Re Maygar (No 2)
[2010] QMHC 54
•12 November 2010
MENTAL HEALTH COURT
CITATION:
Re Maygar (No 2) [2010] QMHC 54
PARTIES:
REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF SCOTT GEOFFREY MAYGAR
PROCEEDING NO:
0189 of 2010
DELIVERED ON:
12 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
30 September 2010
JUDGES:
Ann Lyons J
Proposed
FINDINGS AND ORDER:
1. The defendant is not fit for trial and the unfitness is not of a permanent nature.
2. The defendant is detained, pursuant to a Forensic Order to the Park High Security Program Authorised Mental Health Service for involuntary treatment and care.
3. Limited Community Treatment is not approved.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is serving a term of life imprisonment with a non parole period of 30 years – where the defendant allegedly committed offences whilst in prison – where the defendant was found temporarily unfit for trial in respect of those alleged offences – where the defendant presents a high risk of danger to himself and others – whether a Forensic Order must be made under s 288 (4) of the Mental Health Act 2000 (Qld) – whether the defendant must be physically detained at the authorised mental health service – whether limited community treatment can be granted to a correctional facility
COUNSEL:
Mr J Briggs for the Defendant
Mr J Tate for the Director of Mental Health
Ms D Holliday the Director of Public Prosecutions
Mr B Farr SC for the Department of Community Safety
Hon T Carmody SC for the Adult GuardianSOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)
The Department of Community Safety
The Adult GuardianANN LYONS J:
Background
Scott Geoffrey Maygar is a serving prisoner. He is currently serving a sentence of life imprisonment with a non parole period of 30 years. That sentence was imposed by the Court of Appeal in 2007 for the murder of two people on 30 May 2005 and other serious violent offences, which included the manslaughter of a third person, and four counts of rape of a fourth person.
He is now charged with assault occasioning bodily harm, grievous bodily harm and the attempted murder of a fellow prisoner at the Maryborough Correctional Centre on 6 July 2008. On 6 August 2009, his legal representatives referred the question of his mental condition at the time of the alleged commission of those three offences to this Court.
The hearing in relation to that aspect of the reference was initially heard on 10 and 11 June 2010 and adjourned to allow further material to be provided to the reporting psychiatrists. The hearing resumed on 30 September 2010 to consider the additional material and to hear further psychiatric evidence.
In a separate set of reasons, I have today published my findings in relation to the mental condition of Maygar at the time of those 2008 offences and in relation to the question of his current fitness for trial. In relation to the alleged offences, I considered there was a reasonable doubt as to the commission of the offences and, in accordance with s 268 the Court could not proceed to make a decision pursuant to s 267(1)(a) or (b) of the Mental Health Act 2000 (Qld) (MHA). I was also satisfied that there was a dispute relating to a substantially material fact and, in accordance with s 269, the Court could not proceed to make a decision pursuant to s 267(1)(a) or (b) of the MHA.
I also considered that Maygar was currently unfit for trial, but considered that the unfitness was not permanent.
The next question which arises relates to Maygar’s future management while he temporarily remains unfit for trial.
Section 288 of the MHA sets out when the Court may make a Forensic Order. Section 288(4) provides that the Court must make a Forensic Order for all persons who are found temporarily unfit for trial.
Maygar is not currently under a Forensic Order and has never been an involuntary patient. He is not currently a classified patient as the necessary paperwork to transfer him from prison to a mental health facility was not completed because he is a serving prisoner who is considered to be extremely dangerous.
Maygar therefore has been treated for his current mental illness through the Prison Mental Health Service and significantly he has been consenting to his current treatment. Although he is currently in the Arthur Gorrie Correctional Centre, his current treating Psychiatrist is Dr Darren Neillie who is the Clinical Director at The Park Centre for Mental Health, (The Park) which is a High Security Inpatient Service.
The Adult Guardian was also appointed as Maygar’s guardian in relation to health matters and legal matters not relating to financial or property matters on 7 August 2009 for a two year period. That appointment came at a time when Clozapine was prescribed and it was important that there be some independent oversight in relation to the administration of that medication given its possible side effects and concerns about Maygar’s continuing capacity to consent to that treatment, as well as issues about where he should be treated.
If a Forensic Order is made in relation to a person who is temporarily unfit for trial then s 288 (4) also provides that the person is detained to an authorised mental health service. If a Forensic Order is made, the Court then needs to consider whether the patient can also access limited community treatment (LCT) pursuant to the Forensic Order.
The provisions of the MHA in relation to limited community treatment are set out in s 289 and allow for community treatment subject to conditions. Accordingly, the current issue in relation to Maygar relates to his care and treatment whilst he is temporarily unfit for trial. In particular critical issues arise as to where he should be accommodated whilst temporarily unfit for trial.
I have set out my reasons in relation to this aspect of the reference in a separate set of reasons as additional parties were present during this part of the hearing. The Adult Guardian was represented by Counsel and Counsel for the Department of Community Safety was also given leave to appear.
The Department of Community Safety essentially argues that a Forensic Order should be made but that the Court should utilise the limited community treatment (LCT) provisions of the Act to order that Maygar continue to be actually detained in prison. The Adult Guardian argues that Maygar must be detained at The Park which is a high secure authorised mental health service.
The crucial issues in relation to this question of appropriate placement were outlined by Dr Neillie as Maygar’s treating psychiatrist.
The evidence of Dr Neillie
Dr Neillie, in his Report dated 29 September 2010 stated;
“To my knowledge Mr Maygar is the first individual who QCS have not been able to sign a Custodian’s Assessment Authority to allow transfer to the High Security Inpatient Service. Following the issue of his transfer being raised in 2009 a review was done by QCS of the High Security Inpatient Service’s physical, procedural and relational security arrangements in respect of the arrangements in place for Mr Maygar’s management in custody. A range of differences in security were highlighted which, it was considered, would not manage the risks both to Mr Maygar and from Mr Maygar to others.
Were Mr Maygar to be found of unsound mind or unfit for trial and receive a Forensic Order then in view of the nature of the index offences and current charge consideration would have to be given to transfer to the High Security Inpatient Service. However, in my opinion based on the available information and clinical assessment the High Security Inpatient Service does not currently have the physical, procedural and relational security arrangements which would meet Mr Maygar’s security needs.”
The material upon which Dr Neillie has based his views in relation to the security issues has been provided to the Court. Without exploring the detail of that Report, having considered its contents and Dr Neillie’s evidence, I accept his conclusion that it is his belief that The Park does not currently have security arrangements in place which would meet Maygar’s security needs.
Corrective Services submits that Maygar cannot be adequately managed within the current High Secure facility at The Park Centre for Mental Health. Mr Brad Farr of senior counsel appeared at the hearing to make submissions in this regard on behalf of the Department of Community Safety. I accept that Corrective Services have serious concerns about the management of the risk which Maygar presents to both himself and other people he comes in contact with based on their experience with him.
The High Security Inpatient Service at The Park is currently the authorised mental health service with the greatest level of security.
The questions therefore which must be answered are;
(i) whether a Forensic Order must be made and if so
(ii) whether Maygar must actually be physically detained in an authorised mental health service and if not.
(iii) whether the provisions of s 289 authorise the Court to give LCT to a correctional facility
The Arthur Gorrie Correctional Centre where he is currently incarcerated is not an authorised mental health service.
Must a Forensic Order be made?
Section 288 of the MHA provides:
“288 Mental Health Court may make Forensic Order
(1)This section applies if, on a reference, the Mental Health Court decides a person charged with an indictable offence—
(a)was of unsound mind when the alleged offence was committed; or
(b)is unfit for trial for the alleged offence and the unfitness for trial is of a permanent nature; or
(c)is unfit for trial for the alleged offence and the unfitness for trial is not of a permanent nature.
(2)The court may make an order under this division (a Forensic Order (Mental Health Court)) for a person mentioned in subsection (1)(a) or (b) that the person be detained in a stated authorised mental health service for involuntary treatment or care.
(3)In deciding whether to make the order, the court must have regard to the following—
(a)the seriousness of the offence;
(b)the person’s treatment needs;
(c)the protection of the community.
(4)The court must make an order under this division (also a Forensic Order (Mental Health Court)) for a person mentioned in subsection (1)(c) that the person be detained in a stated authorised mental health service for involuntary treatment or care.
(5)A Forensic Order (Mental Health Court) must be in the approved form. (my emphasis)
Section 288 therefore sets out the occasions when on a reference the Court needs to consider whether to make a Forensic Order or not. This section makes it clear that in deciding whether to make a Forensic Order the court has to have regard to the seriousness of the offence, the person’s treating needs and the protection of the community.
Section 288(4) however provides that where the unfitness for trial is not permanent the court must make a Forensic Order for a person and that order must be “that the person be detained in a stated authorised mental health service for involuntary treatment or care”.
It is clear that a Forensic Order must be made as the relevant provisions make that clear. All Counsel agree that such an order must be made if a finding of unfitness is made which is not of a permanent nature.
Section 540 of the MHA then provides as follows:
“540 Legal custody of particular patients
(1)The following patients are in the legal custody of the administrator of the patient’s treating health service—
(a) a classified patient;
(b) a forensic patient—
(i)the Mental Health Court has decided is unfit for trial but the unfitness for trial is not of a permanent nature; or
(ii)for whom a jury has made a section 613 or 645 finding; or
(c)a patient for whom a court has made an order under section 101(2), 273(1)(b) or 337(6).
(2)Also, a person detained in an authorised mental health service under a court examination order is in the legal custody of the administrator of the health service.”
That section accordingly provides that when the Mental Health Court has decided that a forensic patient is unfit for trial but the unfitness is not permanent, then the patient is in the legal custody of the administrator of the treating health service. That section clearly ensures that a person who is mentally unwell receives appropriate mental health treatment in an authorised mental health facility pending trial.
The Corrective Services Act 2006 (Qld) (the CSA) establishes that a complete transition of custody to the administrator of the health service occurs upon application of s 540 of the MHA:
“6 Where a person is to be detained
(1) A person sentenced to a period of imprisonment, or required by law to be detained for a period, must be detained for the period in a corrective services facility.
(2) However –
if the period is 21 days or less – the person may be detained in a watch house for part or all of the period; or
(b)if the period is more than 21 days – the person may be detained in a watch house until the person can be conveniently taken to a corrective services facility.
(3) This section applies subject to –
the provisions of this ACT that allow a prisoner to be lawfully outside a corrective services facility; and
(b)the Criminal Code; and
(c)the Youth Justice Act 1992; and
(d)the Mental Health Act 2000; and
(e)the Parliament of Queensland Act 2001, section 40(4)(a).
7 When a person is taken to be in the chief executive’s custody
If a person sentenced to a period of imprisonment or required by law to be detained for a period is, while being taken to a corrective services facility for detention, under the control of a corrective services officer, the person is taken to be in the chief executive’s custody.
(2) When admitted to a corrective services facility for detention, a person is taken to be in the chief executive’s custody.
(3) Subsections (1) and (2) apply despite the provisions of a warrant committing the person into someone else’s custody.
(4) Except for any time when the person is lawfully in another person’s custody, the person remains in the chief executive’s custody until discharged, even if the person is lawfully outside a corrective services facility.”
It is clear, therefore, that a person who is found to be temporarily unfit for trial must be subject to a Forensic Order, which has the consequence that the person is then in the legal custody of the administrator of the patient’s treating health service. I note that Forensic Orders made for serving prisoners found unsound, or permanently unfit, do not result in the administrator of the treating health service becoming the sole custodian of that person. If that person had become a classified patient before the Mental Health Court ordered that he be placed on a Forensic Order, the administrator of the treating team would retain sole custody of them subject to application of ss 93 and 94 of the MHA.
I also note also that the Director of Mental Health may issue policies or guidelines about the treatment and care of a special notification forensic patient. However, if such a policy or guideline is inconsistent with the MHA then pursuant to s 309A of the MHA it is to the extent of the inconsistency, invalid.
In any event, it is clear that in this case this court must make a Forensic Order in relation to Maygar and the result is that he will be detained in an authorised mental health service in the legal custody of the administrator of the patient’s treating health service for “involuntary treatment or care”. That essentially means that upon the making of the order Maygar must be immediately transferred to an authorised mental health service so that the involuntary treatment or care is provided in an “authorised mental health service”. Essentially that means he will be a patient who is receiving the mental health treatment he requires as he is mentally ill.
Maygar is not currently in an authorised mental health service. He is in prison. There is a substantial argument that he should stay in prison and not be transferred because of the risks he poses to himself and others despite the fact he needs involuntary treatment or care.
Must Maygar be actually detained in an authorised Mental Health Service?
All of the psychiatrists agree that Maygar is extremely dangerous. Dr van de Hoef, in particular, examined this issue of dangerousness and she considers that Maygar is in an extremely dangerous category in relation to his risk to others and that he is also a high risk to himself. “He believes that he is already dead, therefore in my interview he denied any suicidal plans, but only because it was absolutely unnecessary already being dead.”
In terms of his treatment options into the future, Dr van de Hoef stated[1]:
“I think the risk considerations are absolutely paramount, even though a patient’s treatment needs are always very close to my heart, so the risk considerations to others and himself must be paramount, and I think that’s best assessed by those housing him, his current custodian in consultation with his treating doctor who knows him best.
And so, only after the issues of risk are addressed would you favour consideration by Corrective Services, as well as mental health, about a movement to high secure?
Well, that would be my view. I mean, psychiatrists – forensic psychiatrists particularly think they’re experts at assessing risk, but to be absolutely honest, we don’t listen to the experts in the Corrective Services, we do so at our peril. They house many, many more dangerous people than we hopefully ever will and they up until now appear to have been saying to Queensland Health, ‘don’t move this man, he is too dangerous’. I think one has to listen to that because they haven’t said it very often, if ever before.” (my emphasis)
[1]Transcript 10 June 2010, p 92.
Dr Neillie also outlined some of the practical issues that would need to be faced should Maygar be moved to The Park as follows:[2]
“We would continue to assess risk in this area on a regular basis. He would be seen very regularly in hospital, but if we look at the risks in total, what I've said in the report is my view and the inpatient clinical team's opinion is that seclusion would have to be considered in Mr Maygar's management. Now, that, in itself, presents risks both as a stressor to Mr Maygar because the management and seclusion would preclude him accessing activities and some of the coping strategies that he currently has access to. In hospital there would be regular multidisciplinary team reviews of Mr Maygar's progress, but our ability to progress a treatment plan and to progress it in a responsive way, a responsive way that would include less restrictive management, would, in my opinion, be limited because of all these risk factors put together. The High Secure unit is largely a service that looks or provides assessment and treatment for individuals who have a mental illness and the majority of individuals have a mental illness and there's a clear link between that mental illness and offending behaviour. Therefore, treatment of that mental illness will reduce the risk of further offending. There are individuals that we have in High Secure who do have comorbid personality issues and we're able to look on an individual basis at therapy to try and address those issues. My concern about the risk is based on the non-psychotic factors that, in my opinion, do appear to drive offending behaviour. Those factors will require psychological work and, in my opinion, would require psychological work over quite a long period of time before that risk were to be reduced. In High Secure the risk from others, the risk of escape, we have, as I said, a different physical environment. Our procedures are different from the procedures that I understand are in place for Mr Maygar and to manage that risk with Mr Maygar. As an example, part of Mr Maygar's treatment plan in commencing Clozapine was to have a very clear plan if Mr Maygar needed transfer to a district General Hospital for medical assessment and monitoring. This is as a result of some of the known side effects of Clozapine?-- Yes, and having seen the arrangements that are in place to manage this particular aspect of risk, the arrangements that we have at High Secure are quite different from those and the resources that we have access to are different from the arrangements and the resources that Corrections would have access to. So that's just an example of the difference in physical and procedural security between the two facilities that, you know, I have had to consider in looking at what I believe to be the most appropriate placement, although not the best placement. I think in an ideal situation Mr Maygar would be in hospital, but I have significant concerns about the capacity of the High Secure unit at the present time to manage the risks that I've assessed, but also the risks that have been communicated from Corrections.”
[2]Transcript, 30 September 2010, p 40.
In response to questioning from Counsel for the Adult Guardian, Dr Neillie indicated that management in The Park could in fact be more restrictive than prison, and that being located there may in fact have a negative impact on his mental health treatment:[3]
“You said in an ideal world that Mr Maygar should be in hospital. Is that because he's sick and needs treatment?-- Well, he accepts treatment. The issue has been, I suppose, the degree of improvement with the treatment that Mr Maygar has been on and that the hospital compared to a prison environment offers, in my opinion, a more therapeutic environment in which to assess and monitor someone's treatment. However, in these circumstances Mr Maygar has been compliant with really all aspects of the treatment plan we have in place. You know, while - as I said before, while that continues we can treat Mr Maygar in prison.
But not optimally?-- Well, again we come back to the issue of were Mr Maygar transferred, how we would have to manage him in hospital would involve quite a restrictive management plan because of these risk issues. So it's more, I think, due to the capacity that we currently have that would lead to potentially a more restrictive approach to Mr Maygar's management which all I can say is that that would be a risk potentially for a deterioration in his mental state.”
[3]Transcript, 30 September 2010, p 42.
Accordingly, Dr van de Hoef and Dr Neillie have both neatly summarised the current dilemma. Whilst Maygar needs treatment or care, the clear evidence is he should not be moved out of the prison environment as he is “too dangerous”.
However, the making of such a Forensic Order means he must be transferred to an authorised mental health service for that purpose. In my view, there is no discretion.
As I have already indicated, the only facility with any capacity to treat Maygar as a serving prisoner is The Park High Secure Mental Health Facility. Maygar will therefore, by operation of the provisions of s 540 of the MHA, then be in the legal custody of the administrator of the treating health service rather than the Chief Executive of Corrective Services.
The Park cannot currently provide the level of security Maygar clearly requires although a new nine bed unit is currently being constructed which may meet Maygar’s security needs. That unit does not open until April 2011.
I am also informed that, whilst the possibility of having a section of the prison declared an ‘authorised mental health service’ has been explored, there are insurmountable obstacles to adopting such an approach.
Counsel for Maygar, as well as Counsel for the Director of Mental Health, and Counsel for the Director of Public Prosecutions, submit that the issue of Maygar’s current placement can be appropriately managed by making a Forensic Order but utilising the limited community treatment provisions under the MHA to ensure that Maygar is treated in prison. I will turn to those submissions.
The submissions on behalf of Legal Aid
Counsel for Legal Aid stated that if a finding was made that Maygar was temporarily unfit for trial, then all criminal proceedings are suspended for so long as temporary unfitness prevails. Counsel conceded that if Maygar was found temporarily unfit then he would need to be placed on a Forensic Order.
Counsel stated that if a Forensic Order is made, the patient must remain in hospital, unless a grant of limited community treatment is made. A grant of LCT can only be made if:
—the patient can be better treated in the community; and
—it is safe to treat the patient in the community (s 289(4) and (5)).
Counsel for Legal Aid argued that the term ‘Community’ is not defined in the MHA and that nothing in the MHA prohibits LCT from being applied in any particular place. A clinician can best opine where a patient can best be treated.
Accordingly Counsel argued that if Maygar’s condition can better be treated in hospital than in jail, he ought not to be granted LCT to the jail. It will be for the hospital to ensure Maygar’s safety, and the safety to others. However, Counsel submitted that if Maygar’s condition can be better treated in jail than in hospital, then, absent unacceptable risk, LCT to the jail is appropriate.
Counsel argued that the Forensic Order needs to yield to the practical circumstances in this case. Counsel also indicated that he was concerned about Dr Neillie’s evidence that Maygar may lose rights and may have less ability to be treated if he goes to The Park now, because The Park might need to place him in seclusion very quickly and that would inhibit his treatment.
Counsel continued:
“Your Honour, it has also obviously come up in the last few hours, at least in my mind, that places like the Park were designed for people like Mr Maygar and not for some less dangerous category of person and that Mr Carmody is right in saying that the community must, as soon as possible, complete these wards that are being built, but that might be actionable through other means than sending him directly to the Park now if it means that it's going to inhibit his treatment by putting him into seclusion. One thing seems very clear. The loss of the freedoms that he now has would detrimentally impact on his mental health and that's one of my principal concerns, your Honour, because that's a practical problem we can't seem to get around, according to this very responsible treating doctor. Your Honour, in that document I have prepared I've done as best as I can to indicate that it is theoretically possible for LCT to be granted to the gaol. I don't suggest that that is an appropriate long or even medium-term solution, it is a very unfortunate solution, but it may be the only solution for us today. That's my concern.
I suppose I can sum it up like this: that the Park is not secure enough to protect others from Mr Maygar is not in itself a reason t o place him in gaol, but if the fact that the Park is not secure enough to protect others from him reduces the ability to treat him, then it might be a reason to do that. Until we can ensure that the community through the respective government departments builds a Park which is indeed truly a high secure facility - because presently it obviously can't be if it can't secure a person like this.”
In terms of the practical issue that Maygar would be technically in the legal custody of the administrator of the authorised mental health service, whilst physically located in prison, Counsel submitted that there is essentially no real controversy or issue with that reality and that other parts of the MHA also indicate that the administrator of a treating health service may become the sole custodian for a prisoner.
Counsel stated that a patient’s placement is usually determined by the need for treatment. However, a forensic patient’s placement is subject to the need to ensure the safety of the patient, and others. Counsel argued that the clinician ought to be provided with all material necessary to opine where Maygar can best be treated. The court ought to be provided with all of the material to determine if it is safe to treat him there.
Counsel stated that there may be community concern that Maygar will, while temporarily unfit, be more readily released to the general community if he was granted LCT than if he was in Corrective Services custody. However, Counsel noted that Maygar is a special notification forensic patient pursuant to s 305 of the MHA and therefore his Forensic Order is especially restrictive and a grant of community leave will be practically impossible until his non-parole period has expired.
Ultimately, Counsel submitted that in practical terms the issue in the present case is conflict between the need to have the community build the right facility at The Park, as it is obliged to do so under the MHA, and the reality that we do not have it yet. Counsel submitted that an order needs to be made to place Maygar somewhere that will allow him to continue improving. Counsel submitted that, given Dr Neillie’s obvious integrity and concern, he would have only made a concession that treatment in prison is the current preferable option on a reasonable basis. I accept that submission and have no doubt that Dr Neillie is acting in Maygar’s best interests. His evidence as to Maygar’s current treatment plan given his mental illness was impressive.
Submissions on behalf of the Department of Community Safety
Counsel for the Department reiterated the fact that Maygar is currently serving sentences of life imprisonment with a non-parole period of 30 years for the murder of two people. He is also serving concurrent sentences for one charge of manslaughter and four charges of rape. The 30 year non-parole period was imposed by the Court of Appeal in 2007 and Keane JA (as he then was) described the offences as the ‘worst category of murders’.
Counsel also referred to the fact that the referral to this Court arises in relation to further serious, violent offences allegedly committed by Maygar whilst in custody in 2008 against another prisoner. One of the charges is of attempted murder. Maygar is therefore an extremely dangerous and violent offender. Queensland Corrective Services have grave concerns as to the safety of the community and those accommodated with Maygar if he is transferred to ‘The Park’.
Counsel stated that this is a relevant consideration for the Court pursuant to s 5(3)(i) of the MHA, which expressly provides that the protection of the community is a relevant consideration when making a Forensic Order.
In those circumstances, Counsel supported the submission from Legal Aid that should a Forensic Order be made then Maygar should be granted LCT to the prison. It was argued that the definition of ‘community’ includes a place of confinement such as a ‘prison’ or as it is now termed “a Community Correctional Facility”. It was essentially argued that, whilst a Forensic Order would be made, the provision which allows limited community treatment could be used to manage the risk. Furthermore, Counsel submitted that treatment at The Park may actually involve a more restrictive regime than prison and as such it does not present the best or the most flexible option for Maygar’s treatment. Counsel argued that Maygar’s treatment needs are currently best met in prison.
Accordingly, it was submitted that whilst limited community treatment should be granted, that limited community treatment should require treatment in his current ‘community’, namely the prison. Counsel argued that an approval for more than overnight limited community treatment to a Corrective Services facility will allow Maygar’s custodian the discretion to house him in the most appropriate facility given all relevant considerations.
The submissions of the Adult Guardian
Counsel for the Adult Guardian submitted that if the Court found Maygar not fit for trial, the appropriate location for him to placed was in an ‘authorised mental health service’ as defined in the MHA and that the order should specifically state that he is to reside in The Park.
Counsel noted Legal Aid’s position that ‘Maygar can live where the clinical evidence suggests he can be best treated, if it is safe that he lives there’ and the Department of Community Safety’s position that Maygar “reside at a Corrective Services facility or a place approved in advance in writing by the authorised psychiatrist”.
Counsel, however, indicated that the Adult Guardian’s concerns are that:
a.Maygar is not being looked at for his treatment needs principally. The possible safety risks are seen the most significant fact or, outweighing everything else;
b.There is no evidence based justification for a conclusion that the Park is not secure enough to protect others while Maygar is being treated;
c.The true situation is not being assessed, but rather a perception of who Maygar is and what he will do;
d.Maygar’s placement at the Arthur Gorrie Correctional Centre has at times not been suitable to his treatment needs. Nor is it necessarily safer for others;
e.It is not sufficient for Maygar’s treating psychiatrist and Department of Community Safety to solely determine where he should reside. Consultation should also occur with the Adult Guardian.
f.The immediate public interest priority is on ensuring fitness for trial if possible. Dedicated treatment outside the prison environment is most likely to achieve this. It is also the most effective long term risk management tool.”
Counsel submitted that the Court should;
a.Make a Forensic Order under Chapter 7, Part 7, Division 1 of the MHA requiring that Maygar be detained to the Park High Security Program Authorised Mental Health Service;
b.Limited community treatment not be approved for Maygar; and that
c.Maygar be transferred to The Park Centre for Mental Health from his current placement in the Arthur Gorrie Correctional Centre.
Submission of the Director of Public Prosecutions.
Counsel for the Director of Public Prosecutions argued that Maygar is best placed at this point in time in the correctional facility at Arthur Gorrie. In particular, Counsel referred to the evidence of Dr Neillie who is Maygar's treating psychiatrist and has seen him on a regular basis for the last 18 months. Counsel relied on the fact that Dr Neillie states, when all of the evidence is considered and all of the limitations of different facilities are considered, that Maygar is best placed at this point in time at that facility. Counsel also submitted that the niceties of where, in the perfect world he should be placed are unfortunately not the reality for Dr Neillie who has to look at the facilities as they exist and, in Counsel’s submission, his evidence should be given a large amount of weight and it seems that it's in everyone's interest that Arthur Gorrie is the place where Maygar should presently be housed.
Submission of the Director of Mental Health
Counsel for the Director referred to the need to advance Maygar's treatment and recovery plan and to consider what is in his best interests. Counsel referred to ss 4 and 9 of the MHA and stated that in exercising powers and performing functions under s 9 it was necessary for the Court to balance a person’s liberties and rights. It is clear that a person’s liberty and rights may be adversely affected only if there is no less restrictive way to protect the person’s health and safety while also protecting others.
Accordingly, the Director's submission is that the question of what constitutes the less restrictive way in this case is quite important in terms of the purpose and schema of the MHA. Counsel submitted that seclusion not within an authorised mental health service would be totally inappropriate and that the prison or the Community Corrections Facility is not an authorised mental health service.
Counsel also stated that Dr Neillie had indicated the strengths and weaknesses of both placements and acknowledged his concerns that a therapeutic community would probably be a better place for him. However, Counsel referred to Dr Neillie’s evidence that, in order to achieve that move, his care and treatment would be more restrictive in the sense that he did not believe that he would be easily manageable or easily managed within the general community on the ward. The difficulty is that there seems to be no apparent placement, other than where he currently is, that would be less restrictive.
In relation to the question of what is meant by the term "limited community treatment", Counsel conceded that the term is not defined in any way that is helpful, but stated that there has always been a recognition that it means that the person can leave the authorised mental health service. In some services, that is no more than the ward, as even a trip to the canteen requires LCT. Essentially LCT is about rehabilitation and recovery. Counsel conceded that it would be hard to argue that LCT to the prison was really limited community treatment in any true meaning of that word or phrase.
Counsel stated that on the making of a forensic order, the person who becomes the custodian is the authorised psychiatrist. The authorised psychiatrist then has a number of statutory obligations under the MHA in relation to treatment plans and overall care and oversight of Maygar. Counsel ultimately submitted that it is not totally desirable that he be in gaol but that seems to be the only choice that on the evidence. Counsel also stated that it would seem that there was no statutory impediment to a placement of Maygar in prison under the guise of limited community treatment. Counsel submitted it could not be argued that there could be an unacceptable risk to the community if there was LCT to the prison because Dr Neillie evidence was that there is a greater risk if he is in an authorised mental health service than if he is being managed in the gaol.
The Views of the Assisting Psychiatrists
Dr Lawrence advised that I should accept Dr Neillie’s evidence as the treating psychiatrist, who has diagnosed a mental illness and is in charge of the ongoing care of Maygar. Dr Lawrence stated that in terms of Maygar’s placement Dr Neillie has undertaken a careful risk assessment and that there are risks associated with this man's care. Dr Lawrence stated that the risks are likely to be ongoing and of variable severity. She also considered that those risks would perhaps change in emphasis, severity and nature as would Dr Neillie’s assessment of the manner in which those risks need to be addressed.
Dr Lawrence considered that at least at the present time and for the foreseeable future the safety of the patient, the protection of the community and the management of the illness would be best carried out in the prison setting. Dr Lawrence stated that the place where the treatment process should be continued is not cast in stone and that the place of treatment can be altered and managed according to the response of the patient and the variation in those risks in the future.
Dr McVie stated that she wished to acknowledge that Dr Neillie has formulated the best possible management plan for Maygar as could be developed, given the parameters under which he is working. However, Dr McVie’s overall advice is that, if Maygar is found temporarily unfit for trial, that he needs to be placed in high secure at The Park for treatment.
Dr McVie stated that Dr Neillie has clearly outlined Maygar's ongoing psychotic symptoms and he has shown some improvement. He has however failed to fully respond to combined therapy with a number of drugs, including Clozapine, Aripiprazole and Sertraline in spite of demonstrating compliance by therapeutic Clozapine levels.
Dr McVie considered that the current symptoms described by Dr Neillie are suggestive of the effects of his ongoing psychotic illness. Those symptoms include difficulty in coping with his environment in the open protection unit. Maygar therefore needs to be managed mainly in a detention unit, where he is on his own or in a medical centre where he is self supervised and supported with brief trial periods into the B1 unit.
Dr McVie considered that in relation to the 2005 offences, Dr Beech clearly diagnosed a paranoid schizophrenic illness and her view was that if intoxication was not so overt, there probably would have been further comprehensive psychiatric evaluations. If that had been done, her view was that the diagnostic dilemmas that were presented to prison mental health in the early years of his admission to custody would not have occurred, and his mental illness may not have developed to the state that it has at this point in time.
Dr McVie’s view was that, while the actuarial risk assessment for future violence is always going to be very high for Maygar and some may state that he has nothing to lose from committing further acts of violence or trying to escape, she considered that there is very little in the documents provided by corrections to validate the reality of these risks.
Dr McVie noted that in the three years in custody prior to his being transferred to maximum secure after the July 2008 offences, there were very few incidents of assaults to others, and there have been no reported incidents of violence to others after his release from maximum secure. Dr McVie accepted that Maygar’s mental state is much better managed now and he is clearly much better supervised now in the other more open areas of the prison. Her view was that in the early stages of 2008 his mental state was deteriorating and he was undertreated.
Dr McVie stated that the philosophy of the MHA, as reflected in s 540, is that when a Forensic Order is made in a situation where there is temporary unfitness, then the purpose is to provide for optimum treatment of the mental illness in order to ensure that the person be able to operate their full rights of being able to go to trial. In Dr McVie’s view this could only be achieved by transfer to a mental health service.
In relation to the issue of seclusion, Dr McVie said that many new patients to high secure spend time in seclusion for assessment when they first arrive and this is often done, not only to assess their mental state, but also to assess how they fit into the new ward environment, and it is not uncommon for people to spend time in a seclusion area and be gradually introduced to the ward environment.
Dr McVie also noted that patients with higher risks of violence have been successfully managed at The Park. Dr McVie agreed that high secure is very different from maximum secure in Arthur Gorrie and to compare the two in terms of security and safety was not helpful. High secure is a hospital, not a prison. High secure has systems and processes to assess and treat people with mental illness.
Dr McVie recommended that if there was a finding of temporary unfitness, then she would recommend a Forensic Order to high secure at The Park.
Conclusion
I accept that whilst he has been in the Arthur Gorrie Correctional facility Maygar has been receiving appropriate mental health treatment because of the dedication and commitment of his current treating psychiatrist, Dr Neillie. Maygar has been consenting to that treatment. Maygar has never previously been subject to any form of an involuntary treatment order pursuant to the provisions of the MHA despite the fact he has had a longstanding mental illness.
Maygar has not been found of unsound mind pursuant to the provisions of s 267 of the MHA.
Ultimately the proceedings against him for attempted murder, grievous bodily harm and assault occasioning bodily harm will continue according to law.
Currently he is unfit for trial.
That unfitness is not permanent.
The proceedings against him will be stayed until he is fit to face trial.
A Forensic Order must be made detaining Maygar in an authorised mental health service. At the moment the only appropriate authorised mental health service is The Park.
An order therefore needs to be made that Maygar be detained at the Park Authorised Mental Health Service.
The making of such an order means that Maygar is in the legal custody of the administrator of the treating health service rather than the Chief Executive of Corrective Services.
The question that then arises is whether Maygar should have LCT to the Arthur Gorrie Correctional Centre, essentially to ensure he is detained in prison and not transferred to The Park. I accept that if such an order were made Maygar would still technically be in the custody of the administrator of the authorised mental health service, despite being actually detained in the correctional facility.
The requirements of the MHA must, however, be met before LCT can be granted. Section 289 contains the conditions which must be so satisfied.
“289 Mental Health Court may order, approve or revoke limited community treatment
(1)The Mental Health Court may, under the forensic order for the patient, decide to do any 1 or more of the following—
(a) order that the patient have limited community treatment subject to the reasonable conditions the court considers appropriate;
(b) approve limited community treatment for the patient
subject to the reasonable conditions the court considers appropriate;
(c) revoke an order or approval for limited community treatment for the patient.
(2)Without limiting subsection (1)(a) or (b), an order under the paragraph may be made subject to a condition that the patient must not contact a stated person.
(3)In deciding whether to make an order under subsection (1)(a) or (b), the court must consider whether the order should be subject to a condition mentioned in subsection (2).
(4) However, the court must not order or approve limited community treatment unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability.
(5)Also, the court must not order or approve limited community treatment for a patient mentioned in section 288(1)(c) unless it is satisfied there is not an unacceptable risk the patient would, if the treatment were undertaken in the community—
(a) not return to the authorised mental health service when required; or
(b) commit an offence; or
(c) endanger the safety or welfare of the patient or others.
(6)In deciding whether to order or approve limited community treatment for a patient, the court must have regard to the following—
(a) the patient’s mental state and psychiatric history;
(b) the offence leading to the making of the forensic order for the patient;
(c) the patient’s social circumstances;
(d) the patient’s response to treatment and willingness to continue treatment.”
The Court can clearly order or approve LCT if a Forensic Order is made.
The term ‘limited community treatment’ is not defined in the MHA. In the definition section in Schedule 2 there is a reference to the phrase as follows; “limited community treatment for a patient means undertaking some treatment or rehabilitation in the community other than the community category of an involuntary treatment order". Whilst the word “category” is then defined in terms of an in-patient category or community category under s 109 there is no other definition which helps in the interpretation of that section.
Section 289(4), however, clearly provides that the Court must not order or approve LCT unless the Court is satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others. The Explanatory Notes[4] clearly indicate that LCT “provides a scheme for a patient’s graded return to the community whilst an in patient”. In a previous decision[5] this court has also explored the purpose of LCT. In that decision the assisting psychiatrists advised that LCT involved
“transition to the community and that the idea of slow re-integration was multifaceted to ensure that a person has enough skills to cope in the community, to ensure the mental state of the patient doesn’t regress, and to ensure that there is no adverse response by the community.”
[4]Mental Health Bill 2000, Explanatory Notes, p 56.
[5]Ex Tempore reasons for finding, Court Proceeding 0024 of 2010, 30 April 2010.
In my view the only interpretation available in relation to s 289 is that LCT refers to a graded transition from being an inpatient in a mental health service to being a member of the general community. That is a graduation from a restricted environment to a less restricted environment with greater freedoms and privileges because the patient’s rehabilitation and treatment is enhanced by such a progression. I do not consider that the section envisages transition to a prison.
In relation to patients who are found to be temporarily unfit for trial, s 289 (5) provides that the Court must also be satisfied that there is not an unacceptable risk the patient would, if the treatment was undertaken in the community not return to the service, commit an offence or endanger the safety of the patient or others. I consider that section also refers to treatment in the general community.
In my view, the provisions of s 289 clearly envisage that treatment in the community means treatment in a less restricted environment, given the specific conditions which must be met in relation to risk and safety. I do not consider there is any basis to argue that transition to LCT pursuant to s 289 could encompass a transition to the more secure environment of a correctional facility.
I consider that the word “community” in s 289 must be used in its ordinary sense of the general community and cannot be interpreted to mean a series of communities such that we have a “prison community” and therefore we can have LCT to such a “community”. I do not consider that “community” can be interpreted to mean a prison community or any particular community where members of the general public are excluded. Furthermore a voluntary return to the authorised mental health service is clearly envisaged by provisions such as s 289 (5)(a) and that in my view is not compatible with LCT to a prison.
I understand that the arguments for LCT in the current case are based on arguments grounded on concern for community safety and also the best interests of Maygar.
However, in my view, the terms of the provision are clear. The law cannot be moulded to suit the practicalities of a situation. The clear requirements of the section cannot be ignored no matter how honourable the motives.
It is also clear that there is a public interest in ensuring fitness for trial if possible. Maygar should go to trial in relation to these offences. In the meantime he needs “involuntary treatment or care” so he can face trial. In accordance with the philosophy of the MHA that involuntary treatment should occur within an authorised mental health service. In particular if Maygar is in an authorised mental health service the use of seclusion must be in accordance with safeguards set out in the MHA.
I consider therefore that the provisions of the MHA require that Maygar be detained at an authorised Mental Health Service.
In my view, whilst Maygar should be detained at The Park High Secure Facility, there is no basis for limited community treatment to be approved given the clear requirements of s 289 (4). I am not satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others. Furthermore, pursuant to s 289 (5), I am not satisfied that there is not an unacceptable risk the patient would, if the treatment was undertaken in the community, not return to the service, commit an offence or endanger the safety of the patient or others.
Whilst I accept Dr Neillie’s view that The Park does not currently have security arrangements in place to meet Maygar’s security needs that does not mean it cannot be achieved. Those security arrangements need to be put in place quickly. The relevant Departments have been well aware of this issue since February 2009.
I propose to make the following orders;
(1) The defendant is not fit for trial and the unfitness is not of a permanent nature.
(2) The defendant is detained, pursuant to a Forensic Order to the Park High Security Program Authorised Mental Health Service for involuntary treatment and care.
(3) Limited Community Treatment is not approved.
I am prepared however to defer the making of final orders for a short period until appropriate security arrangements are in place.
I will hear submissions as to the form of the Forensic Order and the date that such an order should commence.
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