Re KL (No 2)
[2024] VSC 149
•27 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0338
IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
-and-
IN THE MATTER of a further application for extended leave by KL
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2024 |
DATE OF ORDERS & REASONS: | 27 March 2024 |
CASE MAY BE CITED AS: | Re KL (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 149 |
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CRIMINAL LAW — Further application for extended leave — In 2016, KL, in delusional state, stabbed and killed neighbour, GH — In 2017, at consent mental impairment hearing, KL found not guilty of murder because of mental impairment — KL placed on custodial supervision order (“CSO”) with 25‑year nominal term, and committed to Thomas Embling Hospital — KL granted extended leave in April 2023 — Psychiatric opinion supportive of further period of extended leave — Secretary to Department of Health, Attorney‑General and KL submit further extended leave should be granted — With concurrence of parties, matter determined on the papers in chambers — Statutory test satisfied on evidence — Extended leave granted for further 12 months, on conditions in leave plan — Non‑publication order as to name and address of KL, GH and their relatives — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 57 & 75.
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APPEARANCES: | Counsel | Solicitors |
| For KL | N.A. (on the papers) | Galbally & O’Bryan |
| For the Secretary to the Department of Health | N.A. (on the papers) | Legal, Privacy and Integrity Branch, Department of Health |
| For the Attorney-General | N.A. (on the papers) | Victorian Government Solicitor’s Office |
HIS HONOUR:
Overview
This is an application by KL for extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). When granting KL’s first such application in April last year, I summarised the background to the matter in the following terms.
Early on an autumn morning in 2016, after a chance meeting on a walk near her home, KL killed her neighbour GH in the street by stabbing her multiple times to the chest and neck.[1] At the time, KL was in the grips of an undiagnosed delusional disorder. Later that morning, she handed herself in at her local police station, and was charged with murder.
[1]These names have been anonymised pursuant to the order I previously made, and have made again, for non-publication of information tending to disclose the identities and addresses of KL, GH, and members of their families. See below.
In 2017, a consent mental impairment hearing was conducted in this Court pursuant to the Act. The judge directed a verdict of not guilty of murder because of mental impairment. As a result, a custodial supervision order (“CSO”) was imposed on KL, with a nominal term of 25 years. Thereafter, KL was housed as a forensic patient at Thomas Embling Hospital pursuant to the CSO.
On 4 April 2023, I heard a third review of the CSO and an application by KL for extended leave. Psychiatric opinions, which were unchallenged by any other expert evidence, were supportive of KL’s application for extended leave. In addition, I received heartfelt reports from GH’s family. Some opposed extended leave, while others doubted whether such an order would provide any guarantee of community safety.
Those appearing for the Secretary to the Department of Health (“the Secretary”), the Attorney‑General and KL all submitted that, based on the evidence and the statutory tests to be applied, the CSO should be confirmed and the application for extended leave should be granted.
At the conclusion of the hearing, having accepted both the psychiatric evidence and the submissions of the parties, I ordered that the CSO be confirmed, and that KL be granted extended leave for 12 months, on the conditions set out in the leave plan filed with the Court. I also ordered that the names and addresses of KL, GH, and their relatives, not be published. Subsequently, I published written reasons for making those orders.[2]
[2]Re KL [2023] VSC 182.
KL now makes a further application for extended leave for 12 months, as the current order is due to expire next week, on 4 April. Again, the application is supported by psychiatric opinion, and the parties are agreed that I should make the order sought.
For reasons that follow, and which should be read together with my reasons given on the last occasion, I shall order that KL be granted extended leave for a further 12 months, on the conditions set out in the leave plan filed with the Court. I shall also make the same order concerning non‑publication of the names and addresses of KL, GH and their relatives.
Hearing on the papers
Both KL and the Attorney‑General consented to this application being determined in chambers on the papers. The Secretary was content to be guided by the Court as to whether the matter was to be heard on the papers or in the more usual way — i.e. in open court. Having regard to the reports I have read, the absence of any challenge to those reports, and the positions of the parties, I am content to determine the application on the papers in chambers.
No need for notification of family under s 38C of the Act
On 4 March 2024, Ms Doyle, who is a principal solicitor at the Office of Public Prosecutions (“OPP”), advised the parties and the Court via email that, since the application for a further grant of extended leave was sought on the same conditions as the existing conditions, the OPP did not intend to send notifications under s 38C of the Act to the family members of either KL or GH.
I accept that that approach is in accordance with the Act and the evidence. This is because s 38C(2)(d) requires such notice to be given in the case of an application for extended leave only “if the granting of the application would significantly reduce the degree of supervision to which the person [in this case, KL] is subject”.
Evidence before the Court
Report of Dr James Belshaw, forensic psychiatrist
History of contact
I turn now to the evidence of KL’s progress in the last 12 months, commencing with the report of Dr James Belshaw.[3]
[3]Dr Belshaw’s report is dated 29 February 2024.
Dr Belshaw, who provided a report for last year’s application as well, is a consultant forensic psychiatrist working within Forensicare’s Community Treatment and Transition Team (“CTT team”) based at the Community Forensic Mental Health Service in Clifton Hill. The CTT team is responsible for assisting patients to prepare for extended leave applications, and their subsequent treatment and management once extended leave is granted.
Dr Belshaw has been KL’s allocated CTT psychiatrist since April 2022. In the past 12 months, he has reviewed KL on 11 occasions. During this period, KL was also regularly reviewed by her CTT case managers Jennifer Star and Zahra Jafari (the latter of whom has also provided a report for this application, which I shall come to later). In addition to these reviews, KL’s progress and risks were examined via a six‑monthly in‑depth CTT case review (known as a care pathway plan) on 18 July 2023 and 5 December 2023.
KL’s progress in the last 12 months
Dr Belshaw noted that KL attended all CTT appointments on time and engaged very well in each review. There have been no concerns regarding her mental state and behaviour. There have been no issues regarding her compliance with her prescribed psychotropic medication (which is 30 milligrams of mirtazapine each night).
In relation to the presence of any forensic or risk issues, KL’s care pathway plans showed that she continued to maintain a low risk rating throughout the past 12 months. Dr Belshaw noted that KL requested that he read and discuss the statements made by GH’s relatives (which were submitted to the Court at the time of her extended leave application in April 2023) so that she could continue to process and reflect on the consequences of her actions. She undertook this work during appointments with Dr Belshaw between July and August 2023. In his view, during these sessions, KL demonstrated significant remorse and insight into her mental health issues and risks.
KL has otherwise maintained her stable weekly routine, as detailed in the contemporaneous CTT case management report by Ms Jafari.
KL also continued to engage with her specialist psychotherapist each week. In November 2023, Dr Belshaw discussed with KL potentially reducing the frequency of her psychotherapy appointments, as it was deemed that a reduction in this support was inevitable (as psychotherapy is not a lifelong intervention) and that such an undertaking would be best attempted while she was still supported by the CTT team. With this in mind, on 12 December 2023, Dr Belshaw spoke with KL’s Spectrum psychotherapist via the telephone. The psychotherapist confirmed that KL had been very well engaged and that many of the presenting issues had been addressed. He also recommended that, as he was due to take a period of long‑service leave in July 2024, this may form a natural end to the psychotherapeutic input. KL therefore reduced the frequency of her psychotherapy input to fortnightly in December 2023. At the time of Dr Belshaw’s report, it was planned for her to cease psychotherapy in July 2024. However, he noted that, as a client now known to their service, KL will be able to be referred expeditiously back to Spectrum in future, if required.
In Dr Belshaw’s view, the only other events of relevance in the past 12 months involved KL’s family members. In CTT sessions, KL advised that, during regular visits, she had noticed that her mother was presenting with significant symptoms of dementia, and this diagnosis was subsequently confirmed. KL managed witnessing her mother’s cognitive decline without any significant distress or deterioration in her own mental state. She was also able to communicate with her estranged sister (who, Dr Belshaw understands, holds the medical guardianship for their mother). Her sister sent her text messages via Forensicare or directly on at least four occasions (for example, to inform her of her mother’s transfer to an aged care facility early in December 2023).
Mental state examination
As for the mental state examination that Dr Belshaw conducted on 15 February 2024, he noted that KL was on time and well kempt. He saw no abnormal psychomotor movements. Her speech was normal in rate and tone, and the content demonstrated her typical factual reportage of events.
KL stated that her mood was normal. She denied any sustained sleep dysregulation, despite the hot weather which had previously impeded her sleep. Dr Belshaw observed no depressive or biological symptoms of depression.
Objectively, in Dr Belshaw’s view, KL was euthymic and reactive.
She did not report any psychotic symptoms. There was no formal thought disorder, and no psychotic symptoms were objectively observed. She was orientated to time, place, and person.
In Dr Belshaw’s view, KL’s insight regarding her mental health was excellent. She demonstrated her ongoing ability transparently to discuss relevant issues that had occurred in her life and the emotions and cognitions associated with these events.
Risk assessment
In Dr Belshaw’s opinion, the best practice for assessing an individual’s risk of future violence involves the use of a structured professional judgement tool — for example, the Historical Clinical Risk 20 (“HCR‑20”). In his view, the use of this approach facilitates the combination of empirically derived data from a range of known historical and contemporaneous risk factors, together with nuanced clinical information to form an overall formulation of violence risk.
As Dr Belshaw had noted in his 2023 report regarding KL, she had several historical risk factors for future violence. As they have already occurred, they are considered to be static and unmodifiable. In the past 12 months, there had been no additions to KL’s HCR‑20 historical risk factors, and therefore he considered her baseline risk of violence remained in the moderate range.
In terms of current dynamic risk factors for violence, Dr Belshaw considered KL had excellent insight into her mental health issues and violence risk. There had been no issues with supervision, violent ideation, instability or symptoms of relapse.
In relation to the future risk factors for violence, Dr Belshaw observed that KL’s accommodation remains stable, that she is well engaged with the CTT, and that she has a consistent general practitioner. In his view, she has demonstrated a good ability to manage stress. An example of concerned her reaction to her mother’s cognitive decline and the related family dynamics. Although comparatively small, KL’s personal support network (which is comprised by her husband, his family, and their daughter) has demonstrated an ability to provide her with a stable and sufficient level of care following discharge from Thomas Embling Hospital. In considering future risk factors, Dr Belshaw took into account the likelihood that KL will finish her course of long‑term psychotherapy in about mid‑2024, together with the fact that the frequency of this input had already reduced, and that she had reportedly completed her therapeutic goals within this therapeutic frame.
In those circumstances, Dr Belshaw concluded that, if KL were to be granted a further period of extended leave, her risk for future violence would be low.
Opinions
Towards the end of his report, Dr Belshaw provided the following summary of KL’s history and his opinions.
He said that KL is a 61‑year‑old female whose early acculturation difficulties and experience of parenting likely increased her vulnerability to developing a mental disorder in later life. At the age of 45 years, following an otherwise normal psychosocial trajectory, she began to experience symptoms of a depressive disorder and a delusional disorder.
Despite coming to the attention of police as a result of repeated incidents of verbal aggression and a series of vexatious complaints targeted towards a neighbour, the exact nature of her mental health issues remained unknown to KL and her family, and, as a result, she did not receive any support or treatment from mental health services.
The killing of her neighbour occurred in the context of approximately ten years of untreated depressive and psychotic symptoms. In Dr Belshaw’s opinion, KL has a diagnosis of delusional disorder according to the criteria laid out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM‑5”), which has been in sustained remission since approximately 2018. She also met the DSM‑5 criteria for a depressive disorder, which was most prominent in around 2017, and which also has been in sustained remission since 2018.
In the period since the index incident, KL’s symptoms have remitted entirely following treatment with psychotropic medication. During her recovery, she has also engaged in psychoeducation and psychotherapy to enhance her ability to communicate adaptively with family members and mental health treating teams, and to avoid any future delays in her accessing mental health treatment.
In Dr Belshaw’s opinion, KL’s completion of recovery goals and progress during transition back to full‑time community living during her extended leave has been exemplary. Given that she also has had a sustained low‑risk HCR‑20 rating for several years and that there are no dynamic risk factors which require further mediation, Dr Belshaw thinks there is no further requirement for her to be managed by the CTT team. In the last three months, he has therefore encouraged KL to apply for a variation of her CSO to a non‑custodial supervision order (“NCSO”). He has also discussed KL’s situation with Forensicare’s NCSO service and they too are supportive of an application to vary her CSO to an NCSO.
Dr Belshaw explained that, when KL applies for an NCSO, the CTT team will refer her to the local public area mental health service (“AMHS”) for allocation of a treating team (including a psychiatrist and case manager). A thorough handover of clinical information will occur between the CTT team and the AMHS in preparation for the latter assuming the role as her primary treating team.
Recommendations and leave plan
Dr Belshaw supports KL’s application for a further 12 months of extended leave.
In the event that she is granted a period of extended leave, he proposed the following conditions as a leave plan:
1)that KL be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate;
2)that KL resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate;
3)that KL abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate;
4)that KL complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate;
5)that KL abstains from the abuse of alcohol and the use of illicit drugs; and
6)that KL not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate (this includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH).
Report of Zahra Jafari, case manager
Ms Jafari’s report to be read with Dr Belshaw’s report
I turn now to Ms Jafari’s report,[4] who is KL’s case manager in the CTT team.
[4]Ms Jafari’s report is dated 5 March 2024.
Ms Jafari is a registered nurse employed by Forensicare. As well as an undergraduate degree in nursing, she has a Master of Mental Health Nursing, completed in 2022.
Her report addresses KL’s current social and community supports, and is intended to be read in conjunction with Dr Belshaw’s psychiatric report.
Accommodation
Ms Jafari noted that KL has been residing with her husband in the family home since her discharge from Thomas Embling Hospital in April 2023. The property is owned by her husband, is stable and secure, and no risks were identified at the home visits conducted by CTT team.
KL plans on continuing to reside in the family home as she has no issues with her husband and none are expected to arise. KL has also been getting to know her neighbours without concern.
Community linkages and activities
KL had a conversation with Dr Belshaw in June 2023 regarding going back to work, but she explained that she is happily retired and is not seeking employment.
Ms Jafari reported that KL has been volunteering with the Salvation Army since February 2023, on a weekly basis. She also volunteers her assistance twice a month at a botanic garden, which is a hobby she enjoys.
KL has considered volunteering at a pet shelter but is not yet certain. She was previously involved in competitive dog training, but does not wish to return to this after the index incident because it less meaningful for her now.
Ms Jafari confirmed that KL is seeing a psychologist from Spectrum. She initially engaged with him on a weekly basis from the time she was granted her extended leave until 20 November 2023. But she reduced the frequency of the sessions to fortnightly following a conversation with Dr Belshaw. In Ms Jafari’s view, KL managed the transition well, and has reported no issues since that time. She is considering ceasing the sessions once her psychologist goes on long service leave in July 2024, but is aware she can resume sessions if needed. She considers the sessions helpful because the psychologist asks her more questions, and she appreciates the objective perspective she receives.
KL’s sees her general practitioner for physical health reviews. She was most recently advised to manage her elevated cholesterol levels with exercise.
KL also enjoys walking regularly — either solo or with her husband or her daughter. She prefers walking in the cooler weather but still finds time to do so in the warmer months, particularly when it is dark, which she was not able to do while at Thomas Embling Hospital. She also occasionally cycles with her husband.
Family and personal support
KL has a good relationship with her husband, who has been happy to have her company since commencing extended leave. She has noticed an improvement in their relationship compared with prior to the index incident. She now raises issues in their relationship, no matter how small, and her husband is more in tune with her emotions. She has shared her relapse prevention plan with him and believes it is her family’s obligation to ask for help, if she requires it. They also go on regular outings together and as a family.
KL has one child whom she sees on a weekly to fortnightly basis, depending on their schedules. Their relationship is positive and supportive of her recovery. KL believes they are able to have more open conversations now. She stated she and her husband “feel more comfortable raising all manner of issues, which is something new to us”, and that they “were a bit closed off, but now [they are] not”. Her daughter is aware of her mother’s early warning signs and has a copy of her relapse prevention plan. KL trusts her daughter will contact the CTT team with any concerns. At the most recent care pathway plan, KL’s daughter said this:
She’s been progressing well. She’s emotionally stable. We do everyday stuff as a family. She’s gone back to old herself. There’s no issues. She’s trying very hard and hopefully she continues to progress.
Ms Jafari confirmed that KL’s mother has dementia and is deteriorating in health. At the time of KL’s discharge from Thomas Embling Hospital last year, her mother was still living at home in a country town with KL’s brother, and was receiving at home care. KL would visit her on a fortnightly basis with her husband and call her every second day. As her health deteriorated, KL’s mother was transferred to an aged care home in Melbourne. KL now sees her weekly. She has acknowledged it is difficult to see her mother in this way, but believes she is in the right place to receive 24‑hour care. KL is supported by her husband and daughter in this regard.
KL is estranged from her only sister, and has been since 2017. She has attempted to contact her while on extended leave, but her sister was not receptive and has maintained her distance. She is not in contact with her younger brother. She has not spoken to her older brother since her mother was moved to a nursing home.
KL maintains superficial relations with those with whom she volunteers, and has expressed no desire for deeper relations because of fear of disclosure. She is worried about others googling her name, and is satisfied with her current engagement regarding her social interactions.
KL maintains contact with an imprisoned friend through cards and letters, but does not intend to visit her while she is in prison.
Independent living skills
Ms Jafari notes that KL is able independently to care for herself, including with respect to her activities of daily living. She shares the household chores with her husband.
KL holds a driver’s license and can independently drive herself to appointments.
KL and her husband are both retired and living off their savings. Their finances are managed by them both, and she denies experiencing any financial distress.
KL independently manages her medication administration. She has said, “I want to take it. It’s part of my routine. It’s helped me so much.” When granted extended leave last year, she was using a Webster pack but ceased doing so after a discussion with Dr Belshaw in October 2023, as she is on a singular medication and remains compliant.
KL attends all her appointments with the CTT team on time, and there have been no issues with her attendance.
Arrangements if further extended leave granted
If she is granted a renewal of her extended leave, KL will continue to reside at the family home.
She will continue to be reviewed fortnightly by the CTT team. She has experienced no issues with the conditions of her order. She is engaged with the CTT team and is forthcoming with her thoughts and transparent during reviews.
Ms Jafari understands that KL will continue to volunteer at the botanic gardens and at her local Salvation Army, and may consider a pet shelter in the future.
Opinions and recommendations
Ms Jafari relayed that KL felt euphoric after being granted extended leave. At times, she would feel guilty for enjoying herself but has worked on alleviating these feelings. She has continuously expressed not wanting to become unwell again and, in Ms Jafari’s view, has excellent insight into her mental illness and the importance of the adherence to treatment.
In Ms Jafari’s opinion, KL has also displayed the ability to engage with multiple health professionals and to develop therapeutic rapport with them. She enjoys speaking with a variety of health professionals and feels comfortable doing so.
If she chooses to cease psychology, she will continue to be supported by the CTT team during this time and will be supported to re‑engage with Spectrum if that is thought necessary.
In light of the foregoing matters, Ms Jafari supports KL’s application for a further 12‑month period of extended leave.
Conclusions on application for extended leave
I turn now to my conclusions.
Section 57(2) of the Act provides that extended leave may be granted if the Court is “satisfied on the evidence available that the safety of the forensic patient … or the safety of members of the public will not be seriously endangered as a result of [extended leave being allowed]”.
The evidence of Dr Belshaw and Ms Jafari, which I accept, shows that KL has made excellent progress over the last 12 months. I am satisfied by that evidence that neither the safety of KL nor the safety of members of the public will be seriously endangered as a result of a further grant of extended leave for 12 months.
Accordingly, I shall order that KL be granted extended leave — i.e. leave to be absent from her place of custody, Thomas Embling Hospital — for a period of 12 months, subject to the conditions listed in the leave plan attached to Dr Belshaw’s report.
Partial non-publication
On the application last year, counsel for the Secretary pointed out that, on her instructions, the clinicians would be supportive of an order that avoided identification of KL or her address. It was said that this was because the stigma involved in publication of those details can be “countertherapeutic and [cause] an interruption to otherwise good progress”. Counsel also submitted that, because identification of GH and her family might tend to identify KL, the order should apply to them as well. Counsel for KL and for the Attorney‑General adopted those submissions.
Nothing has changed in the interim to suggest such an order should not be made. On the contrary, KL’s concern about people googling her name only adds to my view that it would be in the public interest to make such an order again. Accordingly, I shall make such an order in the same terms as the previous order.
Orders
It is for the foregoing reasons that I make the following orders:
1)Pursuant to s 57(1) of the Act, [KL] is granted extended leave — i.e., leave to be absent from her place of custody, Thomas Embling Hospital — for a period of 12 months, commencing 27 March 2024, subject to the following conditions:
a)that [KL] be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“VIFMH”) or their delegate;
b)that [KL] reside at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate;
c)that [KL] abide by the lawful directions of the authorised psychiatrist of VIFMH or their nominee;
d)that [KL] comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of VIFMH or their nominee;
e)that [KL] abstain from the abuse of alcohol and the use of illicit drugs;
f)that [KL] not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or their delegate (this includes overseas travel, which must be approved by the authorised psychiatrist of VIFMH or their delegate).
2)Pursuant to s 75 of the Act, publication of the following is prohibited:
a)the names and addresses, or former addresses, of [KL], [GH] and their relatives; and
b)any information which might identify the names and addresses, or former addresses, of [KL], [GH] and their relatives, except insofar as such information is contained in the written reasons for judgment.
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