Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary)

1. [1]

   JOHNSON J: By Summons filed on 26 March 2018, the Attorney General for New South Wales (“the Plaintiff”), seeks orders with respect to the Defendant, Robert Steven Kapeen by his tutor Jennifer Thompson, pursuant to s.54A and Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”).

2. [2]

   Mr Kapeen is presently subject to an extension order made by Beech-Jones J on 22 May 2017 under Clause 1 of Schedule 1 of the MHFP Act that his status as a forensic patient be extended for a period of 12 months from 3 June 2017, a period which will expire on 2 June 2018: Attorney General for New South Wales v Kapeen [2017] NSWSC 685 (“the 2017 final decision”).

3. [3]

   Mr Kapeen is currently detained at the Long Bay Hospital Mental Health Unit, within the Long Bay Correctional Centre. As will be seen, steps have been taken to seek the transfer of Mr Kapeen to the Forensic Hospital at Malabar (which is not a correctional centre), but he remains at present a person detained in a correctional centre.

The Summons

1. [4]

   The Summons seeks, by way of preliminary orders pursuant to Clause 6(5) of Schedule 1 of the MHFP Act:

2. [5]

   The Summons also seeks (in paragraph 3) a final order pursuant to Clause 1 of Schedule 1 of the MHFP Act that Mr Kapeen be subject to an extension order for a period of two years from the date of the order.

The Preliminary Hearing

1. [6]

   A preliminary hearing under Clause 6(4) of Schedule 1 of the MHFP Act proceeded before me on 26 April 2018. The Plaintiff was represented by Ms Palaniappan of counsel and the Defendant was represented by Ms Hawkins of counsel.

2. [7]

   The Plaintiff relied upon the following evidence:

3. [8]

   An affidavit of David Norman affirmed 20 April 2018 was read in the Defendant’s case.

4. [9]

   Ms Buchan and Mr Norman were not required for cross-examination.

5. [10]

   During the course of the preliminary hearing, it was determined that the Court should take evidence by telephone from Dr Andrew Ellis, forensic psychiatrist, who is the Acting Clinical Director, Forensic and Long Bay Hospitals. Dr Ellis had furnished a report dated 25 November 2017 which was relied upon by the Plaintiff on the present application. Dr Ellis gave oral evidence (T23-27, 26 April 2018).

6. [11]

   I granted counsel an opportunity to furnish further written submissions following the hearing on 26 April 2018 in circumstances where Dr Ellis had given oral evidence that day which required further consideration by counsel. Counsel for the Plaintiff and the Defendant furnished additional written submissions on 30 April 2018.

7. [12]

   The Plaintiff’s claim for orders at the preliminary hearing was resisted on behalf of Mr Kapeen.

Issues at the Preliminary Hearing

1. [13]

   The 2017 final decision of Beech-Jones J provides a practical starting point on the present application given his Honour’s assessment of the evidence and issues at that final hearing.

2. [14]

   Ms Hawkins accepted that Mr Kapeen met the criteria for “forensic patient” as defined in s.42(a1) of the MHFP Act and that the present application had been brought within the last six months of the existing extension order so that the requirements of Clause 4 of Schedule 1 of the MHFP Act were met.

3. [15]

   Ms Hawkins submitted that the Plaintiff had not otherwise satisfied the requirements for the making of orders adverse to Mr Kapeen at the preliminary hearing and that the Summons should be dismissed.

4. [16]

   Clause 6(5) of Schedule 1 of the MHFP Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must make the preliminary orders sought by the Plaintiff. The formula to be established is akin to the test of a prima facie case in committal proceedings (as they stood prior to 30 April 2018): State of NSW v Manners [2008] NSWSC 1242 at [8]-[9].

5. [17]

   The matters to be established to that extent at the preliminary hearing are those contained in Clause 2 of Schedule 1 of the MHFP Act which provides:

6. [18]

   In determining whether to make an interim extension order, the Court must have regard to the factors contained in Clause 7(2) of Schedule 1 which states:

7. [19]

   As noted by Beech-Jones J in the 2017 final decision at [11]:

8. [20]

   Later in this judgment, I will consider and apply (at a prima facie level) the unacceptable risk test and the less restrictive means test as posed under Clause 2 of Schedule 1 of the MHFP Act.

The Index Offence

1. [21]

   The index offence for the purpose of the present application is the same offence as was relied upon before Beech-Jones J. It is convenient to set out the following extract from the 2017 final decision (at [16]-[23]):

Approaching this Application Against the Background of the 2017 Final Decision of Beech-Jones J

1. [22]

   I will approach the present application, by reference to the conclusions reached in the 2017 final decision of Beech-Jones J. The appropriate way forward is to have regard to what his Honour said on those issues and to consider, in light of all the evidence on the present application, what findings should be made on those matters for the purpose of this preliminary hearing.

2. [23]

   No appeal was brought from the judgment and orders of Beech-Jones J of 22 May 2017. Although I am not bound by his Honour’s findings, given that his Honour had before him the same body of evidence of events up to 22 May 2017 as is before the Court at the present preliminary hearing, it is appropriate to treat his Honour’s conclusions as a proper starting point for my consideration of the present application. His Honour’s reasons are required to be taken into account under Clause 7(2)(h) of Schedule 1.

3. [24]

   I note that concurrent evidence was given before Beech-Jones J at the 2017 final hearing by Dr Ellis, Dr Kerri Eagle, forensic psychiatrist, and Dr Susan Pulman, psychologist.

4. [25]

   After referring to evidence and submissions made with respect to the unacceptable risk issue, Beech-Jones J said (at [75]-[79]):

5. [26]

   In the 2017 final decision, Beech-Jones J approached the less restrictive means issue upon the basis that there was no prospect of Mr Kapeen ever ceasing to suffer from a “mental illness” under s.14 Mental Health Act 2007 (at [83]). His Honour observed that the “only other less restrictive means relevant to Mr Kapeen’s circumstances is classification as an involuntary patient” (at [13]).

6. [27]

   Beech-Jones J adopted the reasoning of Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [101]-[129]. In this way, his Honour undertook a comparison of the legal regime that would govern Mr Kapeen if he was to be treated as an involuntary patient under the Mental Health Act 2007 compared to his treatment as a forensic patient under the MHFP Act as well as a consideration of the practical operation of those laws in his case. His Honour said at [88]-[92]:

7. [28]

   Beech-Jones J then said at [93]-[96]:

8. [29]

   The evidence before his Honour in 2017 did not involve the more concrete (but still uncertain) position concerning the Forensic Hospital which is contained in Dr Ellis’ evidence on the present application to which reference will be made.

9. [30]

   Based on the evidence before him, Beech-Jones J concluded (at [99]-[100]):

10. [31]

    His Honour observed (at [102]) that the position as at 22 May 2017 was “unsatisfactory, bordering on the totally unacceptable” given that Mr Kapeen was to be detained at the Long Bay Hospital within a correctional centre essentially because of the absence of any other appropriate facility. His Honour declined to make an extension order for a period of two years, but made an order for a one-year period noting that an extension for a two-year period would have the “capacity to encourage bureaucratic inertia rather than require a proper focus on the appropriate medium term accommodation needs for Mr Kapeen, especially as his schizophrenia and polydipsia may worsen” (at [103]).

The Report of Dr Ellis Dated 25 November 2017

1. [32]

   A further report of Dr Ellis dated 25 November 2017 is before the Court on the application and, as I have mentioned, Dr Ellis gave short oral evidence on 26 April 2018. The evidence of Dr Ellis is important to the determination of the present application. As the Acting Clinical Director of the facility in which Mr Kapeen is presently housed (the Long Bay Hospital Mental Health Unit) and the facility where it is hoped that he may be located in the future (the Forensic Hospital), Dr Ellis is ideally placed to provide evidence which assists the Court on this application.

2. [33]

   As discussed in the 2017 final decision of Beech-Jones J, Mr Kapeen (now 50 years old) is subject to mental illness and intellectual disability and has developed psychogenic polydipsia, a condition which causes him to drink substantial quantities of water.

3. [34]

   In his report dated 25 November 2017, Dr Ellis said (pages 5-6):

4. [35]

   The proposal that Mr Kapeen be placed in a nursing home did not come to pass. Mr Kapeen’s condition is such that the nursing home in question could not provide a place for him.

5. [36]

   Dr Ellis referred to Mr Kapeen’s medical history in this report (page 7):

6. [37]

   In this report (pages 9-10), Dr Ellis expressed the opinion that Mr Kapeen continued to meet criteria for a diagnosis of schizophrenia and that he met the criteria for intellectual disability and substance use disorder (alcohol and cannabis). Dr Ellis stated (page 10):

7. [38]

   Dr Ellis observed that there was insufficient evidence to conclude a paraphilia or psychosexual disorder. However, there were concerning features to Mr Kapeen’s presentation and that this consideration required further monitoring (page 10).

8. [39]

   In the course of considering Mr Kapeen’s risk of serious harm to others, Dr Ellis said (pages 11-12):

9. [40]

   Dr Ellis concluded with respect to risk (pages 12-13):

10. [41]

    Dr Ellis said concerning treatment and supervision of Mr Kapeen (page 13):

11. [42]

    Dr Ellis said (page 14):

12. [43]

    In addition to the report of Dr Ellis dated 25 November 2017, the Court also has a report dated 2 February 2018 of Ms Yiota Zingirlis, forensic psychologist, and Dr Adam Martin, consultant forensic psychiatrist, which addresses a number of issues with respect to Mr Kapeen. The authors of this report confirm the unavailability of a nursing home placement for Mr Kapeen and note that he is under consideration for transfer to the Forensic Hospital. The assessment of Ms Zingirlis and Dr Martin accorded largely with that of Dr Ellis.

Evidence of Dr Ellis on 26 April 2018

1. [44]

   In his evidence on 26 April 2018, Dr Ellis stated that Mr Kapeen was in position number 4 on the waitlist for admission to the Forensic Hospital. Dr Ellis hoped that transfer of Mr Kapeen to the Forensic Hospital might occur by 2 June 2018, but that resource constraints are such that there was no certainty that this would occur (T23, 26 April 2018).

2. [45]

   Ms Hawkins asked Dr Ellis (T24.33-42):

3. [46]

   Dr Ellis was asked by me what would happen if the Court made no order on the present application so that the extension order expired on 2 June 2018 (T26.26-27.21):

Determination of Application at Preliminary Hearing

1. [47]

   I have had regard to the evidence before the Court on this application and the matters in Clause 7(2) of Schedule 1 which the Court is required to consider.

2. [48]

   Ms Palaniappan submits that the unacceptable risk issue is to be determined by considering what risk would arise on the assumption that Mr Kapeen was not a forensic patient nor an involuntary patient under the Mental Health Act 2007. Ms Hawkins submitted that, in applying the unacceptable risk test, the Court should have regard to the evidence of Dr Ellis that there is no realistic prospect that Mr Kapeen would be released into the community as he would, at the least, be detained as an involuntary patient under the Mental Health Act 2007.

3. [49]

   I am satisfied that the correct approach is to assess the question of whether Mr Kapeen poses an unacceptable risk of causing serious harm to others on the assumption that he is not a forensic patient nor an involuntary patient - that is, the risk that Mr Kapeen would present if he ceased to be a forensic patient and was released at the end of the extension order on 2 June 2018. In this regard, I agree with the approach adopted by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40], Schmidt J in Attorney General for the State of New South Wales v Huckstadt (No. 3) [2017] NSWSC 944 at [14] and Fullerton J in Attorney General for NSW v MZ [2017] NSWSC 1773 at [12]. Insofar as the Defendant seeks to rely upon the judgment of Garling J in Attorney General of New South Wales v McGuire (No. 2) [2014] NSWSC 288 at [57]-[59], I accept the Plaintiff’s submission that it is necessary to approach that decision with caution given that it predates the judgment of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, where (in the context of analogous provisions) Beazley P stated (at 645 [44]) that the right of the person to personal liberty at the expiration of any current term is not a relevant consideration in the determination of the unacceptable risk test. Fullerton J applied this principle in Attorney General for NSW v MZ at [13]. In Lynn v State of New South Wales, Basten JA said (at 660 [126]) that the assessment of unacceptable risk must be based on an absence of protective measures.

4. [50]

   It is apparent from the evidence that a nursing home placement is not open to Mr Kapeen at the present time. It is the clear evidence of Dr Ellis (which is consistent with the evidence of other health professionals expressed for the purpose of the hearing before Beech-Jones J in May 2017) that Mr Kapeen ought not be released into the general community with the only realistic options for his treatment and accommodation at present being within the Long Bay Hospital Mental Health Unit or the Forensic Hospital, if a place became available in the latter facility.

5. [51]

   It is clear that Mr Kapeen poses a real risk of the commission of a serious offence against children if he was released unsupervised into the community, or even with some level of supervision in the community, at the present time. Whilst these are not realistic practical options at present, they remain circumstances which the Court must consider on this application in determining the unacceptable risk issue. It is at least possible that, if an interim extension order is not made, then Mr Kapeen may be detained at Prince of Wales Hospital on and after 2 June 2018, a situation which would be more than unsatisfactory.

6. [52]

   I am satisfied, at a prima facie level, that Mr Kapeen poses an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. In reaching this view, I have taken into account the fact that the index offence is the only sexual matter in his history. However, the evidence of Dr Ellis explains the risk posed by Mr Kapeen in particular with respect to sexual offending against children.

7. [53]

   In light of the evidence before this Court, I am well satisfied that the Plaintiff has established for the purpose of this preliminary hearing, the unacceptable risk issue contained in Clause 2(1)(a) of Schedule 1 of the MHFP Act.

8. [54]

   The second issue requires the Court to consider whether, at a prima facie level, the risk cannot be adequately managed by other less restrictive means.

9. [55]

   At a practical level, the evidence focused on the question whether Mr Kapeen is likely to be transferred to the Forensic Hospital. Transfer to that facility can occur whether Mr Kapeen is a forensic patient or a civil patient detained under the Mental Health Act 2007. The issue under Clause 2(1)(b) of Schedule 1 requires the Court to consider, at a preliminary hearing, whether the person ought remain a forensic patient by way of an interim extension order.

10. [56]

    Ms Palaniappan noted that the Plaintiff supported the physical movement of Mr Kapeen to the Forensic Hospital, but submitted that there was no certainty that that step would occur by 2 June 2018. It was submitted that, upon all the evidence, the Court should form the view at a prima facie level that it was appropriate that Mr Kapeen remain a “forensic patient” subject to an interim extension order, with the Court to determine what order should be made at the final hearing in light of the evidence tendered at that time.

11. [57]

    Ms Hawkins noted that there was some uncertainty in relation to the potential transfer of Mr Kapeen to the Forensic Hospital, but submitted that the Court should proceed upon the basis that this would occur. It was submitted that a pathway is now available to Mr Kapeen so that the Court should not be satisfied at the prima facie level with respect to the less restrictive means issue with the result that the Summons ought be dismissed. It was submitted that a proper foundation had not been established for the making of the interim extension order in all the circumstances.

12. [58]

    In approaching this issue at the preliminary hearing, it is important to keep in mind that the legislation is concerned with the safety of the community and, as was noted by RA Hulme J in Attorney General of New South Wales v Skerry at [54], the focus should be more on the question of adequately managing risk rather than identifying whether one regime is more or less restrictive than the other.

13. [59]

    Mr Kapeen is presently housed in the Long Bay Hospital Mental Health Unit within a correctional centre. It is proposed to take steps to effect his transfer to the Forensic Hospital, which is not a correctional centre. If there was clear evidence that Mr Kapeen was to be transferred to the Forensic Hospital before 2 June 2018, then this would be an important factor on this application. However, although it is possible that transfer of Mr Kapeen to the Forensic Hospital will occur before 2 June 2018, it is also at least possible that it may not happen by that time despite Dr Ellis’ best efforts. There is a heavy demand for the valuable facilities at the Forensic Hospital: State of New South Wales v Windle (No. 3) [2017] NSWSC 727 at [92]-[103].

14. [60]

    As Beech-Jones J explained in the 2017 final decision (at [27] above), the Mental Health Review Tribunal will play a more intensive role in the management of Mr Kapeen if he continues to be a forensic patient. This aspect fortifies a finding, at the prima facie level, that the less restrictive means test is made out in this case.

Conclusion

1. [61]

   This is an unusual case. I share the concerns expressed by Beech-Jones J in the 2017 final decision concerning the placement of Mr Kapeen (see [31] above).

2. [62]

   It must be said, however, that there have been very significant difficulties in locating an appropriate facility for Mr Kapeen given his unusual and deteriorating constellation of health problems.

3. [63]

   In the unusual circumstances of this case, and based upon the evidence concerning the present position of Mr Kapeen, I am satisfied that the Plaintiff has satisfied both the unacceptable risk and less restrictive means elements of the test to a prima facie level.

4. [64]

   In these circumstances, Clause 6(5) of Schedule 1 of the MHFP Act mandates the orders which the Court should make. These are the orders sought by the Plaintiff. Although further examination of Mr Kapeen by two health professionals may not add materially to the present position, the Court is required to make that order by operation of the legislative scheme.

5. [65]

   Given that the interim extension order as sought would operate until 30 June 2018, if it be the case that Mr Kapeen is transferred to the Forensic Hospital before then, then this may bear upon the future course of the application for final relief.

6. [66]

   I will also make the order sought in the Summons restricting access to the Court file by non-parties, this being an order usually made in proceedings of this type.

Orders

1. [67]

   I make the following orders: