Re LTB
[2018] VSC 179
•19 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 02436
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
AND
IN THE MATTER of an application by LTB
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 April 2018 |
DATE OF JUDGMENT: | 19 April 2018 |
CASE MAY BE CITED AS: | Re LTB |
MEDIUM NEUTRAL CITATION: | [2018] VSC 179 |
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CRIMES MENTAL IMPAIRMENT – Custodial supervision order – Application for further 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 minimum consistent with safety of community – Further extended leave granted with conditions – Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 ss 57, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Taylor | Victoria Legal Aid |
| For the Attorney-General of Victoria | Mr J Bayly | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Ms M Wilson | Department of Health and Human Services |
| For the Director of Public Prosecutions | No appearance | Office of Public Prosecutions |
HIS HONOUR:
Overview
This is an application for further extended leave by LTB (‘the applicant’), pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), seeking to remain in the community subject to the same conditions as the existing grant of extended leave made in orders by Bell J on 27 April 2017.
The original offending occurred on 1 May 2002 when the applicant killed the applicant’s father while impaired by psychosis. The applicant was arrested and charged with murder. On 19 April 2004, the applicant was found not guilty by reason of mental impairment, and was placed on a custodial supervision order (‘CSO’) for a nominal term of 25 years.
Between 2004 and 2011, the applicant progressed through the treatment regime offered by Forensicare at the Thomas Embling Hospital (‘TEH’), and was granted a first period of extended leave on 24 August 2011 by Weinberg J. On 17 August 2012, Robson J granted further extended leave to the applicant. However, on 22 November 2012, the applicant’s leave was suspended following an altercation with a neighbour. At the time of the altercation, the applicant claimed to have killed the applicant’s ex-partner and child. On 11 February 2013, Coghlan J formally revoked the applicant’s leave.
On 8 December 2016, the applicant filed a new application for extended leave which was heard before Bell J on 27 April 2017. At the conclusion of the hearing, his Honour granted the application for a period of 12 months on the following conditions:
(a) [the applicant] is to be under the supervision of the authorised psychiatrist or his or her delegate;
(b) [the applicant] is to reside at an address notified to and approved by the authorised psychiatrist or his or her delegate;
(c) [the applicant] is to comply with the lawful directions of the authorised psychiatrist or his or her delegate;
(d) [the applicant] is to comply with treatment and testing and attend appointments as directed by the authorised psychiatrist or his or her delegate;
(e) [the applicant] is to abstain from the abuse of alcohol and from the use of illicit drugs; and
(f) [the applicant] is not to leave the State of Victoria without the written permission of the authorised psychiatrist or his or her delegate.
Applicable legislation
The application for further extended leave is made under s 57 of the Act, which provides that:
(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 Health and Human Services.
Section 57(2) provides that an application for extended leave may be granted if I am 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’ requires that I exercise a discretionary judgment by considering both the gravity of harm that might be caused by the applicant if there was a relapse and the probability of that occurring. So in making that judgment, I am bound to consider the guiding principles legislated by s 39 of the Act, which states the restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) sets out a list of considerations to which I must have regard in deciding whether or not to grant extended leave to the applicant. 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.
With respect to the evaluation of mental condition and risk assessment, the Court of Appeal in NOM v DPP & Ors[1] said:
Section 39 requires a valued judgment informed by the competing considerations stating 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 inter-related criteria. These assessments call for valued 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.
[1][2012] VSCA 198 [47] (Redlich, Harper JJA and Curtain AJA).
In addition, s 40(4) provides that a further grant of extended leave cannot be made unless I have obtained and considered the report of at least one registered medical practitioner, or registered psychologist, who has personally examined the person on that person’s mental condition, and the possible effect of a proposed further grant on that person’s behaviour, together with a leave plan filed pursuant to s 57A. This requirement has been complied with by the provision of a very detailed psychiatric report from the applicant’s treating psychiatrist, Dr James Belshaw.
Notification requirement
Section 38C of the Act requires the Director of Public Prosecutions (‘DPP’) to give notice of certain applications under the Act to each family member of the applicant and each victim of the offence with which the applicant was charged. However, notice is not required to be given of an application for extended leave unless the granting of the application would ‘significantly reduce the degree of supervision to which the person is subject’.
Prior to the hearing of this application, the Office of Public Prosecutions advised the Court that they did not intend to notify victims or family members of the hearing on the basis 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 is subject.
The notice of application dated 12 January 2018 sets out that the applicant would seek an order for further extended leave. No application for variation of the CSO is advanced by any party involved in this application. Nor is there an application to vary the current conditions of the order. Thus, the DPP has taken no part in the present application.
Contemporary clinical evidence
The index offence, the applicant’s background, the circumstances of the applicant’s mental impairment that led to an acquittal in 2004, and the history of the applicant’s treatment up to April 2017 are all set out in the judgments of Weinberg, Robson, Coghlan and Bell JJ to which I have already referred. It is not necessary to repeat the details of those matters in these reasons.
In support of the applicant’s current application for further extended leave, the applicant relies upon a report dated 27 March 2018 prepared by Dr James Belshaw, a consultant psychiatrist of the Community Treatment and Transition (CTT) team of Forensicare.[2] He has been the applicant’s treating psychiatrist since August 2017.
[2]Formerly known as the Community Integration Program (‘CIP’). The CTT team is responsible for assisting patients to apply for extended leave and their subsequent treatment and management once extended leave is granted.
Dr Belshaw’s report provides a significant amount of detail of the applicant’s psychiatric history and progress prior and subsequent to release on extended leave in 2017. Additionally, the report describes the applicant’s treatment regime, supervision and circumstances, and the support that has been and continues to be provided in the community.
In his report, Dr Belshaw confirms the diagnosis of the applicant as having suffered paranoid schizophrenia, which was thought to have developed in the applicant’s early twenties against a background of substance abuse.
Following the last hearing in April 2017, the applicant was granted extended leave to reside in a two-bedroom unit. A home visit by the CTT team in July 2017 found that residence to be tidy and well-ordered.
According to Dr Belshaw, the applicant has maintained a good record of attendance at review appointments with the CTT team at Forensicare.
In May 2017, the applicant began treatment with a psychologist at a community health clinic, for stress management as well as mindfulness techniques to assist with sleeping issues. The applicant has reported the psychological input to be helpful.
In June 2017, the applicant completed a food handling course via an employment agency. The applicant applied for several jobs but was not successful. The applicant continues to attend the Forensicare Consumer Advisory Group (CAG) meetings each month, and has increased attendance at a local gym with an aim to lose weight and improve fitness.
According to Dr Belshaw, the applicant has successfully navigated a number of stressful situations involving the care of the applicant’s child. In May 2017, the applicant attended the Children’s Court of Victoria for a review of the Interim Accommodation Order regarding the child and the arrangement for the child to be temporarily cared for by the applicant’s sister. The applicant’s ex-partner was also granted three nights of overnight access, which caused anxiety and distress for the applicant due to concerns about the ex-partner’s mental health and parenting skills. However, Dr Belshaw states the applicant was able to manage the situations appropriately and no mental deterioration was reported or observed.
In June 2017, the applicant again attended the Children’s Court with the support of the applicant’s family. A Family Preservation Order was enacted and the care arrangements for the child were varied to allow the ex-partner four nights access per week. The applicant was allowed access the child on Friday, Saturday, Sunday and Monday. The CTT team notes the applicant has managed both the care arrangements and the relationship with the applicant’s ex-partner appropriately, with no incident being reported.
In September 2017, DHHS contacted the applicant regarding the ex-partner who had reportedly relapsed into substance abuse. Dr Belshaw states the applicant reported feeling anxious about the child’s welfare but was able to conduct issues in an appropriate manner. The applicant was able to reflect on the issue and be reminded about the need to remain mentally stable for the child’s benefit. Since 11 October 2017, the applicant has become the sole carer for the child. According to the applicant’s treating team, this change has had a significant positive effect on the applicant. The applicant has reported having ‘more direction and purpose’ in life compared to previously.
In February 2018, the applicant’s ex-partner tried to initiate contact again with their child after being discharged from a psychiatric inpatient unit. The applicant facilitated this contact. However, the ex-partner became aggressive following a Children’s Court hearing in February 2018, which denied the ex-partner’s request for increased access. This has caused some emotional stress to the applicant, who was able to navigate the situation with the support of family and the CTT team without any incident.
During the first three months of extended leave, the applicant was reviewed on a weekly basis by the CTT team. The frequency of reviews was reduced to fortnightly in August 2017, with no change to the applicant’s mental state, despite continuing reports of poor sleep, vivid dreams and restlessness, particularly in the week following the administration of depot medication.
Due to ongoing adverse effects of the applicant’s paliperidone depot injection, the treating team decided in February 2018 to gradually reduce the dose of the injection, and to increase the oral medication, quetiapine, to 600mg nocte. The first of these trial reductions took place in February 2018, and the applicant worked closely with the treating team to elucidate any early signs of relapse so that the depot medication could be quickly recommenced if required. Dr Belshaw notes positively that no signs of early relapse have been reported. He states the applicant is prepared to accept the possibility of side effects from necessary medication, rather than compromise mental health, which may jeopardise the child’s wellbeing.
Since being granted extended leave, the applicant has abstained from alcohol and illicit substances, as indicated by urine drug screening and breathalyser over the past 12 months.
In his risk assessment, Dr Belshaw points to several historical risk factors for future violence. These static risk factors include the diagnosis of schizophrenia, the psychiatric history, the violence involved in the commission of the index offence, incidents of violence including property damage prior to the index offence, a history of unemployment, a history of alcohol and substance abuse, a history of relationship difficulties, and an early history of treatment non-compliance. Positively, there is no history of early traumatic experience, pervasive violent cognitions, anti-social attitudes, or personality disorder.
Dr Belshaw opines that the dynamic factors associated with the applicant’s current mental state and the future are generally positive. There have been no recent issues with respect to insight into the illness suffered. There has been no evidence of active symptoms re-emerging, or affective or behavioural instability or difficulty with treatment. Further, there is no evidence that the applicant will face significant changes to these areas in the foreseeable future.
The applicant has engaged very well with supervision and has a good level of family support. Further, the applicant has been able to manage the stress of negotiating the relationship with the ex-partner regarding the care arrangements of the child with the support of the CTT team and the applicant’s family.
Taking all these factors into account, Dr Belshaw expresses the opinion the overall risk for future violence presented by the applicant is low. He notes there are some stress factors caused by custody arrangements involving the applicant’s child, which may emerge in the future, which require close ongoing monitoring and supervision by the CTT team.
In his opinion, Dr Belshaw concluded that:
Since the 2012 readmission, it has been postulated by treating teams that the aforementioned problematic behaviours were, in fact, residual symptoms of [the applicants] illness. The stabilising influence of [the applicant’s] family and the responsibilities of [parenthood] appear to have replaced … adolescent, antisocial self-identification. Together with ongoing psychological input and consistent treatment with antipsychotic medication, [the applicant’s] insight, transparency and trust in treating teams has improved. All of these factors have seen these problematic behaviours recede.
In these circumstances, Dr Belshaw is supportive of the applicant’s application for further extended leave and provided a Leave Plan pursuant to s 57A of the Act which was annexed to his report.
Viva voce evidence of Dr Belshaw
Dr Belshaw gave viva voce evidence before me and confirmed the truth and accuracy of his report. Importantly, nothing emerged during the course of his evidence that I would consider sufficiently adverse to justify a change of opinion, or approach towards the ultimate conclusion of this application.
Conclusion
The applicant has a diagnosis of schizophrenia and a history of substance abuse. At the time of the index offence in 2002, the applicant was floridly psychotic. It is clear that there was a direct relationship between the mental impairment suffered and the offending conduct.
In determining whether the applicant is likely to endanger self or the community, the applicant’s diagnosis, past history of violence, substance abuse, relationship and employment difficulties, and difficulties with past treatment and supervision prior to the applicant’s re-admission, are all historical risk factors. However, taking into account all the material that has been placed before me, I am satisfied that the overall risk of future violence is low.
The 12 months since the orders made by Bell J have not been easy for the applicant to navigate as there have been stressors and risk factors. On balance, the applicant has managed well with the support of professional carers in and family members.
Despite the existence of adverse factors, the applicant has been attending appointments consistently with the CTT team, abstaining from alcohol and illicit substances, attending treatment with a psychologist, and navigating stressful life situations without mental deterioration. It appears that any symptoms experienced by the applicant are well managed with the current medication regime. Further, the applicant appears to have found purpose in fatherhood. The applicant should be commended for taking such a positive approach to the goal of rehabilitation.
Dr Belshaw notes that ‘the only notable risk factor is the possible stress [the applicant] may suffer in relation to custody proceedings regarding [the child], and associated contact with [the] ex-partner’. He stated although scenarios involving hostility from the applicant’s ex-partner may lead to re-emergence of paranoid ideation and possibility of relapse, the applicant’s mental state will be closely monitored by the CTT team through liaising with family and the psychologist.
In all the circumstances, having regard to the evidence of Dr Belshaw 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 annexed to Dr Belshaw’s report.
In forming this conclusion, I note that the application for extended leave was not opposed by the Attorney-General. I note also that the Attorney opposed the extended leave application before Bell J 12 months ago. The Secretary to the Department of Health and Human Services also did not oppose the current application. Accordingly, all parties in attendance supported the application before me on 16 April 2018.
Further, I am of the view that the grant of extended leave would be consistent with the principles set out in s 39(1) of the Act, having had regard to the considerations identified in s 40(1).
For these reasons, I granted the application for extended leave on 16 April 2018, subject to conditions in similar terms the grant of extended leave by Bell J on 27 April 2017. The orders I made were as follows:
1. Pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the applicant be granted extended leave for 12 months from the date hereof subject to the following conditions:
(a) [the applicant] is to be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate;
(b) [the applicant] is to reside at an address notified to and approved by the authorised psychiatrist of the VIFMH or their delegate;
(c) [the applicant] is to comply with the lawful directions of the authorised psychiatrist of the VIFMH or their delegate;
(d) [the applicant] is to comply with treatment, testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or their delegate;
(e) [the applicant] is to abstain from the abuse of alcohol and from the use of illicit drugs;
(f) [the applicant] is to not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate.
2. A transcript of the proceedings held on 16 April 2018 be prepared and provided to all parties.
3. The suppression order made by the Honourable Justice Bell under s 75 of the Act on 27 April 2017 is confirmed.
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