team, albeit she will see them as a voluntary patient; and
(c) The frequency of her appointments with Dr Kothari will temporarily increase in the immediate future, to ensure that there is increased supervision during the transition off the NCSO.
The applicant has been in contact with her case manager at DCCT, a registered psychiatric nurse, on a fortnightly basis. She has a strong therapeutic relationship with her treating team. She has shown herself to be willing to work with her case manager and psychiatrists. There is no evidence to suggest that her level of engagement would be reduced in the absence of an NCSO, or that she would not be willing to continue to take her medication as prescribed.
Dr Kothari informed the court that, given the applicant’s history and illness, he would have a very low threshold before he would undertake assertive treatment, including (if needs be) compulsory inpatient treatment under the Mental Health Act 2014.
The primary practical difference in her mental health care after revocation will be that she will no longer be under the supervision of Forensicare. At present, she has been seeing Dr Lester on a quarterly basis.
Another matter which had been of concern to me based on the written reports was that the applicant had informed Dr Kothari that she wishes to travel to Bosnia, where she still has family members. It was not clear whether Dr Lester was aware of that desire, or what he thought of the proposal. Under the terms of the NCSO, any travel outside Victoria has to be approved by Forensicare. I was aware that a previous application by the applicant to visit Bosnia in 2014 had been refused by Forensicare. Once again, my concerns were allayed after hearing oral evidence.
The applicant wishes to visit Bosnia later this year, possibly for two or three months, in the company of her daughter and son-in-law. She remains very close to her own siblings; she has three brothers living in the same city as each other, and a sister living elsewhere in Bosnia. Her ex-husband and son-in-law also have several family members in Bosnia. They would stay with family members, in several large cities which have adequate psychiatric services.
Although both psychiatrists would have some concerns if the applicant wanted to travel overseas alone, they were not concerned about her travelling with appropriate family supports, and to a familiar family environment. Dr Lester described her risk of her becoming unwell in such a context as low. He further noted that if she were to submit a travel application to Forensicare now under the NCSO, they would permit her to travel.
Dr Lester explained that the reason why travel permission was refused in 2014 was that she had decompensated at that time due to a variety of factors which no longer pertain, and was experiencing command hallucinations. It was not a major relapse, but she had become highly anxious and her heightened anxiety increased the intrusiveness of her mother’s voice. That was the last time that her symptoms increased, and she improved rapidly once the application was rejected.
It is apparent that the applicant does not wish to travel alone. She also would not have the financial means to do so on the spur of the moment, even if she did want to, as she would need to have funds released by her financial administrator.
Her daughter and son-in-law are well aware of her early warning signs, and I accept that they would not hesitate to seek help for her if necessary. They also would not embark on the trip if they had any concerns about her mental state. As one of the victims of her earlier offending, her daughter has a very good appreciation of the possible consequences of an untreated deterioration of her condition.
Both psychiatrists are confident that the applicant and her family would discuss any proposed trip with her treating psychiatrist prior to travel, even once there is no legal obligation to do so. She would be reviewed prior to travel to ensure her mental state was stable. Her patient history would be translated into the local language, and contact details of the family members being visited would be taken. Arrangements would be made to ensure that her medication would be available to her overseas, and that either a general practitioner or psychiatrist would be able to review her on a monthly basis. The applicant remains a citizen in Bosnia, and is able to access the public health system there. The court is satisfied that there are sufficient procedures in place for her to travel to Bosnia without being a risk to herself or to others.
The final matter which was of concern on the written reports was that it appeared that the applicant’s condition had deteriorated very quickly prior to the index offence. Dr Lester’s opinion is that her condition involves a slow, not a rapid, deterioration. He believes that her symptoms would have been building up for some months before the offending, and would not have come on in a 24 hour period or even within a number of days. The reason the symptoms were not picked up at the time was probably because her family were not aware of what to look out for back then, and she may well not have reported her symptoms because she was unaware of her illness.
Conclusion
I am satisfied that it is appropriate to revoke the NCSO because:
(a) The applicant is in stable partial remission. Her residual symptoms have reduced to a level where they are not of concern to her treating team, and may never be totally absent;
(b) Her current treatment regime by DCCT will continue, and there will be no reduction in the level of care and attention she receives in the foreseeable future;
(c) Her Clozapine intake will continue indefinitely, which will mandate that she is reviewed on a monthly basis;
(d) She has a history of compliance with psychiatric treatment and medication since the index offence;
(e) She has no history of violence apart from the index offence;
(f) She has no history of drug or alcohol abuse;
(g) She has a high degree of support from family members, who are well aware of her illness and its symptoms;
(h) Her current and proposed accommodation arrangements are stable and satisfactory; and
(i) She has complied with all conditions of the NCSO since it was imposed.
I am satisfied that the applicant currently presents a low risk to herself and to the community. Having regard to that matter, as well as to the principle of “least restriction consistent with the safety of the community” (which is embodied in s 39), I am of the view that it is appropriate to revoke the NCSO.
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