RS v Police

[2016] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000027 [2016] NZHC 344

BETWEEN

RS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 December 2015 and 4 February 2016
Appearances:	A Stevens for Appellant R P Bates for Respondent
Judgment:	3 March 2016

JUDGMENT OF GENDALL J

Introduction

[1]      On 2 April 2015, the District Court at Dunedin found the appellant RS (the appellant) not guilty by reason of insanity on one charge of threatening to cause grievous bodily harm.1

[2]      Following this finding, on 25 May 2015 Judge Crosbie in the District Court made an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons)   Act   2003   (the   CPMIP   Act)   that   the   appellant   be   detained   in Waikari Hospital  as  a  special  patient  under  the  Mental  Health  (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act).2  This order was made following a recommendation to this effect by Dr Bathgate, a consultant forensic

psychiatrist for the Southern District Health Board.

1      New Zealand Police v Smith [2015] NZDC 5887.

2      New Zealand Police v Smith DC Dunedin CRI-2014-025-002265, 25 May 2015.

RS v NEW ZEALAND POLICE [2016] NZHC 344 [3 March 2016]

[3]      The  appellant  now  appeals  the  order  making  him  a  special  patient. Mrs Stevens, his counsel submits that proper disposal of this matter should have seen a less restrictive order being made under s 25(1)(a) of the CPMIP Act requiring the appellant to be treated simply as a patient under the MHCAT Act.   Following the filing of this appeal, this Court had granted leave for the appellant to adduce a further psychiatric report to challenge the findings and recommendations of Dr Bathgate. That report was produced by Dr Barry-Walsh, another consultant forensic psychiatrist, employed by the Capital Coast District Health Board.

Background facts

[4]      Some background to the offending and other events in question here is useful. On 18 November 2014, the appellant was waiting outside his neighbour’s house in suburban Invercargill. When his neighbour arrived home, the appellant threatened him, saying “I will slit your fucken throat”. The appellant had a hand concealed in his pocket which he then withdrew forming a closed fist by his side. The neighbour went inside his property and as he did, the appellant told him to watch his back.

[5]      It  appears  the  appellant  had  developed  a  belief  that  his  neighbour  was constantly threatening him through the walls of the adjoining flat. The appellant maintained that it became so bad at one stage that he hid in his bathroom so that he would no longer hear the noise. He also went on to describe hearing the same threats from strangers. It was concluded that at the time the appellant was subject to a number of auditory hallucinations which he himself had misinterpreted as a real threat from both neighbours and people in the community.

[6]      In 2013, it seems the appellant developed clear signs of psychotic illness when he was in prison. He suffered from paranoid delusional beliefs and abnormal perceptual experiences in the form of auditory hallucination. While in prison, he assaulted five prison officers, believing that they intended to harm him. On these charges he was also later found to be not guilty by reason of insanity. The appellant was diagnosed with a psychotic episode and was admitted to Ward 9A of the Waikari Hospital. He was treated with antipsychotic medication.

[7]      By the time of discharge it seems he was free of symptoms and was accepting support and follow-up from community forensic psychiatrists. He had re-established his relationship with his mother who was prepared to support him in Christchurch. However, soon after discharge, he stopped taking his medication and refused further follow-up.

[8]      In July 2014 the appellant was placed on a community treatment order as part of disposal by the Dunedin District Court of matters before it, having been acquitted of the five charges of assault on the ground of insanity.  Subsequently, he was taken off this order as he was again presenting as being symptom-free off medication.

[9]      However, shortly after, in October 2014, he was admitted under the MHCAT Act because he was once again expressing bizarre paranoid ideas that he was being tracked by the police. His brother had become more concerned when the appellant started living rough under a bridge.

[10]     The admission under the MHCAT Act was then discontinued because the appellant  agreed  to  continue  taking  medication.  He  was  discharged  in  early November 2014 and was going to have follow-up with a community mental health team.  He then again stopped his medication on discharge from the ward at Waikari Hospital. This current charge of threatening to kill happened one month later.

[11]     When Judge Turner found the appellant not guilty on the ground of insanity of the charge of threatening to cause grievous bodily harm, a psychiatric report was ordered pursuant to ss 23(1) and (24)(1) of the CPMIP Act. The one report obtained was prepared by Dr Bathgate. In Dr Bathgate’s opinion, the appellant met the criteria for “mental disorder” as defined under the MHCAT Act3 because he suffered from an intermittent abnormality of the mind characterised by delusions, and disorders of perception. Carrying out a risk assessment, Dr Bathgate concluded that the mental

disorder  of  the  appellant  posed  a  serious  threat  to  public  safety.  Dr Bathgate

3      Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2 defines “mental health” as: “in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or  by disorders of  mood  or  perception or volition or cognition, of such a degree that it (a) poses a serious danger to the health or safety of that person or of other; or (b) seriously diminishes capacity of that person to take care of himself or herself.

recommended that an order under s 24(2)(a) of the CPMIP Act that the appellant be detained as a special patient be made.

[12]     Essentially on that recommendation of Dr Bathgate, Judge Crosbie made the order under s 24(2)(a) of the CPMIP Act.   The appellant was then detained in Waikari Hospital as a special patient.

Issue on appeal

[13]     On appeal to this Court, Mrs Stevens submitted that Judge Crosbie erred in making a s 24(2)(a) special patient order.   She referred to the second report and opinion obtained on the appellant’s condition from Dr Barry-Walsh. By the time Dr Barry-Walsh assessed the appellant, she contended that his mental health had significantly improved.

[14]   It seems from Dr Barry-Walsh’s opinion (although this is not entirely unequivocal), that initially he suggested (unlike the opinion expressed throughout by Dr Bathgate) that the appellant should only be subject to a compulsory inpatient treatment  order  under  s  30  of  the  MHCAT Act  here  before  transitioning  to  a compulsory community treatment order under s 29 of the same Act. This opinion, it appears, was derived mainly from observing significant improvements said to be made by the appellant in psychiatric care, together with what might be seen as personal criticism by Dr Barry-Walsh of the special patient regime generally.

[15]     The  issue  on  this  appeal  is  essentially  whether  the  appellant  should  be detained as a special patient under s 24(2) of the CPMIP Act or as an ordinary inpatient under s 25(1)(a) of the same Act.

Legislative scheme

[16]     When a person, as here, has been acquitted of criminal offending on account of his or her insanity4  the Court must conduct a disposition hearing to consider the

matters referred to in s 24 of the CPMIP Act.  Section 24 provides:5

4      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(1).

24Detention of defendant found unfit to stand trial or insane as special patient or special care recipient

(1) When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must-

(a)  Consider all the circumstances of the case; and

(b) Consider  the  evidence  of  1  or  more  health  assessors  as  to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

(c)  Make  one of the orders  referred  to  in  paragraph (b)  if it is satisfied that the making of the order is necessary in the interest of the public or any person or class of person who may be affected by the Court’s decision.

(2) The orders referred to in subsection (1) are that the defendant be detained-

(a)  In  a  hospital  as  a  special  patient  under  the  Mental  Health

(Compulsory Assessment and Treatment) Act 1992; or

(b) In  a  secure  facility  as  a  special  care  recipient  under  the

Intellectual disability (Compulsory Care and rehabilitation) Act

2003.

(c)  Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.

[17]     The term “special patient” or “special care recipient” under s 24(2) refers to the special procedures that are required when treating a patient.6 This is because an order under s 24(1)(a) requires the involvement of the Ministry of Health in consultation with the Director of Mental Health.  Under a special patient order, it is the Minister of Health who determines how long the order is to remain in force. Long-term community leave will only be granted by the Minister if two medical practitioners have certified that the patient is fit to be absent from the hospital.7

[18]     However, if a Court is satisfied that a special patient order is not required under s 24(2)(a), it must proceed to consider alternative orders under s 25 of the

CPMIP Act. Section 25 provides:8

6      M (CA 819/2011) v R [2014] NZCA 142 at [9].

7      M (CA 819/2011) v R, above n 6 at [13].

Alternative  decisions  in  respect  of  defendant  unfit  to  stand  trial  or insane

(1) If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant-

(a)  By ordering that the defendant be treated as a patient under the

Mental  Health  (Compulsory Assessment  and  Treatment)  Act

1992; or

(b) By ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(c)  If the person is liable under a sentence of imprisonment, by deciding not to make an order, or

(d) By ordering the immediate release of the defendant.

(2) Before the court makes an order under subsection (1)(a0, the court must be satisfied on the evidence of 1 or more health assessors (at least  1  of  whom  must  be  a  psychiatrist)  that  the  defendant  is mentally disordered.

(3) Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant-

(a)  has an intellectual disability; and

(b) has  been assessed  under Part 3  of the Intellectual Disability

(Compulsory Care and Rehabilitation) Act 2003; and

(c)  is  to receive  care  under  a  care  programme  completed  under section 26 of that Act.

(4) In the exercise of its powers under subsection (1), the court may take into  account  any  undertaking  given  by,  or  on  behalf  of,  the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.

[19]     Orders under s 25 provide a spectrum of alternatives from the most restrictive order of detaining a defendant as an inpatient under the MHCAT Act to the least restrictive  order  of  releasing  a  defendant.  A compulsory  treatment  order  under s 25(1)(a) may, in practical terms, result in a similar outcome to an order under s 24(2) because it involves a defendant being detained in a hospital indefinitely. However, the difference seems to be the management and monitoring of a patient’s treatment. In contrast to a special patient order or a special care patient order under s

24(2), an inpatient order under s 25(1)(a) authorises the clinician responsible for such a patient to act alone. The clinician is able to release the patient if he or she considers the patient to be fit for release.9    In that event, the compulsory treatment order is deemed to have been revoked in terms of s 76(5) of the MHCAT Act.

[20]     In the present case, Mrs Stevens argued that, in light of the new evidence in the report of the second consultant forensic psychiatrist, Dr Barry-Walsh, and his oral evidence which was not before the District Court, an inpatient order should be made instead of the special patient order which Judge Crosbie imposed.

Analysis

[21]     In order for the court to make an order under s 24(2), it must be satisfied that the making of the order is necessary in the interests of the public or any person or class  of  persons  who  may be  affected  by the  Court’s  decision.10      If  the  Court concludes that it is not necessary to make such an order, it needs to go on to make an alternative form of order under s 25.  The test for what is “necessary”, according to the Court of Appeal in M v R, sets a high threshold given the serious consequences of a s 24(2) order.  The Court of Appeal goes on to adopt an earlier definition it had made of “necessary” as being “a fairly strong word falling between expedient or desirable on the one hand and essential on the other”.11

[22]     On this aspect, the Court of Appeal in M v R went on to say:

[18]      An order under s 24(2) therefore does not need to be “essential” in the interests of the public. The fact that an order might be thought to provide the optimum outcome in terms of the treatment and rehabilitation of the defendant would not, however, be sufficient by itself to meet the necessity test.  Nor would it be sufficient by itself that an order under s 24(2) might make it more convenient or expedient for the health authorities to manage and treat the defendant.

9      M (CA 819/2011) v R, above 6 at [14].

10     Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1)(c).

11     M (CA 819/2011) v R, above n 6 at [17].

[19]      The Court must therefore keep firmly in mind the test that s 24(1)(c) prescribes.   The Court cannot make an order under s 24(2) unless it is satisfied that such an order is necessary in the interests of the public.  It is in this area that the judicial assessment required under s 24(1)(c) may be wider in scope than the assessments undertaken by health professionals.

(Footnotes omitted)

[23]     And, the Court of Appeal further noted that on all of this a two stage test was required. It held:12

[7]       In determining whether it is necessary to make an order under s

24(2), the Court undertakes a judicial assessment  that is wider in  some respects than the medical assessment made by health assessors. It must determine whether an order under s 24(2) is necessary in the interest of the public. The interests of the public in this context are twofold. First, there is the need to be protected from further offending by the offender. The longer term public interest, and one that the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to achieve the ultimate goals of rehabilitation and reintegration into the community.

[8]       The Court must therefore take into account both the immediate and long term risks that the offenders poses, as well as the need to comprehensively manage and treat any medical and/ or personality issues that he or she presents.

[24]      In  Dr  Bathgate’s  report,  a  HCR-20  risk  assessment  was  carried  out  to evaluate the potential for the appellant to use violence in the future. Dr Bathgate found that he qualified on nine out of ten historical factors that are fully present and one partially present.  Out  of the five risk management  factors,  four were rated present and one partially present. On the basis of this HCR-20 risk assessment, Dr Bathgate concluded that there was a high risk of the appellant using violence in the future.

[25]     On the other hand, Dr Barry-Walsh in his report and evidence assessed the risk of the appellant using violence in the future by, at least in part, identifying the causes of this violence. He found that there were two pathways that caused the appellant to act violently. The first pathway was largely personality driven due to problems with anger, regulation of emotions and a set of values which meant that the appellant considered offending a reasonable option. Alcohol abuse was also critical

in this pathway as a disinhibitor. The second pathway was caused by the appellant’s

12     M (CA 819/2011) v R, above n 6 at [7]-[8].

acute psychotic symptoms. In this area, his violence was said to be driven by persecutory ideation and fear. In Dr Barry-Walsh’s opinion, compliance with medical treatment would generally allow the appellant to control the causes of his violence and reduce the threat to public safety.

[26]     However,  Dr  Barry-Walsh’s  assessment,  as  I  see  it,  was  based  on  the appellant responding to treatment under well-controlled circumstances. Dr Barry- Walsh concedes that there are elements here that are untested, including the extent to which the appellant can maintain sobriety, and how well the appellant would manage conflict in difficult situations. Dr Barry-Walsh further concedes that once the appellant is transitioned into a community based treatment order, there are limited controls over ensuring his compliance.

[27]     It would appear that both psychiatrists, Dr Bathgate and Dr Barry-Walsh, are in agreement that the appellant’s psychotic episodes appear to be as a result of schizophrenia  and  can  be  treated  appropriately  with  medication.     A  concern expressed by Dr Bathgate, however, is that the appellant has a long history of failing to take medication which, at times, is exacerbated by drug and alcohol abuse, and that the only way to ensure that he continues with his necessary medication is under a special patient order.

[28]     On the other hand, Dr Barry-Walsh, although agreeing there is a significant risk of re-offending if the appellant does not take his medication, appears to be of the view that ensuring this occurs and the appellant does take his ongoing medication should be able to be properly managed under a community treatment order.   It follows therefore, in his view, that it may not be necessary for the appellant to be a special patient.

[29]     Notwithstanding this, however, Dr Barry-Walsh in his oral evidence before me did acknowledge that this is a complex  case and  could not in any way be considered to be a clinically straightforward one.  He noted that a number of factors make this case complex and these include:

(a)      the long history of offending which the appellant has (with over 100 convictions, some of which are for serious offending);

(b)      the fact that his illness is not an easy one to treat;

(c)      the  fact  that  in  the  past  the  appellant  has  caused  a  number  of significant issues by quick and repeated relapses in his treatment and significant problems with substance abuse; and lastly,

(d)      the   appellant’s   significant   personality   issues   have   undoubtedly

complicated what Dr Barry-Walsh describes as his index offending.

[30]     As to the use by Dr Bathgate of an HCR20 risk assessment report, Dr Barry- Walsh confirmed that this was a widely used tool to assist with risk assessment and management, it was useful, and one he would use as well.

[31]     In  conclusion  Dr  Barry-Walsh  emphasised  that  it  was  important  the appellant’s mental health issues were well-treated which required the appellant to take medication throughout and to avoid the substance abuse which had occurred in the past.  As to whether an inpatient order under the MHA would suffice, Dr Barry- Walsh stated that in his view the answer to this question could be yes, but with the caveat that it would be very contingent on the practices and resources available both in the Southern District Health Board and in the community.   He commented that from his own experience in the Wellington region, the risk the appellant might pose could perhaps be managed, but he emphasised that the resources to do this would vary  throughout  New  Zealand  and  he  could  not  vouch  for  the  position  in  the Southern regions.

[32]     Finally, in his oral evidence before me, Dr Barry-Walsh did acknowledge two things.  First, he said that one definite advantage of the appellant remaining a special patient here would be the greater degree of surety and the increased allocation of resources for treatment of his condition which, too, should result in his risks being well  managed  when  he  does  finally  return  to  the  community.    And,  secondly, Dr Barry-Walsh noted that a special patient order was accompanied, in his words, by

“far greater structure, compulsions and certainty”.  He went on to say that key factors in the appellant becoming and remaining well were consistent taking of his medication and abstaining from alcohol and substance abuse.

[33]     With all this in mind, I need to say that, while under the appellant’s current mental state it would appear there are likely to be only moderate risks for him to use violence, previous incidents have demonstrated that when released, he has a propensity not to follow up with treatments and take his required medication, and to lapse into serious incidents of substance abuse.  If this were to occur again here, it would be likely, as I see it, to lead to further relapses into psychotic episodes.

[34]     One further matter needs to be mentioned here.   Mrs Stevens, before me, suggested that restrictions placed on the appellant here must, to a certain extent, be proportionate to the nature of the offending. The index offending was a threat to do grievous bodily harm.  She notes in this regard that no actual violence was asserted and no one was physically harmed.

[35]     There are two responses to this.   First, while the Court does not wish to speculate, to an extent, as I understand the position, it was perhaps fortunate that no one was physically harmed in the appellant’s present offending.   He has over one hundred  criminal  convictions.    These  include  wilful  damage,  assault  on  prison officers and wounding with intent. Furthermore, prior to his present offending the appellant was already found not guilty on grounds of insanity for five assault charges against prison officers. His long list of violent offending must demonstrate a significant risk to public safety.

[36]     And, secondly, orders made under the CPMIP Act are not punitive in nature and therefore the full extent of the traditional proportionality principle arguably does not apply. The purpose of these orders is to protect public safety and to aid an offender’s rehabilitation and reintegration.  And, in assessing the appropriate orders under the CPMIP Act, the Court should only be concerned with whether there is a real risk to public safety and not consider what type of risk the offender possesses.

[37]     A consideration  here  relates  also  to  ensuring  as  far  as  possible  that  the appellant is managed and treated in a manner best calculated to achieve his ultimate rehabilitation and reintegration into society.  As I understand the position, the Courts have already previously granted two inpatient treatment orders and a community treatment order relating to the appellant.  None of those prevented the appellant from becoming unwell and ending back within the criminal justice system.

[38]     At one level, it might be said that the failure of these orders has illustrated that treatment in the past under individual clinician’s discretion has not been able to achieve the desired effect of rehabilitation and reintegration. The continuous relapse has caused significant risk to both the welfare of the appellant and the safety of the community at large.    And, although there has been some improvement recently in the appellant’s condition whilst he remains in the controlled and structured environment of Waikari Hospital, the overall situation has not changed appreciably. I am satisfied that, with his limited insight and minimal community support mechanisms, much more work is required before the appellant can be released to avoid him simply going back to the destructive coping strategies he adopted in the past.

[39]     Therefore, I find that an order under s 24(2) providing for the more robust processes of a special patient order to manage and address the appellant’s risk is necessary here in the interests of the public.  I reach this conclusion in the sense that first, there is a need for the community to be protected from further offending by the appellant which I find is a real risk, particularly in the event that he fails to maintain his medication or lapses again into substance abuse, and secondly, in relation to the longer term public interest because there is a need to ensure the appellant is managed and treated in a manner best suited to achieve his rehabilitation and reintegration into the community, which Dr Bathgate, to a significant extent, and, even Dr Barry- Walsh, to some extent, accept is likely to be better achieved here by a special patient order.

Outcome

[40]     For all these reasons I find that Judge Crosbie in the District Court did not err in concluding that it was necessary for the appellant to be detained as a special patient in terms of s 24(2)(a) of the CPMIP Act.

[41]     The appeal is dismissed.

...................................................

Gendall J

Solicitors:

Anne Stevens, Dunedin

RPB Law, Dunedin