Re LTB
[2017] VSC 282
•26 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 02436
| IN THE MATTER of an application for 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: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2017 |
DATE OF JUDGMENT: | 26 May 2017 |
CASE MAY BE CITED AS: | Re LTB |
MEDIUM NEUTRAL CITATION: | [2017] VSC 282 |
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CRIMES MENTAL IMPAIRMENT – application for extended leave – whether the safety of the applicant or members of the public will be seriously endangered as a result of the applicant being allowed 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 – whether applicant would be likely to endanger himself or any other person or people generally – Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic) ss 57, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr T R Marsh | Victoria Legal Aid |
| For the Attorney-General of Victoria | Dr A Hoel | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Ms K M Evans | Solicitor to Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms J Carpenter | Solicitor to Office of Public Prosecutions |
HIS HONOUR:
LTB makes an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) for extended leave from Thomas Embling Hospital (‘TEH’) subject to conditions proposed by LTB’s consultant psychiatrist. Both the Secretary to the Department of Health and Human Services and LTB’s treating team are supportive of the application for extended leave. However, the application is opposed by the Attorney-General of Victoria.
The events that gave rise to the making of a custodial supervision order (‘CSO’) applying to LTB are set out in the Summary of Proceedings and Facts of the Case filed by the Office of Public Prosecutions in 2011. A description of the event and the surrounding circumstances are also to be found in the various judgments of the court, the last of which is that of Coghlan J dated 12 February 2013.
The index offence occurred on 1 May 2002 when LTB killed LTB’s father while floridly psychotic. LTB had been non-compliant with medication in the months leading up to the index offence and exhibited various signs of psychosis, including auditory hallucinations, weight loss, grandiose and religious ideation and appearing fearful and perplexed.
On 19 April 2004, LTB was found not guilty of murder by reason of mental impairment, and was placed on a CSO pursuant to s 26(2)(a)(i) of the Act for a nominal term of 25 years. Pursuant to that order, LTB was admitted to TEH. Between April 2004 and mid-2011, LTB progressed satisfactorily through the treatment regime at TEH and was granted extended leave on 24 August 2011.
Further extended leave of the same duration was granted on 17 August 2012 by Robson J. However, shortly after this decision, on 22 November 2012, the Chief Psychiatrist suspended this leave following an altercation with a neighbour. It was alleged that LTB claimed that the neighbour had killed LTB’s ex-partner and daughter. A formal application to revoke LTB’s extended leave was made on 23 November 2012 and granted by Coghlan J on 11 February 2013.
It follows that LTB has been residing in the TEH since the suspension of the extended leave in 2012. The current application was filed on 8 December 2016.
In accordance with s 38C of the Act, the Director of Public Prosecutions gave notification of the hearing to the relevant family members and victims of the index offence. They were also notified of the opportunity to make a report on the conduct of LTB and its impact on them.
Only one report has been received. It is a statutory declaration prepared by LTB’s mother on 18 April 2017. In it, LTB’s mother describes her disappointment over LTB’s re-admission to TEH in November 2012. She expresses her support for LTB’s release, stating that ‘[w]ith the added responsibility of [parenthood], more education and the ability to speak more openly, [she is] hoping LTB will [move to] a permanent release’. As required by s 40(2)(d), I have considered this report.
I am satisfied after reading the affidavit of Julie Carpenter dated 20 April 2017 that notice has been given under s 40(2)(c) of the Act (see below).
Legislative framework
Section 57(1) is the section under which the application is made. It provides as follows:
(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.
It is s 57(1)(a) that applies here.
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 the consideration of both the level of risk that a harmful event might occur, and the gravity of the harm that might be caused if the risk were to materialise. Thus, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[1] In making that judgment, I am bound to consider the guiding principles identified in s 39 of the Act, which provides:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
[1]In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J), cited with approval in NOM v DPP [2012] VSCA 198, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’). (See also [54]–[65] generally on serious endangerment.)
I am also to have regard to the list of considerations identified in section 40(1) of the Act. 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 making a risk assessment, the Court of Appeal in NOM v DPP said:
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. [2]
[2]NOM [2012] VSCA 198, [47] (Redlich and Harper JJA and Curtain AJA).
In addition, s 40(2) provides that an application for extended leave cannot be granted 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 or victims made under section 42; and
(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the Court considers necessary.
The Court has received the reports of Dr Anthony Barnes dated 31 March 2017 (supervised by Dr Kate Roberts), Dr Fiona Best dated 23 March 2017 and of Ms Emma Stephens dated 31 March 2017 which satisfy the requirements under s 40(2)(a) and (2)(ab) of the Act.
Applicant’s psychiatric history
LTB is a 40-year-old single parent of one child with a diagnosis of paranoid schizophrenia which is currently in remission. LTB’s mental illness was previously exacerbated by poly-substance abuse and non-compliance with anti-psychotic medications.
Records show that LTB’s first contact with mental health services was in 1997 when LTB was 21 years old. LTB was remanded in police custody as a result of a suicide attempt. Psychiatric reports note that it is likely that LTB developed psychotic symptoms in 1999, when using amphetamines as well as continued cannabis use.
LTB had at least two inpatient hospital admissions in 2001. Initially, LTB was admitted to Frankston Hospital as an involuntary patient after exhibiting auditory hallucinations, paranoid ideations, thought broadcasting and other bizarre behaviours. LTB was later discharged into the care of LTB’s family, but instead lived in a car, ceased taking medication, and rapidly relapsed. This resulted in the second involuntary admission shortly after the first admission. LTB was treated with several different anti-psychotic medications and was placed on a community treatment order. However, the treatment was compromised by poor insight, non-compliance with medication, and enduring substance abuse, which resulted in repeated relapse. It was in this context that the index offence occurred.
Prior to the index offence, there had also been two documented incidents of deliberate self-harm — an attempted hanging and lacerations to the wrists. Both occurred in the context of significant substance abuse/withdrawal, the latter when LTB was impaired by psychosis.
Following arrest for the index offence, LTB was briefly admitted to the local hospital before being transferred to TEH where a formal diagnosis of paranoid schizophrenia was made. LTB made steady clinical progress through the acute and rehabilitation units of TEH and was trialled on a number of oral anti-psychotic medications before achieving adequate symptom attenuation on a combination of two in particular.
In 2009, during a stay in the Jardine Unit, LTB consumed two methylamphetamine tablets whilst on unescorted leave, resulting in a low-level relapse of psychotic symptoms, and a formal suspension of leave.
LTB was first discharged from TEH on 24 August 2011, after being granted extended leave. LTB was clinically stable, obtained employment as a porter at a city sports stadium, and maintained stable accommodation for almost 12 months. Shortly before an application for further extended leave was heard, LTB was particularly distressed by a lack of access to LTB’s young child and eventually began legal custody proceedings. Although there were no reports of overt deterioration in mental state, the treating team made a decision to increase the frequency of reviews and contact in order to better support LTB.
Around the same time, a music band LTB had been involved with for some time dissolved, causing a loss of social occupation. Interestingly, there appeared to be little clinical indication prior to LTB’s extended leave being suspended on 22 November 2012 following a physical altercation with a neighbour. It was alleged that LTB made several unusual and erroneous statements, including that the neighbour had killed LTB’s former partner and child.
After being re-admitted to TEH, LTB revealed non-compliance with one anti-psychotic medication. LTB also admitted abusing alcohol and illicit substances for several months, conceding that psychosocial stressors, such as being involved in a legal custody proceeding and working long nightshifts, were the likely precipitants of mental deterioration.
Applicant’s progress since re-admission to TEH
In the early part of LTB’s re-admission, there were varied opinions as to whether LTB had experienced a true relapse of psychotic illness or was rather acting out longstanding maladaptive personality traits. Records show several incidents of intimidating behaviour, verbal altercations and sexually inappropriate comments.
In mid-December 2012, LTB was involved in a significant physical altercation with a co-patient, which caused property damage.
In late-January 2013, LTB commenced depot anti-psychotic medication in addition to oral medication, with sound effect. The aim of the new anti-psychotic injection was to address LTB’s impulsivity and aggression as well as to curtail the history of poor compliance.
In early 2013, LTB was transferred to the Bass (sub-acute) Unit at TEH. Throughout 2013, there were ongoing issues with LTB’s presentation, including irritability, property damage, altercations with other patients and making inappropriate sexualised comments and gestures towards female staff members. Consequently, LTB’s leaves were suspended by the Chief Psychiatrist and LTB was required to spend more time in seclusion from other patients.
On a more positive note, LTB was able to remain engaged in weekly psychological treatment and established an excellent therapeutic relationship with the treating team. LTB was also able to further address the outstanding issues surrounding family and the index offence, as well as addressing some entrenched personality traits.
LTB was transferred to Daintree Unit on 8 May 2014, and then to Jardine Unit on 27 November 2014. Records note that LTB progressed well during this period and was able to successfully re-engage with both mother and sister. LTB’s sister has been granted custody of LTB’s child for several lengthy periods since December 2015.
LTB has been spending leave focused on the child and positively expanding the parental role. LTB has also focussed on establishing additional support networks, which include joining the TEH rock band, attending its health and fitness centre, shopping, engaging with NEAMI and continuing psychological treatment. Over the ensuing two years, LTB has continued to engage well with the treating team, and has maintained a stable mental state.
Contemporary psychiatric and clinical evidence
I have received three expert reports in support of LTB’s application for extended leave:
· Report of Dr Barnes, senior psychiatry registrar at Jardine Unit, dated 31 March 2017. The report was prepared under the supervision of consultant forensic psychiatrist, Dr Roberts.
· Report of Dr Best, consultant psychiatrist at the Community Integration Program (‘CIP’) at Community Forensic Mental Health Service (‘CFMHS’), dated 23 March 2017.
· Report of Ms Stephens, case manager at CIP, dated 31 March 2017.
According to Dr Barnes’ report, LTB has a diagnosis of paranoid schizophrenia and a history of substance abuse. He observed that LTB’s psychotic symptoms have remained in relative remission. When cross-examined about the term ‘relative remission’, Dr Barnes explained that it can be considered as full remission in that there is no indication of any positive symptoms of psychotic illness. He further added that he believes that LTB has good insight into the previous symptoms and a good understand of the early warning signs or pre-psychotic symptoms.
Dr Barnes opines that it is likely that LTB’s maladaptive personality traits and the previous disinhibition associated with medication non-compliance, as well as illicit substance use, were the main contributors to the aggressive behaviour which led to the suspension of the extended leave in November 2012, and the numerous incidents during the early days of LTB’s re-admission.
Dr Barnes reports that LTB has successfully developed strategies to manage stress and impulsivity through intensive and extensive psychological treatment. He notes that LTB’s aggression is no longer a feature of LTB’s coping style and that LTB does not present with any residual psychotic symptoms, nor with unstable affect, behaviour or cognition.
A mental state examination conducted by Dr Barnes on 15 March 2017 also indicated that LTB was settled, cooperative and easily engaged, with no evidence of formal thought disorder. Dr Barnes was unable to identify any signs of perceptual abnormalities.
Dr Barnes observes that an expansion of LTB’s parental role seems to have played an integral part in the recovery, and also prompted a change in the acceptance of the limitations of mental illness. Dr Barnes observes in his report a renewed motivation and commitment to complying with the treatment regime, and abstinence from substance use. According to Dr Barnes, LTB is now ‘more willing to accept that [LTB will] require life-long psychiatric medication to protect [LTB and the] family (especially [LTB’s child]) from yet another relapse’.
Dr Barnes notes that LTB has already commenced the community transition process and has engaged well with the treating teams both at Jardine Unit and at the CIP. LTB has also welcomed the support from the family and other psychosocial networks, and has had long periods of overnight leave at the mother’s or sister’s residence from the hospital without any incidents.
Dr Barnes observes that LTB’s family is a major protective factor, particularly since LTB’s sister has been granted the custody of the child. LTB is grateful for their ongoing support and is motivated to maintain mental health in order to fully participate in the parental role.
If granted extended leave, LTB intends to reside in a two-bedroom unit in the suburbs which is provided by the Department of Housing. LTB will thus be in secure and long-term accommodation. The Department of Health and Human Services has recently approved overnight contact between LTB and the child at the unit under the sister’s or mother’s supervision.
Dr Barnes also identifies LTB’s community linkages as protective factors. He notes that LTB has re-engaged well with the CIP team and recognises the importance of attending their reviews. LTB appears to have more insight into the importance of being honest and transparent with the treating team surrounding any current stressors and resultant emotional states. LTB is also managed by a local general practitioner (‘GP’) for primary health as well as the administration of depot medication. LTB plans to attend the GP at least once a month for the depot injection, and for review of LTB’s mental state and other physical health issues.
Further, Dr Barnes notes that LTB has plans to engage in further psychological sessions in the community with an aim to better manage any anxiety associated with the planned transition. LTB has also met with the social worker for review of the drug and alcohol relapse prevention plan.
In late March 2017, LTB recommenced volunteering with the Salvation Army at an opportunity shop whilst continuing to explore paid employment opportunities. LTB regularly meets with support workers from NEAMI and the Salvation Army and is a member of the patient’s Consumer Advisory Group at TEH.
Dr Barnes opines that LTB has an elevated baseline risk of violence due to historical risk factors which are not amenable to change. However, LTB’s medium-term risk of perpetrating violence is significantly lowered by the absence of dynamic factors such as expression of violent ideation or intent and any evidence of residual symptoms of psychotic illness. LTB has remained strictly adherent to treatment, supervision and hospital leave requirements. LTB displays good insight into the mental illness and the need for ongoing treatment and the factors which may increase the risk of relapse, such as stress, poor communication, lack of transparency, poor sleep and substance use.
Dr Barnes was asked whether LTB’s insight remains a possible clinical risk factor on account of LTB’s persistent concerns about the side-effects of depot medication. Dr Barnes explained that LTB remains concerned about the side-effects on some level but a closely-monitored reduction in depot medication in more recent times has improved tolerability without impacting upon the effectiveness of the treatment. He added that LTB appears more positive about the need for ongoing medication and its role in maintaining remission.
According to Dr Barnes, LTB’s successful family and community linkages, and the management of the CIP, also act as mitigating factors that will lower the risk of violence. Dr Barnes opines that LTB’s risk of interpersonal violence should remain low as long as there is adherence to the treatment plan and continued engagement with the treating team and support networks.
Given the foregoing, Dr Barnes concluded that:
Whilst [LTB’s] history of homicide elevates [LTB’s] risk of future interpersonal violence indefinitely, I believe the dynamic risk factors can be adequately moderated with the proposed management plan to be implemented by the CIP. [LTB’s] use of depot medication is additionally protective, and [LTB] has a range of other supports and very significant protective factors ([the child] and family) in the community, augmenting … motivation for a more successful and sustained transition back to full time community living this time around.
Dr Barnes is therefore supportive of LTB’s application for extended leave.
As noted, Dr Best is LTB’s consultant psychiatrist at the CIP. She is also supportive of LTB’s application for extended leave. She has reviewed LTB on two occasions, has liaised closely with LTB’s case manager and the consultant psychiatrist, and has reviewed the key reports in connection with LTB’s clinical file over the years.
In her report, Dr Best notes that the records reflect that LTB has attended all reviews with the CIP team punctually and has engaged well with the team. LTB has also responded positively to early concerns from the CIP team regarding the lack of linkages and has since established a number of community linkages.
Dr Best also notes that LTB has a supportive mother and sister who has been the primary carer for LTB’s child. On their last meeting, the family was able clearly to demonstrate a good understanding of LTB’s mental illness and the past history of substance abuse. They were also able to recognise LTB’s early warning signs and relapse symptoms.
Dr Best agrees with Dr Barnes’ overall risk assessment of LTB and states:
Given [LTB’s] offence of murder, [LTB’s] historical risk factors for violent offending will remain at the high level indefinitely. In addition to this [LTB] also has a severe mental illness, a history of problems with relationships, substance abuse difficulties, unemployment, some possible past history of antisocial attitudes and difficulties with past treatment or supervision response (when the last period of Extended Leave was revoked).
These historical risk factors are moderated by a lower level of risk-factors relating to [LTB’s] current functioning in the last 6 months and risk factors relating to what is anticipated within the coming 6-12 months, which, when taken into account reduce the current overall risk of violence considerably. [LTB] accepts the diagnosis of schizophrenia and is able to describe early warning signs. [LTB] responded positively to CIP’s early concerns about the lack of community linkages and was able to apply himself to the task of establishing these and demonstrated that he understood the importance of engaging in meaningful activity as a means to reduce risk of relapse and to move along a recovery trajectory. Additionally, [LTB] has good family support from the mother and sister who have a primary role in raising [LTB’s child].
Dr Best warns that the most likely scenario in which risk of violence might increase relate to the use of illicit substance and poor compliance with medication when LTB is intoxicated or withdrawing from it. She warns that the psychotic symptoms may re-emerge in that context. However, she assures that the occurrence of such scenarios will be closely monitored by the treating team through regular reviews and communications with LTB’s support networks, as well as random breathalyser and urine drug screens.
It is proposed that if extended leave were granted, LTB would be reviewed weekly by either a consultant psychiatrist and/or psychiatric registrar, or a case manager for the first three months. Assuming good progress is made in that time, the frequency of psychiatric reviews will be reduced to monthly and case management reviews to fortnightly. Family meetings will be conducted on a two-monthly basis in order to assess the level of support and conflict within the family, and to gather feedback on LTB’s mental health and overall functioning. There will also be regular communication between the CIP team and the community linkages. LTB would also be subject to random breathalyser tests and urine drug screens.
In addition, Dr Best notes that a crisis plan and a relapse management place have been drawn up. These detail LTB’s diagnosis, medication, key contacts, crisis number and early warning signs of relapse. The plans have been distributed to LTB and LTB’s support network, which includes family members, the GP, the NEAMI support worker and the local area mental health service.
In those circumstances, Dr Best supports the application.
Likewise, LTB’s case manager at CIP, Ms Stephens, concludes that LTB is engaging well in reviews with the CIP and with relevant community linkages. She indicates that there will be two court days in May which may change the custodial arrangements for LTB’s child, however says that LTB will continue to be supported by the treating team, the NEAMI support worker and the Salvation Army worker during this time. She is similarly in support of the application.
Submissions of Attorney-General
As noted, the Secretary supports the application for extended leave but the Attorney-General does not. Counsel for the Attorney-General submitted that the main objection to extended leave was the risk of LTB being left in the community without a focus or with less focus, depending on the custody arrangements of the child, as this could potentially cause LTB to spiral into substance abuse and non-compliance with the medication regime. It was submitted that this is because LTB sees the child as being central to LTB’s sense of identity and future plans. LTB’s commendable improvement in condition and motivation is largely attributable to LTB’s parenthood. It was submitted that LTB’s history, in terms of the index offending and poor compliance, admits of a degree of unpredictability in what will happen. The focus on the child has brought with it both a positive effect on LTB’s attitude and behaviour, and also potentially negative effects if the custody arrangements are radically altered in a way that is adverse to LTB. Should that scenario occur, it would likely lead to increased anxiety and stress, and therefore increase the risk of violence, which should be managed in a more institutional setting.
While I appreciate the nature of the Attorney-General’s concerns, I am satisfied that they were addressed by the oral evidence given by Dr Barnes and Dr Best, who were both cross-examined by counsel for the Attorney-General.
Dr Barnes stated that an alteration to the current custodial arrangements does have the potential to increase LTB’s risk but the current presentation has significantly improved since the time when the court proceedings in relation to the child’s custody would have been immensely destabilising for LTB. Moreover, the current combination of oral anti-psychotic medication and depot injection have largely attenuated LTB’s past symptoms of aggression and put LTB in a good place to be able to manage the situation.
Dr Barnes was asked whether a drastic reduction in the care arrangements would cause a loss of focus for LTB. Dr Barnes stated that LTB has adequate support structures in place and enough stability in LTB’s life and mental health to be able to navigate through any of those changes.
In conclusion, Dr Barnes stated that the most significant changes that the treating team have seen in LTB are the stabilisation of the mental state and the acceptance of the medications. Dr Barnes is of the view that LTB’s family, and particularly the expanding role as a parent, have played an important role in improving LTB’s maladaptive personality traits and maturation, whilst giving LTB a goal to work towards. These factors have also contributed to LTB’s increased transparency with the treating team and appreciation of the support LTB receives from them.
In her evidence, Dr Best said that LTB is already doing the drop-off and pick-ups of the child and interacting with LTB’s former partner, for which duties have been carried out without incident. She opines that, in the unlikely scenario where LTB is denied access to the daughter, there are still enough community linkages documented in her report to provide structure and stability to LTB’s life.
When asked what is different about the proposed extended leave arrangements as opposed to those previously in place, Dr Best stated that LTB is now taking prescribed depot medication, which provides an additional assurance, has learned over the last few years of the consequences of having extended leave revoked, and has had more psychosocial therapy and treatment during that time.
When asked about detection of relapse, Dr Best stated that, if she were to be alerted to any signs of relapse by any person in the support network, she and LTB’s case manager would increase the review frequency and assess the situation accordingly.
This testing of the evidence of Dr Barnes and Dr Best by counsel for the Attorney-General has functioned to confirm my view that LTB’s application for extended leave should be granted. I am of the view that LTB is ready to make a full transition to the community and there are adequate structures and plans in place to monitor any signs of relapse and acceptably manage the risks.
Conclusion
LTB has a diagnosis of paranoid schizophrenia and a history of poly-substance abuse. At the time of the homicide in 2002, LTB was floridly psychotic. Although LTB had been under a CTO, the treatment was significantly compromised by non-compliance with medication and substance abuse. It is clear that there was a direct relationship between LTB’s mental impairment and the offending conduct.
In determining whether LTB is likely to endanger himself or the community were extend leave to be granted, the diagnosis of a serious mental illness, the past violent conduct, a history of problems with relationships, substance abuse, unemployment, a history of antisocial attitudes, a maladaptive personality traits, and difficulties with past treatment and supervision, are all static risk factors that I (and LTB) acknowledge.
Weighing against these historical risk factors are mitigating factors such as LTB’s acceptance of the diagnosis, the illness being in remission for some time, LTB’s good insight into the illness and early warning signs, the lack of recent history of self-harm or suicide attempts, LTB’s positive engagement with the treating team at CIP and other services, the commitment to abstain from the use of substance and the eagerness to engage in meaningful activities in the community by establishing more community linkages. It is also a significant protective factor that LTB has the loving and generous support of the mother and sister, who are caring for the child, as well as a range of community services.
Both Dr Barnes and Dr Best note that LTB has progressed satisfactorily during the stay in the Jardine Unit, despite some earlier uncertainties about the child’s custody arrangements.
From a practical point of view, LTB’s treatment and supervision will continue to be provided by the same treating team from the CIP. The application is supported by the treating team from TEH, the CIP and the Secretary. The Attorney-General is concerned with the risk of relapse potentially triggered by an alteration to the custodial arrangements for the child. I appreciate these concerns, however, I am satisfied that the evidence supports the application for extended leave.
On the evidence given both in court and by way of reports, I am satisfied that releasing LTB on a period of extended leave would not seriously endanger the safety of the applicant or members of the public as specified in s 57(2).
Further, I am of the view that the grant of extended leave would be consistent with the principles set out in s 39(1), having had regard to the considerations identified in s 40(1).
It was for these reasons I granted the application for extended leave on 27 April 2017, subject to the conditions sought under the leave plan which is annexed to Dr Best’s report.
The orders that I made were as follows:
1. Pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, extended leave is granted on the following conditions:
(a) [LTB] is to be under the supervision of the authorised psychiatrist or his or her delegate;
(b) [LTB] is to reside at an address notified to and approved by the authorised psychiatrist or his or her delegate;
(c) [LTB] is to comply with the lawful directions of the authorised psychiatrist or his or her delegate;
(d) [LTB] is to comply with treatment and testing and attend appointments as directed by the authorised psychiatrist or his or her delegate;
(e) [LTB] is to abstain from the abuse of alcohol and from the use of illicit drugs; and
(f) [LTB] is not to leave the State of Victoria without the written permission of the authorised psychiatrist or his or her delegate.
2. Pursuant to s 75(1) and until further order, no person shall publish or broadcast or cause to be published or broadcast, by means of radio, television, internet or otherwise:
(a) any matter which might directly or indirectly enable the identification of [LTB] as the applicant in these proceedings or [the] place of residence;
(b) any matter which might directly or indirectly enable the identification of the victims relevant to the proceedings or their places or residence; or
(c) any matter which might directly or indirectly enable the identification of any member of [LTB’s] family or [their] place of residence.
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