Rutherford (a pseudonym) v Secretary, Department of Health & Human Services
[2023] VCC 2328
•8 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02021
| ALFRED RUTHERFORD (a pseudonym) | Applicant |
| v | |
| SECRETARY, DEPARTMENT OF HEALTH & HUMAN SERVICES | First Respondent |
| ATTORNEY-GENERAL OF VICTORIA | Second Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS | Third Respondent |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2023 | |
DATE OF JUDGMENT: | 8 December 2023 | |
CASE MAY BE CITED AS: | RUTHERFORD (a pseudonym) v SECRETARY, DEPARTMENT OF HEALTH & HUMAN SERVICES & ORS | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2328 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW – APPLICATION FOR REVOCATION OF NON-CUSTODIAL SUPERVISION ORDER
Catchwords: Non-custodial supervision order – Application for revocation – Applicable legal principles – Expert evidence – Distinction between real and fanciful risk – NCSO no longer justified
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Mental Health and Wellbeing Act 2022 (Vic)
Cases Cited:In the Matter of Leon Friedman (a pseudonym) [2019] VSC 251; NOM v DPP & Ors (2012) 38 VR 618; Fowler (a Pseudonym) v Secretary to the Department of Health [2014] VSCA 231
Judgment: Non-custodial supervision order revoked
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G. Cooper | Victoria Legal Aid |
| For the First Respondent | Mr J. Teng | Department of Health & Human Services |
| For the Second Respondent | Ms R. Singleton | Victorian Government Solicitor |
| For the Third Respondent | No Appearance | Office of Public Prosecutions |
HIS HONOUR:
1This is an application under s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the Act) to revoke a Non-Custodial Supervision Order made in respect of Alfred Rutherford[1] on 1 December 2022. Mr Rutherford is the applicant.
[1] A pseudonym.
2On 1 December 2022, having found Alfred Rutherford not guilty by reason of mental impairment pursuant to s 23(4)(a) of the Act, I declared that Mr Rutherford was liable to supervision under Part 5 of that Act.[2]
[2] Section 26.
3For the reasons explained in detail in my earlier decision dated 1 December 2022,[3] I released Mr Rutherford on the conditions specified in the non-custodial supervision order.
[3] Insert MNC.
4This decision assumes a degree of familiarity with the earlier ruling and should be read in conjunction with the earlier ruling. I will only repeat what I said in the earlier ruling where necessary.
5The ‘nominal term’ of the Order is 12 years and 6 months.[4] Supervision Orders are made for an indefinite term.[5] When making a supervision order, a court may direct that the matter be brought back periodically for review.[6]
[4] Section 28.
[5] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 27(1).
[6] Ibid, s 27(2).
6The conditions of the Order were:
(a) That Alfred Rutherford be under the supervision of he Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate.
(b) That Alfred Rutherford resides in a location known and approved by the Authorised Psychiatrist of the VIFMH or their delegate.
(c) That Alfred Rutherford abides by the lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate.
(d) That Alfred Rutherford complies with treatment testing and attends appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate.
(e) That Alfred Rutherford abstains from the abuse of alcohol and the use of illicit drugs.
7Pursuant to s 27 of the Act, I directed that the matter be brought back before the court for review on 1 December 2023.
8Mr Rutherford has now applied for revocation.
Applicable Legal Principles
9The court’s powers in respect of such an application are set out in s 33(1) of the Act. 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.
10Part 6 of the Act outlines the matters that a court must consider in determining which of the various orders to make in a particular case. Of particular significance is the ‘overarching principle’[7] in s 39, which relevantly provides:
In deciding whether to … revoke a supervision order, … the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community
[7] In the Matter of Leon Friedman (a pseudonym) [2019] VSC 251, [15].
11The Court of Appeal has explained that s 39, which it has described as a variant on the ‘principle of parsimony’, ‘requires a value judgment informed by the competing considerations stated in the provision’.[8]
[8] NOM v DPP & Ors (2012) 38 VR 618, 633 [47] (‘NOM’).
12Just as the determination of whether to impose a supervision order on Mr Rutherford, or alternatively to release him unconditionally, involved a discretionary judgment, so to does the decision about whether to revoke or continue the NCSO.
13In exercising the discretion, I am required to have regard to the matters set out in s 40(1) of the Act. My consideration of the s 40(1) factors informs the general application of the s 39 principle of parsimony.[9]
[9] Ibid, [70].
14The matters to which the court must have regard pursuant to s 40(1) of the Act are:
(a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment or other condition or disability; 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
15The central issue in this case concerns the application of s 40(1)(c) of the Act. This requires the court to have regard to whether Mr Rutherford is, or would if released be ‘likely to endanger themselves, another person, or other people because of his … mental impairment’. Endangerment is about the risk of harm. The section requires the court to make an assessment of that risk. Such an assessment must focus on the chance of harm materialising and not on the extent of the harm that may be caused if the risk materialises.[10] The ‘critical consideration’ is the likelihood of the risk materialising and not the gravity of the harm in the event that the risk eventuates.[11] The relevant risk is the risk of Mr Rutherford having a manic episode and harming someone.
[10] NOM (n 7) [57]
[11] Ibid.
16The risk must be a real and not a fanciful one.[12] There is no punitive component to a NCSO. It can only be continued ‘to the extent that it may provide a measure of protection against the risk of harm that has been identified’.[13]
[12] In the Matter of Leon Friedman (a pseudonym) [2019] VSC 251, [69].
[13] Ibid, [92]
17The Court of Appeal explained in NOM that the ‘entire regime provided for by the [MHA] is a relevant consideration’ in assessing risk in cases such as the present.[14] The two Acts, although different in intent and scope, ‘operate concurrently’.[15] However, one important difference between the two Acts is that a person under an NCSO made pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) is subject to the ultimate supervision of the Court.
[14] NOM (n 7) [56].
[15] Fowler (a Pseudonym) v Secretary to the Department of Health [2014] VSCA 231, [21].
18In 2022, parliament enacted the Mental Health and Wellbeing Act 2022 (Vic).
Evidence before the Court
19Section 40(2) of the Act provides that a court may not order a person to be released unconditionally unless it has obtained and considered the report of at least one medical practitioner or registered psychologist who has personally examined the person, on the person’s mental condition and the possible effect of the proposed order on the person’s behaviour.[16]
[16] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 40(2)(a).
20The Court has received a report dated 27 September 2023 from Dr Ria Zergiotis.[17] Dr Zergiotis also gave evidence at the hearing on 20 November 2023.
[17] Exhibit A..
21In addition there is before the Court a report dated 8 November 2023 from Mr Rutherford’s treating psychiatrist,[18] Dr Ravi Reddy, and one bearing the same date from his treating nurse, Ms Chloe Ryan.[19] Both Dr Reddy and Ms Ryan also gave evidence at the hearing.
[18] Exhibit C.
[19] Exhibit B.
22Dr Zergiotis is a consultant Forensic Psychiatrist who has worked at Forensicare since 2004. Dr Zergiotis has been the supervising psychiatrist in relation to the NCSO.
23Dr Zergiotis provided an earlier, detailed report concerning Mr Rutherford which is referenced in the earlier decision.
24Dr Zergiotis’s report before this Court addresses Mr Rutherford’s progress in the community over the last 12 months on the NCSO and a review of the structured risk assessment.[20]
[20] Exhibit A, [5].
25Dr Zergiotis’s report details the outcome of four NCSO Supervision Reviews conducted on 10 January 2023, 4 April 2023; 2 August 2023; and 26 September 2023. In her oral evidence she also discussed a more recent review meeting on 15 November 2023.
26Dr Zergiotis also considered progress reports by Mr Rutherford’s case managers Ms Lexi Vrolijks (13 April 2023) and Ms Chloe Ryan (26 June 2023 and 19 September 2023). Dr Zergiotis’s summary of the views of the treating team were that:
… Mr Rutherford required a legal framework in place to maintain his compliance with treatment and remission of his illness and would likely require a long-term [Community Treatment Order] in the community. It was reported that his insight was superficial and limited, and that his refusal to follow through on pathology and UDS testing was probably related to the request coming from his treating team rather than his GP[21]
[21] Exhibit A, [75].
27Dr Zergiotis’s report provided an assessment of Mr Rutherford’s future risk to the community, using the Historical Clinical Risk (HCR-20) assessment framework. As Dr Zergiotis explained:
The HCR-20 is a structured clinical judgment tool, commonly used to assess the risk of violence in forensic psychiatric patients. It consists of three subscales of risk factors: historical (H - past), clinical (C - present), and risk management (R - future forecast). HCR-20 is an acronym for the three separate sub-scales of this structured professional judgement assessment tool; historical, clinical, and risk management. It was developed to provide information about both static (historical/stable) and dynamic (changeable) factors that extensive research has found to be linked with an increased risk of future violence[22]
[22] Ibid, [76].
28In applying the framework to Mr Rutherford circumstances, Dr Zergiotis reported:
In relation to historical risk factors, Mr Rutherford has six out of ten historical risk factors, which include a longstanding major mental illness, illicit substance use, a forensic history, employment problems, relationship difficulties (partial), a history of traumatic experiences, and a history of disengagement with services and non-compliance with medications making him difficult to monitor and manage in the community. Mr Rutherford is not currently diagnosed with a personality disorder and does not have a history of violent attitudes or violence when well and does not have a history of antisocial behaviour. Based on historical factors alone, Mr Rutherford has a low risk of future violence over the next 12 months
In relation to clinical risk factors, these are currently well controlled given Mr Rutherford is compliant with medication and assertive psychiatric treatment. At present, Mr Rutherford has good insight into his mental illness and offending issues and is compliant with his treatment plan. There are no concerns regarding psychotic or severe affective (mood) symptoms, and there is no evidence of instability and no violent ideation. He has reasonable insight and is engaging well with his community treatment team
In relation to future risk factors, Mr Rutherford has adequate access to services for treatment of his mental illness, and is largely compliant with his treatment plan, despite not complying with physical health investigations. He has adequate personal supports, with supportive family, a general practitioner and NDIS supports. He has stable accommodation and has made adjustments to minimise stressors, such as not working and reducing his gaming activities. Mr Rutherford would like to move to his own accommodation in the local area in the future[23]
[23] Exhibit A, [77]-[79].
29Dr Zergiotis assessed Mr Rutherford overall risk of future violence based on the HCR-20 as low given the absence of clinical and risk management factors. She reported that while not ideal, his refusal to follow through on the pathology and UDS testing does not increase his risk profile at this stage. She reports that:
The main scenario where Mr Rutherford may become acutely unwell again in the future would be non-compliance with treatment, lapsing back into illicit substance use, and/or sustained psychosocial stressors and which has the potential to destabilise his mental state in the future and increase the risk of further offending in the community[24]
[24] Ibid, [81].
30Dr Zergiotis’s opinion expressed in her report is that:
Mr Rutherford has presented at a good level of remission of his illness, with no affective or psychotic features evident on assessments over the last 12 months. He has a reasonable level of insight into his early warning signs and has made appropriate lifestyle changes, such as minimising stressors, abstinence from illicit substances, and controlling his alcohol usage
Mr Rutherford is well engaged with his community treating team at the SHCMHS and compliant with his treatment plan. They are aware of his longitudinal history and risk profile and have a low threshold to use the MHWA were he to present as acutely unwell or to disengage from treatment in the future
Mr Rutherford has a low risk rating for future violence based on his structured risk assessment. His overall risk to himself and others has continued to be low with the ongoing stability of his illness and good engagement with treatment and his community linkages. His refusal to follow through on the pathology and UDS testing in his case, although not ideal, does not increase his risk profile at this stage[25]
[25] Exhibit A, [85]-[87].
31Dr Zergiotis expanded on these opinions in her oral evidence, citing ‘no clinical concern or indication that he may be using illicit substances’.[26]
[26] Transcript of Proceedings, DPP v Rutherford (County Court of Victoria, CR-21-02021, Judge Rozen, 20 November 2023) 13 [25]-[26].
32Ultimately Dr Zergiotis’ opinion was that:
Mr Rutherford’s longitudinal history of maintaining a stable mental state with reasonable insight, and good engagement with his treating team and other community supports, his risk of harm to himself and others if the NCSO were to be revoked at this time would be low, and I am therefore supportive of revocation of the NCSO[27]
[27] Exhibit A, [88].
33Dr Reddy has been Mr Rutherford’s treating psychiatrist since July 2020.
34In a report dated 8 November 2023 Dr Reddy reported that Mr Rutherford has been consistently compliant with his medications since his release from prison, but that it ‘highly likely’ that this compliance is due to the NCSO. He said:
Historically, his compliance has been poor whenever he has been a voluntary patient. He would often negotiate swapping depot to oral medications and then self-cease without informing the mental health team. He is unreliable with oral medications and hence depot medications are the only option to safely manage him in the community[28]
[28] Exhibit C, [4.4].
35Dr Reddy provided his view on whether Mr Rutherford presents a danger to himself or the community. He said:
Mr Rutherford has an established diagnosis of Schizoaffective disorder with numerous inpatient admissions due to relapse in his illness. He had to be managed as an involuntary patient under the MHA for all of this inpatient admissions. When unwell, Mr Rutherford can quickly become aggressive and violent as evidenced by his past history and his index offence. His relapses have always been due to medication non-compliance. His relapses often occur quickly, within a few days of medication non-compliance, and he will present with florid psychotic symptoms
Historically, his compliance with oral medications has been unreliable and hence depot medication is the only option to ensure compliance. When he is well and adequately medicated, he achieves remission from his psychotic symptoms but he has never gained full insight into his illness or the need for medications
Currently, Mr Rutherford is in remission and his mental state is stable. His risk towards himself and others is currently low and will likely remain low if there is ongoing compliance with his medications and engagement with mental health services[29]
[29] Ibid, [6.1]-[6.3].
36Dr Reddy’s ultimate opinion on whether the NCSO should be revoked was as follows:
Mr Rutherford has historically required legal safeguards such as the use of the MHA to ensure medication compliance and engagement with mental health services. If Mr Rutherford’s supervision order was to be revoked then he would be managed as a voluntary patient which will increase the risk of him refusing treatment or demanding to be swapped to an oral medication. The treating team will have a low threshold to place him under a Temporary Treatment Order (TTO) should Mr Rutherford refuse to have the depot medication, however the ongoing requirement for the Treatment Order will have to be determined by the Mental Health Tribunal[30]
[30] Exhibit C, [7.1].
37I note that a TTO is an order which authorises the provision of compulsory mental health treatment.
38Ms Chloe Ryan is a registered nurse employed by the SHCMHS.
39Ms Ryan provides outreach to Mr Rutherford at his parents’ property in Ultima. She provides the monthly antipsychotic depot medication. She works under the supervision of Dr Reddy and provides quarterly reports to Dr Zergiotis.
40Ms Ryan’s opinion stated in a report dated 8 November 2023 is as follows:
In my opinion Mr Rutherford, when treated for his mental illness on a depot medication like paliperidone, is settled in his mental state and poses a low risk to himself and others. It is my view that if Mr Rutherford was not on a NCSO or an alternative order such as a treatment order under the Mental Health Act, he would become non-compliant with his medications which increases his risk [of] relapse and subsequent associated risk of harm to others significantly[31]
[31] Exhibit B, [5].
Submissions
41The Court was assisted by comprehensive written submissions from Mr Rutherford;[32] and brief submissions by the DPP.[33]
[32] Submissions on behalf of the Reviewee dated 17 November 2023.
[33] Outline of Submissions on Behalf of the DPP dated 15 November 2023.
42The Secretary of the Department of Health and the Attorney General appeared by counsel at the hearing.
43In summary, Mr Rutherford and the Secretary submitted that the NCSO should be revoked.
44The DPP did not advance a position but informed the Court through an affidavit sworn by Olivia Chan on 15 November 2023,[34] that the victim of Mr Rutherford’s conduct and Mr Rutherford’s mother had been informed of the hearing and given an opportunity to inform the Court of their views on the application.[35]
[34] Exhibit D. Ms Chan corrected a date in the affidavit by correspondence dated 20 November 2023 (Exhibit E).
[35] As required by ss 38C and 42 of the Act.
45The Attorney General submitted that the NCSO should continue in operation. It was submitted by Ms Singleton of counsel that there is a risk to community safety as a result of Mr Rutherford becoming non-compliant with his medication. Ms Singleton accepted that all of the medical witnesses considered that risk was adequately controlled while Mr Rutherford is compliant.
46It follows that the real question concerns the risk of Mr Rutherford becoming non-compliant with his medication in the future.
Consideration
47I consider that the most likely scenario in which Mr Rutherford might become non-compliant is a refusal by him to allow Ms Ryan (or her replacement at Swan Hill Medical Centre) to administer the depot medication. I am confident that if that occurred, Ms Ryan would immediately notify Dr Reddy who would in turn make use of his powers under the Mental Health and Wellbeing Act 2022 (Vic). As noted in my earlier decision, the Court of Appeal has emphasised that an assessment of risk under s 40(1)(c) of the Act is to be made against the background of the existence of that Act and the extensive powers conferred by it to address risk.
48Dr Reddy is well placed, as the psychiatrist who has treated Mr Rutherford for several years to assess concerning signs.
49What if Mr Rutherford moved to another location and was no longer being treated by Dr Reddy and Ms Ryan? If the Order was revoked he would be free to do so. Dr Reddy’s response to this in evidence was that he could provide a handover to a new health team. But this of course assumes that Mr Rutherford informs people that he is moving.
50It is here that the distinction between real and fanciful risks discussed earlier becomes important. Any assessment of the likelihood of Mr Rutherford moving house without his family, friends or health practitioners being aware is in the realms of a fanciful risk for the following reasons based on the evidence before the court:
(a) It has been 10 years since he moved back to Victoria;
(b) The attraction of Western Australia, where he previously lived, was particular work which Alfred does not now seek;
(c) He has only expressed a wish to move to Bendigo;
(d) He has sought a government funded house there, and is on a waiting list;
(e) Has good family links to Swan Hill through his parents, where he currently lives in a self-contained residence on the family farm, and Wodonga where his sister lives;
(f) He has limited financial means as in receipt of DSP; and
(g) He has developed a relationship with treating practitioners Dr Reddy and Nurse Ryan.
51I conclude there is only a small risk of Mr Rutherford moving residence suddenly without informing family, friends and treaters in such a manner as to make a handover impossible. It is not possible for me to conclude there is no risk, but I do think it is small.
52In imposing the NCSO on Mr Rutherford in the first place, I was influenced by the views of Mr Rutherford’s mother Angela. Mrs Rutherford was well placed to assess the level of risk associated with her son if there were no legal obligations on him to remain compliant with his anti-psychotic medication.
53Mr Rutherford has lived with his parents for the time he has been subject to the NCSO.
54In a letter to the Court dated 16 November 2023,[36] Mrs Angela Rutherford stated as follows:
Alfred has remained living with myself Angela Rutherford and his father Reginald Rutherford for the past 12 months is a separate unit on the property, the unit being close to the main residence.
There have been no incidents of aggression or violence over the past 12 months.
Alfred has been more sociable and including himself more in family life here on the farm and remains pleasant and polite to be around. Alfred appears to be in good health physically, and his mental health is stable. He remains compliant with his medication and mental health appointments.
His relationship with myself and his father remains good.
We feel Alfred has an understanding that he will require the depot medication on an ongoing, lifelong and long term basis.
Alfred has also indicated that he is willing to remain compliant with his depot medication on an ongoing and long term basis.
If we were to notice that Alfred was becoming unwell, we would be prepared to notify his treating team immediately of our concerns.
We have no concerns with Alfred in any way, and appears to us, to be doing well in all aspects of daily living
[36] Exhibit F.
55I was also influenced by the opinion of Dr Zergiotis in last year’s hearing that a short term NCSO of up to 12 months could provide what Dr Zergiotis described as ‘distance oversight’ by way of quarterly reviews.[37] This would enable an assessment to be made of Mr Rutherford’s progress once the more onerous bail conditions were removed.
[37] Transcript of Proceedings, DPP v Rutherford (County Court of Victoria, CR-21-02021, Judge Rozen, 29 September 2022) 16-17.
56It will be recalled that Dr Zergiotis was not supportive of the Court imposing a NCSO in 2022. As discussed above, she maintains her professional opinion that such an order is unnecessary to control risk. I note that Dr Zergiotis is a highly experienced forensic psychiatrist whose opinions are entitled in my view to be accorded much respect.
57Ultimately, I have concluded that the NCSO cannot be justified having regard to the evidence before the court, when considered in light of the 2022 evidence, the legal principles discussed earlier, and especially the overarching principle as expressed in s 39 of the Act.
58The NCSO dated 1 December 2022 is revoked with effect from today.
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