Re or (No 2)
[2024] VSC 117
•15 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2020 01973
IN THE MATTER of an application under section 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- and –
IN THE MATTER of an application for further extended leave by OR
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 March 2024 |
DATE OF JUDGMENT: | 15 March 2024 |
CASE MAY BE CITED AS: | Re OR (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 117 |
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CRIMINAL LAW – Crimes mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – Legal representatives of OR, the Secretary to the Department of Health and the Attorney-General all support grant of extended leave – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, and 57, 57A and 58.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | N/A | Victoria Legal Aid |
| For the Secretary to the Department of Health | N/A | Department of Health |
| For the Attorney-General | N/A | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
By an application filed on 30 November 2023, the applicant, OR, applies for a further grant of extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). Were I to grant this application, it would be the third grant of extended leave to the applicant.
The application is supported by both the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’). It is also recommended by the applicant’s treating team. As is the usual course, the Director of Public Prosecutions (‘the Director’) takes no position with respect to the application.
All parties consented to this application being determined on the papers.
Background
OR is 48 years old. He has a longstanding diagnosis of schizophrenia or schizoaffective disorder and cannabis use disorder.
On 23 February 2006, while psychotic, OR confronted his father and fatally stabbed him with a large kitchen knife. The incident was witnessed by OR’s sister, who bravely intervened and suffered a stab wound to her left leg as a result, and OR’s mother, who managed to retrieve and hide the knife from OR.
The matter proceeded before the Court as a consent mental impairment hearing and a verdict of not guilty because of mental impairment was directed. On 26 February 2007, the Court declared OR liable to supervision and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing 23 February 2006.
Pursuant to the conditions of the CSO, OR was admitted to Thomas Embling Hospital (‘TEH’) as a forensic patient. His overt psychotic symptoms persisted until 2011, and in 2014 he attempted to commit suicide, after absconding during a period of unescorted leave from TEH. However, by 2019, OR’s mental state had stabilised and he was referred to Forensicare’s Community Treatment and Transition (‘CTT’) team, who recommended him for community transition.
The use of the antipsychotic medication clozapine has played an important part in the treatment and stabilisation of OR since his admission into TEH.
In July 2020 OR was granted his first period of 12 months’ extended leave, permitting him to reside full-time in the community in supported accommodation. In July 2021, OR was granted a further period of 12 months’ extended leave, the first period having been deemed a success by OR’s treating team.
During his second consecutive grant of extended leave, OR transitioned from living in supported accommodation in the community to independent accommodation in the northern suburbs. It followed that, in April 2022, OR filed an application to vary his CSO to a non-custodial supervision order (‘NCSO’) (‘the variation application’). That application was listed for hearing on 9 June 2022.
On 1 June 2022, just over a week prior to the scheduled hearing of the variation application, in the context of a destabilisation in OR’s mental state, the Chief Psychiatrist suspended OR’s grant of extended leave under s 58(1) of the Act and filed an application for it to be revoked under s 58(4) of the Act (‘the revocation application’). On 9 June 2022 Hollingworth J granted the revocation application, and simultaneously granted leave to OR to withdraw the variation application. OR has continued to remain at TEH since then.
Applicable legislation
Pursuant to s 57(2) of the Act, the Court may grant an application for extended leave:
if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
In determining an application for extended leave, the Court is required to apply the overarching principle in s 39(1) that restrictions on a person’s freedom and personal autonomy must be kept to a minimum consistent with community safety, and have regard to the following factors in s 40(1):
(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.
Section 40(2) provides that the Court cannot significantly reduce the degree of supervision to which a person is subject, unless it –
(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 of Appeal considered the interaction between ss 39 and 40(1) of the Act in NOM V DPP & Ors (‘NOM’).[1] Their Honours held that:
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]
[1][2012] VSCA 198 (24 August 2012).
[2]Ibid 633 [47] (citations omitted).
More recently, this Court has applied the method described by the majority of the Court of Appeal in the matter of Hammond v Secretary to the Department of Health and Human Services to applications for extended leave under s 57 of the Act. [3] As stated by Taylor J in Re CJC (‘CJC’):[4]
… in relation to an application for extended leave, the court must consider the ‘critical issue’ as to whether it is satisfied that the safety of the community or the applicant will not be seriously endangered if the application is granted and, when doing so, take into account the s 40(1) factors and apply the principle in s 39.[5]
[3][2018] VSCA 356 (Priest and T Forrest JJA, Macaulay AJA) (‘Hammond’).
[4][2019] VSC 508 (‘CJC’).
[5]CJC (n 4) [13], citing Hammond (n 3) [44] and Re GB: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2019] VSC 4, [21]–[22] (Macaulay J).
Notification of family members and victims
The Director must give notice of applications for extended leave, where the granting of the application would significantly reduce the degree of supervision to which a person is subject, to family members of the person who is subject to a supervision order and victims of the index offence.[6] In an affidavit sworn 6 March 2024, Judith McDonnell, solicitor for the Office of Public Prosecutions, deposed that the Director’s obligations have been complied with. No reports from family members or victims have been provided to the Court under s 42 of the Act.
[6]The Act s 38C(2)(d).
Secretary’s evidence
The Court has received three reports for the purposes of the present application, each dated 15 February 2024:
(a) Report of Dr James Belshaw, consultant forensic psychiatrist working within Forensicare’s CTT;
(b) Report of Dr Rose Clarkson, consultant psychiatrist at Forensicare; and
(c) Report of Ms Ann Walsh, senior nurse at Forensicare.
Report of Dr Belshaw
Dr Belshaw was OR’s allocated CTT psychiatrist between October 2019 (when OR was first referred to the CTT team), and June 2022 (when OR’s extended leave was revoked). Dr Belshaw continued to review OR after the revocation of his extended leave on a less frequent basis (approximately quarterly), before re-commencing as OR’s allocated CTT psychiatrist in October 2023 (after OR was re-referred to the CTT team for the purposes of the present application). Dr Belshaw’s report included a leave plan, as is required by s 57A of the Act.
In his report, Dr Belshaw provided a summary of OR’s psychiatric history, his progress both at TEH and during his previous periods of extended leave, and the circumstances surrounding the revocation of his extended leave in June 2022. In respect of the latter event, Dr Belshaw reported that OR contacted the CTT team on 1 June 2022 and stated that he was feeling unwell and unsafe, wanted to go home, and that his then current independent accommodation didn’t feel like home. OR also reported religious delusions, paranoid beliefs, an urge to use cannabis and a belief that his antipsychotic medication was no longer working. Taking these representations and OR’s preference to be admitted to TEH into account, the CTT team sought the formal suspension of OR’s extended leave and arranged for his return to an acute unit at TEH the same day.
Dr Belshaw assessed OR at TEH on 2 June 2022. He reported:
[OR] told me that he had “not been living a life” he wanted “for 46 years” and that he wanted to live in “supported accommodation” as he felt “lonely” in [independent accommodation]. He went on to tell me that he believed clozapine was “a horrible drug” as it made him “feel like you are ripped way (sic) from your soul”. I noted that he was “very vague” regarding the symptoms of his food being poisoned or the religiose experiences which he had reported to CTT clinicians on 1 June 2022.
… [OR] asked me to “cancel” his NCSO application and said that he wanted to change his medication to risperidone (another antipsychotic he had been prescribed during the early years of his schizophrenia).[7]
[7]Dr James Belshaw, Psychiatric Court Report – Re [OR] (Report, 15 February 2024) [47]-[48] (‘Dr Belshaw Report’).
Based on this assessment, Dr Belshaw formed the view that OR had likely not suffered a relapse of psychotic symptoms, but that the incident was more likely reflective of OR adopting maladaptive help-seeking behaviours in the context of his pending variation application, underpinned by his identification as a forensic patient, and guilt related to the index offence. Dr Belshaw also noted a change in OR’s diabetic medication and an increase in his workload as a delivery driver as other potentially relevant antecedents.
During the first week of OR’s readmission to TEH, he refused his regular antipsychotic clozapine medication. This led to an acute deterioration in OR’s mental state, which in turn resulted in incidents of agitation and paranoia towards staff and fellow patients, behavioural disorganisation and disinhibition, and an unprovoked assault against another patient, albeit not resulting in injuries. However, OR eventually accepted a return to clozapine at the recommended dosage, and on 26 July 2022, was transferred to the Jardine unit of TEH due to the stabilisation in his mental state and behaviour.
OR’s progress at TEH continued well and uneventfully through to 2023, culminating in the recommencement of overnight leave to his independent accommodation in May 2023. However, that same month, OR contacted TEH late one night to say that he was not feeling well, needed to return to TEH, and – after his request was not instantly acceded to – that he was going to kill himself. OR was then immediately collected and returned to an acute unit at TEH, where he reported that he had not taken his clozapine medication on the evening in question due to its side effects and that he wished to cease clozapine. He reported that he had smoked cannabis for the first time in 13 years, and said that he needed support and could not be alone.
On 15 May 2023, OR agreed to an increased dose of clozapine to facilitate a return to a less secure unit.
Dr Belshaw’s review of the records of the above events led him to the opinion that OR had shown no evidence of consistent or sustained relapse of psychotic symptoms. He opined that after the OR began consuming an increased dose of clozapine in May 2023, he returned to his positive recovery trajectory, resulting in the recommencement of overnight leave from July 2023.
OR was referred to a forensic alcohol and other drug service and was also allocated a Forensicare psychotherapist to address issues around anxiety and other concerns. OR subsequently participated in 10 sessions with the psychotherapist, during which he was able to identify how anxiety affected past behaviour and develop strategies to prevent further recovery setbacks, such as weekly check-ins with peers or the CTT team, or organising respite at a supported community service.
During interviews with Dr Belshaw between October 2023 and February 2024, OR espoused the benefits of his psychotherapy work and appeared more accepting of his ongoing need to take clozapine medication, agreeing that, despite some side effects, its effect was positive overall. Notwithstanding his positive appraisal of the psychotherapy he had received, OR declined to participate in ongoing psychological or psychotherapy work.
Dr Belshaw carried out a risk assessment of OR using the Historical , Clinical Risk 20 (‘HCR-20’). The overall risk of OR engaging in future violence was assessed as low to moderate. He considered it to be noteworthy, however, that during the previous two episodes which resulted in OR’s return to TEH from the community, he had sought help from Forensicare prior to engaging in any harm to himself or others. Furthermore, he had demonstrated, for a period of two years, an ability to subsist successfully in the community without engaging in violence.
Dr Belshaw concluded his report by noting:
…during the CSO and periods of Extended Leave [OR’s] progression through the forensic system was significantly slowed by [OR] engaging in overt behaviours, at times when he was being supported to access greater freedoms, which inevitably necessitated his return to more restrictive settings. These included the poor engagement with Jardine Unit activities in 2013, an incident of absconding in 2014, and the June 2022 and May 2023 requests for readmission to the TEH amidst a reportage of nebulous and inconsistent psychotic symptoms or self-reported substance use.
Although [OR] has not been able to wholly recognise, via psychotherapeutic reflections, the exact reasons why he engages in such behaviour, in my opinion there is a likely link between these incidents and his strong sense of self as a Forensic Patient, his chronic institutionalisation and his anxiety at being discharged from what he unconsciously perceives as the protective, caring, and safe auspices of the forensic mental health system.
As such further transitions to less restrictive and what he perceives as less supportive settings should be collaboratively considered and performed carefully. In my opinion, the CTT teams’ relationship with [OR] during the preceding four years has led to an increased level of transparency and open communication with [OR] and will provide a sound basis for this careful transition to occur.
Ideally in my opinion [OR] should continue to engage in psychotherapy so that he could continue to improve his understanding of the unconscious motivations for his actions, however [OR] has consistently indicated a desire not to engage with such input at the current time.
Whilst this lack of adherence to future psychotherapeutic engagement may be suboptimal from a treatment and recovery aspect, there is no evidence that it manifestly impacts his current risk assessment….
Therefore, I believe that at the current time [OR’s] treatment with the TEH has again reached a natural denouement, wherein his mental state has stabilised, and further restriction and inpatient support will likely lead to further institutionalisation and reinforce his identification as a forensic patient.
Instead, I believe that a return to full-time community living, together with the CTT support to achieve his outstanding rehabilitative goals, reduce his risk rating together with encouragement will be of more benefit to his recovery. In the meantime, I do not believe that he will represent a serious endangerment to the community following discharge from the TEH. As previously demonstrated, I believe that the CTT team will be able to appropriately respond to any future crises or episodes of mental health deterioration during a period of Extended Leave from the TEH.[8]
[8]Dr Belshaw Report (n 7) [90]-[97].
Dr Belshaw supported OR’s application for extended leave. He proposed recommendations for the conditions of such leave.
Report of Dr Clarkson
Dr Clarkson’s report addresses many of the matters outlined in Dr Belshaw’s report. She was OR’s treating psychiatrist at the time of his most recent return to TEH from the community, and again since December 2023 upon his transfer to the Jardine Unit. She concluded her report as follows:
[OR] is a 48-year-old man, with a history of major mental illness and cannabis use disorder. Over the past 12 months, he experienced a relapse in May 2023, in the context of substance use and stress related to transitioning back to the community, however since that time he has progressed through the hospital back to Jardine unit, remained engaged with the CTT team, and has returned to overnight leaves without incident. He has participated in psychological work, and although he would likely benefit from further psychology treatment, this could occur while he is living in the community.
I understand that his Extended Leave application is supported by the CTT team, who would be his community treating team, and have remained engaged with him during his journey from Jardine to the main hospital and back.
As such, I do not feel that a move to the community on Extended Leave, with supports such as the CTT team in place (including anticipated further support from a new NDIS worker, community GP, and ideally a community psychologist), would seriously endanger the safety of members of the community or [OR].[9]
[9]Dr Rose Clarkson, Psychiatric Court Report – Re [OR] (Report, 15 February 2024) [51]-[53].
Report of Ms Walsh
Ms Walsh, OR’s case manager in the CTT, indicated her report was intended to be read in conjunction with that of Dr Belshaw. She outlined the community linkages and activities of OR while on unescorted leave. In respect of OR’s shared social housing in the community, Ms Walsh indicated that she and Dr Belshaw completed a home visit on 8 December 2023, and were satisfied with the property. There were no issues of concern with his housemate, with whom he has shared the property since December 2021. OR had participated in the creation of a relapse plan with the CTT, demonstrating sound knowledge of possible early warning signs of mental health deterioration, self-care strategies he can use, and whom he can reach out to for support. She concluded her report as follows:
Since commencing on three nights of overnight leave in September 2023, [OR] has engaged well with the CCTP[10] in attending and meaningfully participating in all scheduled reviews. He has made attempts to broaden his community linkages, and this remains a work in progress. He has complied with his treatment and engages with support professionals in a friendly and willing manner.
If granted Extended Leave, [OR] will commence residing full-time at his shared residence in [the community]. His mental health care, treatment, and supervision will be provided by the CTTP. [OR] will be required to attend reviews with the CTTP and participate in random urine drug screens as requested by the CCTP.
It is recommended that [OR] continue engaging with his current community supports and work with his NDIS support coordinator and CTTP to continue to build these supports.
[OR] has readily engaged with the CTTP. Based on the available information and the management plan in place to supervise and monitor [OR] effectively, I am in support of his application for a 12-month period of Extended Leave.[11]
[10]Community Treatment and Transition Program.
[11]Ann Walsh, Case Management Report – Re [OR] (Report, 15 February 2024) [27]-[30].
Submissions
Written submissions were received on behalf of all parties.
Mr Dalrymple, for the applicant, submitted that the application for extended leave should be granted with the conditions proposed by Dr Belshaw. He also sought a further suppression order under s 75(1) of the Act.
Ms Varney, for the Secretary, submitted that the Court should accept the opinion of Dr Belshaw and Dr Clarkson that [OR] will not pose a serious danger to himself or others if he returns to living in his unit in the community full time. That opinion, she submitted, is well supported by the analysis of [OR]’s recent risk factors, protective factors, and recent history of living in the community with a low risk of violence. Further, he has a recent history of asking for help when he feels unwell. The CCT staff can be expected to respond appropriately, as they have in the past.
It was submitted on behalf of the Attorney that the application for extended leave should be granted.
Analysis
The question for me is whether I can be satisfied on the material before me that the safety of the applicant or members of the public will not be seriously endangered if the applicant is allowed extended leave. That assessment requires me to consider both the chance of a harmful incident occurring as a result of the applicant being granted extended leave, and the gravity of the harm that might result if that risk were to materialise.
As was pointed out by Taylor J in CJC, based on what the Court of Appeal had said in NOM:
What is required is not that the psychiatric evidence guarantees the absence of risk, but rather a judicial approach to the assessment of risk, with the benefit of expert opinion, in considering the principles and factors mandated by the combined operation of ss 57(2), 39 and 40(1) of the Act.[12]
[12]CJC (n 4) [90].
Dr Belshaw and Dr Clarkson, in their respective reports, directly addressed the particular question I must decide. They were unified in their view that a further grant of extended leave will not cause the safety of the applicant or members of the public to be seriously endangered. Furthermore, Ms Walsh, OR’s case manage in the CTT, is also supportive of the grant of extended leave.
Having considered the available evidence, and having had regard to the factors set out in s 40(1) and applying the principle of parsimony set out in s 39, I am satisfied pursuant to s 57(2) of the Act that the safety of the applicant or members of the public will not be seriously endangered as a result of him being allowed a further grant of extended leave. I therefore grant OR’s application for extended leave.
Orders
Accordingly, I make the following orders:
The application for extended leave under section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) is granted for a period of 12 months commencing on 15 March 2024 on the following conditions:
1. That the applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her delegate;
2. That the applicant reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate;
3. That the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
4. That the applicant comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate;
5. That the applicant abstain from the abuse of alcohol and the use of illicit drugs; and
6. That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate.
I further note that on 23 June 2020, I made orders suppressing publication of the evidence in the proceeding or any other material which might enable the applicant or any person who appeared, gave evidence or provided a report in the proceeding to be identified. Those orders were expressed to apply until further order, and they continue to apply.
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