Re JWH
[2016] VSC 307
•31 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 01599
IN THE MATTER of an application for further extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- and –
IN THE MATTER of an application for further extended leave by ‘JWH’
This proceeding is subject to a suppression order concerning the identification of the victim and members of the families of the applicant and the victim.
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JUDGE: | JANE DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2016 | |
DATE OF JUDGMENT: | 31 March 2016 | |
DATE OF REASONS: | 2 June 2016 | |
CASE MAY BE CITED AS: | Re JWH; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 307 | First revision 8/6/16 |
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CRIMINAL LAW – Crimes Mental Impairment – Application for further extended leave – Whether applicant would be likely to endanger himself or others if granted further extended leave – Application granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 39, 40, 57 – Publication of proceedings suppressed under s 75 – No point of principle.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T. Marsh | Victoria Legal Aid |
| For the Secretary of the Department of Human Services | Mr M. McLay | Department of Health and Human Services |
For the Attorney-General | Mr D. McCredden | Victoria Government Solicitor’s Office |
HER HONOUR:
Introduction
This is an application for further extended leave by JWH, pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He is seeking further extended leave from the Thomas Embling Hospital subject to similar conditions to those attached to his previous grant.
The circumstances justifying the previous grant of extended leave made by his Honour Croucher J, are dealt with in the detailed reasons delivered by his Honour on 1 April 2015.[1]
[1]Re HWJ [2015] VSC 170.
The index offence occurred on 4 March 2009 as described in paragraphs [10] to [15] of his Honour’s judgment. In essence, the applicant killed his mother whilst impaired by delusional schizophrenia at the time of the attack, the symptoms of which caused him to believe that his mother was trying to kill him and his family.
Coghlan J had earlier found the applicant not guilty of murder on the grounds of mental impairment on 21 September 2009, and committed him to a custodial supervision order (‘CSO’) for the nominal term of 25 years which was to commence on 4 March 2009.
The applicant had been detained at Thomas Embling Hospital after the imposition of the CSO, and had gradually progressed through the treatment and rehabilitation regime offered by the forensic mental health provider, Forensicare, until his first application for a period of extended leave before Croucher J on 31 March 2015.
On 1 April 2015, Croucher J granted the applicant extended leave for a period of 12 months on the following conditions:
a. That the applicant remain under the supervision of the authorized psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her nominee;
b. That the applicant reside at an address approved by the authorized psychiatrist of VIFMH or his or her nominee;
c. That the applicant comply with the lawful directions of the authorized psychiatrist of VIFMH or his or her nominee;
d. That the applicant comply with treatment and testing, and attend appointments, as directed by the authorized psychiatrist of VIFMH or his or her nominee;
e. That the applicant abstain from the use of illicit drugs;
f. That the applicant abstain from the consumption of alcohol other than as agreed with his treating team; and
g. That the applicant not leave the State of Victoria without the written permission of the authorized psychiatrist of VIFMH or his or her nominee.
The current application for a further period of extended leave is brought because the previous grant of extended leave is due to expire on 1 April 2016. In considering whether to grant this application, I must be satisfied under s 57(2) of the Act that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being granted a further period of extended leave.
Applicable legislation
The court’s powers in relation to an application for extended leave are specified in s 57 of the Act, which provides:
(1) An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a)In the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b)In the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services.
(2) The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
The consideration of serious endangerment is a discretionary judgment which requires consideration of both the likelihood of a risk occurring and the gravity of the level of harm that might result if it did.[2]
[2]In the matter of Major reviews of Percy, Farrell and RJO [1998] VSC 70 at [56], NOM v DPP (Vic) [2012] VSCA 198 (24 August 2012) (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
In making that judgment, I am bound to consider ss 39 and 40 of the Act, which provide statutory guidance and set out matters to which regard must be had, in exercising the discretion as to whether to grant extended leave.
Section 39 reads as follows:
(1)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.
(2) …
As the Court of Appeal stated in NOM v Director of Public Prosecutions (Vic),[3] the matters encompassed in ss 39 and s 40 involve ‘balanc[ing] the interest of the liberty of the detainee with protection of the community and in doing so assess[ing] risk factors which, in turn, depend upon value judgments’.[4] At the forefront of the application of s 39 are the two public interests of ‘ensuring the safety of the community’ and ‘protecting the right to liberty of one of its members’.[5] Section 39 requires the least infringement of liberty of the individual, commensurate with safety of the community.[6] That is, ‘supervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary’.[7]
[3]Ibid [63].
[4]Ibid [21].
[5]Ibid [36].
[6]Ibid [66]–[71].
[7]Ibid [70].
Section 40(1) details further mandatory considerations that inform the exercise of discretionary judgment including:[8]
[8]Ibid [47].
(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.
Ultimately, in the exercise of discretionary judgment the court must be guided by the principle set out at s 39, but the weight to be attributed to individual considerations is dependent on the facts and circumstances of the case as a whole.
In addition, s 40(4) provides that the court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless it has obtained and considered:
(a)the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on —
(i) the person's mental condition; and
(ii)the possible effect of the proposed further grant on the person's behaviour; and
(b)the leave plan filed under section 57A.
Section 38C of the Act requires the Director of Public Prosecutions (‘DPP’) to notify victims and family members of an application for extended leave ‘if the granting of the application would significantly reduce the degree of supervision to which the person is subject’. Section 43(1)(d) also provides that a victim or family member may make a s 42 report to the court ‘whenever an application is made for extended leave which, if granted, would significantly reduce the degree of supervision to which the person is subject’. The DPP informed the court that the DPP did not intend to notify victims or family members of the hearing on the basis that it was anticipated that the grant of further extended leave, if granted on the terms proposed, would be in similar terms to the current grant, and would not result in a significant reduction in the degree of supervision to which the applicant would be subject. [9] The Director was excused from attending the hearing.
[9]See email from the Office of Public Prosecutions to the court’s Criminal Legal Officer dated 23 March 2016.
Personal and psychiatric history
The applicant is a [age and relationship status redacted] man on a disability support pension with an established diagnosis of paranoid schizophrenia and polysubstance abuse, both in remission. He lives [accommodation and location redacted]. The applicant has a wide social support network in place. He sees members of his family including his [persons redacted] regularly. Family members attended the hearing before me. He also has a wide friendship network both in [location redacted] and in [location redacted], which supports him when he is feeling stressed or down.
Since the applicant was released on extended leave, he has been employed on a casual basis as a [job redacted] at [organisation redacted]. He initially increased his hours but then had to reduce them to three days per week due to a back injury sustained from lifting heavy rocks. He has spoken with staff at the Community Integration Program (‘CIP’) about other potential work or study interests which range from [redacted]. So far, he has found it challenging to commit to a particular chosen branch of study or vocational training. He continues to receive clinical support for exploring a study or vocational pathway.
The applicant’s full psychiatric history was set out in detail in the reasons published by Croucher J on 1 April 2015, and was canvassed in the psychiatric and other reports provided to the court during the previous application for extended leave. Those reports were tendered as exhibits at that time, and remain on the court file. A chronology of relevant events was also tendered before his Honour and remains on the court file.[10] It was accepted by the parties that that document remains relevant as a brief summary of the applicant’s previous history. The applicant’s counsel, appearing in the matter before me, tendered written submissions and a further brief chronology in support of the current application.[11]
[10]Exhibit 5 on the application before Croucher J.
[11]Exhibit 4 on this application.
In summary, the applicant developed depressive episodes with suicidal ideation as a teenager. He had a history of misusing illicit substance from a very young age and also displayed psychotic symptoms and aggressive behaviour towards others in some instances. His first admission was into a psychiatric inpatient unit at a hospital in rural Victoria in December 2008 when he was [age redacted]. He was subsequently transferred to an inpatient unit at a specialist youth mental health facility where he was diagnosed with first episode psychosis associated with polysubstance abuse.
He displayed ongoing psychotic symptoms whilst in the young persons’ unit. He had ongoing delusional beliefs that his mother was trying to poison him. He was granted overnight leave and released into his mother’s care about 4:30 pm on 3 March 2009 but unfortunately committed the index offence the following day. He was subsequently remanded in custody and then admitted to Thomas Embling hospital.
On 12 March 2009, the applicant was transferred to the Atherton Unit of the Thomas Embling Hospital. He then progressed through the various units of the Thomas Embling Hospital and has been living in the community on a grant of extended leave since 1 April 2015.
Since being on extended leave, the applicant’s mental state has remained stable. He has shown no clinical signs of a relapse such as delusions or hallucinations. Although he has experienced some periods of lowered mood and sadness, he has not been consistently depressed and has responded well to social and psychiatric support.
Current psychiatric and clinical evidence
Two reports were filed in support of the application for extended leave:
a)Report of Dr Nicholas Owens, Consultant Psychiatrist at the CIP at Community Forensic Mental Health Services (‘CFMHS’) dated 10 March 2016;[12]
b)Report of Emma Robertson, Case Manager at the same facility dated 7 March 2016.[13]
[12]Exhibit 1 on this application.
[13]Exhibit 3 on this application.
Dr Owens and Ms Robertson both gave viva voce evidence at the hearing. I note that all matters set out in s 40(4) have been satisfied. I now turn to those reports before addressing the clinicians’ viva voce evidence separately.
Dr Owens’s report
Dr Owens is a consultant psychiatrist employed at Forensicare within the Community Integration Program. He has been supervising the applicant since 1 April 2015, taking over from his previous treating psychiatrist Dr Ann Brennan. He opines that the applicant has a primary diagnosis of paranoid schizophrenia and polysubstance abuse, both in remission. He also opines that the applicant has shown no clinical evidence of relapse of his psychotic illness during his period of extended leave. His progress has been steady and he has not been involved in any major incidents which have placed the community at risk. Nor has he relapsed into illicit substance abuse. Although he has experienced some periods of lowered mood, he has not been consistently depressed and responded well to social support.
The applicant has been treated with the antipsychotic medication Olanzapine. A decision was made by the treating team to reduce the dose from 25mg to 20mg nightly in August 2015 due to side-effects as well as elevated serum levels. Dr Owens notes that there has been no evidence of any mental deterioration since the reduction in his medication.
The applicant has been fully compliant with his medication over the past 12 months which has been confirmed by serum level testing. He has ‘consistently maintained a positive view about taking his medication in the long term’ and ‘uses a dosette box to aid his taking of his medication’. There has been one occasion where he forgot to take his medication at night when he visited a friend’s place for dinner, of which he notified Dr Brennan at his appointment several days later. He has since been advised to seek clinical advice from CIP staff should it happen again in the future.
The applicant has cooperated with random drug screening and alcohol screening and has abstained from illicit drugs as borne out by screening over the past 12 months despite sometimes socialising in environments where illicit drugs may be available. He ‘readily discusses his past drug use and its association with the onset of his illness’ according to Dr Owens, and regularly reflects on the risk of substance use in relation to his mental health in case management sessions with Ms Robertson. However, Dr Owens indicates that whilst he ‘has no intent or plan to recommence substance use, he may be at risk of overestimating his capacity to abstain if he were even more exposed to drug use’. The applicant is ‘currently engaging with CIP in discussion around minimising the risk of substance use, particularly around strategies he might use if substance use were to be more prevalent in the environment around him’. The treating team does not object to the applicant maintaining a healthy attitude to alcohol use and notes that CIP staff will continue to monitor his alcohol consumption and support him to identify factors that could lead to excessive use.
Dr Owens notes that the applicant has a wide social support network in place, both in [location redacted]and in [location redacted]. He is proactive in seeking support from these networks when he is feeling stressed or low in mood. There were no significant concerns raised about the applicant’s mental state at a family meeting held on 24 February 2015.
Dr Owens reports that the applicant engages well with his treating team and his Co-Health worker whom he sees on a weekly basis. He has maintained employment at [organisation redacted] for the past 12 months and will continue to work towards finding a vocational pathway to boost his sense of independence in the longer term.
The applicant has been managing his current transitional housing property in [address redacted] satisfactorily. Dr Owens suggests that it would be sensible to support him to explore alternative accommodation in the next 12 months whilst he is on extended leave because his future accommodation will also determine the future location of his mental health service provision at the point when he is ready to be released on a non-custodial supervision order.
Regarding the applicant’s risk to himself and others, Dr Owens uses a methodology based on examining variables that are known to be empirically associated with future violent offending, weighing these against other factors that might mitigate the risk and then making a clinical assessment. In the applicant’s case, there are certain fixed risk factors including his psychiatric history, the seriousness of the offending and a history of illicit drug abuse, against which must be weighed the progress of his mental health to a stable condition, his level of insight, his understanding of early warning signs of relapse, his awareness of the importance of reporting such signs to CIP staff, compliance with psychiatric treatment, abstinence of substance use and violence over the same period, satisfactory engagement with his treating team, positive relationships with his family and other support networks, and commitment to a structured plan of vocational rehabilitation. Dr Owens states that illicit drug use, non-compliance with medication or failure to comply with supervision requirements would increase the risk of relapse and the overall risk of violence. Taking all of the abovementioned indicia into consideration, Dr Owens states that:
Although [the applicant’s] historical (fixed) risk factors for interpersonal violence remain moderate, the risk factors relating to his current mental state, his overall adjustment to community life and his future plans, are currently at a low level, appropriate for ongoing management in the community by CIP. Overall, in the context of his current treatment plan, his risk of interpersonal violence in the coming 6-12 months is low. I also judge his risk to himself to be low within the same timeframe.
Dr Owens also annexed to his report a recommended leave plan, with conditions substantially similar to the previous conditions.
In all the circumstances, Dr Owens is supportive in his written report of the application for further extended leave.
Ms Robertson’s report
Ms Robertson is the case manager responsible for overseeing the applicant’s treatment at CIP. She has been assisting the applicant since June 2015, initially on a weekly basis and later on a fortnightly basis. The applicant’s regime also includes monthly contact with a psychiatric registrar as well as his three-monthly review with Dr Owens.
According to Ms Robertson, the applicant’s overall mental state has remained stable throughout the period of extended leave. He displays no evidence of a formal thought disorder or positive symptoms of schizophrenia. He has been fully compliant with his medication, and promptly attended all appointments. She concurs with Dr Owens that the applicant ‘displays insight into his illness & states his intention to continue to engage in treatment’.
She agrees with Dr Owens that the applicant would benefit from exploring alternative accommodation whilst still on extended leave as a more intensive degree of support can be offered during the period of transition. She indicates that ‘in the long term it is [the applicant’s] goal to work towards living in [location redacted], but his medium term plan is currently to remain in [location redacted]’.
Ms Robertson notes that the applicant is independent when it comes to the activities of his daily living. He cleans, cooks, maintains his property, and manages his own finances. He has a car and a bicycle and is able to navigate around his local community. He engages in physical activity such as riding a bike, going to the gym and weight training at home. More generally, he divides his time between working at [organisation redacted], attending appointments at Forensicare or Co-Health, seeing friends and family in [location redacted]and in [location redacted].
In regards to employment, Ms Robertson notes that the applicant’s employer at [organisation redacted] reports ‘no concerns’ about the applicant’s work performance, ‘describing him as a friendly and valued member of the [organisation redacted] team’. However, she reports that the applicant seems to have difficulty with committing to a specific study or vocational pathway and can become overwhelmed with which idea to pursue.
Ms Robertson confirms that the applicant has good family and social support and is a social person who enjoys the company of others. He regularly visits his father in [location redacted] where he has social support from people who are familiar with his mental health condition. She reports positively that he has a wide variety of interests including [redacted].
Taking into account his current level of insight into his illness, strong network of support and his engagement with his treating team, Ms Robertson considered the applicant to present a low risk to himself and to the community. She states in her report under the heading ‘Summary and Opinion’:
Since April 2015, [the applicant] has demonstrated he is capable of living in the community full time. He has settled into his accommodation & enjoys living there. There have been no risk concerns arising. He continues to present as a low risk of interpersonal violence; his mental state has been stable and he is engaging in treatment with his treating team and with other supports.
Given the foregoing, Ms Robertson is also supportive of the application for further extended leave.
The clinicians’ viva voce evidence
Each clinician was called as a witness by counsel for the Secretary and cross-examined by counsel for the Attorney and by counsel for the applicant.
Dr Owens was asked whether allowing the applicant to consume alcohol could potentially lead to drug use due to the reduction of inhibitions by drinking alcohol. He said that that is one of the possible contingencies that have been discussed in the context of his substance use relapse management plan which has been carried out in the course of his appointments over the last 12 months. Dr Owens explained that the applicant ‘understands that he has schizophrenia’ and ‘is aware of what those symptoms subjectively mean for him’. He described the applicant’s insight into the risk of using substances as ‘good’. In addition, he said that the applicant is a social drinker and dislikes the feeling of being intoxicated. The applicant has been using alcohol within safe limits over the last 12 months. Upon cross-examination, about the risks attached to possible relapse to cannabis use, Dr Owens stated that he is confident that if there were a problem of sustained cannabis use, rather than a single occasion it would be detected in sufficient time, and that in the meantime the anti-psychotic medication would provide a degree of cover.
Ms Robertson in her evidence indicated agreement with Dr Owens. She said that the applicant has consistently described to her ‘a strong level of motivation to abstain from drug use’ and ‘to manage his alcohol within safe limits’. She explained that ‘at the top of the list of his motivators was avoiding the risk of becoming unwell again - and returning to old habits of drug use… and that his big motivator is maintaining the trust that he has with his family, and his desire to be able to engage in productive activities of day to day living which he recalls when he was using a lot more drugs, he was limited in his capacity to do so.’
Dr Owens was also asked about the incident where the applicant had forgotten to take his antipsychotic medication in July 2015. He confirmed that it had not happened again since that occasion and that the applicant ‘remained quite happy to continue taking his medication’ after the reduction of dosage due to negative side-effects. Dr Owens explained that whilst the commonly used antipsychotic drug Clozapine has a risk of rebound psychosis associated with cessation, Olanzapine does not. He added that he would ‘certainly expect that there would be a gradual onset of early warning signs followed by frank symptoms or behavioural signs’ if relapse occurred and ‘it would be very unlikely for him to be normal one day and then the next day, floridly psychotic. He added that the applicant’s family is ‘well educated as to the presence and the appearance of psychiatric symptoms’ and has ‘a very strong motivation to remain aware’ of his mental health.
Dr Owens stated that part of his task as a clinician is not just managing the acute symptoms of the applicant’s illness but also looking holistically and equipping him with skills that he needs to complete his rehabilitation and learn to manage his own illness.
Ms Robertson was asked about the applicant’s accommodation plans over the next 12 months. She explained that the applicant is on the waiting list for public housing for a one-bedroom unit. She indicated that they plan to have another family meeting regarding alternative options such as shared living or living with the family and will monitor the applicant closely during transitional stages.
Ms Robertson expressed her support for the applicant to engage with a private psychologist in the community. She agreed with questioning from Mr Marsh that the applicant’s desire to engage with a private psychologist is consistent with a man who is embarking on the next phase of his recovery.
Attitude of the parties
At the commencement of the hearing, each party indicated their respective positions based on the clinical evidence and other material. Nothing which emerged during the hearing altered this position.
Mr McLay, counsel for the Secretary advised that the Secretary to the Department of Health and Human Services is supportive of the application for further extended leave for a period of 12 months.
Mr McCredden, counsel for the Attorney-General indicated that the Attorney-General also supports the further grant of extended leave, adding that the applicant’s alcohol consumption and abstinence from drugs require close monitoring on an ongoing basis with efforts to ensure the applicant fully appreciates the risks of becoming intoxicated.
Mr Marsh, counsel for the applicant, emphasised the factors referred to in s 40 of the Act and the favourable prognostications of the clinical supervisors, seen in the light of the previous successful leave period. He argued that with the current ongoing support and supervision the application should be granted.
Conclusion
Having regard to criteria set out in the Act, referred to above, and the psychiatric and clinical evidence adduced before me, and in light of the absence of opposition to the application I am satisfied that it is appropriate to grant a further period of extended leave on the conditions sought under the Leave Plan.[14] I have had particular regard to the gravity of the index offence balanced against the positive indicators referred to by the clinical team, and the ongoing arrangements for future support and supervision. The evidence appears to suggest that the risk posed by the applicant of future endangerment to himself or others through relapse into a psychotic state is capable of being safely monitored and contained. Although the applicant has some challenges ahead of him, including finding suitable accommodation in the region most suitable to his needs, taking active steps towards deciding on a vocational pathway, and avoiding substance abuse, he does appear to have a clear understanding of the value of seeking support from his treatment team and family and social network.
[14]Exhibit 2 on this application.
In accordance with the principles set out in s 39 of the Act, the applicant should be granted further extended leave which will expire in 12 months’ time on the conditions suggested, which are substantially similar to the previous conditions. The conditions of leave will be:
(a) That the applicant be under the supervision of the Authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH), or his or her nominee.
(b) That the applicant reside at [address redacted] or another address notified to and approved by the authorised psychiatrist of VIFMH, or his or her nominee.
(c) That the applicant comply with the lawful directions of the authorised psychiatrist of VIFMH, or his or her nominee.
(d) That the applicant complies with the treatment, testing and attend appointments as directed by the authorised psychiatrist of VIFMH, or his or her nominee.
(e) That the applicant abstain from the use of illicit drugs.
(f) That the applicant abstain from the consumption of alcohol other than as agreed with his treating team.
(g) That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH.
The non-publication order made by Croucher J under s 75 of the Act on 1 April 2015 is re-instated on the same terms and will apply indefinitely or until further order.
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CERTIFICATE
I certify that this and the 15 preceding pages are a true copy of the reasons for Judgment of Justice Jane Dixon of the Supreme Court of Victoria delivered on 31 May 2016.
DATED this 3rd day of June 2016
…………………………..
Associate
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