The Queen v LB - [2021] NTSC 63

CITATION:The Queen v LB [2021] NTSC 63
PARTIES:THE QUEEN

v
LB

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21134218
DELIVERED:  27 August 2021
HEARING DATE:  19 July 2021 and 6 August 2021
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Crown 19 July 2021:                   N Loudon
Supervised Person:  J Stuchbery
CEO, Department of Health:       E Farquhar
Solicitors:
Crown:Director of Public Prosecutions
Supervised Person:  North Australia Aboriginal Justice Agency
CEO, Department of Health:       Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  Kel2114
Number of pages:  24

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v LB [2021] NTSC 63

No. 21134218

BETWEEN:

THE QUEEN

AND:

LB

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 August 2021)

On an indictment dated 12 December 2011, LB was charged with robbing a woman of $50 in cash on 12 October 2011. In summary, the facts of that offence were as follows. The victim, AW, a 65 year old woman, withdrew $50 in cash from an ATM at Northlakes Shopping Centre, Marrara. LB approached her and asked her for $2. LB grabbed AW’s hand, struggled with her and pulled the $50 from her hand. Then he kicked off his thongs and ran away. Someone saw what happened, followed LB to where he was staying, and called the police. A short time later, police went to that house and found LB, out of breath and sweating profusely. He immediately said to police, “I didn’t take any money. I didn’t steal anything. My brother uncle took it.”
Reports received by the Court indicated that LB had a dual diagnosis of moderate intellectual disability and schizophrenia, and on 16 April 2012, the parties agreed that an investigation into LB’s fitness to stand trial could be dispensed with and LB was declared unfit to stand trial. The Court found that he was unlikely to become fit to stand trial within 12 months and a special hearing was listed for 17 May 2012.
A special hearing pursuant to Division 4 of Part IIA of the Criminal Code (NT) (“the Code”) was held on 17 May 2012 and, on the basis of agreed facts, the jury found that LB had committed the offence with which he had been charged.
Following the special hearing, Mildren J made a declaration pursuant to s 43X(3) that LB was liable to supervision and ordered a report pursuant to s 43ZJ to be prepared within 30 days. LB was granted bail to live with his mother and step-father and not to leave that address except in the company of his mother or step-father or his sister. The Court noted that LB was under an adult guardianship order made in 2010, under which the joint guardians were his mother and the Public Guardian.
On 2 July 2012, the Court ordered that LB be subject to a non-custodial supervision order and fixed a nominal term pursuant to s 43ZG(2) of two years from 27 November 20011. As a consequence, the major review under s 43ZG(5) was due to commence between 27 May and 27 August 2013. Under the non-custodial supervision order, LB was to remain under the care of the Top End Mental Health Service (TEMHS). That included living in supported accommodation in the rural area.
In August 2013, LB assaulted a worker and was taken into custody. On 29 August 2013, the matter came before the Court. The major review was formally commenced and adjourned to 30 August, and LB was remanded in custody for a time.
After a further adjournment for the preparation of reports, the matter came before the Court again on 30 October 2013. In the meantime, LB had been released back into the community on the non-custodial supervision order. On 30 October 2013, counsel for LB, Mr Hunyor, complained of inadequacies in the regime under which LB was living in the rural house including:
·a lack of indigenous staff, role models and mentors;
·failure to use interpreters when communicating with LB which resulted in misunderstandings;
·lack of awareness of LB’s cultural background and circumstances by staff;
·failure to use appropriate visual aids when communicating with LB; and
·failure to develop a personal profile.
Mr Hunyor advised that there was a long term plan for LB to live at an outstation on Elcho Island under the care of some culturally appropriate strong men in a relationship of authority to LB. The matter was adjourned a number of times so that arrangements could be made for this to occur.
On 10 December 2013, the non-custodial supervision order was varied to enable LB to live on Elcho Island with his uncle. Among the conditions were that he was to be treated at the clinic at Galiwin’ku and obey all reasonable directions of his uncle.
The matter was called on a number of times for variations of the non-custodial supervision order to be made, but by 30 May 2014, LB was back in Darwin under the care of TEMHS and the disability service living in supported accommodation in Darwin, and the non-custodial supervision order was varied to formalise that arrangement.
On 10 June 2014 an order was made continuing the non-custodial supervision order and the matter adjourned for further review. By this point, each time the matter came before the Court, the focus of the reports that were prepared and submissions by counsel, and the concerns expressed by the Court were all on LB’s most appropriate living arrangements and how he could be best managed under the non-custodial supervision order: the fact that the major review had not been concluded was lost sight of. The matter was adjourned from time to time as though for periodic reviews.
The Court received a report in September 2015 which indicated that LB had been agitated, pacing, talking to himself, verbally aggressive and threatening staff, and that he had been self-harming by picking at sores on his skin when he felt sad. His verbal aggression and self-harm appeared to be precipitated by frustration when his demands were not met immediately. His chief demands were to have cigarettes, to go shopping, and to visit his mother. The report mentioned that LB’s mother expressed the view that LB was not happy living at the Golden Glow Nursing accommodation. She wanted LB to live with her, either in Galiwin’ku or in Darwin, it was not clear which. There was a proposal for LB to move to different supported accommodation in Alawa, a proposal LB’s mother did not support.
On 16 December 2015, the matter was again before the Court at which time the September report was discussed. Counsel for LB, Mr Hunyor, reported on his discussions with Mr Macdonald, counsel for the CEO of the Department of Health about accommodation options for LB. He reported that three options were being considered:
(a)One was that he continue in his present accommodation with the possibility of employing someone who better understands the cultural needs of LB and the family.
(b)Another was that he live in some sort of supported residence in Darwin with his mother and family. There were continuing problems with overcrowding at LB’s mother’s house and a discussion occurred about requesting the Department of Housing to allocate priority housing to LB’s mother or his sister and her children – all of whom were living with LB’s mother along with LB’s disabled brother.
(c)The third option was another attempt for LB to return to Galiwin’ku. Problems with that included a lack of available housing, and LB’s mother’s commitments in Darwin with her other children and grandchildren.
At the 16 December mention, I reiterated concerns I had expressed at an earlier mention about the proportionality of the ongoing nature of the order given the relatively minor nature of the offending which resulted in the order. Mr Macdonald for the CEO of the Department of Health advised that the director of psychiatry at TEMHS, Dr Kini, was of the very definite view that in the absence of a supervision order, the risk of non-compliance with medication was significant and would result in significant and serious risks. The matter was further adjourned to enable the options to be explored.
The matter was again adjourned sometimes at three monthly intervals for progress reports and also for what were assumed to be periodic reviews.
In October 2019, I reviewed the file and discovered that the major review had never been completed. On 25 October 2019 I drew counsel’s attention to that fact. Further reports were ordered and, at the request of counsel for LB and the CEO of the Department of Health, the matter was further adjourned for six months. One reason for the adjournment was that there were proceedings on foot before the Northern Territory Civil and Administrative Tribunal (“NTCAT), in which the NTCAT was being asked to determine whether the Public Guardian or LB’s mother would have the authority to determine where LB should live.
The matter was adjourned again a number of times while the NTCAT proceedings were progressing and, in the meantime, I received the following reports for the purposes of the major review.
(a)report of Dr Ranjit Kini dated 22 March 2021;
(b)report of Ria Ford, Behaviour Support Clinician, Forensic Disability Unit, Mental Health Alcohol and Other Drugs Directorate, Department of Health dated 19 March 2021; and
(c)report of Zeynep Sethi, Case Manager, Forensic Disability Unit, Department of Health dated 14 July 2021.
Dr Kini’s report
Dr Kini recited LB’s dual diagnosis of moderate intellectual disability and schizophrenia and reported:
LB’s intellectual disability continues to have a significant impact on his day to day living, necessitating high levels of supervision and support from professionals and family members. He continues to report and manifest residual psychotic symptoms and negative symptoms of schizophrenia which compound his functional impairment.
LB has a complex needs care plan with the National Insurance Disability Scheme (sic) (NDIS) which includes funding for Supported Independent Living (SIL) accommodation. He has been residing in his current SIL accommodation run by ERMHA365 since 14 April 2020.
Ms Louise Bowden from Anglicare NT is LB’s NDIS Coordinator of Support (CoS). The Top End Mental Health Service (TEMHS) Forensic Mental Health Team (FMHT) oversees his psychiatric (relating to his mental illness) care. The Forensic Disability Unit (FDU) provide consultation and oversight regarding his Intellectual Disability needs. Staff from FMHT, FDU and ERMHA365 liaise regularly with Ms Bowden to discuss and implement support interventions for LB. Mr Chris Yerriah is LB’s Public Trustee. He oversees his financial affairs.
The report describes LB’s symptoms in relation to his schizophrenia as intermittent overt psychotic symptoms including hearing voices, as well as negative symptoms including a reduced ability to express emotion, emotional withdrawal, poor rapport, difficulty in taking initiative, apathetic social withdrawal, difficulty in abstract thinking, lack of spontaneity, restrictions in the fluency and productivity of thought and speech, restrictions in the initiation of goal-directed behaviour, lack of pleasure and attentional impairment.
The report describes the symptoms of LB’s intellectual disability as impairment of attention, information processing and executive functioning. This involves problems with sustaining and focusing attention, concentrating, prioritizing and modulating behaviour based on social cues. He also has deficits in intellectual functions such as reasoning, problem solving, planning, abstract thinking, judgment and learning from experience. This section of the report concludes:
Due to his significant intellectual disability, LB struggles to understand the components of his care plan and the rationale for their inclusion. This is despite repeated explanations, use of visual aids and prompts. He therefore makes repetitive demands of staff which are not met, because his demands are inconsistent with his care plan. He becomes frustrated and vents his frustration by angry outbursts, punching or damaging property (most recently on 22 February 2021) or harming himself. His underlying impulsivity, low frustration tolerance, emotional dysregulation and poor prosocial problem solving skills exacerbate these behaviours. Triggers for the escalation of his frustration include the following:
·     When his demands for cigarettes are not met. This happens both at his SIL and his mother’s residence. His cigarettes often run out before his next Centrelink Disability Living Allowance (DLA) pay, because he does not adhere to tobacco rationing as suggested by staff.
·     When staff discourage him from visiting his mother’s residence on days he is required to stay at his SIL accommodation.
·     Lack of funds preventing him from shopping.
·     High expressed emotion.[1]
…
LB has continued to intermittently self-harm, discharge aggression and damage property when frustrated. These behavioural outbursts have largely occurred in the context of running out of cigarettes, not having enough spending money, wanting to visit or stay with his mother or his demands not being met.[2]
On the other hand, Dr Kini reported that sometimes when LB is at his mother’s house he asks to be returned to the supported independent living accommodation when he feels angry or overwhelmed, and sometimes his mother calls the supported independent living accommodation provider to pick him up when she struggles to cope with his behaviour.
Elsewhere in the report,[3] Dr Kini notes that most of LB’s Disability Living Allowance is used up to pay rent and boarding costs of his supported independent living accommodation, leaving him little spending money, which has left him feeling frustrated. He notes that alternative care providers are being considered to explore whether LB can get more cost effective 24 hour staff supported independent living accommodation.
Dr Kini’s report assesses LB’s risks in the following terms.
LB’s care plan permits him to visit his mother’s home and stay overnight there on three days per week. He is required to reside at his SIL accommodation for [the] rest of the week. Despite this, over the course of the review period, LB has frequently visited and stayed at his mother’s residence on days when he was meant to reside at his SIL. He did so without staff approval, sometimes late at night or in the early hours of the morning. On many occasions, he refused to return to his accommodation when staff attended his mother’s home to pick him up.[4]
LB’s absconding from his SIL accommodation has risk implications to him and to others. Due to his significant impulsivity, poor judgement and cognitive deficits, he places himself and others at risk while navigating traffic. His tendency to look for spent cigarette butts while walking in communal areas distracts him from paying adequate attention to his safety. In the event of being questioned or challenged by members of the public, due to LB’s dual diagnosis, there is a likelihood of him misinterpreting social interactions and responding in a hostile manner. Equally, he is at an increased risk of being a victim of exploitation. Although, LB’s care plan requires his family members to supervise him during family visits, he is sometimes left unsupervised.[5]
LB’s mother denies leaving him unsupervised. Her affidavit evidence is discussed below.
Dr Kini states that the unauthorised visits to his mother also cause difficulties in administering LB’s medication, and says that on some occasions LB’s mother has discouraged him from taking his anti-psychotic medication.[6] LB’s mother denies this. Her response is outlined at [39] below.
The report gives details of the numerous people and organisations engaged in providing services of various kinds to LB and states:
The unanimous view of stakeholders in the December 2020 and February 2021 meetings was that without the NCSO, there is a high likelihood of LB disengaging from his care plan. The concern was that in such a scenario, LB’s mental health would deteriorate significantly and his risk of serious harm to himself and to others would increase significantly.[7]
Dr Kini reported on a risk assessment he performed based on the Historical Clinical Risk management guide (HCR-20 v3).[8] He noted that LB had a number of prior convictions including for assault in 2004 and 2006[9] and that records indicate that he had engaged in violent behaviour towards family members between 2006 and 2011 that had not resulted in criminal charges.[10] He noted also that LB’s past use of alcohol, cannabis and volatile substances have been factors associated with his violent behaviour.[11] He concluded:
Prognosis: LB’s dual diagnosis, which is likely to be life long, will continue to adversely impact his day to day functioning in the community. His mental state and risk behaviours are likely to fluctuate in response to life stressors. To mitigate this, he will continue to require SIL accommodation with high levels of staffing support, supervision and monitoring. Without this high level of support and supervision, LB’s risks are likely to escalate to a point where he would likely pose a risk of serious harm to himself or the public. If LB continues to receive the multimodal care package as described in this report, his care and risk needs can be better met.[12]
Dr Kini expressed the view that the Guardianship Order on its own is unlikely to be effective in ensuring LB’s adherence to his treatment and multi-modal NDIS care plan.[13] This view is based partly on the fact that LB’s mother is LB’s guardian for his health related matters, and that she has expressed the view on a number of occasions that psychiatric medication is harmful to him.[14] LB’s mother does not agree with this assessment. Her affidavit evidence is discussed in more detail below.
Dr Kini considers the possibility of a Community Management Order under the Mental Health Act being put in place. He says that although this would require LB to adhere to his monthly depot injection, it would not affect compliance with his prescribed daily oral medication.[15]
Dr Kini notes that LB and his family have consistently said that in due course they want LB to return to Galiwin’ku where the medical, psychiatric, nursing and support services LB needs are not available. He expresses the view that if this should occur there will be an increased risk to members of the community, LB’s family and himself.[16]
Dr Kini opined that even if LB were to continue to live in Darwin, if the non-custodial supervision order were removed there would be a greater likelihood that LB would disengage from his care and risk mitigation plans increasing the risk of his illness and behaviour worsening resulting in an escalation of the risk of serious harm to LB and others.[17]
Dr Kini concluded:
In my opinion, LB’s adherence to his treatment and NDIS care package can only be ensured if he is subject to a NCSO. If he were to disengage with treatment and his care package, his mental health, coping, inter-personal relationships and behaviour are likely to deteriorate. In such a scenario, his risk of serious harm to himself and to others is likely to increase significantly.[18]
...
In my view, in the absence of the NCSO, LB is likely to pose a serious risk of harm to himself and to the public. Therefore, I recommend the Court consider continuing LB’s NCSO and conditions therein.[19]
Submissions made on behalf of LB
Through his counsel LB opposed the continuation of the non-custodial supervision order and submitted that the appropriate order under s 43ZG(6) was to order that LB be unconditionally released. LB’s mother, Ms Murukun, supported this position. Ms Murukun swore two affidavits in which she deposed as follows.
(a)She outlined changes that had been made to LB’s supported living arrangements – moving to less expensive supported independent living accommodation providers which took up less of LB’s disability pension, with a new co-ordinator, an indigenous man, Rodney Fejo. She said that LB likes the new co-ordinator and that he is more understanding than the previous co-ordinator. They are also hiring more Aboriginal support workers.
(b)She said that in the long term, the family want LB to move to Elcho Island with family, but for now, they want him to slowly come across to live with family in Darwin and have NDIS pay for services and activities for him every day with Aboriginal service providers.
(c)Ms Murukun made the following general comments about LB’s situation.
(1)     LB has been under supervision of the Supreme Court for many years now. It is dragging on way too long. There are too many people from the government and agencies who have agendas for LB. He can’t get free. We need to make a plan so that LB can live his life as an Aboriginal man and have strong connections to his land and culture. That is the only thing that is the best thing for LB.
(2)     LB needs to be looked after by his family. LB’s family understand him, we speak the same language and we know who he is and he has his identity together with ours. His brain problems mean that he needs to be looked after by family even more than anyone else. Why? Because LB’s biggest problems and his worst behaviours are often because of the government interference and the white systems.
(3)     When LB was with me, years ago, we looked after his money. We did a good job to keep him happy and keep his money happy. When he got his pension, we took out a few hundred dollars for him to have in his pocket and spend on things and left the rest in the bank for him. It worked well and LB stayed happy. But then the Public Guardian and the Public Trustee got involved in his money and they were only giving him little bits, $30 here, $40 there, $60 one day, and it was not enough for him to feel happy like he can buy what he needs. So then he gets frustrated for money. That is why he took the money from the lady’s hand all those years ago. He has a disability brain and he likes money. He needs to be managed carefully by those who understand him best and know his understanding too.
(4)     When LB hasn’t got a smoke, he gets upset. Same with money. Those are the two things that can make him angry. We know him best and we know ways to manage those things for him, to save for when he needs it. And anyway, we don’t mind sharing with him if he has run out of money. So it is no good to have those people in control of his life, in control of where his smokes go and where his money goes. If he lived with us all his big triggers could be avoided almost entirely.
(5)     We don’t want LB to be looked after by the forensic mental health people forever. Those people don’t know him, they don’t love him and they don’t really understand him. They don’t understand his background and they can’t help him with developing a method to use his cultural understanding towards his own financial problems. We want LB’s closest family to be in charge of looking after him because we really understand him. That is the best thing for him, to be looked after by his closest family.
…
(38) We are working now, and we have been for years, working for him to come and live with us. I am trying to work with the doctors to get it arranged, we want to have LB here with a good environment with the family. Take him to church together. Take him shopping together. We want to watch him all the time.
(39) We would have to make sure everything is in place with his care and supports for that to happen. I will work with community mental health services.
Consideration

Under s 43Z(6) of the Code, on completing a major review, unless the Court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released, the Court must release the supervised person unconditionally.
I do not consider that the safety of the supervised person or the public will be seriously at risk - or that it is likely to be seriously at risk - if LB is released from the non-custodial supervision order. Therefore, on 16 August 2021, I made an order unconditionally releasing LB from the supervision order. These are my reasons.
I accept that LB is suffering from schizophrenia that will require ongoing treatment with anti-psychotic drugs, some of which need to be administered orally each day, and one drug which needs to be administered by depot injection every four weeks. I also accept that he is suffering from a moderate intellectual disability and that both of these conditions are life-long. Further, it is plain that LB’s intellectual disability involves difficulties with reasoning, problem solving, planning, abstract thinking, judgment and learning from experience. He is impulsive and has a low tolerance for frustration, and often does not understand why he is required to do something he does not wish to do, or be somewhere he does not wish to be, or why he cannot have things that he wants such as cigarettes or money for shopping. He becomes frustrated and vents his frustration by angry outbursts, sometimes punching or damaging property. He is clearly in need of care and support.
A number of measures are in place to provide LB with the care and support he needs, and which will be unaffected by the order unconditionally releasing LB.
LB’s mother cares for him and is willing, with other family members, and with the support available through LB’s NDIS package, to care for him.
He is under an Adult Guardianship Order. The Public Trustee has responsibility for his financial affairs and his mother and the Public Guardian have authority over his personal affairs. His mother has authority to make decisions about his health care and the Public Guardian has authority to make decisions about his living arrangements.
Dr Kini has expressed concern about the fact that LB’s mother has authority over decisions relating to LB’s health and that she has expressed the view that the anti-psychotic medication is bad for LB. However, LB’s mother has explained that she accepts that decisions about medication should always be made by the doctors and that when he is staying with her she gives him his medication. She says that there has been misunderstanding and miscommunication. She has not said that the medication is harmful to LB. Sometimes LB has complained about the amount of medication he is receiving and as his mother, and the person responsible for his health care, she tells the doctors if LB is not happy. One time they gave LB more medication than he should have. She had a meeting with the mental health team and they apologised. She just needs to be kept informed and know what’s going on. Ms Murukun says that both she and LB like Dr Kini and feel able to have a respectful discussion with him about LB’s treatment.
Should there be difficulties, there are further safeguards that could be put in place in the future. LB could be placed under a Community Management Order if it proved necessary and, in the last resort, should he become floridly psychotic, he could be admitted to a psychiatric ward for treatment, as an involuntary patient if necessary, the same as any other person with a mental illness which needs ongoing treatment.
Among the risks identified by Dr Kini is the risk of LB being injured in traffic walking to his mother’s home by himself, particularly as he has a habit of looking for cigarette butts on the way. There are a number of things that can be said about that.
(a)This risk exists whether LB is on a non-custodial supervision order or not. The report indicates that LB has often gone to his mother’s house without permission from his carers, sometimes late at night while subject to the non-custodial supervision order.
(b)I do not consider that this is a matter that could be said to put the safety of the supervised person or the public seriously at risk if LB is released from supervision.
The same can be said about the concerns expressed by Dr Kini that there is a likelihood of LB misinterpreting social interactions and responding in a hostile manner, or being at risk of exploitation. The risk exists whether LB is on a non-custodial supervision order or not, and it is not something that could be said to put the safety of the supervised person or the public seriously at risk if LB is released.
Dr Kini has expressed the view that releasing LB from the non-custodial supervision order will make it more likely that he will become non-compliant with his treatment and NDIS care package, and that, in turn, will make it more likely that his behaviour will deteriorate and that “his risk of serious harm to himself and to others is likely to increase significantly”. That assessment was in part based on LB’s history of violent behaviour. I do not consider that risk sufficient to justify keeping the non-custodial supervision order in place.
(a)Saying that LB’s “risk of serious harm to himself and to others is likely to increase significantly” should he become non-compliant with his treatment, is not the same as saying that LB’s safety or the safety of the public will be or is likely to be seriously at risk if LB is released.
(b)I have outlined above the available methods by which LB’s compliance with his treatment regime can be facilitated and the risks mitigated.
(c)LB does not have a significant history of serious violence. He has three prior convictions for assaults, all of which were dealt with in the Local Court and resulted in relatively minor sentences: three months, two months and seven days. He has never been charged with causing serious harm. The offence which resulted in the imposition of the non-custodial supervision order, although technically a violent offence, consisted of his taking $50 from a woman’s hand at an ATM and running away.
(d)LB has been on a supervised order since April 2012, a period of almost 10 years, and only once during that time, towards the beginning of the period, was it necessary to invoke the Court’s jurisdiction to deal with non-compliance with the order, when LB assaulted a carer in August 2013.
(e)LB’s problem behaviour has consisted mainly of leaving his supported accommodation when, under his care plan, he was not meant to do so, and becoming verbally aggressive when he was unable to have cigarettes or didn’t have enough money to go shopping. This problem behaviour was likely exacerbated by the conditions under which he was living. He did not want to live in the supported independent living accommodation: he wanted to live with his mother. Further, the rent and board ate up most of his disability living allowance leaving him short of money for cigarettes and shopping. In any event, neither of these things – leaving his supported independent living accommodation and verbal aggression – are likely to put LB’s safety or the safety of the public seriously at risk.
LB’s situation has changed considerably since he was first placed on the non-custodial supervision order. He now has an NDIS package which currently provides funding for supports for LB in an amount of $999,638.65 per year. The report of Zeynep Sethi advises that LB’s NDIS Complex Planner has advised that the following potential disability supports would be available to LB should he live at his mother’s house.
·Drop in Daily supports to assist with Daily Tasks and personal care, Hygiene etc. – hours are determined on reports and recommendations from Allied Health and treating specialists against the Reasonable and Necessary requirements under the NDIS Act.
·If LB cannot undertake any meal preparation tasks, capacity building supports can be funded for skills development.
·Assistance to maintain home and living environment, this could include for example, yard maintenance.
·Supports to maintain informal arrangements and care to prevent carer burn out for his mom (this may include respite). As per the NDIS operational guideline for Respite or Short Term Accommodation, this can be funded for up to 28 days.
·Supports to provide LB with Community access and capacity building whist [sic] in community.
·Allied Health funding to assess and recommend any further requirements, such as Assistive Technology or Home modifications.
·On call supports for escalations or incidents, such as behaviours of concerns [sic] during late night.
If LB does not reside with his mother, and enters into a Supported Independent Living arrangement through an NDIS registered provider, it is for LB and his Guardians and decision makers to negotiate with the provider on his contributions for incidentals. Regardless of LB’s physical address, his supports can remain the same or he can choose to engage a different provider should his decision makers decide to do so.
LB can continue to utilise his current funding should he move address. The funding remains and is to be utilised as per its intention when it was approved by the previous delegate until a new plan is developed and approved. However, should LB move location, the NDIS will need to be notified, and a change of circumstance submitted and a plan review will be conducted. During the review of LB’s plan (should it be required), LB can continue to utilise his current funding at the rate and ratio in which it was intended when the plan was approved. When a plan is reviewed, all existing and new evidence will be considered to determine if any changes need to be made to his current funded supports.
The availability of these supports will go a long way towards mitigating any risks to the safety of LB, his family or the public in the absence of a non-custodial supervision order. Of particular importance is the on call supports for incidents at night. The absence of such support, should LB live with his mother, was a factor which counsel for the CEO of the Department of Health contended supported the continuation of the non-custodial supervision order.
Zeynep Sethi has expressed the following view.
From a clinical perspective, it is prudent for LB to continue receiving consistent care and support in a professional and structured environment that adequately meets his disability and behaviour needs and risks, irrespective of the NDIS supports he may be eligible to receive in his family home.
However, that is not to say that LB’s safety or the safety of the public will be or is likely to be seriously at risk if LB is released.
In her report, Ria Ford also expressed concerns that releasing LB from the supervision order “is likely to pose serious risk to him and others”.[20] Those concerns are largely based on the possibility that, if released, LB might choose to live with his mother, and concerns that Ms Murukun may refuse to let TEMHS give LB has depot injection, saying she had done so in the past. In her affidavit, Ms Murukun denied refusing to let LB have the depot injection.[21] She said that she only tried to postpone the appointment to later in the day or the next day because LB was very upset and didn’t want to go. Ms Murukun’s general attitude to LB’s medication and health care is summarised at [39] above. Ms Ford expresses the following conclusion:
13.1 Whilst LB is considered to be reasonably stable at this time, this is attributed to the very high level of external supports and measures put in place, alongside the specialist management of his mental health care needs by FMHT.
13.2 For the reasons outlined at Section 11 of this report, it is the view of the author and of the wider joint treatment team, that under the current circumstances a discharge from the NCSO would impact the safety of LB, his family and the wider community.
Given Ms Murukun’s expressed views about LB’s need for continuing treatment and medication; the current safeguards and potential future safeguards available should his mental health deteriorate; and the support available through LB’s NDIS package, for the reasons set out above, I do not consider that LB’s safety or the safety of the public will be or is likely to be seriously at risk if LB is unconditionally released from the non-custodial supervision order.
When I handed down the decision releasing LB unconditionally, I was advised by counsel that the proceedings in the NTCAT had concluded and that the NTCAT had ordered that decision making authority in relation to LB’s living arrangements would remain with the Public Guardian, so that, effectively he would in all likelihood remain living in supported living accommodation. I want to make it clear that I was of the opinion that LB should be unconditionally released, whether the authority for his living arrangements remained with the Public Guardian or had been given to LB’s mother.
----------

[1]Report para 5.4

[2] Report para 5.6

[3] Report paras 5.20 and 5.21

[4] Report para 5.10

[5]Report para 5.11

[6] Report para 5.12

[7] Report para 5.32

[8] See report para 6.1

[9] Report para 6.5

[10] Report para 6.6

[11] Report para 6.7

[12] Report para 6.12

[13]Report para 6.20

[14]Report para 6.19

[15] Report para 6.21

[16] Report para 6.23

[17] Report 6.24

[18] Report para 6.25

[19] Report para 6.32

[20]Section 43ZG report, 19.03.21 para 11.1

[21] Section 43ZG report para 11.2 to 11.5