Secretary of the Department of Health and Human Services v Horacek
[2009] TASSC 65
•14 August 2009
[2009] TASSC 65
COURT:SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:Secretary of the Department of Health and Human Services v Horacek [2009] TASSC 65
PARTIES:HEALTH AND HUMAN SERVICES, SECRETARY OF
THE DEPARTMENT, OF
v
HORACEK, Peter
FILE NO/S:1150/2008
JUDGMENT
APPEALED FROM: H v Director of Public Prosecutions (No 3) [2008] TASSC 80
DELIVERED ON: 14 August 2009
DELIVERED AT: Hobart
HEARING DATE: 11, 12 May 2009
JUDGMENT OF: Crawford CJ, Evans and Tennent JJ
CATCHWORDS:
Mental Health – Discharge – Tasmania – Restriction order – Whether it should be discharged – Whether continuing care order or supervision order should be made in its place – Whether patient fit to be released from confinement.
Criminal Justice (Mental Impairment) Act1999 (Tas), ss26(2), 27.
Aust Dig Mental Health [10]
REPRESENTATION:
Counsel:
Appellant: L Sealy SC and S Gates
Respondent: C Mackie
Solicitors:
Appellant: Crown Solicitor
Respondent: Mackie Crompton
Judgment Number: [2009] TASSC 65
Number of paragraphs: 79
Serial No 65/2009
File No 1150/2008
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES v PETER HORACEK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
EVANS J
TENNENT J
14 August 2009
Orders of the Court
Appeal allowed.
Orders made on 12 December 2008 quashed.
Application for discharge of restriction order dismissed.
Serial No 65/2009
File No 1150/2008
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
v PETER HORACEK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
14 August 2009
Mr Horacek suffers from a chronic paranoid psychosis, specifically paranoid schizophrenia. On 21 March 2003, he was convicted of attempted wounding, committing an act intended to cause bodily harm, and assault. He was sentenced to imprisonment for two years from 30 July 2002, but the balance from 21 March 2003, was suspended. A restriction order was also made under the power provided by the Sentencing Act 1998, s75(1)(e).
By virtue of s77, the effect of the restriction order was that he was to be admitted to, and detained in, a secure mental health unit until the order was discharged by the Supreme Court, and the order was taken to be a restriction order made under the Criminal Justice (Mental Impairment) Act 1999. He remained subject to the order unless and until the Supreme Court discharged it under the power to do so given by that Act, s26(2). This appeal concerns a successful application he made for discharge.
Under s37(1), the Forensic Tribunal was required to review the restriction order under the Mental Health Act 1996 every 12 months. By virtue of subs(3), if the Tribunal determined that the order was no longer warranted, it was empowered to issue to Mr Horacek a certificate to that effect and he would then become entitled to apply immediately to the Supreme Court for discharge. Under s37(4), the Tribunal had power to include in the certificate a recommendation that should the restriction order be discharged, a supervision order, continuing care order, or community treatment order be made in respect of him.
On 9 May 2007, the Tribunal issued a certificate that the restriction order was no longer warranted and recommended that if the restriction order was discharged, Mr Horacek be placed on a supervision order.
On 24 July 2007, Mr Horacek applied under the Criminal Justice (Mental Impairment) Act, s37(3)(b), for the discharge of the restriction order.
A judge heard the application on 3 and 4 December 2007 and reserved his decision. On 18 March 2008, the learned judge published reasons for judgment. His Honour expressed the view that Mr Horacek should be treated as a mentally ill person and not one subject to the criminal law. Whether the distinction was a valid one in the circumstances of this case does not matter for the purposes of the appeal. The learned judge accepted that for the foreseeable future Mr Horacek presented as a risk to the public by reason of his illness and had to be confined in a secure institution. His Honour made the point that Mr Horacek had been confined under the restriction order since 30 July 2002 and that the period of confinement was much longer than would have been warranted for an offender who was not afflicted by mental illness. His Honour wanted to adopt a course that would embrace the recommendation of the Forensic Tribunal and of a psychiatrist who gave evidence for Mr Horacek, Dr Sale, that the restriction order be discharged and replaced with an order that permitted the transfer of Mr Horacek from the State's only approved secure mental health unit, the Wilfred Lopes Centre, to what is arguably the only approved hospital in the State that is sufficiently secure for Mr Horacek's confinement and treatment, Tyenna Blue.
Dr Sale's view was that as he aged, Mr Horacek would become less of a physical risk to others, that at some time in the future it was likely that an acceptable course would be to release him from confinement into the community and that an appropriate intermediate step to take was to move him from the Wilfred Lopes Centre to Tyenna Blue.
That course was opposed by the Chief Forensic Psychiatrist, Dr Crawshaw, and the Department of Health and Human Services. It was their argument that the Wilfred Lopes Centre was better suited to deal with Mr Horacek and that although Tyenna Blue was sufficiently secure for his confinement, it had insufficient resources, staff and facilities, in comparison with those available at the Wilfred Lopes Centre, for the adequate care of Mr Horacek.
The learned judge had no empathy with arguments that largely involved budget concerns and staff shortages, and particularly, the costs of providing adequate care at Tyenna Blue. His Honour adjourned the hearing to a date to be fixed saying, in terms that he thought, no doubt, would be understood by officers of the Department, that the adjournment "will enable the Department to further consider a more comprehensive management plan and consider further options which provide greater freedom and flexibility". I interpret that as a suggestion to the Department that it find the necessary funds and arrange for the necessary facilities and staff to be made available for the proper and adequate treatment and care of Mr Horacek at Tyenna Blue.
Subsequently the learned judge received written reports from Dr Crawshaw and Dr Sale and a joint report from Mr Horacek's treating psychiatrist, Dr Schneider, and an occupational therapist, Ms Godfrey. Further hearings were held on 18 and 28 August 2008 and the learned judge once again, reserved his decision. Reasons for judgment were published on 9 December and final orders made on 12 December 2008. The orders were as follows:
"(1)That the restriction order be revoked and substituted by a supervision order to take effect from 15 March 2009.
(2) That the supervision order be subject to the following conditions:
(a)H be subject to the supervision of the Chief Forensic Psychiatrist or his delegate;
(b)that he submit to direction to be detained as an involuntary patient under the Mental Health Act 1996 in an approved hospital or institution and submit to such transfers between such hospital or institution as directed;
(c)during such period or periods of detention, he submit to the provisions relating to the care and management of involuntary patients within such hospital or institution;
(d)that if released from such hospital or institution, he return to such place upon directions by the Chief Forensic Psychiatrist or his delegate or submit to transfer between such hospital or institution as directed;
(e)he undertake such medical assessment or treatment as directed by the Chief Forensic Psychiatrist, his delegate or any medical officer employed within the hospital or institution;
(f)if released, permanently or on leave from any hospital or institution:
(i)he must reside at premises approved in writing by the Chief Forensic Psychiatrist or his delegate or nominee and not change that address without written authority;
(ii)he make himself available at his residence for examination and treatment when notified by an authorised person;
(iii)attend as a patient at a nominated treatment centre when required by an authorised officer;
(iv)take such medication and submit to such treatment as directed by an authorised officer;
(v)attend such education and treatment programs as directed by an authorised officer;
(vi)submit to the taking of blood or urine samples for analysis as directed by an authorised officer;
(vii)not leave the State of Tasmania without prior written approval of the Chief Forensic Psychiatrist or his delegate;
(viii)return to such approved hospital or institution as directed by the Chief Forensic Psychiatrist or authorised officer."
I infer that the reference in condition (2)(b) of the supervision order to an institution in the expression "an approved hospital or institution" was to an approved institution, for it is not conceivable that the learned judge had in mind an institution of any kind, whether or not related to mental health. Apart from hospitals, the Mental Health Act provides for the approval of assessment centres (s10), secure mental health units (s10A) and secure institutions (s73D). The learned judge must have had them in mind.
Whether conditions (2)(b) and (c) were lawful ones
By the first ground of appeal the Secretary seeks to argue that the condition of the supervision order in par(2)(b) that Mr Horacek submit to direction to be detained as an involuntary patient under the Mental Health Act, is not a lawful one. By the second ground of appeal the Department seeks to argue that condition (2)(c), that during such period or periods of detention Mr Horacek submit to provisions relating to the care and management of involuntary patients within the approved hospital or institution in which he is detained, is not a lawful condition either.
The power of the learned judge to discharge the restriction order is to be found in the Criminal Justice (Mental Impairment) Act, s26(2). The power of the learned judge to go on and make a supervision order also is to be found in s27, in simple terms that "if the Supreme Court discharges a restriction order, it may make any other order in respect of the defendant that it could have made under section 18(2) or 21". In that regard, the provisions of ss18(2) and 21(1) concerning the orders that the Supreme Court could have made were in identical terms. The Court could:
"(a) make a restriction order; or
(b) release the defendant and make a supervision order; or
(c) make a continuing care order; or
(d) release the defendant and make a community treatment order; or
(e)release the defendant on such conditions as the Court considers appropriate; or
(f)release the defendant unconditionally."
A restriction order under par(a) is an order requiring the person to whom it applies to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court. See s24. As I noted earlier, the Wilfred Lopes Centre is the only secure mental health unit in the State.
A continuing care order under par(c) is also an order for the detention of the person, in terms of "an order for the detention of the defendant as an involuntary patient in the approved hospital specified in the order for the term not exceeding 6 months specified in the order". See s31B(1). Once made, a continuing care order is taken to be a continuing care order made under the Mental Health Act, s28. The learned judge could have made a continuing care order that required the detention of Mr Horacek in Tyenna Blue for a term not exceeding six months. [1]
[1] Under the Mental Health Act, s28(2), a continuing care order may also be made by two medical practitioners. Once made under either Act it may be renewed from time to time by two medical practitioners within a month before its term is due to expire. See s29(1). It ceases to have effect if it is discharged by the senior approved medical practitioner of the approved hospital in which the patient is detained or by the Mental Health Tribunal, or if a community treatment order is made, or if the patient becomes a forensic patient (as to which see s72A), or if it is not renewed at the end of the term for which it was made or last renewed. See s29(2).
In his reasons for judgment, his Honour did not explain why he did not make a continuing care order although he identified as a problem with it that it "might preclude compulsory return to the Wilfred Lopes Centre if the Tyenna placement is unworkable". However, in the course of the hearing he made it clear that he was not interested in making a continuing care order and evidence was confined for that reason. Statements of the learned judge included that "continuing care orders don't seem to do much because they're too short term and they're really emergency quick fix, so we can take that off the agenda", "a CCO is one that expires in six months, that's not on the agenda" and "no, I'm not going down that path because the term not exceeding six months doesn't meet any of the problems we've got".
It is provided by s29A(1) that a supervision order is an order releasing a person to whom it applies under the supervision of the chief forensic psychiatrist and on such conditions as to the supervision of that person and such other conditions as the Court considers appropriate.
Only a restriction order or a continuing care order may provide for detention. All of the other orders authorised by both s18(2) and 21(1) of the Criminal Justice (Mental Impairment) Act may only be made in conjunction with the release of the person concerned. The order of the learned judge did not conform with the requirements of s29A(1), for it did not contain an order that Mr Horacek be released. In conditions (2)(d) and (f) it allowed for the possibility that someone, other than the court, might release him sometime in the future, but that was inadequate. The learned judge was required to order his release if a supervision order was being made.
It was common ground at the hearing that Mr Horacek should not be released for the time being, but should be detained in either the Wilfred Lopes Centre or Tyenna Blue. It is apparent that what the learned judge wanted to do was to make an order that firstly, required his detention in Tyenna Blue and secondly, transferred from the court to medical practitioners the responsibility for deciding when or whether Mr Horacek would ultimately be released from detention.
Without an order for the release of Mr Horacek, the supervision order was beyond the powers of the court and invalid.
It was submitted by counsel for the Department that conditions (2)(b) and (c) of the supervision order providing for Mr Horacek to submit to a direction to be detained as an involuntary patient under the Mental Health Act in an approved hospital or institution, and to submit to provisions relating to involuntary patients, were invalid. Although condition (2)(b) does not say so, it should be interpreted as requiring Mr Horacek to submit to being detained as an involuntary patient if the Chief Forensic Psychiatrist directed it. The conditions are invalid. They are repugnant to and inconsistent with the requirement of the legislation that Mr Horacek be released if made the subject of a supervision order. See Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620; Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 75.
The Criminal Justice (Mental Impairment) Act, s31, provides for situations when a person who has been released subject to a supervision order may be apprehended. Prescribed persons are empowered to apprehend the person if he or she has contravened, or is likely to contravene, the supervision order, or if there has been, or is likely to be, a serious deterioration in his or her mental health. See s31(2). The apprehended person is to be taken to a secure mental health unit (s31(3)) and is to be detained there for a limited time (s31(6) and (7)), during which the supervision order is suspended (s31(9)). It follows that the two conditions are also invalid because they purport to make the supervision order operate at a time when Mr Horacek will be in detention, whereas the scheme of s31 is that if he is in detention, the order will not operate because it will be suspended.
Whether the restriction order should have been discharged
By the third and final ground of appeal the Secretary seeks to argue that the decision of the learned judge to discharge the restriction order was contrary to the weight of the evidence. The Secretary's case is that the restriction order should have been maintained in force.
Mr Horacek's counsel conceded that the evidence established that he should not be released into the community. His counsel submitted that if it was found that the supervision order was invalid, the Court should maintain the discharge of the restriction order and make a continuing care order in its place.
I have already observed that the learned judge did not regard a continuing care order as a viable option and in the course of argument referred in particular, in the context of the facts of this case, to its limited six months period of operation being unsatisfactory. That is a major reason for rejecting a continuing care order for Mr Horacek's situation. The evidence makes it clear that he will need to be confined for far longer than six months and that he will never be well enough for release into the community unless and until old age, and consequent physical frailty, justifies a conclusion that he is no longer a risk to others.
Much of the argument of Mr Horacek's counsel depended on acceptance of the views of Dr Sale. To a significant extent, Dr Sale's preference for Tyenna Blue over the Wilfred Lopes Centre was that the former has the appearance of a less restrictive facility, whereas the latter has the appearance of a high security facility. Dr Sale gave as an example that visitors to Tyenna Blue ring a bell and are admitted as if to a house, whereas visitors to the Wilfred Lopes Centre are required to punch in a number and put their hand on a machine, and having been allowed past the perimeter must then surrender items such as telephone and laptop computer, take possession of a duress alarm, submit to the use of a metal detector and provide a handprint once again. He conceded that what he was describing was the treatment of visitors and not the patients, but expressed the view that for the patients there is a more domestic feel about Tyenna Blue and a more high security feel about the Wilfred Lopes Centre.
The evidence established that as presently set up, funded and staffed, the Wilfred Lopes Centre is better able to provide Mr Horacek with psychiatrists, psychologists and occupational therapists than Tyenna Blue. Internally, the Wilfred Lopes Centre has more space and freedom. Because it has a greater number of staff than Tyenna Blue, it is better able to provide outside excursions.
The conclusion I have come to is that apart from its greater security, and the consequent perception of greater security and less homeliness, the Wilfred Lopes Centre is the more suitable environment for the treatment and care of Mr Horacek than Tyenna Blue.
Tennent J has reviewed some of the evidence about these matters. I agree with her conclusion that a continuing care order is not appropriate for Mr Horacek's circumstances.
I conclude that the restriction order should not have been discharged. I would allow the appeal, quash the orders made by the learned judge and dismiss Mr Horacek's application for the discharge of the restriction order.
File No 1150/2009
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
v PETER HORACEK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
14 August 2009
Like Crawford CJ and Tennent J, whose reasons for judgment I have had the advantage of reading, I consider that this appeal should be allowed and that the consequential orders that each proposes should be made.
File No 1150/2009
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
v PETER HORACEK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
14 August 2009
On 21 March 2003, the respondent was sentenced in this Court in respect of three crimes. These were, attempted wounding, committing an act intended to cause grievous bodily harm, and assault. The sentencing judge sentenced the respondent to a term of imprisonment, and made a restriction order pursuant to the Sentencing Act 1998, s75(1)(e). The same Act, s77, provides that a restriction order is an order requiring the person in respect of whom it is made, to be admitted to, and detained in, a secure mental health unit until the order is discharged by this Court. It also provides that, once made, the restriction order is taken to be a restriction order made under the Criminal Justice (Mental Impairment) Act 1999 ("the Act").
The restriction order was later reviewed by the Forensic Tribunal ("the tribunal"). On 9 May 2007, the tribunal determined that the restriction order was no longer warranted, and that a certificate pursuant to the Act, s37(3), should issue to the respondent. Such a certificate enabled the respondent to make an immediate application to this Court to discharge the restriction order. The certificate issued by the tribunal contained a recommendation that, if the restriction order were discharged, the respondent should be placed on a supervision order.
On 24 July 2007, the respondent applied to this Court pursuant to the Act, s26, to discharge the restriction order. In his affidavit filed in support of that application, the respondent sought a supervision order in lieu of the restriction order. Following protracted hearings, during which evidence was taken from numerous expert witnesses, on 12 December 2008, a judge discharged the restriction order and made a supervision order. The order made was in the following terms:
"(1)That the restriction order be revoked and substituted by a supervision order to take effect from 15 March 2009.
(2)That the supervision order be subject to the following conditions:
(a) H be subject to the supervision of the Chief Forensic Psychiatrist or his delegate;
(b) that he submit to direction to be detained as an involuntary patient under the Mental Health Act 1996 in an approved hospital or institution and submit to such transfers between such hospital or institution as directed;
(c) during such period or periods of detention, he submit to the provisions relating to the care and management of involuntary patients within such hospital or institution;
(d) that if released from such hospital or institution, he return to such place upon directions by the Chief Forensic Psychiatrist or his delegate or submit to transfer between such hospital or institution as is directed;
(e) he undertake such medical assessment or treatment as directed by the Chief Forensic Psychiatrist, his delegate or any medical officer employed within the hospital or institution;
(f) if released, permanently or on leave from any hospital or institution:
(i)he must reside at premises approved in writing by the Chief Forensic Psychiatrist or his delegates or nominee and not change that address without written authority;
(ii)he make himself available at his residence for examination and treatment when notified by an authorised person;
(iii)attend as a patient at a nominated treatment centre when required by an authorised officer;
(iv)take such medication and submit to such treatment as directed by an authorised officer;
(v)attend such education and treatment programs as directed by an authorised officer;
(vi)submit to the taking of blood or urine samples for analysis as directed by an authorised officer;
(vii)not leave the State of Tasmania without prior written approval of the Chief Forensic Psychiatrist or his delegate;
(viii)return to such approved hospital or institution as directed by the Chief Forensic Psychiatrist or authorised officer."
It is that order which is the subject of this appeal. The grounds of appeal are in the following terms:
"1The learned judge erred in law in holding that a supervision order made pursuant to the Act could lawfully be made subject to a condition that the Respondent submit to a direction to be detained as an involuntary patient under the Mental Health Act 1996 in an approved hospital or institution and submit to transfers between such hospital or institution as directed.
2The learned judge erred in law in holding that a supervision order made pursuant to the Act could lawfully be made subject to a condition that the Respondent submit to the provisions of the Mental Health Act 1996 relating to the care and management of involuntary patients within such hospital or institution.
3The learned judge erred in finding that the restriction order which had previously been made in respect of the Respondent pursuant to the Act should be revoked when such a finding was contrary to the weight of the evidence before him."
This is an unusual appeal. As can be seen, there are two bases for it. The first is the contention by the appellant that, while the learned judge had the power to discharge the restriction order as he did, and to make a supervision order in its place, the particular supervision order he made was invalid because of the nature of the conditions attached to it. The second basis is the contention that, in any event, the discharge of the restriction order and the replacement of it with a supervision order was against the weight of the evidence. Notwithstanding his written submissions, in oral argument, counsel for the respondent did not seriously contest the first part of the appeal. He conceded that, if this Court were to find that the "detention" conditions were invalid, it was not appropriate to vary the supervision order such as to allow the respondent to be released into the community. As to the second, he contended that the decision of the learned judge to discharge the restriction order was correct, that a supervision order was not the appropriate alternative in any event, and that what was an appropriate order was a continuing care order. The reason for the somewhat unusual position taken by the respondent was that the parties agreed that, for the foreseeable future, the respondent needs to be the subject of some form of involuntary restraint.
The relevant legislation
To determine the issues raised in this appeal, a review of the relevant provisions of the Act, and to an extent those in the Mental Health Act 1996 ("the MHA"), is required. The Act, s24, sets out what a restriction order is. It provides:
"A restriction order is an order requiring the person to whom it applies to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court."
A secure mental health unit for the purpose of the Act is defined in the MHA. It is defined as "premises, or a part of premises, approved by the Minister under section 10A to be a secure mental health unit." The Wilfred Lopes Centre is an approved secure mental health unit. The facility known as Tyenna Blue is not. It is however an approved hospital.
The Act, s26, deals with applications to this Court to discharge restriction orders. Apart from anything else, that section limits the times at which a person may apply to discharge a restriction order in the absence of a certificate from the tribunal. Such applications may only be made not less than two years after a preceding application. The Act, s27, then provides that, if the Court discharges a restriction order, it "may make any other order in respect of the defendant that it could have made under section 18(2) or 21." The types of orders that the Court is empowered to make under each of those sections are the same. That is, the Court may:
- make a restriction order,
- release the defendant and make a supervision order,
- make a continuing care order,
- release the defendant and make a community treatment order,
- release the defendant on such conditions as the court considers appropriate, or
- release the defendant unconditionally.
The Act, s29A, makes provision for supervision orders. It provides:
"29A Supervision orders
(1) A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Forensic Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate.
(2) Without limiting the conditions that may be specified in a supervision order, such conditions may include any one or more of the following conditions:
(a)a condition requiring the defendant to take medication or submit to the administration of medical treatment as specified in the order or as determined by the Chief Forensic Psychiatrist;
(b)a condition requiring the defendant to comply with any directions as to supervision given by the Chief Forensic Psychiatrist.
(3) If a defendant who is subject to a supervision order notifies the person responsible for his or her medical treatment that he or she objects to taking medication or the administration of medical treatment as required by or under the order, that person or the Chief Forensic Psychiatrist is to notify the Forensic Tribunal, in writing, of that objection within 7 days."
The Act, s30, provides for applications to vary or revoke a supervision order. If such an application is refused, a person may not re-apply within six months or such other period as the Court may nominate.
The Act, s31, deals with the apprehension of a person under a supervision order. It permits prescribed persons to apprehend a defendant, the subject of a supervision order, if the prescribed person believes, on reasonable grounds, that the defendant has contravened, or is likely to contravene, the supervision order, or there has been, or is likely to be, a serious deterioration in the defendant's mental health, and there is a risk of harm to the defendant or someone else. A defendant, so apprehended, is thereafter to be taken to a secure mental health unit. If that is not possible, he is to be taken to an approved hospital. A defendant's detention under this provision is clearly intended to be relatively short term. However, it may be extended if there is an application to the tribunal. It may also be extended if there is an application to this Court to vary or revoke the supervision order, until such time as that application is dealt with. A supervision order is, in any event, suspended during any period a defendant is detained in either a secure mental health unit or an approved hospital under this section.
Another type of order, relevant in this matter, is a continuing care order. The Act, s31B, describes such an order as one made for the detention of a defendant as an involuntary patient in an approved hospital for a term not exceeding six months. Once made, the order is taken to be a continuing care order under the MHA, s28.
The MHA, s29, deals with the term, and renewal of, a continuing care order. Such an order operates for up to six months, but may be renewed from time to time by two approved medical practitioners who have each separately examined a patient within a month before the end of an existing order, and have satisfied themselves that the criteria, for detention as an involuntary patient in an approved hospital, are met. A continuing care order ceases to have effect:
-if the senior approved medical practitioner in the approved hospital where the patient is detained discharges it,
-the Mental Health Tribunal on review discharges it,
-a community treatment order is made,
-the order expires, or
-the patient becomes a forensic patient.
A forensic patient is defined as being a person admitted to a secure mental health unit in accordance with the MHA, s72A, and who has not been discharged from that unit. That section relevantly provides that a person may be admitted to a secure mental health unit as a forensic patient if they are the subject of a restriction order; if they are the subject of a supervision order and are apprehended pursuant to the Act, s31; and if they are subject to any other order under the Act or other nominated legislation requiring them to be detained in a secure mental health unit.
The Act, s34, sets out the principles upon which this Court must act when dealing with any matter under it. It provides:
"34 Principle on which courts are to act
A court is to apply, where appropriate, the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community when determining —
(a) which order to make under section 18(2) or 21(1) or this Part; or
(b) whether to discharge or vary such an order; or
(c) the conditions of such an order."
The Act, s35(1), sets out those matters to which this Court must have regard when dealing with a matter under the Act. It provides:
"35 Matters to which courts are to have regard
(1) In determining proceedings under this Part, a court must, in addition to applying the principle in section 34, have regard to —
(a)the nature of the defendant's mental impairment or other condition or disability; and
(b)whether the defendant is, or would if released be, likely to endanger another person or other persons generally; and
(c)whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)whether the defendant is likely to comply with the conditions of a supervision order; and
(e)other matters that the court thinks relevant."
The Act, s36, is the section pursuant to which this appeal has been brought. It provides that this Court may affirm or quash the decision or order against which the appeal is brought or substitute any other decision or order as it thinks proper.
The Act, s37, provides for the review of forensic orders by the tribunal. Such orders are to be reviewed annually. A forensic order is either a restriction order or a supervision order.
The MHA, ss72B and 72C, provide:
"72B Admission of involuntary patients
(1) A person may be admitted to a secure mental health unit otherwise than as a forensic patient if —
(a)the person is an involuntary patient in an approved hospital; and
(b)the controlling authority of that hospital determines that the person should be transferred to a secure mental health unit for the protection of that person or other patients in, and the staff of, that hospital; and
(c)the Chief Forensic Psychiatrist is satisfied that —
(i)as a result of mental illness the person poses a serious and substantial risk to others; and
(ii)a secure mental health unit is the only appropriate place available to accommodate the person in the circumstances; and
(iii)adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the person.
(2) If a person is admitted to a secure mental health unit under this section —
(a)that person is not a forensic patient; and
(b)that person is not an involuntary patient while in the secure mental health unit, except as provided in subsection (3), but becomes an involuntary patient on his or her transfer back to an approved hospital; and
(c)except where this Act provides otherwise or a contrary intention appears, while that person is admitted to the secure mental health unit this Act applies to that person as if he or she were a forensic patient who is not subject to a restriction order.
(3) A person admitted to a secure mental health unit under this section remains an involuntary patient for the purposes of Division 2 of Part 12 and is not to be treated as a forensic patient for the purposes of section 73G.
(4) Before or as soon as practicable after the admission of an involuntary patient to a secure mental health unit —
(a)the Chief Forensic Psychiatrist is to notify the Mental Health Tribunal and the person responsible for the patient of the admission; and
(b)the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned are to determine, jointly, the period for which the patient may be detained in the secure mental health unit.
(5) The Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned, jointly, may extend the period determined under subsection (4).
(5A) As soon as practicable after exercising the power conferred by subsection (5), the Chief Forensic Psychiatrist is to give the Mental Health Tribunal and the person responsible for the patient notice of the extension.
(6) If at any time the Chief Forensic Psychiatrist is satisfied that a patient admitted to a secure mental health unit under this section no longer meets the requirements for that admission, the Chief Forensic Psychiatrist is to require the controlling authorities of the approved hospital and secure mental health unit concerned to return the patient to the approved hospital.
(7) A patient admitted under this section may be detained by the controlling authority of a secure mental health unit —
(a)for the period determined under subsection (4) or that period as extended under subsection (5) or as shortened by the Mental Health Tribunal under section 72C(3)(b); or
(b)if the Chief Forensic Psychiatrist has required the return of the patient to an approved hospital, until 24 hours after the requirement was made, or such longer period as jointly determined by the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned; or
(c)if the Mental Health Tribunal under section 72C directs that the patient is to be returned to the approved hospital, until 24 hours after the requirement was made, or such longer period as authorised by the Mental Health Tribunal.
72C Review of admission under section 72B
(1) The Mental Health Tribunal is to —
(a)review the admission of an involuntary patient to a secure mental health unit within 3 days after being notified of that admission under section 72B(4); and
(b)review any extension of the period of that admission within 3 days after being notified of that extension under section 72B(5A).
(2) The Mental Health Tribunal may conduct a review under this section despite its failure or inability to notify the person responsible for the involuntary patient as required by section 54(1)(b).
(3) On reviewing the admission of an involuntary patient to a secure mental health unit or any extension of the period of that admission, the Mental Health Tribunal may —
(a)confirm the admission or extension and the period for which the patient can be detained in the secure mental health unit determined by the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned; or
(b)confirm the admission or extension but shorten the period of detention; or
(c)direct that the patient be returned to the approved hospital.
(4) The Mental Health Tribunal is to notify the Chief Forensic Psychiatrist, the controlling authorities of the approved hospital and secure mental health unit concerned and the person responsible for the patient of its decision under subsection (3) as soon as practicable."
The MHA, s72Q, permits the Chief Forensic Psychiatrist ("the CFP") to make application to the tribunal for leave of absence from a secure mental health unit of a patient, the subject of a restriction order, for the purpose of that patient's rehabilitation or reintegration into the community. Further the MHA, s73E, permits the CFP to direct that a forensic patient be removed from a secure mental health unit on a temporary basis to a hospital or a secure institution.
The order made by the learned judge
In his reasons for judgment delivered 9 December 2008, the learned judge acknowledged he faced a dilemma at par18 in determining what he should do. He said:
"The dilemma can be readily stated. The aim is to permit greater flexibility in the treatment of the applicant without the present level of incarceration. That flexibility requires compulsory return to the Wilfred Lopes Centre if the regime is found to be unworkable. Release to a less intensive institution or centre is desirable if the Chief Forensic Psychiatrist believes, as a consequence of medical judgment, such a course to be apposite. Return to the community simpliciter is not a present option. The Court is reluctant to leave the present order in force without variation."
The dilemma which was identified shaped the orders that his Honour made. What his Honour clearly attempted to do was make an order which permitted, effectively at the direction of the CFP, the movement of the respondent in and out of a secure mental health unit as deemed necessary, without unnecessary formality, and the respondent's treatment as an involuntary patient under the MHA. The challenge, arising under grounds 1 and 2 in this appeal, is not so much to the philosophy behind what his Honour was attempting to do, but the legality of what he did do.
Was the supervision order that was made a valid exercise of the Court's power under the Act?
This is the issue raised by the first two grounds of appeal, although they are confined to conditions 2(b) and (c) of the supervision order made. Both counsel accepted that, were those conditions to fail, they could not be severed from the order made, with the consequence the respondent would be released into the community. In effect, if those conditions are found to be invalid, the parties accept that the supervision order in its entirety should be quashed.
There is no dispute that the learned judge had power to discharge the then existing restriction order and to replace it with a supervision order. He also had power, if he made a supervision order, to place conditions on that order. However, with respect, what his Honour appears to have failed to have regard to when he placed the conditions he did on the new supervision order, was the very nature of a supervision order as opposed to a restriction order, and the nature and extent of the powers of the CFP under the Act and the MHA.
A restriction order provides for the detention of a patient in a secure mental health unit. A supervision order, however, is an order that a person be released, but under the supervision of the CFP. The very nature of a supervision order is that it provides for the release of the person the subject of it, and not their detention, particularly not their involuntary detention.
The Act, s29A(1), permits conditions to be imposed on a supervision order but they are to be "such conditions as to the supervision of that person and such other conditions as the court considers appropriate." In this case, in par(2)(b) of the order, the learned trial judge imposed a condition that the respondent:
"… submit to a direction to be detained as an involuntary patient under the Mental Health Act 1996 in an approved hospital or institution and submit to such transfers between such hospital or institution as directed."
It must be inferred that the person whom it was anticipated might give that direction, would be the CFP, since he was the person under whose supervision the respondent would be. Three issues arise. Did the learned judge have power to impose a condition on a supervision order at all which required a person to submit to detention in a secure mental health unit; what is meant by the term "institution"; and could the CFP give such a direction in any event?
Dealing with the second of those issues, the term "institution" is not defined in either the Act or the MHA. The terms "approved hospital", "secure institution" and "secure mental health unit" are. However, it is not clear from his Honour's order just what entity he was referring to.
Dealing with the third of those issues, the CFP had no legal power to simply direct the respondent to be detained as an involuntary patient. The Act, s31, would permit the CFP to apprehend the respondent (it being implicit in this provision that the person being apprehended was not already under the physical control of the CFP) if he believed, on reasonable grounds, the matters set out in s31(2). This section would enable the CFP to place the respondent in a secure mental health unit. However, his power to keep him there would be limited, and any extended capacity to keep him in the unit would be subject to an application to the tribunal or this Court. In any event, as soon as the CFP acts to apprehend a person pursuant to s31, any existing supervision order in respect of that person is suspended.
If what his Honour intended was to permit the CFP to move the respondent by direction backwards and forwards between the Wilfred Lopes Centre and Tyenna Blue as he deemed necessary and to direct the respondent to be subject to those provisions of the MHA which deal with involuntary patients from time to time, there would appear to be no other power vested in the CFP, either under the Act or the MHA, which would permit him to give these directions..
As to the first issue, while the power to impose conditions on a supervision order is apparently unfettered, it cannot have been intended by Parliament that conditions could be imposed at large without reference to what the legislation, pursuant to which the power exists, was intended to achieve. Their Honours, Taylor, Windeyer and Owen JJ in a joint judgment of the High Court in Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 said, at 74 - 75:
"… the only question is whether the statutory grant of authority to impose further conditions extends to the imposition of the specified conditions. The answer to this question must depend, initially, upon whether the specified conditions are within the object and purpose for which the power was created, that is to say, whether the contemplated exercise of power is 'for the purpose of attaining the object and securing the purpose' of the legislation, 'such object and purpose being ascertained by an examination of the terms' of the legislation (per Latham CJ in Shrimpton's Case (1945) 69 CLR, at p 620 ). Secondly, it is beyond doubt that the power conferred by s 108 does not extend to the imposition of conditions which are themselves repugnant to or inconsistent with the provisions of the Act."
The nature of a supervision order is that a person is released from custody of some description and placed under the supervision of the CFP. It is clearly different from a restriction order which permits the detention of a person. Any conditions imposed should give effect to the nature of the order made. They should not, as appears to be the case here, be used as a means of expanding the role of a supervision order, and creating a hybrid order somewhere between a supervision and restriction order, with characteristics of both. Had Parliament intended that capacity to exist under the umbrella of a supervision order, it could have said so. In all the circumstances, par(2)(b) of the supervision order made is, in my view, an invalid exercise of the power of the learned judge.
The above comments have been made by reference to par(2)(b) of the order of the learned judge. As to par(2)(c), it is inextricably linked to par(2)(b) and cannot stand alone. It must therefore also fail. Grounds (1) and (2) of the appeal should therefore succeed.
The consequences of the above finding
As I said earlier, neither party contends that the supervision order should stand absent conditions 2(b) and (c). It was obviously intended by the learned judge that all of the conditions be part of a package. It was also obviously never intended that the order revoking the restriction order was an order made in isolation which could or should stand were the supervision order quashed. In those circumstances, I am of the view that the consequence of the success of the first two grounds of appeal must be that his Honour's order of 12 December 2008 should be quashed in its entirety.
What order should this Court then make?
The appellant contends that the appeal should be allowed, the order of the learned judge should be quashed in its entirety, and the application of the respondent to discharge the restriction order should be dismissed. The respondent, on the other hand, while he does not oppose the first two steps, contends that the application to discharge the restriction order should succeed and a continuing care order should be made in its place.
It is necessary to look at the evidence before the learned judge to determine these issues. There was no dispute that the respondent suffered from paranoid schizophrenia and that he required on-going treatment and management. There was no suggestion by anyone that the respondent should be released back into the community. The debate before the learned judge was one about the facility in which the respondent could most appropriately be managed and treated, and what legal framework could be used to achieve that treatment and management. There seemed consensus that the options were a secure mental health unit in the form of the Wilfred Lopes Centre, an approved hospital in the form of Tyenna Blue (a ward within the Milbrook Rise Centre), or a combination of the two. His Honour was very mindful of the principles set out in the Act, s34, and the matters to be had regard to in the Act, s35. He was also mindful of concerns expressed by the CFP about his legal power to put into place what his Honour clearly thought was the preferred arrangement.
Because a restriction order requires that a person be detained in a secure mental health unit, were there to be any option of placing the respondent at Tyenna Blue, the restriction order could not remain. As I have already found, in my view, a supervision order does not provide for detention anywhere save when the provisions of the Act, s31, operate. A continuing care order provides for detention in an approved hospital which would allow the respondent to be housed at Tyenna Blue. From the appellant's point of view, the disadvantages of a continuing care order in the respondent's case are that:
- such an order is, in the first instance, limited to a period of six months,
- steps are required to be taken, in effect, every six months, if such an order is to be on-going,
-while the CFP could direct the movement of the respondent from Tyenna Blue to the Wilfred Lopes Centre under the MHA, s72B, the regime under that Act would suggest that it is a temporary measure only, and
-the facilities at Tyenna Blue do not provide for the level of treatment and management of the respondent that is deemed necessary.
The appellant contends, and indeed there was uncontraverted evidence, that:
-the respondent suffered from chronic paranoid schizophrenia characterised by a complex delusional belief system and psychosis,
- central to his belief system is that he believes he has invented a perpetual motion machine,
- the respondent is medication resistant,
- the respondent is less irritable and aggressive when medicated,
- the respondent is a risk to others if not medicated,
-when in the community, the respondent has a tendency to arm himself and be a danger to the community, and
- the Wilfred Lopes Centre was more secure than Tyenna Blue.
The respondent contends, having regard to the evidence, that:
-the respondent would be a low risk to himself and others were he medicated in a secure setting and that Tyenna was such a setting (Dr Sale),
-as at December 2007, the respondent had been compliant with medication. There was no evidence as to whether he had been compliant or not after that date,
-the respondent spends most of his days simply writing and does little else. He will not engage in organised activities at the Wilfred Lopes Centre. He has been out on short accompanied trips without apparent incident,
-Tyenna Blue is equipped to provide care for violent or potentially violent patients suffering from chronic paranoid schizophrenia, and
-it was Dr Sale's opinion that the respondent could be adequately cared for at Tyenna.
The learned judge heard evidence from Mr Christopher Fox, who, at the relevant time, was the Southern Area Manager with Mental Health Services. He and Dr Milford McArthur, the Director of the Department of Psychological Medicine at the Royal Hobart Hospital, wrote a letter to the CFP dated 12 September 2007 in which they stated it was their belief that Tyenna Blue was not properly equipped and staffed to care for and treat the respondent. The reasons given were as follows:
"1 Potential negative impacts on Mr H's level of freedom and personal autonomy. If transferred to Tyenna, Mr H would need to be accommodated in the six (6) bed Tyenna Blue secure unit. This facility is relatively small with a restricted outdoor area and hence would not offer Mr H the amount of space or freedom presently available to him at Wilfred Lopes Centre. This issue is not a major concern to current Tyenna Blue clients who have an average length of stay of between three and six months but could become problematic for any individuals who required treatment for a longer period. It is our understanding that this could be the case with Mr H.
2Lack of multidisciplinary staff. Mr H is currently benefiting from input from trained Occupational Therapy and Psychology staff. These resources are not available at the Tyenna site, a fact which could negatively impact upon his ongoing rehabilitation should a transfer to this facility occur.
3Lack of consultant psychiatrist input on the Tyenna site. Feedback from clinicians at the Wilfred Lopes Centre indicates that Mr H is constantly pre-occupied with his delusions and requires close clinical management to minimise personal distress related to the same. An essential part of this management is regular input from a Consultant Psychiatrist. At present the Tyenna unit only has access to a Consultant Psychiatrist two (2) sessions per week which could make this management problematic. In comparison, the Wilfred Lopes Centre has access to seven (7) Consultant Psychiatrist and seven (7) Psychiatric Registrar sessions per week. It is hence reasonable to postulate that at this point in time the Tyenna facility lacks the specialist medical resources to effectively treat Mr H's mental illness for an extended period.
4Inability to continue his current leave program. The Forensic Tribunal has approved Mr H's participation in a diversional program which takes him on relatively regular excursions beyond Wilfred Lopes Centre. His treating team at this facility have indicated that this program should continue - providing that documentation to extend the same is approved - as it is beneficial in reducing his constant preoccupation with his delusions. The concern for Tyenna Blue is that each of these excursions required a minimum of two (2) escorts. This unit functions on a level of three staff per shift and hence these escorts cannot be provided from the current staffing compliment. Ongoing budget concerns and current staffing shortages are also relevant here. If Mr H transfers to Tyenna this will mean that this program will only be available on an irregular basis, a fact which may again impact upon his rehabilitation and personal mental health.
5Demands on the Tyenna facility from other areas. The Tyenna unit is a state-wide facility which accepts referrals from a number of areas including the Department of Psychological Medicine and the Psychiatric Intensive Care Unit at the Royal Hobart Hospital, Ward 1E at the Launceston General Hospital and Spencer Unit at the North West Regional Hospital. Given the limited beds at this site (Tyenna Blue has six beds), an admission which may extend for a number of years will impact upon treatment pathways for other clients,
6Staffing issues. Feedback from clinicians treating Mr H at the Wilfred Lopes Centre indicates that he is currently mentally stable and presenting as a minimum of risk. This appears to be the result of intensive multidisciplinary management in a secure setting. Our concern is that if he were to transfer to Tyenna - where the same level of intensive multidisciplinary management is not currently available - then he could deteriorate mentally, become non-compliant with medication and hence present as an increased risk. Whilst the staff at Tyenna are very skilled and experienced in terms of managing such individuals they lack the numbers or supports to deal with high-risk volatile individuals on an ongoing basis. This in turn could lead to significant safety issues for Mr H, staff and fellow clients.
7Previous Admission to Tyenna. In 2001 Mr H was admitted to Tyenna for several months. This admission was characterised by threats to staff, non-compliance with medication and aggression when his wishes were not met. At one point Mr H wrote a letter of a threatening nature about his treating Psychiatrist, copied and laminated the same and then did a letter drop around the New Norfolk area. He was able to achieve this on his visits to the library whilst on a leave pass from the unit. Feedback to the unit indicated that the community were clearly distressed by this action and were afraid that he may become an ongoing threat. Staff also report that he was intimidatory and demanding toward them on a consistent basis. Restricting him to the confines of the very small Tyenna Blue Unit does not satisfy 'the least restrictive' criteria and allowing leave from the unit potentially places the community at risk. Clearly his mental state has not changed since that admission and thus a further admission to such a facility as Tyenna remains inappropriate."
Mr Fox gave oral evidence before the learned judge. He had been in his position for nearly five years and had been to Tyenna Blue on multiple occasions. He had an intimate knowledge of its staffing levels and resources. He described those staffing levels and resources. Tyenna Blue was a six bed secure ward. As at December 2007, there was no bed available for the respondent and indeed there was a waiting list of four for the unit. A normal length stay at the unit was six to nine months. Mr Fox conceded the respondent could be accommodated at Tyenna Blue. However, his predominant view was that the facilities and staff available there were not ideal to continue with the type of treatment and management the respondent was the subject of at the Wilfred Lopes Centre. Some of his concerns related to issues which might have been addressed by an increase of both staff and facilities at Tyenna Blue. However, there was no evidence those increases were available or indeed likely to occur.
Mr Fox disagreed with Dr Sale as to the appropriateness of Tyenna Blue as a placement for the respondent. It should be noted that Dr Sale was not the respondent's treating psychiatrist and he did not have the same level of intimate knowledge of the functioning of Tyenna Blue as did Mr Fox. He was aware, however, of a patient who had been kept at Tyenna Blue for about 18 months. That evidence was given in response to the suggestion that the unit was predominantly for shorter term patients.
The respondent is now aged 61. He had been incarcerated in a secure mental health unit since 2003. Dr Sale's view was that the respondent's age and state of physical health would in itself reduce his capacity to respond to situations in a violent manner as he had done years before, and that the potential for his being a risk to others in the community would continue to diminish over time.
The respondent has a longstanding mental illness which requires that he be medicated. If he is not so medicated, he can become aggressive, possibly violent, and be a risk to others. It is accepted that his age may mean that that risk diminishes with time. However, there was no evidence before the learned judge or this Court that that risk had diminished to such an extent already, such that the respondent's treatment regime should be altered. The respondent was settled, he had a routine which involved approved external outings, and he was medicated. It is arguable that his settled state was attributable to his current regime.
There seems no doubt that, albeit with considerable difficulty, a regime similar to that to which the respondent is presently subject, could be continued at Tyenna Blue. I say similar because the evidence of Mr Fox was that the same resources were not available "on tap" as they were at the Wilfred Lopes Centre. What impact that may have on the respondent is simply not known. There was also evidence that the physical surroundings at the Wilfred Lopes Centre were more generous, even though it appears the respondent does not make use of them.
Dealing with the Act, s34, this Court, in determining what order should be made if the restriction order is discharged, is, where appropriate, to consider the principle that the restrictions on the respondent's freedom and personal autonomy should be kept to a minimum, consistent with the safety of the community. The evidence about the facilities available at each of the two units, the Wilfred Lopes Centre and Tyenna Blue, does not suggest that in physical terms, the former places any greater restriction on the respondent than the latter. Indeed it seems the reverse may be true. As to possible legal freedom, there is no doubt that a continuing care order may be in a sense "reviewed" far more frequently than a restriction order, if for no other reason than such an order lapses without steps being taken after six months.
The clear problem with a continuing care order is the need for active steps to be taken for its renewal. This same problem was addressed in CJS v Tasmania [2008] TASSC 85, albeit when dealing with different types of orders, and similar concerns, as raised here, were raised. The issue of the respondent's freedom and personal autonomy is not one which should override all else. It is an issue to be considered "where appropriate" and in the context of community safety. It is also to be considered in the context of the factors identified in s35. There was no evidence to suggest that, at the end of six months from, for example, when this appeal was heard, the respondent would not need to be detained in some form of secure environment and required to take medication. In fact, the preponderance of the evidence about the respondent and his treatment would suggest that it is virtually inevitable that, if this Court were to make a continuing care order, it would have to be renewed.
If it is not, the respondent would be immediately entitled to unrestricted release into the community. There is nothing at all to suggest that this would be in his or the community's interest.
I am mindful that, if the respondent's application to discharge the restriction order is dismissed, the respondent's situation will again be reviewed by the tribunal in due course. If it takes a similar course of action to that which it took in May 2007 in this matter, this Court may very well be dealing with this matter again in the not too distant future. While it is the respondent's right to take any step available to him to have his situation reviewed, and altered if that is what is warranted, this current situation has arisen because the respondent was encouraged to apply for an order that, in the face of all medical opinion before this Court, should never have been made. It may well be that legislative change might be needed to ameliorate the difficulties with how our mental health system deals with persons such as the respondent. However, the law as it stands does not permit the type of order which the learned trial judge made, and it is unfortunate the respondent was encouraged to seek it.
I am of the view that, on the evidence before this Court, the regime encompassed by a continuing care order would not address the needs of the respondent and the safety of the community. That may well change if, as suggested by Dr Sale, the respondent's age and health would reduce any potential risk to the community.
In all the circumstances, I would order that the appeal be allowed, that the order of the learned judge made on 12 December 2008 be quashed, and that the application of the respondent for the discharge of the restriction order be dismissed.
0
4
1