Re LTB
[2020] VSC 173
•14 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 02436
| IN THE MATTER of a further review of a custodial supervision order pursuant to section 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| AND |
| IN THE MATTER of an application for further extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| AND |
| IN THE MATTER of an application by LTB |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 April 2020 |
DATE OF JUDGMENT: | 14 April 2020 |
CASE MAY BE CITED AS: | Re LTB |
MEDIUM NEUTRAL CITATION: | [2020] VSC 173 |
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CRIMES MENTAL IMPAIRMENT – Further review of custodial supervision order – Further application for extended leave – Whether the safety of the applicant or members of the public will be seriously endangered as a result of a grant of further extended leave – Whether granting application would be consistent with principle that applicant’s freedom and personal autonomy should be kept to a minimum consistent with safety of community – Custodial supervision order confirmed – Further extended leave granted– Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 32, 39, 40, 57.
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REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Ms S Dhanji | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Mr D Bruno | Department of Health and Human Services |
| For the Attorney-General of the State of Victoria | Ms B Goding | Victorian Government Solicitor’s Office |
HER HONOUR:
The applicant is a forensic patient subject to a custodial supervision order (CSO) made in 2004 under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (Act). Since 2017 he has been in the community on extended leave from Thomas Embling Hospital (TEH), save for a brief period of readmission in 2019.
The applicant was last granted 12 months extended leave[1] by Lasry J on 8 April 2019.[2] On that date his Honour also ordered that the matter return to Court for review at the end of 12 months.[3]
[1]The Act, s 57.
[2]Re LTB [2019] VSC 229 (Lasry J).
[3]The Act, s 32(5).
On 8 January 2020 the applicant applied for a grant of further extended leave. He seeks that leave on the same conditions as the current grant of extended leave.
Accordingly, this is the determination of both the review of the CSO and the application for further extended leave.
Determination
On 7 April 2020 I determined this matter on the papers. The CSO was confirmed and the applicant granted a further 12 month period of extended leave.
The matter was determined without oral hearing with the consent of all parties, who also had a united position as to the appropriate outcome. In light of that, as well as the restrictions on unnecessary movement and personal contact mandated in light of the current COVID-19 pandemic, I determined it was consistent with the interests of justice to dispose of this matter in that fashion.
Background
On 1 May 2002 the applicant killed his father. He was psychotic at the time.
On 19 April 2004 he was found not guilty of murder by reason of mental impairment. On the same date he was placed on a CSO for a nominal term of 25 years, directed to commence from 1 May 2002.
The applicant was admitted to TEH where he resided until first granted extended leave on 24 August 2011.[4] He was successful in a second application for extended leave in 2012,[5] but that leave was suspended due to suspected alcohol and substance abuse as well as non-compliance with medication. The applicant was readmitted to TEH in November 2012 and his extended leave was formally revoked in February 2013.[6]
[4]Re an Application for grant of extended leave by ‘BTL’ [2011] VSC 383R (Weinberg JA).
[5]Re an application for grant of extended leave by ‘BTL’ [2012] VSC 420 R (Robson J).
[6]Re an application for revocation of an extended leave by the Chief Psychiatrist [2013] VSC 42R (Coghlan J).
Over the next few years, the applicant’s condition stabilised and he demonstrated renewed treatment gains. He applied for and was granted extended leave again in 2017,[7] 2018[8] and 2019.[9]
[7]Re LTB [2017] VSC 282 (Bell J).
[8]Re LTB [2018] VSC 179 (Champion J).
[9]Re LTB [2019] VSC 229 (Lasry J).
The 2019 grant of extended leave was suspended on behalf of the Chief Psychiatrist on 6 August 2019 following a decline in the applicant’s mental state. An application to revoke the grant of extended leave was filed before the Court. But, before its determination, the applicant’s mental state stabilised. Consequently, the Chief Psychiatrist lifted the suspension of the extended leave and withdrew the application for revocation.
Since then the applicant has resided in public housing in the community with his daughter.
Relevant Legal Principles
Section 32 of the Act delineates the powers exercisable by the Court on further review of a CSO directed under ss 32(5). Specifically, ss 32(1) requires the Court to confirm the CSO, vary the place of custody or, subject to s 32, vary the CSO to a non-custodial supervision order (NCSO). A CSO must not be varied to a NCSO unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a NCSO.
The application for further extended leave is governed by s 57(2) of the Act. The Court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.
The meaning of ‘serious endangerment’ encompasses both the probability that a harmful event might occur and the gravity of the harm in that eventuality. So, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[10]
[10]NOM v DPP [2012] VSCA 198, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’) citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
That said, the probability of risk is at the heart of the concept of serious endangerment. The focus is upon the likelihood of some harm materialising:
The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal meaning. … The ordinary meaning of endangerment entails the concept of chance or risk.[11]
[11]NOM, [58]. Their Honours were considering the meaning of ‘endangerment’ in s 40(1)(c) of the Act.
In determining both the further review of the CSO and the application for further extended leave, the Court must have regard to the principle of parsimony enshrined in s 39(1) of the Act and the s 40(1) factors.
In short, in determining the matters before the Court, I must consider the critical issue as to whether I am satisfied that the safety of the community or the applicant will not be seriously endangered if the CSO is varied or the application for extended leave is granted and, when doing so, take into account the s 40(1) factors and apply the principle in s 39.
Notification of Family Members and Victims
The affidavit of Ms Louise Wilkinson, a solicitor of the Office of Public Prosecutions, sworn 3 April 2020 evidences compliance by the Director of Public Prosecutions with s 38C(2)(b) of the Act.
The Court has received a report from the applicant’s mother pursuant to s 42 of the Act. She supports the applicant’s application for further extended leave and expresses her positive view as to the current level of support he receives on the CSO. She also notes that the applicant manages his young daughter well and that they both have regular contact with the applicant’s mother and sister.
The Applicant’s Personal Background and Psychiatric History
The applicant’s history, the circumstances surrounding the index offence and his progress on the CSO and various grants of extended leave are set out in a number of previous decisions.[12] It is not here repeated.
[12]Re an Application for grant of extended leave by ‘BTL’ [2011] VSC 383R (Weinberg JA); Re an application for grant of extended leave by ‘BTL’ [2012] VSC 420 R (Robson J); Re an application for revocation of an extended leave by the Chief Psychiatrist [2013] VSC 42R (Coghlan J); Re LTB [2017] VSC 282 (Bell J); Re LTB [2018] VSC 179 (Champion J); and Re LTB [2019] VSC 229 (Lasry J).
Evidence
The Court has received from Dr James Belshaw a medical report dated 12 March 2020 as to the applicant’s mental condition and possible effect of the proposed order and further grant of extended leave on the applicant’s behaviour[13] as well as a leave plan.[14] The Court has also received further information from Dr Belshaw in two addendum emails dated 1 April 2020 and 6 April 2020.[15]
[13]The Act, ss 40(2) and (4).
[14]The Act, ss 57A and 40(2)(b).
[15]The email, dated 1 April 2020, was received as a consequence of issues raised by the Attorney-General as to the applicant’s continued adherence to the conditions of his current extended leave since the writing of the reports of 12 March 2020. Specifically the Attorney-General sought to confirm that the applicant had not been involved in adverse behaviour, had abstained from alcohol use, and continued to adhere to the medical regime as directed by his treating clinicians. The email dated 6 April 2020 addressed the logistics of the ongoing management of the applicant during the COVID-19 pandemic restrictions.
The Court has further received a report from Ms Jennifer Star dated 12 March 2020.
Dr Belshaw
Dr Belshaw is a consultant forensic psychiatrist. He works in the Community Treatment and Transition team (CTT) of the Forensicare Community Forensic Mental health Service Team. Dr Belshaw has been the treating psychiatrist of the applicant since August 2017. His report, focussed on the applicant’s progress during the last 12 months, is based on his psychiatric reviews of the applicant together with information gained from previous reports and that held by Forensicare.
Dr Belshaw describes the early warning signs of relapse displayed by the applicant immediately preceding and following the present grant of extended leave in April 2019. These include a verbal exchange between the applicant and a group of female teenagers at a shopping centre in March 2019;[16] the applicant’s failure to attend a CTT appointment in April 2019; and the report by the applicant’s mother of the applicant’s increased irritability, mumbling and ‘bizarre’ Facebook messages.
[16]The incident occasioned both police and child protection investigations into the conduct of the applicant. No further action was taken. The incident and fact of the subsequent investigations was known to Lasry J in April 2019.
In June 2019 the applicant commenced an intimate relationship with a neighbour. He later became involved in an altercation with that neighbour’s brothers, as a result of which he was convicted of property damage and ordered to pay $1,000 compensation. He is also now the respondent to an intervention order prohibiting contact with that neighbour.
Following these events, the applicant’s quetiapine dosage was increased and his fortnightly appointment schedule, alternating between psychiatric and case management review, was increased to weekly. Further, the CTT formally requested the local area mental health service (AMHS) to cease contact with the applicant. That service had been preparing an application to vary the applicant’s CSO to a NSCO. Dr Belshaw states that request was made ‘due to the perceived likelihood that a longer term approach to monitoring and mediating [the applicant’s] mental health issues and associated risks would be required by the CTT’.[17]
[17]Report of Dr Belshaw, 12 March 2020, [57].
Throughout June to August 2019 the CTT received further reports from the applicant’s family members regarding his behaviour. This included instances of the applicant talking to himself; consuming alcohol; making sexualised comments; pursuing multiple relationships via dating websites; and exhibiting symptoms similar to those displayed in 2002 prior to the index offence, including making remarks about ‘lucifer’.
Despite further increases in the applicant’s quetiapine dosage and regular monitoring, the applicant’s behaviour was such that the CTT made a decision to suspend the applicant’s extended leave on 6 August 2019. He spent the next month at TEH.
Dr Belshaw states that:
… there was sufficient evidence provided by TEH staff during the one month admission that [the applicant] had suffered a pervasive but mild relapse of his schizophrenia. This was characterised by the EWSs of sexual disinhibition in the Bass Unit, episodes of talking to himself and more serous symptoms of relapse such as bizarre comments appearing to be directed at the television. Of note [the applicant] was involved in an altercation with a co-patient on 11 August 2019 of which [the applicant] was not the instigator.[18]
[18]Report of Dr Belshaw, 12 March 2020, [67].
The applicant was prescribed a monthly dose of 75 mg of paliperidone via depot injection in additional to the quetiapine administered orally. He recovered to a sufficient degree to enable his discharge from TEH on 4 September 2019.
Dr Belshaw states that the applicant’s symptoms are now in remission. And the applicant has shown insight into his relapse, accepting he was ‘not 100% well’ at the time of his readmission into TEH.
Since his resumption of extended leave, the applicant has been compliant with medication. He collects it from a pharmacy and attends his general practitioner for the monthly administration of the paliperidone depot. The applicant’s dose of quetiapine has been gradually reduced to 600 mg and his CTT appointments are once again fortnightly. He also meets with a mental health support worker provided through the National Disability Insurance Scheme (NDIS) about once every three weeks.
The applicant reports that he has consumed alcohol twice: one beer on Christmas Day and one drink on his sister’s birthday in January 2020. Dr Belshaw states that all recent urine screens and breathalyser tests have returned negative results. Dr Belshaw is of the opinion that the applicant’s mild alcohol use disorder is in remission and his opiate, cannabis and stimulant use disorders are in sustained remission.
The applicant maintains regular contact with his sister and mother. They act protectively, continuing to report some discrete examples of the applicant’s irritability and his talking to himself. But they express less concern in relation to these behaviours compared with the behaviours exhibited by the applicant immediately prior to his readmission to TEH in 2019. The applicant lives with his seven year old daughter and devotes much of his time to her care. Family Court proceedings with respect to his daughter remain on foot. The applicant reports a decreased desire to commence an intimate relationship and has recently cancelled his accounts on dating websites.
There appear to be no ongoing issues with his neighbour.
The applicant receives disability support and family tax benefit payments as well as funding from the NDIS. He supplements this income with one or two paid gardening jobs per week.
In addressing the risk posed by the applicant, Dr Belshaw identifies the historical risk factors as the applicant’s history of violence, alcohol and substance abuse, unstable intimate relationships and difficulty maintaining employment together with his diagnosis of schizophrenia and previous failures to comply with treatment. Positively, Dr Belshaw notes that the applicant does not have a personality disorder and lacks any history of pervasive antisocial attitudes, violence cognitions or significant childhood trauma.
Currently, Dr Belshaw notes that the applicant shows insight into his illness, does not demonstrate signs of violent ideation and has safe, stable accommodation. But Dr Belshaw also considers that the applicant has displayed recent ‘subtle’ symptoms of relapse and instability. He has limited motivation to attend further counselling, has disregard for the need to remain abstinent from alcohol and experiences stress and frustration at the ongoing Family Court proceedings.
Dr Belshaw is of the opinion that the past 18 months have demonstrated that the applicant’s illness is vulnerable to relapse related to medication changes, substance abuse and stress, such that he requires dual antipsychotic treatment to maintain remission.
Accordingly, Dr Belshaw assess the applicant’s overall risk for future violence as moderate. His known early warning signs are predictors of an increase in his risk of violence. But, based on the applicant’s behaviour over the last three years, any violent behaviour that might take place while the applicant is experiencing early warning signs would likely fall to the lower end of severity. That is, it would likely involve verbal aggression or physical violence absent weapons. Dr Belshaw states that in the ‘less likely’ event that the applicant became non-compliant with medication and resumed substance abuse, he could again become floridly psychotic which would lead to a ‘higher severity risk scenario’.[19]
[19]Dr Belshaw Report, 12 March 2020, [92].
Dr Belshaw’s conclusion as to risk is as follows:
[The applicant’s] progress on a Custodial Supervision Order (CSO) had been hindered by limited insight, a lack of transparency with treating teams and subjectively reported adverse effects to antipsychotic medication, leading to periods of suboptimal treatment of his illness and subsequent reprisal of disinhibited behaviour and substance abuse; both of which impacted his ability to comply with the conditions of his CSO and recommended mental health management plans.
There are several positives elements that can be gleaned from [the applicant’s] community transition to date. These include the mobilisation and engagement of his family members in supporting his recovery, his strong positive self-identification as a father, his acceptance of the need to be continued on dual antipsychotic treatment despite the adverse effects and incremental improvements in his transparency within the therapeutic frame.[20]
[20]Dr Belshaw Report, 12 March 2020, [96]–[97].
Ultimately Dr Belshaw does not express a view as to the outcome of the further review pursuant to s 32(1) of the Act. But, his acknowledgment of outstanding matters relating to the applicant’s community transition, including his need for family therapy and alcohol and substance abuse counselling to prevent relapse in times of stress is significant. So too is the CTT request, less than 12 months ago, to the AMHS to cease contact with the applicant in preparation to vary the CSO to a NCSO.
Dr Belshaw supports the application for extended leave. He notes that the CTT team will continue to mediate the risk posed by the applicant through regular monitoring of his mental state, referrals for further therapy and the ongoing development of his ‘insight, transparency and motivation’.[21]
[21]Dr Walsh Report, 12 March 2020, [93].
In his email dated 1 April 2020, Dr Belshaw addressed concerns of the Attorney raised inter partes. He confirmed that the applicant has, since the date of his report, continued to comply with the conditions of his extended leave. The applicant has not been involved in adverse behaviour or consumed alcohol or illicit substances. He has complied with his medication regime.
Further, in his email dated 6 April 2020, Dr Belshaw provided comment on the applicant’s social supports and mental health inputs in light of current restrictions on interpersonal contact consequent upon the COVID-19 pandemic.
Dr Belshaw confirms the ongoing support provided to the applicant by his mother and sister through daily contact, both by telephone and in person. The reduction in school attendance has seen the applicant assume full-time care of his daughter. Dr Belshaw notes that such care has historically added structure and stability to the applicant’s daily routine. The CTT has continued to review the applicant fortnightly via interleaved monthly psychiatrist and case manager reviews. This has been done via telephone, but the applicant has now downloaded software that will allow for videoconference sessions. The applicant has been able to complete random urine and blood screening tests as directed. The CTT also have regular ongoing contact with the applicant’s family to receive collateral information as to the applicant’s behaviour outside the fortnightly sessions. Importantly, if either the fortnightly reviews or collateral information reveal issues of concern, the review cycle can be increased and an in-person assessment can be arranged at a Community Forensic Mental Health Centre.
Dr Belshaw remains of the opinion that the management plans remain sufficient to support the applicant during the next 12 months in the community.
Ms Star
Ms Star is a senior clinician /occupational therapist and the applicant’s case manager within the CTT since February 2019. Her report is based on her own contact with the applicant together with information held by Forensicare and obtained from other members of his treating team, community supports and family members.
Ms Star confirms that since resuming extended leave in September 2019, the applicant has maintained a stable mental state, complied with his medication regime and attended all CTT appointments. She notes that the applicant denies any use of illicit substances since 2017 and has self-referred to a drug and alcohol counselling service.
Like Dr Belshaw, Ms Star places importance on the regular contact between the applicant and his mother and sister, both of whom help him care for his daughter. Although the applicant reports that he is supported by this assistance, he does experience stress when he feels criticised. As a consequence, the CTT conducted several meetings with the applicant and his family throughout 2019 and have since made a referral for specialised family counselling. The applicant is on a waitlist for an initial appointment.
Ms Star notes the other community linkages made by the applicant. He performs music with bandmates from TEH. He has been encouraged to pursue more structured volunteering and employment opportunities in addition to his gardening. But, given his parenting responsibilities, the applicant is reluctant to consider this. He expresses a desire to be a good parent to his daughter.
Ms Star confirms that the applicant manages his finances appropriately. He is willing to use psychological supports to strengthen his coping skills and works at maintaining transparency with the CTT.
Based upon his treatment compliance, negative urine and breathalyser test results and the current management plan, Ms Star supports the applicant’s application for further extended leave.
Submissions
Both the Secretary and the Attorney have expressed support for the application for further extended leave.
The submission of the Attorney expresses ‘concern’ as to five matters raised in the evidence. They are the applicant’s relapse in August 2019, his ‘continued’ use of alcohol, his limited motivation to attend further drug and alcohol treatment, his limited insight and his lack of transparency with his treating team. However, none of those ‘concerns’ are of sufficient weight to cause the Attorney to argue against the grant of further extended leave. That is, the Attorney does not contend that either the applicant or members of the public will be seriously endangered as a result of the applicant being allowed further extended leave.
Analysis
Given the uniform support for the application for extended leave, both the Secretary and the Attorney also submit that the confirmation of the CSO pursuant to s 32(1) of the Act is appropriate.
The applicant, too, submits this to be the appropriate order for the time being. Indeed earlier preparations on behalf of the applicant by the AMHS towards the variation of the CSO towards a NCSO have ceased in the last 12 months. Given the view of Dr Belshaw that the treatment needs of the applicant are presently best met by the CTT being able to monitor the applicant long-term, it follows that there are no adequate resources available for the treatment and support of the applicant in the community[22] if he was subject to a NCSO.
[22]The Act, s. 40(1)(e).
I am satisfied that the CSO should be confirmed.
With respect to the application for further extended leave, I am satisfied that the safety of the applicant and other members of the public will not be seriously endangered if the application is granted. In particular I note the following.
First, the applicant has a diagnosis of schizophrenia and a history of substance abuse.[23] He has, in the past 12 months, experienced a subtle relapse of the symptoms of his schizophrenia. This demonstrates the applicant’s particular vulnerability to changes in his medication, substance abuse and stress. The applicant’s mild alcohol use disorder is in remission and his opiate, cannabis and stimulant use disorders are in sustained remission.
[23] The Act, s 40(1)(a).
Second, there was a direct relationship between the applicant’s schizophrenia and the index offence; he was floridly psychotic at the time.[24]
[24]The Act, s 40(1)(b).
Third, Dr Belshaw’s most recent assessment of the applicant’s risk of future violence is termed moderate.[25] This has increased since 2019 when the risk was assessed as low.[26] However, Dr Belshaw notes that any violence by the applicant in the context of him displaying early warning signs has in the past been of low severity, suggesting that the applicant presents a heightened risk of minor harm eventuating from any grant of further extended leave. Moreover, the use of dual antipsychotic medication has effected remission of the applicant’s symptoms. He is compliant with that regime, committed to continued abstinence from drugs and alcohol and also compliant with his management regime. His role as a father and the support of his mother and sister are strongly protective factors.
[25]The Act, s 40(1)(c).
[26]Re LTB [2019] VSC 229, [40] (Lasry J).
Fourth, the need to protect people from the danger of future violence posed by the applicant[27] is no longer critical. He accepts his diagnosis and is compliant with his medication and other management. His history of behaviour on earlier grants of extended leave reinforces that conclusion. The applicant can be safely managed in the community. And that management includes the option being returned to TEH, if necessary.
[27]The Act, s 40(1)(d).
Fifth, there are adequate resources available for the treatment and support of the applicant in the community.[28] They have been outlined above and are not here repeated. Of particular note I am satisfied that those resources have adapted and are capable of further adaptation in response to restrictions imposed as a result of and for the duration of the COVID-19 pandemic.
[28]The Act, s 40(1)(e).
Sixth, the treating psychiatrist and case manager of the applicant are both supportive of the application.[29] So too is the applicant’s mother.
[29]The Act, s 40(1)(f).
Seventh, the applicant has full time care and custody of his seven year old daughter. It is a responsibility he takes seriously and manages well.[30]
[30]The Act, s 40(1)(f).
Eighth, if a grant of further extended leave is not made, the applicant will be returned to TEH pursuant to his CSO. This would not only be unnecessary to protect the community but would be overly restrictive of the applicant’s freedom and personal autonomy.[31]
[31]The Act, s 39(1).
Order
The orders of the Court will be:
1. The CSO made 19 April 2004 is confirmed pursuant to s 32(1) of the Act.
2. Pursuant to s 57 of the Act, the applicant is granted extended leave for 12 months from 7 April 2020, subject to the following conditions:
(a)The applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate.
(b)The applicant reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate.
(c)The applicant abides by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate.
(d)The applicant complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate.
(e)The applicant abstains from the abuse of alcohol and from the use of illicit drugs.
(f)The applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel, which must be approved by the authorised psychiatrist or his or her delegate.
3. The suppression order made by the Honourable Justice Bell on 27 April 2017 pursuant to s 75 of the Act is confirmed.
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