Re KP
[2020] VSC 57
•19 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 06905
IN THE MATTER of KP | ||
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2019 |
DATE OF JUDGMENT: | 19 February 2020 |
CASE MAY BE CITED AS: | Re KP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 57 |
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CRIMES MENTAL IMPAIRMENT – Review of non-custodial supervision order – Custodial supervision order varied to non-custodial supervision order in 2018 – Principles to be applied – Non-custodial supervision order confirmed – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 32, 33, 38C, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms G Cafarella | Victoria Legal Aid |
| For the Attorney-General of Victoria | Ms M Pekevska | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Mr D Bruno | Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms L Wilkinson | Office of Public Prosecutions |
HIS HONOUR:
This hearing arises pursuant to s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’), for the review of KP’s non-custodial supervision order (‘NSCO’).
Each of the interested parties, namely, KP, the Secretary to the Department of Health and Human Services (‘the Secretary’) and the Attorney-General, seek confirmation of the NCSO as an outcome of the present review.
A description of the events surrounding the index offence are set out in the Summary of Proceedings and Facts of the Case filed by the Director of Public Prosecutions (‘the Director’) on 9 September 2014, and in the reasons of Lasry J dated 11 September 2015. It is not necessary for me to rehearse those matters again.
In short, the index offence occurred on 8 August 2004, when KP killed KP’s pregnant girlfriend while floridly psychotic. In the period leading up to, and at the time of the index offence, KP was experiencing symptoms including auditory hallucinations, persecutory ideas and depressed mood. At the time of the index offence, KP was not receiving mental health treatment and was experiencing significant alcohol and substance abuse issues.
On 17 July 2007, KP was found not guilty of murder by reason of mental impairment and on 29 August 2007, KP was placed on a custodial supervision order (‘CSO’) for a nominal term of 25 years. Pursuant to that order, KP was admitted to Thomas Embling Hospital (‘TEH’) under the care of Forensicare.
KP was first granted extended leave on 26 September 2014 for a period of 12 months. Further extended leave was granted in 2015, 2016 and 2017.
On 21 September 2018, I ordered that KP’s CSO be varied to a NCSO.[1] I made that order on the basis that I was satisfied that the safety of KP and members of the public would not be seriously endangered as a result of KP’s release on a NCSO.[2] That order was made subject to the following conditions:
[1]In the matter of an application by KP [2019] VSC 7 (24 January 2019).
[2]See s 32(2) of the Act.
(a)[KP] continue to be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIMFH’) or his or her delegate.
(b)[KP] reside at a location approved by the authorised psychiatrist of the VIFMH or his or her delegates.
(c)[KP] abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate.
(d)[KP] comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate.
(e)[KP] abstain from the abuse of alcohol and from the use of illicit drugs.
(f)[KP] not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate.
On 21 September 2018, I also ordered that pursuant to s 32(5) of the Act, the matter be brought back to the Court for further review on 26 September 2019.
On 18 June 2019, the solicitor for the Secretary advised the Court via email that two expert witnesses would not be available to attend the hearing on 26 September 2019. Accordingly, on 20 June 2019, I ordered that the date on which the matter was to be brought back to the Court for further review be extended to 15 October 2019.
Legislative framework
Section 32(5) of the Act provides that ‘[t]he court may direct that the matter be brought back to the court for further review at the end of the period specified by the court’.
The Court’s powers on review of a NCSO under s 32(5) are set out in s 33 of the Act, which relevantly provides as follows:
33 Variation or revocation of non-custodial supervision orders
(1) On … a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order; or
(d) revoke the order.
(2)Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(3) A direction may be given under subsection (2) more than once.
Pursuant to s 39(1) of the Act, if the Court considers varying or revoking an NCSO, it ‘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’.
Further, s 40(1) of the Act outlines a list of considerations that the Court must have regard to when deciding whether to vary or revoke an NCSO. Those considerations are:
(a) the nature of the person's mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
In NOM v Director of Public Prosecutions (Vic),[3] the Court of Appeal stated in relation to the considerations in ss 39 and 40(1) of the Act:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[4]
[3](2012) 38 VR 618.
[4]Ibid 633 [47] (Redlich and Harper JJA and Curtain AJA) (citations omitted).
In addition, s 40(2) of the Act relevantly provides that I cannot release a person from custody or significantly reduce the degree of supervision to which a person is subject, unless the Court:
(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 made under section 42; and
…
(e)has obtained and considered any other reports the court considers necessary.
I have received and considered the reports of Dr Edith Chau, supervised by Dr Ria Zergiotis, dated 16 September 2019 and Dr Sharmila Lawrence dated 16 September 2019, which satisfies the requirement under ss 40(2)(a) and (ab) of the Act. Dr Chau is a Psychiatry Registrar within the Community Forensic Mental Health (‘CFMHS’) NSCO team of Forensicare who, along with Dr Zergiotis, is involved in KP’s supervision. Dr Lawrence is KP’s treatment psychiatrist within the North-East Area Mental Health Service (‘NEAMHS’). I have also received and considered the report of KP’s case manager at the NEAMHS, Benny Sebastian, dated 5 September 2019.
In accordance with s 38C of the Act, the Director gave notification of the hearing to the relevant family members and victims of the index offence, except for the mother of the deceased victim, whose whereabouts are unknown.[5] While those persons were notified of the opportunity to make a report on KP’s conduct and its impact on them, no report has been received by the Court.
[5]Affidavit of Julie Carpenter dated 7 October 2019.
Accordingly, upon reading the affidavit of Julie Carpenter dated 7 October 2019, I am satisfied that notice of the hearing has been given under s 40(2)(c) of the Act.
Reviewee’s psychiatric history
KP’s psychiatric history has been detailed in numerous rulings delivered by this Court, most recently in my reasons dated 24 January 2019.[6]
[6]In the matter of an application by KP [2019] VSC 7 (24 January 2019) [18]–[21] (Bell J).
In summary, KP is 38 years old and has an established diagnosis of schizophrenia and a history of substance abuse, namely alcohol and cannabis. As a teenager, KP was diagnosed with Attention Deficit Hyperactivity Disorder.
Following the imposition of the CSO, KP resided at TEH on a full-time basis and commenced treatment with clozapine, which lead to a marked improvement in KP’s mental state. Upon release on extended leave in 2014, KP received community mental health support provided by the Austin Community Recovery Program (‘CRP’). It is reported that KP’s symptoms remained in remission during this period.
Since the order was varied to a NCSO, KP has resided in the community in accommodation provided by the Department of Housing. KP receives treatment from the NEAMHS with supervision from the NCSO team at Forensicare. KP has experienced intermittent problems managing alcohol consumption since being released on extended leave and throughout KP’s transition to independent living.
Progress since being placed on a NCSO
KP has now been on a NCSO for over 12 months. The evidence of KP’s progress since being placed on a NCSO is summarised in the reports of Dr Chau (co-signed by Dr Zergiotis), Dr Lawrence and Mr Sebastian, all of which were admitted into evidence.
Report of Dr Chau
In her report, Dr Chau confirms that KP has a diagnosis of schizophrenia, which is currently being treated with clozapine 450mg per day, aripiprazole depot 400mg every three weeks, and sodium valproate 500mg twice per day.
Dr Chau confirms that since being placed on a NCSO, KP has maintained remission from psychotic symptoms and has not evidenced any signs of mood instability, thought disorder, delusional beliefs, or perceptual disturbances. Although at times ambivalent about the diagnosis of schizophrenia, KP continues to demonstrate reasonable insight into KP’s mental illness, including engaging in conversation regarding the benefits and adverse effects of medication. Dr Chau opines that KP has also demonstrated an understanding of the early warning signs of relapse and the role of illicit substances in triggering relapse. KP has also volunteered a willingness to seek assistance in the event that KP begins to experience early warning signs.
In the last 12 months, KP has attended all scheduled appointments and, positively, has become more proactive with respect to KP’s medication. Namely, Dr Chau details an instance in which KP contacted KP’s treating team to confirm an appointment for depot medication, rather than relying on a reminder from the clinic as KP had done in the past. Dr Chau notes that KP continues to report abstinence from illicit substances and adherence to KP’s medication monitoring.
However, Dr Chau identifies KP’s fluctuating clozapine levels and ongoing alcohol use as barriers to KP’s progression on the NCSO.
Notably, an urgent medical review was held with NEAMHS in March 2019 due to blood test results indicating low clozapine levels, resulting in concerns that this may have been indicative of KP’s failure to comply with medication. KP denied this and reported a stable mental state. Arrangements were subsequently made for the Crisis Assessment and Treatment Team (‘CAT Team’) to supervise KP daily in respect of medication intake and for KP’s aripiprazole to be administered via a slow-release depot injection. After several weeks, KP’s clozapine levels returned to the therapeutic range and daily medication supervision was ceased. Thereafter, KP returned to monthly clozapine level monitoring.
Dr Chau reports that NEAMHS again became concerned about KP’s low clozapine levels in June and July 2019 and reported this to the NCSO team in September 2019. This is elaborated on in Dr Lawrence’s report.
Dr Chau confirms that KP has continued to consume alcohol over the last 12 months. According to Dr Chau, KP’s reported alcohol consumption varies from approximately one to four standard drinks on one to two days per week, to a ‘few beers or glasses of wine’ with dinner on three to four evenings per week. In September 2019, KP reported drinking roughly 12 ‘stubbies’ of beer across two days per week, as well as an occasional glass of wine with dinner. KP denies drinking to the point of intoxication or experiencing any deterioration of mental state as a result of this consumption. KP also reports an awareness of past issues with alcohol consumption and the importance of controlled drinking.
Dr Chau reports that KP has presented intermittently with depressed mood and negative ruminations about the index offence, including feelings of guilt, remorse, loss and grief. A mental state examination of KP undertaken in October 2018 indicated some symptoms consistent with anxiety. KP’s sleep and appetite have however remained good, resulting in an overall impression of mild depressive symptoms arising in the context of KP’s difficulty coming to terms with the index offence and its impact on KP’s life circumstances.
In her report, Dr Chau provides a summary of KP’s various community linkages. In the past 12 months, KP has maintained a good relationship with family members, ongoing social contact with friends including former patients of TEH, and participation in a music group also made up of past TEH co-patients. KP has expressed contentment with stable part-time employment in the cleaning industry and pride in the recent completion of a Certificate III in cleaning and waste management. Since receiving Department of Housing accommodation and financial management assistance from State Trustees, KP has also reported a decline in financial pressure.
With respect to KP’s risk factors, Dr Chau notes that KP has a history of violence, including the index offence and previous aggression directed towards KP’s family, fellow patients and residents in shared housing. KP also experienced some early life instability, exhibited disruptive behaviour at a young age, and has a history of poor treatment compliance in the early years following KP’s diagnosis of schizophrenia, which was further complicated by cannabis and alcohol abuse.
Positively, KP has maintained remission of psychotic symptoms through ongoing clozapine treatment and has continued to abstain from illicit substances. KP has also continued to engage with treatment and has developed good insight into KP’s mental illness.
Regarding future risk, Dr Chau opines that adherence to the prescribed medication regime, particularly clozapine, and controlled alcohol intake are the most pertinent risk factors applying to KP. In this respect, Dr Chau states:
Clozapine has played a significant role in [KP]’s recovery and adherence would be important for maintaining the stability of [KP]’s mental state. As [KP]’s Clozapine levels have fluctuated within the last 12 months, this requires regular monitoring. [KP]’s alcohol use also requires monitoring. [KP’s] use has been consistent although [KP] denies loss of control over [KP’s] drinking at reviews.[7]
[7]Report of Dr Chau dated 16 September 2019, 8.
In Dr Chau’s opinion, in light of KP’s stable mental state, good treatment response, insight and engagement with mental health services, abstinence from illicit substances, and social supports, KP presents a low risk of future violent offending.
In addition to recommending ongoing monthly monitoring of KP’s clozapine levels and KP’s alcohol intake, Dr Chau suggests that KP would also benefit from re-engaging in psychotherapy for assistance coping with guilt, grief and institutionalisation, as well as drug and alcohol counselling to reduce alcohol consumption.
Dr Chau opines that the NCSO remains beneficial for KP as it supports close monitoring of KP’s mental state and medication adherence, places formal limitations on substance use and facilitates frequent assessment of KP’s alcohol consumption.
Dr Chau was not cross-examined on her report. Her report was accepted by the parties and I excused her from attending.
Report of Dr Lawrence
Dr Lawrence has been KP’s treating psychiatrist at NEAMHS since December 2018. In her report, she confirms that KP has attended all scheduled appointments and engages well with the NEAMHS treating team. Dr Lawrence similarly opines that KP’s mental state remains stable.
Regarding concerns raised about KP’s fluctuating clozapine levels, Dr Lawrence notes a downward trend beginning in December 2018 and confirms that KP received daily medication supervision from the CAT Team from 15 March 2019 to 10 April 2019. Dr Lawrence also confirms that KP was subsequently commenced on depot aripiprazole to mitigate any risk of relapse caused by possible non-compliance with KP’s medication regime. KP’s test results showed an upward trend in clozapine levels in May 2019, but these levels began to fall again in June and July 2019. Dr Lawrence states that KP was again referred to the CAT Team for daily medication supervision in September 2019, which remained in place at the date of her report.
Dr Lawrence observes that fluctuating clozapine levels can be caused by cigarette smoking. KP is an occasional smoker but reports a recent decrease in cigarette use. Dr Lawrence notes that KP’s recent reduction in smoking should have increased, rather than decreased, clozapine levels. KP has consistently denied any non-compliance with prescribed medications and, despite these changes in clozapine levels, Dr Lawrence observes that there has been no noticeable deterioration in KP’s mental state. Dr Lawrence further notes that KP has stated an intention to remain on clozapine because of its positive impact on KP’s symptoms and is content to remain on depot aripiprazole.
In relation to substance use, Dr Lawrence reports that KP has denied using any illicit drugs in the past 15 years. KP reports drinking ‘a few beers with band mates and about three glasses of wine on occasion at home per week’. KP reports to have stopped drinking spirits ‘years ago’ and is aware of the need to avoid falling into alcohol abuse.
In relation to day-to-day living and interaction with others, Dr Lawrence reports that KP has been performing well at work and recently received a pay increase. Dr Lawrence confirms that KP takes part in a music group and sees KP’s mother on some weekends and father infrequently. Dr Lawrence also records that KP’s National Disability Insurance Scheme (‘NDIS’) funding has recently been reinstated and notes that KP receives support from an NDIS worker.
Dr Lawrence notes comments made by KP concerning remorse and regret about the index offence and the support provided to KP through the ability to discuss these feelings with former TEH patients. Dr Lawrence reports that KP does not expect revocation of the NCSO to be an outcome of the current review, but expressed a hope for this to be considered in the future. KP identified future goals as remaining healthy, becoming financially independent of State Trustees and visiting friends in Sydney over the summer.
Taking all of these factors into consideration, Dr Lawrence opines that KP’s risk to KP or the community is low while KP continues to be supervised by NEAMHS and Forensicare. Based on KP’s relatively recent transition into independent community living and concerns regarding compliance with medication, Dr Lawrence expresses the view that KP’s NCSO should be confirmed to provide for regular monitoring of KP.
Dr Lawrence was cross-examined at the hearing upon aspects of her report.
Report of Mr Sebastian
Mr Sebastian is KP’s case manager at NEAMHS. In his report dated 5 September 2019, Mr Sebastian advises that he maintains weekly phone contact with KP to assess mental state and risk, and to also provide appointment reminders to KP.
Mr Sebastian confirms that KP is subject to an administration order with the State Trustees and currently works up to 15 hours a week. Mr Sebastian reports that KP is fully compliant with treatment, maintains a positive attitude towards medication and demonstrates good insight regarding KP’s mental illness while remaining recovery focused.
Mr Sebastian expresses the view that at present, KP presents a very low risk of harm to the community and to KP. In Mr Sebastian’s opinion, KP’s NCSO should be confirmed.
In the light of Dr Lawrence’s evidence, including his evidence under cross-examination, no party sought to cross-examine Mr Sebastian.
Submissions of the parties
KP, the Secretary and the Attorney-General each submit that KP’s NCSO ought to be confirmed, subject to the specified conditions.
Analysis
The reports of Dr Chau, Dr Lawrence and Mr Sebastian provide the consistent view that, in the context of ongoing antipsychotic medication and engagement with mental health services, KP presents a low risk of endangering any person.
The reports of Dr Chau and Dr Lawrence confirm that KP has, in the past 12 months, maintained a stable mental state and remission from psychotic symptoms, while both Dr Chau and Mr Sebastian report that KP has developed good insight regarding KP’s mental illness, the early warning signs of relapse and the role of substance use in triggering relapse.
Despite some evidence in Dr Chau’s report of KP presenting with mild depressive symptoms, these appear to be linked to KP’s struggle in coming to terms with the index offence and have not occasioned a deterioration in KP’s mental state.
In the last 12 months, two issues of concern have emerged, being KP’s fluctuating serum clozapine levels and ongoing alcohol use.
Despite KP’s consistent denial of medication non-compliance, KP’s low clozapine levels have made it necessary for KP to be commenced on a depot form of aripiprazole and to periodically be subject to daily medication supervision from the CAT Team in March and April 2019, and from September 2019 to mitigate the risk of relapse.
Further, the level of KP’s alcohol intake varies in the reports from approximately one to four standard drinks on one to two days per week or a ‘few’ drinks with dinner on three to four evenings per week, to 12 ‘stubbies’ of beer across two days per week and an occasional glass of wine with dinner. The reports document that KP denies drinking to the point of intoxication and expresses an understanding of the importance of controlled drinking.
KP’s alcohol intake was a point of contention during last year’s application for variation to a NCSO. In granting that application, I found that KP’s alcohol use at that time did not amount to abuse,[8] and that the issue could be appropriately managed by KP’s treating team.[9]
[8]In the matter of an application by KP [2019] VSC 7 (24 January 2019) [40] (Bell J).
[9]Ibid [49].
Noting Dr Chau’s opinion that KP would benefit from drug and alcohol counselling to reduce alcohol consumption, it is open to the Court to vary the conditions of KP’s NCSO to include a condition that KP undergo such counselling.[10] Alternatively, the current conditions of KP’s NCSO provide that KP is to abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate, and must comply with treatment as directed by the authorised psychiatrist of the VIFMH or his or her delegate, such that KP would be required to comply with any direction so made to attend drug and alcohol counselling.
[10]Pursuant to s 33(1)(b) of the Act.
I remain of the view that KP’s treating team is best placed to manage the issue of KP’s alcohol intake and to take appropriate steps should KP’s mental state deteriorate as a result of alcohol use. As such, I am confident that, if considered necessary, a direction will be made for KP to undertake counselling to reduce alcohol consumption.
Throughout the last 12 months, KP has maintained a number of protective factors such as sustained remission of psychotic symptoms, demonstrated insight regarding KP’s mental illness, the need for ongoing treatment, and the adverse effect of substance abuse on KP’s mental state, as well as consistent engagement with community supports such as friends, family and employment, all of which appear to have had a stabilising effect on KP’s life.
Conclusion
KP has a diagnosis of schizophrenia. KP has been living in the community since 2014 on extended leave and, for the last 12 months, on a NCSO. Throughout that time, KP has maintained a stable mental state and engagement with treatment, as is demonstrated in the most recent reports of KP’s treating team.
While the conditions of the NCSO remain restrictions on KP’s freedom and personal autonomy, I am of the view that the continuation of the NCSO is consistent with the principle of parsimony inherent in s 39 of the Act and reflects the minimum degree of restraint necessary to preserve community safety.
On balance, taking into account the evidence before me as well as applying s 39 and having regard to s 40 of the Act, I am satisfied that KP’s NCSO should be confirmed pursuant to s 33(1) of the Act.
In the circumstances of KP’s fluctuating clozapine levels and ongoing use of alcohol, I direct that the matter be brought back to the Court for further review pursuant to s 33(2) of the Act in two years.
Finally, in accordance with s 75(1) of the Act, I am satisfied that it is in the public interest to extend the non-publication order made on 21 September 2018 in respect of this proceeding.