Re Stevanovic (No 2)
[2021] VSC 394
•2 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0161
| IN THE MATTER of a review of a non-custodial supervision order under s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| v |
| IN THE MATTER of Dragan STEVANOVIC |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2021 |
DATE OF JUDGMENT: | 2 July 2021 |
CASE MAY BE CITED AS: | Re Stevanovic (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 394 |
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CRIMINAL LAW – Judgment - Murder – Accused stabbed wife repeatedly – Advanced dementia – Jury found accused not guilty by reason of mental impairment – Non-custodial supervision order with a nominal term of 25 years – Custody at Monash Health – Review of non-custodial supervision order – Risk almost non-existent – Order has no impact on treatment and care of reviewee – NCSO revoked - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary to the Department of Health | Ms S. Pathan | Department of Health |
| For the Attorney- General | Mr J. Stoller | Victorian Government Solicitors Office |
| For the reviewee | Mr P. J. Smallwood | Doogue + George |
HIS HONOUR:
Introduction
On 2 February 2018, Dragan Stevanovic (‘Mr Stevanovic’) killed his wife by stabbing her multiple times to the head, face, neck, chest, abdomen and limbs in their Noble Park home. At the time, he was experiencing psychotic symptoms in the context of dementia.
On 10 December 2018, a jury found that Mr Stevanovic was unlikely to become fit over the ensuing 12 months. The Court subsequently directed a special hearing under s 12(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’).[1]
[1]R v Fairest, Fields and Toohey [2016] VSC 329 [49] and [51] (Croucher J).
On 25 January 2019, following a special hearing, a second jury delivered the verdict of not guilty by reason of mental impairment. The Court declared Mr Stevanovic liable to supervision under Part 5 of the Act. He was remanded in custody pending a certificate of available services under s 47 of the Act.
On 18 December 2019, upon receipt of a certificate of available services, the Court remanded Mr Stevanovic to Monash Health for a three month trial period pending the making of a supervision order. I determined that Monash Health constituted an ‘appropriate place’ as defined by s 3 of the Act, being a designated mental health service.
On 20 March 2020, I imposed a non-custodial supervision order (‘NCSO’)[2] on Mr Stevanovic for the nominal term of 25 years to reside at Allambee Nursing Home (‘Allambee’), a Monash Health secure psychogeriatric facility in Cheltenham. I also ordered that the matter be brought back for review in 12 months,[3] which was later extended to 31 May 2021. These reasons relate to the hearing of that review.
[2]Pursuant to s 26(2)(b) of the Act.
[3]Ibid s 27(2).
As the NCSO ordered that Mr Stevanovic be placed into custody in a designated health service, the Secretary to the Department of Health (‘the Secretary’) is required to have prepared and filed a report by a registered medical practitioner on the mental condition of the reviewee,[4] containing information as set out in s 41(1) of the Act.
[4]Ibid s 41.
On a review, the Court must confirm the NCSO, vary its conditions, vary it to a custodial supervision order or revoke it.[5]
[5]Ibid s 33(1).
The position of the parties
Both the Secretary and Mr Stevanovic submit that the Court should revoke the NCSO. The Attorney-General for Victoria (‘the Attorney’) contends that the NCSO should be confirmed. As is the usual course, the Director of Public Prosecutions (‘the Director’) has advanced no submissions on the matter.
The manner of determination
The now repealed s 120(1)(a) of the Act permitted determination of reviews directed under s 27(2) entirely on the basis of written submissions and without the appearance of parties. Further, as a temporary measure in response to the COVID-19 pandemic, s 129B of the Supreme Court Act 1986 allowed the Court to determine any proceeding entirely on the basis of written submissions in the absence of the consent of parties, provided that the Court was satisfied that it was in the interests of justice to do so.
In the present case, parties agreed that the matter should not be determined on the papers due to a dispute as to the appropriate outcome on the review. It was submitted that the matter should proceed to hearing so that Mr Stevanovic and the Attorney could cross-examine witnesses in relation to:
(a)the risks Mr Stevanovic may pose to the community and himself, and whether this may change in the event the NCSO is revoked; and
(b)Mr Stevanovic’s accommodation, supervision and support arrangements, and whether any of these will change if the NCSO is revoked.
The applicable legislation
The present review is governed by s 33(1) of the Act which provides that, in determining the matter, the Court must by order –
(a)confirm the order; or
(b)vary the conditions of the order; or
(c)vary the order to a custodial supervision order; or
(d)revoke the order.
In considering whether to vary or revoke a supervision order, the Court is required to apply the principle contained in s 39(1) of the Act, namely that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
The Court must also have regard to the matters set out in s 40(1) of the Act as follows:
(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.
The Court of Appeal considered the interaction between ss 39 and 40(1) of the Act in NOM v Director of Public Prosecutions (Vic) (‘NOM’).[6] 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.[7]
[6](2012) 38 VR 618 (‘NOM’).
[7]Ibid 633 [47] (Redlich and Harper JJA and Curtain AJA) (citations omitted).
The Court of Appeal went on to explain that while the community safety considerations in ss 39(1), 40(1)(c) and (d) of the Act may be given greater prominence in the Court’s assessment, they must not be elevated to the status of a decisive factor.[8] Their Honours held that in making such assessments, the Act does not require ‘psychiatrically underwritten guarantees that persons subject to [supervision] orders pose no possible danger’.[9] In Re Friedman (a pseudonym),[10] Niall JA concluded that s 40(1)(c) of the Act draws attention to whether there is a ‘real as opposed to fanciful’ chance that the person subject to the supervision order or members of the community will be endangered as a result of the Court’s determination.[11]
[8]Ibid 634 [49].
[9]Ibid 640 [65].
[10][2019] VSC 251 (‘Friedman’).
[11]Ibid [69].
Noting the position of the Secretary and Mr Stevanovic on the review, s 40(2) of the Act provides that the Court cannot order that a person be released unconditionally or significantly reduce the degree of supervision to which they are subject unless it has first obtained and considered the psychological reports and other materials stipulated in that subsection.
As explained by Kaye JA in Re BK,[12] revocation of a NCSO is a particularly serious step which:
….removes the last means by which the court can supervise the treatment and disposition of the Applicant. In effect it leaves the Applicant significantly to his own devices in maintaining his regime of treatment. Accordingly, I would only grant an application to revoke the Applicant’s non-custodial supervision order, if I were well satisfied, by sufficiently cogent evidence, that the Applicant would not endanger the community or himself were I to do so.[13]
[12][2015] VSC 214R.
[13]Ibid [41].
Section 33(2) of the Act provides that unless the NCSO is revoked, the Court may direct that the matter be brought back for further review at the end of the period specified by the Court.
Notification of family members and victims
Section 38C(2)(b) of the Act requires the Director to provide notice of the present hearing to Mr Stevanovic’s family members and each victim of the index offence. The affidavit of Megan Heap of the Office of Public Prosecutions, affirmed on 14 April 2021, details compliance with that section.
No s 42 reports have been filed with the Court for the purposes of the review.[14]
[14]Pursuant to ss 42 and 43 of the Act, family members of the supervised person and victims of the index offence are entitled to make a report to the Court on the present review containing their views on the conduct of the supervised person and the impact of that conduct on them.
Background
Mr Stevanovic’s background and the circumstances giving rise to the imposition of the NCSO are set out in the Summary of Proceedings and Facts of the Case filed on 2 February 2021.
In summary, Mr Stevanovic is a 75 year old man of Serbian heritage with an established diagnosis of dementia. His health began to decline in 2010, and he thereafter received treatment for conditions including stroke, cardiac and vascular disease and cancer. He was first diagnosed with dementia in 2011, after which time his cognitive functioning deteriorated significantly.
The index offence occurred on 2 February 2018, when Mr Stevanovic killed his wife at their Noble Park home while experiencing psychotic and depressive symptoms. He was found to be unfit for interview and required a high level of medical and psychiatric care whilst on remand at Port Phillip Prison.
As above, on 25 January 2019, Mr Stevanovic was found not guilty of murder by reason of mental impairment. On 18 December 2019, he was transferred from Port Phillip Prison to an acute aged psychiatry inpatient ward at the Kingston Centre in Cheltenham. Whilst there, he was deemed suitable for a residential aged care placement at Allambee, also located at the Kingston Centre site, and transferred there on 28 April 2020.
On 20 March 2020, Mr Stevanovic was placed on an NCSO for a nominal term of 25 years subject to the following conditions:
(a)That [Mr Stevanovic] be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or their delegate;
(b)That [Mr Stevanovic] reside in a location known and approved by the Authorised Psychiatrist of the VIFMH or their delegate;
(c)That [Mr Stevanovic] abide by all lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate;
(d)That [Mr Stevanovic] comply with any treatment, testing and attend any appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate or their nominee; and
(e)That [Mr Stevanovic] does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.
Contemporary evidence
Six reports have been filed with the Court in relation to the present review. These are:
(a)the reports of Dr David Trainor dated 17 February 2021 and 16 April 2021;
(b)the reports of Dr Christos Plakiotis dated 22 February 2021, 23 March 2021 and 15 April 2021; and
(c)the report of Noline Ndhlovu dated 22 February 2021.
First report of Dr Trainor
Dr David Trainor is a consultant psychiatrist employed by the Victorian Institute of Forensic Mental Health (‘Forensicare’). His report dated 17 February 2021 was written under the supervision of consultant forensic psychiatrist Dr Ria Zergiotis. It was based upon his own examination of Mr Stevanovic via video-link on 6 January 2021, together with other reports and clinical information held by Forensicare. Dr Trainor’s reports are intended to satisfy the requirements of ss 40(2)(a) and (ab) of the Act.
Dr Trainor confirms that Mr Stevanovic’s mental state has remained stable since his arrival at Allambee. The advanced state of his dementia means that he has difficulty communicating verbally and requires 24-hour care and assistance with daily living activities. Despite this, Dr Trainor reports no behavioural or psychological concerns, such as mood disturbance, psychosis, agitation or aggression that would require a higher level of psychiatric intervention.
Dr Trainor confirms that Mr Stevanovic has been compliant with all directions from nursing home staff. He notes a brief period of medication non-compliance in June or July of 2020, which was quickly resolved. There have been no other issues cited.
Dr Trainor indicates that Mr Stevanovic is regularly reviewed by a consultant geriatrician and general practitioner who are on staff at his nursing home, and who continue to treat and monitor his various health conditions. Over the past year, this has included episodes of low blood pressure necessitating a reduction in his daily dose of quetiapine antipsychotic medication and ongoing treatment of prostate cancer.
Dr Trainor opines that Mr Stevanovic is well settled at Allambee, where he participates in some onsite activities, including a music group. Notwithstanding limited contact with his sons over the past year due to COVID-19 related restrictions, he has reportedly enjoyed some recent visits from family members.
Dr Trainor considers Mr Stevanovic to be at a low risk of violence using the Historical Clinical Risk Management-20 assessment tool. He identifies Mr Stevanovic’s historical risk factors for future violence, which include committing the index offence, a previous incident in which he pushed his wife, psychotic and depressive symptoms in the context of his dementia, and a partial presence of violent attitudes in the context of his controlling nature in relation to finances. On the positive side, Mr Stevanovic has no history of other antisocial behaviour, problems with relationships, employment, substance use, personality disorder, traumatic experiences or issues with his treatment and supervision response.
At present, Mr Stevanovic presents with two clinical risk factors, being the symptoms of his neurodegenerative disorder and his lack of insight regarding his care needs. Dr Trainor identifies a potential future risk management factor as non-compliance with medication in the context of Mr Stevanovic’s limited insight. However, he notes that this is largely mitigated by Mr Stevanovic’s well supported living environment with nursing home staff available to observe any changes in his mood, instances of agitation or other behavioural disturbances which may occur as his illness progresses.
Overall, Dr Trainor assesses Mr Stevanovic’s risk of future violence as low in his current nursing home environment. He does not offer an opinion as to the appropriate outcome of the present review. However, Dr Trainor advises that Mr Stevanovic has no understanding of the NCSO due to the advanced state of his dementia, such that ‘it likely plays less of a role with respect to mitigation of his future risk of violence’.[15]
[15]Report of Dr Trainor dated 17 February 2021, [46].
Second report of Dr Trainor
In circumstances where both Mr Stevanovic and the Secretary submit that the NCSO should be revoked, the Court requested further information as to the arrangements in place for Mr Stevanovic’s care in the event of revocation. In a report dated 16 April 2021, Dr Trainor repeats his opinion that the NCSO plays a ‘less significant supervisory role’ for Mr Stevanovic.[16] Referring to the accommodation options for Mr Stevanovic outlined in the reports of Dr Plakiotis dated 22 February 2021 and 23 March 2021, he expresses the view that Mr Stevanovic could be ‘appropriately managed’ by Monash Health in the event his NCSO is revoked. He further opines that his risk level would not increase if he were moved to another psychogeriatric or mainstream nursing home.[17]
[16]Report of Dr Trainor dated 16 April 2021, [5].
[17]Ibid.
Oral evidence of Dr Trainor
At the hearing of the review, Dr Trainor stated that he would not anticipate any issues with funding arrangements should the NCSO be revoked. He noted there had been liaison between Mr Stevanovic’s family and the relevant social worker before his transfer to the nursing home, and that funding arrangements were discussed and organised. He indicated Centrelink payments had been established to fund Mr Stevanovic’s placement and that Mr Stevanovic’s property was to be rented out to assist with funding. Dr Trainor indicated his understanding that such arrangement has continued.
Dr Trainor opined that, should the NCSO continue, there would be a ‘hands off approach in [Mr Stevanovic’s] care’ as he is well managed by the specialist old-age team at Monash Health. He noted that it would be appropriate to review the situation in 12 months as Mr Stevanovic has a severe neurodegenerative disorder and it is not unreasonable to think that his physical functioning will have deteriorated further over that time.
Dr Trainor noted he had not spoken to either of Mr Stevanovic’s sons and is not aware of whether they have been asked about his accommodation should the NCSO be revoked. As stated in first report, he confirmed that Mr Stevanovic’s sons had been appointed as his financial guardians.
During cross-examination by counsel for Mr Stevanovic, Dr Trainor confirmed that the issue of funding for Mr Stevanovic’s residence at Allambee had been resolved with extensive consultation between stakeholders at a clinical review meeting on 14 April 2020. He noted Mr Stevanovic’s sons were happy with the arrangement relating to Centrelink payments and the rental of his property. Dr Trainor indicated that, to his knowledge, no concerns have been raised by Mr Stevanovic’s family regarding the ongoing funding of his placement and that the arrangement is supported.
First report of Dr Plakiotis
Dr Plakiotis is a consulting psychiatrist and unit head of the Aged Mental Health Service at Monash Health. He is also Mr Stevanovic’s treating psychiatrist at the Kingston Centre. He describes Mr Stevanovic’s time at Allambee as uneventful, with no aggressive or concerning behaviours noted. Dr Plakiotis confirms that Mr Stevanovic is compliant with his medication regime, which comprises of medicines to treat his various health conditions, including 25mg of quetiapine antipsychotic medication taken twice daily and 30mg of mirtazapine antidepressant medication taken each night.
Noting the severe state of his dementia and cognitive impairment, Dr Plakiotis similarly states that Mr Stevanovic is unable to provide a coherent account of his current circumstances and requires a high-level of nursing support in relation to all activities of daily living. Despite this, he notes that Mr Stevanovic is settled, displays no evidence of depression or psychosis and is cooperative with nursing staff.
Unlike Dr Trainor, Dr Plakiotis’ report does not include a structured risk assessment. However, noting the consistent presentation of settled behaviour since his admission to the Kingston Centre, Dr Plakiotis opines that Mr Stevanovic:
…poses little, if any, risk to co-residents and staff within his aged care facility and no risk to other individuals in the wider community. I can see no evidence to suggest that [the reviewee] poses a risk to himself through self-harm or suicide. In view of the above, I believe [the reviewee’s] care needs are currently well met at Allambee Nursing Home and am supportive of his ongoing placement here.[18]
[18]Report of Dr Plakiotis dated 22 February 2021, 3.
Dr Plakiotis does not provide an opinion as to the appropriate outcome of the review.
Second report of Dr Plakiotis
In response to the Court’s request for further information regarding Mr Stevanovic’s proposed care arrangements should the NCSO be revoked, Dr Plakiotis provided a further report dated 23 March 2021. In that report, Dr Plakiotis outlines the various facilities and resources provided by Monash Health’s Aged Mental Health Service.
There are three different psychogeriatric nursing home (‘PNH’) facilities run by Monash Health, namely Allambee, the Avenue and Mooraleigh Hostel. Allambee and the Avenue cater to residents with high care needs due to either severe mental illness or severe behavioural or psychological problems arising from dementia. Mooraleigh Hostel is for residents considered to be more high-functioning.
Dr Plakiotis notes that Monash Health has mainstream facilities with less intensive and less frequent mental health input compared to the PNH facilities. He indicates that residents at these facilities with mental illness or dementia are not treated by an allocated psychiatrist on a routine basis. Instead, they are treated by visiting psychiatrists in response to discrete incidents with a view for discharge back to general practitioners at those facilities.
In considering whether mainstream facilities could cater to Mr Stevanovic’s needs in the future, Dr Plakiotis states that he would ‘not rule out’ the option given Mr Stevanovic’s settled presentation and his significant cognitive and functional decline since the index offence.
In this report, Dr Plakiotis does not expressly confirm whether Monash Health will remain involved in Mr Stevanovic’s care in the long term if the NCSO is revoked.
Third report of Dr Plakiotis
In his third report dated 15 April 2021, Dr Plakiotis states that Mr Stevanovic remains settled at Allambee. He expresses the view that the NCSO is of ‘little practical significance’ to his day-to-day care.[19] Dr Plakiotis confirms that Mr Stevanovic can continue to receive care at either Allambee or the Avenue in the event his NCSO is revoked, provided that Mr Stevanovic’s family continues to support his ongoing placement within a Monash Health residential aged care facility.
[19]Report of Dr Plakiotis dated 15 April 2021, 2.
Oral evidence of Dr Plakiotis
At the hearing, Dr Plakiotis gave evidence that he met Mr Stevanovic on his transfer to the Kingston Centre in 2019. He noted that Mr Stevanovic’s condition has remained essentially unchanged, namely that he is really quite impaired and has advanced dementia. Dr Plakiotis indicated that he has remained very settled throughout his stay at Allambee, noting he has not caused any problems since his arrival and that nursing staff have not conveyed any concerns about him being difficult or resistant during his personal care interventions. He also noted that Mr Stevanovic is extremely confused and is unable to engage in meaningful conversation about the past.
Dr Plakiotis confirmed that Monash Health is able to provide Mr Stevanovic with care at a psychogeriatric nursing home if his family remains agreeable to his ongoing placement within Monash Health. While he has not had any recent discussions with the family, Dr Plakiotis indicated that, during a past conversation with Mr Stevanovic’s son, he appeared to be quite relieved that his father had an alternative place to stay than prison. Further, Dr Plakiotis stated that he is not aware of any suggestions being made to Allambee staff about Mr Stevanovic being removed from their care. He noted that, should that wish be expressed, there would need to be a conversation with the family around Mr Stevanovic’s needs, taking into account possible deterioration, his health and the logistics of managing his daily needs. Further, in the short term, if such concern developed, Monash Health could go to VCAT and seek an independent guardian if it was thought he should stay in one of their facilities for a longer period of time.
Dr Plakiotis opined that Mr Stevanovic is one of the most settled residents at Allambee and does not display any adverse behavioural and psychological symptoms of dementia such as aggression, disturbed sleep or pacing behaviours that can make it difficult for the care of such people. He noted that his behaviour is no more concerning than that of any other average settled patient with dementia. Dr Plakiotis expressed the view that Mr Stevanovic will remain fully dependent on others for assistance with all his activities of daily living and he cannot do anything independently, such as getting out of bed, showering, dressing, feeding and going to the toilet. He indicated that he will spend the rest of his life either within an aged care environment, if not spending his final days at home with his family, and that there has been no suggestion of the latter. Dr Plakiotis stated he is likely to fade away over a period of time.
If the Court was to revoke the NCSO and Mr Stevanovic’s family sought to remove him, Dr Plakiotis indicated it is likely that Monash Health would proceed to VCAT and seek an independent guardian. He noted that Mr Stevanovic is in a psychogeriatric nursing home because of events in the past rather than his current needs and that he could otherwise be placed in a mainstream facility. However, he indicated that Monash Health takes its role in Mr Stevanovic’s care seriously. He stated that in the event that his family sought to remove him from its care, the process would be delayed more than with an average resident in the facility. In theory, should the NCSO be revoked, Mr Stevanovic could be removed from the facility. However, Dr Plakiotis noted that, in all the circumstances, this really is only a theoretical possibility.
As to the role of Monash Health, Dr Plakiotis indicated the NCSO does not impact on the care or treatment Mr Stevanovic receives, which will continue in the same way irrespective of whether the NCSO is revoked.
During cross-examination by counsel for the Attorney, Dr Plakiotis confirmed that, clinically, Mr Stevanovic could move to a mainstream nursing home. However, he expressed that Monash Health understands the seriousness of the past events and society’s expectations that Mr Stevanovic will be looked after and monitored carefully. He indicated that, for the foreseeable future, there is no immediate plan to move him as the facility can provide him with a higher level of monitoring and attention compared to other facilities.
Dr Plakiotis noted he is unaware of the funding arrangements relating to Mr Stevanovic’s ongoing care and management and has not been made aware of any difficulties in his case. He stated that moving Mr Stevanovic into the family’s domestic environment would be less than ideal, as he requires 24-hour care. Dr Plakiotis expressed the opinion that it would be stressful and highly impractical for the family, as well as not being ideal for Mr Stevanovic. He expressed that he does not recommend moving Mr Stevanovic into a family care environment, given that he requires expert care.
Noting that Mr Stevanovic is not showing any adverse psychological and emotional behaviours relating to dementia, Dr Plakiotis acknowledged that such behaviours can change over time given the degenerative nature of dementia. Taking into account that such change usually occurs in the earlier stages of dementia, he stated that, at this point, Mr Stevanovic is not attuned to what is going on externally. He indicated there is no external evidence of him being distressed or upset by his internal world, which has been the pattern since late 2019. Dr Plakiotis noted that Mr Stevanovic’s medication might be contributing to him being settled, and if that was to discontinue, he may become unsettled again. As such, he expressed that Mr Stevanovic requires monitoring and psychiatric services. However, given that there has been an established pattern of Mr Stevanovic being settled for a very long time, Dr Plakiotis opined that it would be highly unusual and unexpected for him to become dramatically unsettled from this point forward.
With respect to an assessment of future risk, Dr Plakiotis indicated that Mr Stevanovic has not been subject to a structured risk assessment, as might occur with younger forensic patients who have committed major offences. While accepting the importance of assessing future risk, Dr Plakiotis noted that, given Mr Stevanovic’s severe dementia, his situation is totally different from that of a much younger patient. He stated that risk is assessed all the time based on the nuances of many factors, including his dementia and its severity, the pattern of behaviours to date and potential triggers for Mr Stevanovic’s adverse behaviour.
During cross-examination by counsel for Mr Stevanovic, Dr Plakiotis confirmed he was not aware of any concerns about the funding of his placement. He reiterated that, based on a conversation with one of Mr Stevanovic’s sons, he believed the family would be happy for him to stay at Allambee.
He repeated that there are no immediate plans to move Mr Stevanovic from the Allambee Unit. With respect to future decisions about his placement, he noted that Mr Stevanovic poses minimal risk to others at this time, but that all patients with dementia in a residential care facility may sometimes experience incidents when in a confused state. He stated that he could never categorically guarantee otherwise, but that in Mr Stevanovic’s case, it is highly unlikely. Dr Plakiotis expressed that while external parties might seek to draw a link between a hypothetical incident and the incident relating to his wife, Mr Stevanovic’s dementia is so advanced and the period of settled behaviour between that past incident and any future hypothetical incident is such that the two events could be regarded as totally unrelated. Furthermore, he opined that due to Mr Stevanovic’s physical fragility and restricted mobility, in practical terms, he would not really be able to engage in behaviours that might put anyone at risk.
Dr Plakiotis expressed the opinion that Mr Stevanovic’s placement options are very limited, namely to a psychogeriatric bed or mainstream nursing home bed in the public health sector. He noted that Monash Health has both facilities available and that, given Mr Stevanovic’s history, a private nursing home would be reluctant to accept him as a patient.
Report of Ms Ndhlovu
Noline Ndhlovu is the acting facility manager at Allambee and is the nurse responsible for Mr Stevanovic’s overall care needs. She advises that nursing home staff monitor Mr Stevanovic’s mood on a daily basis, with any changes reported to his treating doctors. Further, she notes that one or two staff members assist Mr Stevanovic with all of his daily activities, including dressing, brushing his hair and teeth, eating meals and navigating the facility. Ms Ndhlovu indicates that Mr Stevanovic requires a translator for complex instruction, but can follow simple words notwithstanding his communication and comprehension difficulties.
Ms Ndhlovu confirms that Mr Stevanovic gets along with residents, staff and visitors at the nursing home and that there have been no behavioural issues. She opines that he does not pose a danger to himself or the nursing home community. Lastly, Ms Ndhlovu expresses the view that the NCSO should be confirmed.
Oral evidence of Ms Ndhlovu
Ms Ndhlovu confirmed that she had spoken with one of Mr Stevanovic’s sons and provided him with updates about his care. She noted that while she had not discussed Mr Stevanovic’s placement at the facility, the son had not expressed any concerns. She indicated she was not aware of the funding arrangements in respect of the placement at the facility.
The parties’ submissions
Submissions of the Secretary
As above, the Secretary submits that Mr Stevanovic’s NCSO should be revoked on the basis that the order is no longer consistent with the safety of the community and in the least restrictive terms, as required by s 39 of the Act.
While acknowledging that Mr Stevanovic’s impairment was directly linked to the index offence, it is submitted that the aforementioned evidence establishes that the continuance of his NCSO is not necessary to protect the community from endangerment, particularly given his current stability and the adequate resources available for his treatment in the community through Monash Health.
The Secretary refers to the evidence of Dr Plakiotis that the NCSO is ‘of little practical significance’ in respect of the care Mr Stevanovic is provided in his nursing home environment. As such, it is submitted that the NCSO ‘has a less significant supervisory role’ and that Mr Stevanovic would be appropriately managed by Monash Health in the event of its revocation.
Referring to the principle in NOM that supervision is a restriction on liberty that can only be justified where necessary,[20] the Secretary submits that the revocation of Mr Stevanovic’s NCSO at this time represents the least restrictive option consistent with community safety.
[20]NOM [71].
Further, the Secretary agreed that there was no dispute whatsoever as to the level of risk posed by Mr Stevanovic. While the acknowledging the possibility that Monash Health could apply to VCAT to seek a guardianship order, it is submitted that this was unlikely to occur in any event. Additionally, the Secretary also noted the evidence of Dr Trainor regarding the funding arrangements of the placement and that it is Mr Stevanovic’s own financial resources being utilised rather than his family’s money. In these circumstances, it is submitted that the Court should be satisfied that there are adequate resources available for his current placement and that the evidence ultimately establishes that the NCSO is simply not necessary for the safety of the community.
Furthermore, it is submitted that the NCSO now provides a restriction on Mr Stevanovic’s liberty and autonomy that cannot be justified because it is not necessary. Reference was made to the cases of NOM, Friedman and Stein, with the Secretary submitting that the focus of the question is about the extent of the chance of harm and not the gravity of harm. It is also submitted that these cases are very fact–specific. Particularly, it is noted that in the case of Stein, the Court found that the risk presented was fanciful and not real and that the NCSO contributed little, if anything, to the mitigation of risk.
The Secretary submits that the same consideration applies to Mr Stevanovic, taking into account the combined evidence of his mental state and physical frailty. It is submitted that the Court must be governed by the principle that a supervision order is a restriction on a person’s liberty and can only be maintained when it is found to be necessary to manage risk.
Submissions of the Attorney
The Attorney submits that the NCSO should be confirmed on the basis that there is limited evidence as to the effect of revocation on Mr Stevanovic’s future treatment and care.
It is acknowledged that Mr Stevanovic has advanced dementia, requiring 24-hour care to assist him with all activities of daily living. Further, it is noted that severe dementia causes him to be profoundly cognitively impaired, his thought form disorganised and any speech unintelligible. The Attorney refers to the examination conducted by Dr Plakiotis, who opined that Mr Stevanovic displayed no insight into his condition or the NCSO.
The Attorney also acknowledges that Mr Stevanovic resides in a secure facility which affords high–level nursing and psychiatric care, consistent with a person who cannot be managed in mainstream residential aged care facilities. Furthermore, it is noted that Mr Stevanovic has been settled and compliant with all directions from staff and is entirely adherent to his medication regime. As such, the Attorney expresses that his risk of future violence is assessed as low in the current setting.
The Attorney appears to accept that, since being placed on the NCSO, Mr Stevanovic has not demonstrated any significant behavioural or management issues nor any verbal or physical aggression towards staff or co-residents. It is however noted that while he is assessed as low risk, he had engaged in some ‘minor incidents.’
The Attorney submits there is limited evidence as to the actual effect that revocation of the NCSO would have on Mr Stevanovic’s accommodation, care and review arrangements. It is noted that it is unclear whether he will remain at Allambee, be moved to the Avenue or a mainstream nursing home or away from nursing home accommodation altogether. If family support for his placement within Monash Health changes, the Attorney questions what risk management measures would be imposed, for instance, if Mr Stevanovic ceased taking medication or disengaged from psychiatric treatment. The Attorney expresses concern that Forensicare will no longer be involved in Mr Stevanovic’s care in the event that the NCSO is revoked. Accordingly, it is submitted that the NCSO should be confirmed.
The Attorney further points out that, despite various options being raised, none of the five reports before the Court give a definitive answer as to where Mr Stevanovic would live or what supports would be available to him should the NCSO be revoked.
The Attorney referred to the decision of Re Stein, in which Taylor J revoked an NCSO, but distinguished that case from the present on the basis that the evidence was the NCSO would not have any effect as the reviewee was being supervised on outside outings. By contrast, it is submitted that there is no evidence before this Court of what arrangements would be in place for the care and supervision of Mr Stevanovic, consistently with the objectives of the Act.
At the hearing, the Attorney noted that the NCSO is only one year into its 25 year nominal term and that, unlike the other cases referred to, the events concerning Mr Stevanovic are reasonably recent. It was further noted that his family had not been asked about what would happen in the event that the NSCO is revoked.
Referring to the facts in Stein, where the risk of harm was found to be fanciful and not real, the Attorney submitted that while the risk is low in the current setting, it is unclear whether the current setting will continue if the NSCO is revoked. As such, the Attorney emphasised that there remained uncertainty as to what would happen to Mr Stevanovic should the NCSO be revoked.
Additionally, referring to the cases of BK and Friedman, it was contended that the revocation of an NCSO is a serious step. The Attorney pointed to the evidence of Dr Plakiotis, who stated in respect of Mr Stevanovic, ‘I want to keep an eye on him for the reasonably foreseeable future.’ It was submitted that an NCSO serves this purpose, both in relation to the chief psychiatrist and the Court, where there is a broad community interest in its protection.
Submissions of Mr Stevanovic
The position of Mr Stevanovic is that the NCSO should be revoked, adopting the Secretary’s submissions.
It is submitted that in revoking the NCSO, the Court can have comfort that he will be appropriately placed and cared for irrespective of the outcome of the review. As such, it is contended that there is no utility in the NCSO and revocation would be consistent with the legislative framework governing the review.
Further, Mr Stevanovic submits that the NCSO is not required for Dr Plakiotis to continue to monitor him and that the evidence supports the conclusion that Monash Health has managed him appropriately. It is also submitted that there is no dispute that Mr Stevanovic should remain at Allambee and that he will do so for the foreseeable future, as there are no immediate plans to move him. Mr Stevanovic contends that the Court should take comfort from the steps that Monash Health have taken to care for him during the NCSO and the steps that would be taken if someone associated with him sought to remove him from the facility.
Furthermore, it is submitted that the weight of the evidence is that Mr Stevanovic’s family is content for him to remain at Allambee to receive appropriate care. It was noted that the family had been given the opportunity through the DPP to make submissions and nothing was advanced to this Court on their behalf.
Finally, Mr Stevanovic submitted that if the Court acted consistently with the purpose and structure of the Act, then a proper application of the principle of parsimony, as embodied in s 39 of the Act, means that the NCSO should be revoked.
Analysis
In determining the appropriate outcome of the review, the Court must have regard to the matters set out in s 40(1) of the Act and apply the guiding principle of least restriction on personal freedom and personal autonomy consistent with community safety, as prescribed in s 39(1).
Considering each of the s 40(1) matters, it is my opinion that it is well established that there was a direct relationship between Mr Stevanovic’s mental impairment and disability and his commission of the index offence.
Further, as to the nature of his impairment and other condition or disability, I am satisfied he suffers from an advanced state of dementia, has almost no ability to communicate, requires 24-hour care, and has little or no understanding of his NCSO, its conditions or the circumstances in which he came to reside at Allambee. In this respect, I note Dr Trainor’s opinion that the NCSO plays less of a role in risk mitigation in these circumstances. Similarly, Dr Plakiotis opines that the presence of the NCSO is of little practical significance to Mr Stevanovic’s day-to-day care at Allambee.
On a positive note, Mr Stevanovic is well settled at Allambee, cooperates with staff, is compliant with his medication regime and has shown no indication of psychosis, aggression or mood disturbance since his arrival there. Although Dr Trainor flags future non-compliance with medication as a potential risk management factor, he expresses confidence that any changes in Mr Stevanovic’s mood, behavioural disturbance or reoccurrence of psychotic symptoms would be detected and appropriately managed by nursing home staff.
With respect to whether Mr Stevanovic is likely to endanger himself or other people because of his mental impairment, Dr Trainor opines that he poses a low risk of future violence in his current environment at Allambee. In his most recent report, Dr Trainor expresses the view that Mr Stevanovic’s risk level would not increase if he were moved to another psychogeriatric or mainstream nursing home.
Similarly, referring to Mr Stevanovic’s consistent behaviour since being admitted to the Kingston Centre, Dr Plakiotis opines that he poses little, if any, risk to himself or others. These sentiments are echoed in the report of Ms Ndhlovu.
Relevantly, when determining whether to revoke a NCSO, the focus in terms of endangerment is on the chance of harm materialising rather than the gravity of harm were it to materialise.[21] As stated above, Dr Plakiotis opines that Mr Stevanovic:
….poses little, if any, risk to co-residents and staff within his aged care facility and no risk to other individuals in the wider community. I can see no evidence to suggest that [the reviewee] poses a risk to himself through self-harm or suicide.[22]
[21]NOM [58]. See also Re Friedman [67]; Re JS [2020] VSC 843 [69].
[22]Report of Dr Plakiotis dated 22 February 2021, 3.
In addition to Mr Stevanovic’s advanced dementia, Dr Plakiotis opines that his physical frailty and restricted mobility are such that, in practical terms, he would not really be able to remotely engage in behaviours that might put anyone else at risk.
I note that no witness has offered a materially different opinion to that expressed above by Dr Plakiotis. Accordingly, I am satisfied by acceptable and cogent evidence that Mr Stevanovic poses minimal risk to himself and the community by virtue of his mental and cognitive state, combined with a physical frailty that is expected to deteriorate into the future. Whilst it is not possible to eliminate any possibility of risk, I consider that the level of risk in this case is so minimal to the extent that it is almost non-existent in any realistic sense. Accordingly, there is a minimal need to protect the community from any danger that exists from Mr Stevanovic.
At present, Mr Stevanovic is assessed by the Forensicare NCSO team every three months and monitored by nursing home staff on a daily basis. Both Dr Trainor and Dr Plakiotis opine that Mr Stevanovic is well supported at Monash Health, with Dr Plakiotis supporting his ongoing placement there. In his third report, Dr Plakiotis confirms that Mr Stevanovic can continue to receive care at either Allambee or the Avenue in the event his NCSO is revoked, provided his family support that course.
Accordingly, I am satisfied that there are adequate resources available for the treatment of Mr Stevanovic in the community, which for all relevant purposes, is a community involving a high level of professional care. If the NCSO is revoked, I am satisfied from the available evidence he will continue to be carefully and responsibly managed and supported by Monash Health, as explained by Dr Plakiotis.
As to the Attorney’s submission that the NCSO has only been in place for a short time, the Secretary argues that this is not a relevant factor in an order made for an indefinite term within a nominal term of 25 years in the case of a serious offence. The Secretary submitted that the assessment to be made is that of risk and the relevant factors are set out in ss 39 and 40 of the Act. I accept the submission of the Secretary and have had regard to those sections. Section 40(f) of the Act allows the Court to take into account any other matters it thinks relevant. In the circumstances of Mr Stevanovic, and the evidence about the permanency of his mental and physical condition, I am of the opinion that the period of time that the NCSO has been in place is a factor of quite limited relevance and have thus placed little weight on it.
The appropriate approach is to act on the basis of the evidence, which was not significantly challenged, that Mr Stevanovic’s mental health and physical disability is such that he poses minimal risk. The evidence is that the NCSO has almost no role to play with the management of him and because that his dementia means that he has little or no understanding of the NCSO.
It may be observed that Mr Stevanovic’s lack of understanding of the NCSO, the role it plays in his life and his lack of awareness of any risk that he may pose are matters of limited significance to this review in his particular circumstances. Whilst being part of the evidence demonstrating his profoundly compromised mental and cognitive state, the legislative regime does not appear to be predicated on the basis that the subject of an NCSO must know or have an appreciation of the fact of the order or why it is in place. The principles as set out in ss 39 and 40 of the Act focus largely on the safety of the community and the assessment of risk and not whether the subject has any understanding of those matters.
Taking into account all the evidence before the Court, as well as the submissions made, I am of the opinion that the NCSO should be revoked in the case of Mr Stevanovic. It is to be acknowledged that the revocation of an NCSO imposed as a result of such serious events is a serious step to take. However, I regard the risk to be so low as to be almost non-existent and that the NCSO has no practical or theoretical, role to play in the supervision of Mr Stevanovic or the protection of the community.
Finally, there is currently no suppression order in place protecting publication of information relating to this proceeding. In the event that any of the parties seek such an order at the hearing, it is noted that the making of a suppression order is governed by s 75 of the Act.
I order that, pursuant to s 33(1)(d) of the Act, the NCSO is revoked.
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