Minister for Mental Health v Paciocco

1. [1]

   The Minister for Mental Health has applied for an extension order against the defendant, a forensic patient, under the provisions of s 54A and Schedule 1 Mental Health (Forensic Provisions) Act 1990 (NSW) (FPA). The order is opposed by the defendant.

Background

1. [2]

   On 20 April 2014, the forensic patient attacked a young woman, who was a stranger to him, in the street with a Swiss army knife, having a blade of 55 mm in length. He wounded his victim in the right shoulder inflicting a laceration of 1 cm in length and 3 cm deep. The victim and her companion fled, taking refuge in a nearby Seven 11 store with the defendant in pursuit. Police attended and arrested him.

2. [3]

   The defendant was committed to the District Court for trial on 2 September 2014. On 20 April 2015, her Honour Judge Flannery SC found him unfit to be tried, referred him to the Mental Health Review Tribunal (the Tribunal) and remanded him in custody. It was by force of these orders that the defendant became a forensic patient.

3. [4]

   His Honour Judge Jeffreys conducted a special hearing in relation to the charges on 18 July 2016. His Honour entered a not guilty verdict to a charge of wounding with intent to cause grievous bodily harm, but his Honour was satisfied on the limited evidence available that the defendant had committed the offences of reckless wounding and assaulting a police officer contrary to ss 35(4) and 58 Crimes Act 1900 (NSW) respectively. On 8 September 2016, Judge Jeffreys nominated a limiting term of 2 years and 6 months commencing on 20 April 2014 and expiring on 19 October 2016.

4. [5]

   Pursuant to orders of the Tribunal, the defendant has been detained in the hospital at the Long Bay Correctional Centre. He has been granted day leave to inspect a mental health facility named Denroma House.

5. [6]

   Since the expiration of his limiting term, the defendant has been subject to a series of interim extension orders under clauses 10 and 11 of Schedule 1.

Legal considerations

1. [7]

   The central provision of Schedule 1 FPA is clause 2 which is in the following terms:

2. [8]

   It is important to bear in mind that the standard of persuasion of satisfaction “to a high degree of probability” governs both questions. That is to say, if I am satisfied to that high degree of probability that the defendant poses an unacceptable risk within the meaning of the statute, I must make an extension order if I am also satisfied to the same high degree of probability that “the risk cannot be adequately managed by other less restrictive means”. The Minister carries the onus on both issues. On the second question the Minister must prove the negative.

3. [9]

   The exercise of the Court’s power to make an extension order is governed by Clause 7 of the Schedule, which is in the following terms:

4. [10]

   It is apposite in the particular circumstances of this case to record, as Adamson J held in Attorney General of New South Wales v Doolan [2015] NSWSC 177, that determining how an extension order is implemented is not within the Court’s power; that is a matter for the Tribunal.

5. [11]

   This consideration has particular application in the present case because there is really no issue that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. The real issue is whether that risk cannot be adequately managed under the MHA.

Finding

1. [12]

   Having regard to the matters set out in clause 7(2) for reasons I will give, I am satisfied to the requisite high degree of probability not only that the defendant poses an unacceptable risk, but also that risk cannot be managed by other less restrictive means, in particular under the Mental Health Act 2007.

Identifying the issue

1. [13]

   I had the considerable advantage of receiving oral testimony from four very experienced forensic psychiatrists including Dr Andrew Ellis and Dr Jonathon Adams, the experts appointed under Clause 6 of the Schedule. I will detail the evidence of all of them below. Every one of them is of the view that managing the risk posed by the defendant requires his admission to the Forensic Hospital for an extended period of up to 12 months. All agreed that the risk could not be satisfactorily managed in a correctional centre including Long Bay Hospital. Incarceration only contains the risk, it does not manage it. However, as Doolan makes clear, I am not empowered to order that the defendant be admitted to the Forensic Hospital, although having heard the evidence which was all one way in this regard I am strongly of the view that that should be done.

2. [14]

   To some extent the governing sub-issue in the proceedings has been how that outcome might be better brought about. This became a focus because, as I will explain, there are alternative paths to the Forensic Hospital: that is to say, a person may be admitted to the Forensic Hospital pursuant to the FPA, or as part of the treatment received under the MHA. I interpolate that in their evidence, some of the psychiatrists made a distinction between a “forensic patient” (under FPA) and a “civil patient” (under MHA).

Dr Keller’s evidence

1. [15]

   I have had the advantage of the affidavit evidence of Dr Adrian Keller, affirmed on 5 December 2016. Dr Keller is the clinical director of both the Forensic Hospital and Long Bay Hospital. Both are located at Anzac Parade, Malabar. Dr Keller has considerable experience and has occupied his current position since 2009. He is also a member of the state-wide Forensic Patient Flow Committee which governs the movement of forensic patients and high risk civil patients from one facility to another within the Justice Health and Forensic Mental Health Network.

2. [16]

   Dr Keller explains that the Forensic Hospital is a high security forensic mental health facility operated by Justice Health. It has 135 beds, as he puts it, “for the purpose principally of admitting forensic patients, as well as correctional patients, and a smaller number of “high risk civil patients” requiring the highest level of security that can be afforded by a mental health facility in New South Wales.” [Emphasis added.]

3. [17]

   Treatment in the Forensic Hospital involves progress through 4 treatment units, the last of which is for intensive rehabilitation and transition to a medium secure unit in the community, like Denroma House. A patient’s progress through the various modalities can take 12 to 18 months. As a practical matter, admission to the Forensic Hospital whether as a forensic patient on the one hand, or as a civil patient, on the other, depends upon, at least in part, a determination by the Tribunal.

4. [18]

   After completion of treatment from the Forensic Hospital, a forensic patient will be transitioned through a medium secure unit to continue his rehabilitation “with a view to progressing [him], through the use of increasing community leave, to live in supported accommodation in the community” (Keller affidavit [14]). This process, apparently, is less likely to be available to a civil patient.

5. [19]

   Dr Keller has reviewed the defendant’s Justice Health file and the expert reports prepared for the case. Dr Keller, who is well positioned to know, stated (affidavit at [29]):

6. [20]

   Dr Keller thought that if an extension order is made, the defendant will remain for the time being in Long Bay Hospital mental health unit. He points out that there is a waiting list for the Forensic Hospital of about 30 to 40 patients and they are “prioritised according to wait time and clinical need” (affidavit [31]). He said at [32]:

7. [21]

   Paradoxically perhaps, Dr Keller expressed this view ([38]):

8. [22]

   It is convenient at this stage to record that from the standpoint of the psychiatrist, Dr Keller’s experience is that oversight under FPA is rigorous given the primary consideration of protection of the public. Under the MHA the emphasis is different. Community protection is relevant but the focus is on the provision of care and treatment in the least restrictive environment.

9. [23]

   Dr Keller’s expert appreciation of how things work in practice is, with respect, consistent with the requirements of the law which were fully analysed by Adamson J in Attorney General of New South Wales v Doolan (No 2) [2016] NSWSC 107. Beech-Jones J summarised her Honour’s comprehensive analysis in his interim decision in the present case in Minister for Health v Paciocco [2016] NSWSC 1530 at [60] – [66] in the following terms:

The mandatory requirements of clause 7(2) FPA

1. [24]

   The Court’s primary concern is with the safety of the community. In this regard I think it important to record some of the evidence which I accept in relation to the defendant’s history.

2. [25]

   The defendant was born on 11 November 1972 and is now 44 years of age. Despite some differences of opinion about the precise diagnosis amongst the psychiatrists who gave oral evidence, it’s quite clear that the defendant has been a long time sufferer of a treatment-resistant schizophrenia involving antisocial or borderline personality traits. His condition was first diagnosed in 1994 when he was first admitted into a psychiatric facility after an attempt to commit suicide by jumping from the third storey of the Balmain power station. He has since then been readmitted to psychiatric facilities in 1995, 1996, twice in 1998, 1999, 2000, 2011, on 15 November 2012 and again from 21 November 2012 to the 15 February 2013. He was again an involuntary patient from 3 March until 16 April 2013, in August 2013 and from 18 December 2013.

3. [26]

   Many of these admissions were occasioned by attempted suicide. He attempted an overdose of drugs in 1995; again attempted to jump from a bridge in May 1995; and in 1996 he stepped off the platform at Kingsgrove railway station in front of a train, resulting in the amputation of part of each leg. He now ambulates with prostheses and the use of crutches. In 2012 he attempted to overdose on his antipsychotic medication.

4. [27]

   Notwithstanding treatment for his schizophrenia, and quite apart from the index offending in April 2014, he has a history of aggressiveness and violence in the community as follows:

5. [28]

   After his arrest for the index offending and whilst he has been in custody the following events have been documented:

6. [29]

   As I have said, the court appointed experts are Dr Ellis and Dr Adams. In his report of 30 November 2016, Dr Ellis (page 11) expressed the opinion that “in the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk of offending that is moderate-high, and greater than the theoretical average offender or psychiatric patient”. However he was also of the view that he was not adequately managed in a correctional institution. Dr Ellis said (page 12) that there is no safe and effective care available other than hospital “at present”. He was of the view that there was no substantial difference to the care and risk management provided to a forensic patient compared with an involuntary civil patient. Dr Ellis said,

7. [30]

   Under cross-examination Dr Ellis adhered to the view that the preferred diagnosis was schizophrenia with impairment of personality function. He acknowledged that there are resource issues affecting the treatment available to the defendant because “there are many more forensic patients than there are beds in this State” (50.25 - .37T). Dr Ellis thought it necessary for the defendant to be treated in a forensic psychiatric facility with intensive care over a long period of time, probably for a minimum of about 12 months (46.5 - .14T). Managing the defendant as a forensic patient would provide “some additional safeguards in this particular case”.

8. [31]

   In his report of 29 November 2016 (page 28) Dr Adams expressed the opinion that the question of whether the defendant poses a risk of causing serious harm to others depends upon his future management. In his opinion this management “can best be met by forensic mental health services”. He considered the defendant’s needs “would best be met in the high secure mental health facility, Forensic Hospital”. Unless treated in this way “there’s a significant likelihood [the defendant’s] violence risk could not be appropriately managed and contained.”

9. [32]

   His diagnosis was schizophrenia, major depressive disorder, substance abuse disorder and the possibility of an underlying cognitive impairment (56.24 - .27T). His problem with “interpersonal aggression” was symptomatic of his disease (56.38T). He regarded risk management as depending upon meeting the defendant’s “treatment needs” (63T).

10. [33]

    Dr Kerri Eagle carried out the assessment required by Clause 5(b) of the Schedule. Her report is dated 10 October 2016. It is a very comprehensive review of the available material. Her preferred diagnosis was likewise schizophrenia which was treatment-resistant. That is to say, notwithstanding appropriate treatment, he had frequent relapses of acute psychosis involving persecutory delusions, referential ideation and auditory hallucinations (page 19 – 20). She also agreed that he suffered a co-morbidity of major depressive disorder. His illness involved antisocial and borderline personality traits. She expressed the following opinions:

11. [34]

    In oral evidence Dr Eagle explained that the defendant’s condition is complex. His severe mental illness was complicated by “a significant mood disorder” in addition to personality traits that have resulted in challenging behaviours, including his aggression, “unfortunately” [29.18 - .23T]. Those most at risk from his aggression are persons “who are physically proximate to him or are in a relationship with him such as a neighbour or a friend or an associate”.

12. [35]

    Dr Eagle was of the opinion that continuing in the correctional environment is not the best way of managing his risk because although he receives the relevant medication there are very limited opportunities for providing the other psychological and therapeutic interventions necessary [32.20T].

13. [36]

    Like the other psychiatrists, she is strongly in favour of the defendant being treated in the Forensic Hospital, but in her experience it was difficult for even high risk civil patients to be admitted. She explained that the Forensic Hospital does not have admitting rights like a civil psychiatric unit in a Public Hospital. She said “on occasion” beds can be negotiated for civil patients with Justice Health [33.23 - .26T]. She pointed out that a civil patient can be discharged into the community at any time. She said “there is a pressure to put the patient in a less restrictive environment as soon as that environment would show itself to be available, and that is without any review by any Tribunal” [34.26 - .31T]. Although there is a waiting list for forensic patients in the Forensic Hospital, the Tribunal has the power to make “time limited orders” for transfer which places the patient “at the top of the list” [40.1 - .3T]. Leaving him where he is in the Long Bay Hospital could “exacerbate the long term risk he presents to the community” [40.27 - .30T]. She considered that the necessary treatment in the hospital could take 9 to 12 months [40.45T].

14. [37]

    I also received reports and oral evidence from Dr Robert Reznik, who has been the defendant’s treating doctor at the Long Bay Hospital since April 2016. He also remembers having met him in the 1990s when the defendant was a patient at Rozelle Hospital and Dr Reznik was a registrar.

15. [38]

    In his affidavit affirmed on 6 December 2016 he pointed out that his diagnosis differed from that of the other experts. In Dr Reznik’s view the principal diagnosis was a major personality disorder and he commenced the defendant on a mood stabilizer in addition to his antipsychotic medication. Although he was preparing the defendant for release into the community at the end of his limiting order, he did express the view that continuing as a forensic patient would have “advantages” for the defendant. Principally these related to the Tribunal’s power of recall. Although he speaks in terms of “advantages” to the defendant, I understood him to be directing attention to managing the risk he poses to others. In oral evidence Dr Reznik expressed the view that the civil system may not be as responsive as the forensic system. By “responsive” I understood to be referring to responsive to significant fluctuations in the severity of the defendant’s symptoms.

16. [39]

    I should say at this stage that I respect Dr Reznik’s views and acknowledge that he has had more direct involvement with the defendant than the other specialists in the case. But I am of the view that the preferred diagnosis is that proffered by Dr Eagle. However, I am not so sure this makes much practical difference. However one looks at it, his aggressiveness arises out of his condition and whether that is primarily schizophrenia or a major personality disorder does not seem to matter much. All agree that he has, in his disease complex, aspects of psychosis and personality disorder.

17. [40]

    In its latest decision of 8 November 2016, the Tribunal considered that the defendant had not become fit to be tried and that he should be continued to be detained in the Long Bay Hospital. However, it should be pointed out that it did not have the benefit or advantage of the reports of Drs Eagle, Ellis or Adams.

18. [41]

    The most relevant matter arising under this consideration is the affidavit of Dr Keller which I have dealt with above.

19. [42]

    It is clear that since he has been detained, the defendant has had difficulty complying with his obligations as a forensic patient. By that I refer him to his continued exhibition of a significant degree of aggressiveness even to the correctional officers responsible for his custody and, on occasion, others providing for his care. This, of course, is important primary evidence suggesting that he continues to present a risk. He does seem to be compliant with his treatment regime and Dr Reznik regarded him as a patient with sufficient insight to recognise that he requires treatment. Indeed he seeks out treatment.

20. [43]

    In nominating the limiting term for the defendant, his Honour Judge Jeffreys referred to his history of poor impulse control and low frustration and tolerance levels. He noted that the defendant was prone to aggressive outbursts often with little provocation. His condition is chronic.

Conclusion

1. [44]

   As I have said, I do not think it was seriously in issue that the defendant poses an unacceptable risk in the statutory sense. The material I have referred to certainly persuades me to a high degree of probability that he does. The real issue is whether the risk cannot be adequately managed by other less restrictive means. The difficulty in deciding this issue has been the consideration that the risk management is bound up with effective treatment for his condition, bearing in mind that condition is of its nature somewhat resistant to treatment. All the experts seem to agree that if he ceased to be a forensic patient he would become an involuntary civil patient. The difficulty would arise further down the track if symptoms settled to a level where he did not meet the MHA criterion of being mentally ill. He would then be released into the community with less restraint than as a forensic patient. However given his condition’s intractability he would then continue to present an unacceptable risk. I consider there is a better chance of him receiving appropriate treatment in the Forensic Hospital if he continues at least in the short term as a forensic patient.

2. [45]

   As I have pointed out when dealing with Dr Keller’s evidence, there is a paradox which relates to the timing of his admission to the Forensic Hospital. I repeat that I am not empowered to make orders about the treatment he is to receive. That is entirely a matter for the expert Tribunal and perhaps other experts in the field. I am only empowered to make a decision about whether he should be subject to an extension order. However, it is clear when considering the second question on the evidence I have accepted that management of the risk is bound up with appropriate treatment and the appropriate treatment overwhelmingly seems to be admitting him to the Forensic Hospital. Staying in the Long Bay Hospital may exacerbate his symptoms, doing nothing about his aggressiveness and placing staff at risk.

3. [46]

   These considerations may suggest that he might be better managed as a civil patient only because that might have the effect of propelling him to the top of the list for admission into a Forensic Hospital. However, I consider that to be an artificial approach. In truth, being admitted to the Forensic Hospital through negotiation with Justice Health as a high risk civil patient is not a less restrictive regime than continuing to be treated as a forensic patient under an extension order.

4. [47]

   Moreover, there are from my point of view other considerations. Treatment is one thing, control is another. It is obvious from the whole of the evidence that at least ultimately the regime to which he will be subject as a civil patient may come down to the opinion of an individual clinician. The emphasis and focus of the MHA regime is to move the patient towards less restriction. Given the defendant’s history, I consider the collective review of the defendant’s condition on advice by the Tribunal, and its powers of recall, are important safeguards for the safety of the public in this case. The more rigorous forensic regime is appropriate. It is indicative of the level of aggressiveness which is part of the defendant’s symptom complex that whilst at liberty, police officers, and whilst detained, correctional officers, have been victims of his violent outbursts. In my judgment, at least for the time being, the coercive aspect of the forensic regime is necessary for the management of the defendant.

5. [48]

   This brings me to the question of the duration of the order. I am very much alive to Dr Keller’s evidence that given the other demands on the limited available resources, the defendant is unlikely to be moved to the Forensic Hospital except in the last six to twelve months of the order. I find this surprising, but I accept it results from the tyranny of limited resources. It seems to me that this consideration suggests that the order should be for a shorter rather than longer period of time. The Minister has pressed for an order of 3 years duration. But it seems to me that an order of 14 months duration would be more appropriate bearing in mind further extension orders may be made if necessary.

6. [49]

   My thinking in relation to a period of 14 months is to give Justice Health, in its various manifestations, a proper opportunity for re-assessing the defendant in the light of the evidence lead before me, and in the interests of devising a treatment program which may see him admitted to the Forensic Hospital within a few weeks. Such a time frame would also give the Tribunal the opportunity of considering, if so advised, whether a time-limited order is called for in the particular circumstances of this case. In making these observations I am not seeking to trespass on the Tribunal’s jurisdiction.

Does s 162 Mental Health Act apply

1. [50]

   Ms Kluss of Counsel, who appears for the defendant, has argued that her client’s name should be anonymised by force of the provision of s 162 MHA. She relies upon the judgment of the Court of Appeal in Attorney General for the State of New South Wales v XY [2014] NSWCA 466 at [185] – [187]. Ms Kluss argues that that case arose in a related context. Learned Counsel also refers to other decisions in the Common Law division where such a practice was followed: Sara White v Local Health Authority [2015] NSWSC 417 and New South Wales Minister for Health v BB [2015] NSWSC 1418. Counsel acknowledges the contrary view taken by Adamson J in Doolan at [66] – [68], which is relied upon by Mr Beckett of Counsel for the Minister.

2. [51]

   As Adamson J pointed out in Doolan at [60], s 162 is to be found in Chapter 6 Part 2 of the MHA. By s 149 that part applies “to any proceedings of the Tribunal under this or any other Act”. In my judgment it follows from this, largely for the reasons given by Adamson J, that the expression “any proceedings” in s 162(1)(c) should be read as “any proceedings of the Tribunal”. It does not extend to proceedings in this Court under FPA. These powers extend beyond those I am exercising under s 54A and Schedule 1 of that Act. Special Hearings involving persons unfit to plead are generally conducted without the name of the person whose apparent offending is in issue being anonymised. I decline to make the order sought.

Orders

1. [52]

   For the reasons given, my orders are:

   1. (1)

      Under s 54A Mental Health (Forensic Provisions) Act 1990 the Court makes an extension order in respect of Steven Mark Paciocco commencing on 17 January 2017 and expiring on 16 March 2018;

   2. (2)

      These reasons, the transcript of evidence and the reports of the various experts given in evidence may be released and made available to the Mental Health Review Tribunal and clinicians responsible for providing treatment to Mr Paciocco for their information and use.