Minister for Mental Health v Paciocco (Final)

1. [1]

   By a summons filed 18 September 2019, the plaintiff, the Minister for Mental Health, sought various orders under Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (“Schedule 1” and the “MHFPA” respectively) against the defendant, Steven Paciocco. Prayer 1 sought orders under cl 6(5) appointing two psychiatrists or psychologists to examine Mr Paciocco. Prayer 2 sought an interim extension order under cl 10 and cl 11(1) of Schedule 1 for a period of three months from 13 December 2019. Orders to that effect were made by Fullerton J on 29 November 2019 (Minister for Mental Health v Paciocco [2019] NSWSC 1677; “Paciocco (No 5)”).

2. [2]

   There remains for consideration prayers 3 and 4 of the summons. I return to address prayer 4 at the end of this judgment. Prayer 3 initially sought an extension order under cl 7(1)(a) of Schedule 1 for a period of eighteen months. At the hearing of these proceedings an amended summons was filed seeking such an order for a period of three years. The detailed written submissions that were filed on behalf of Mr Paciocco, together with an email to the Court, advised that that relief was agreed to. It is evident from those submissions that the agreement to the relief was communicated by experienced legal practitioners well versed in the area who were conversant with the material and had discussed it with their client. Nevertheless, the current structure of the MHFPA is such that the Court cannot make orders based upon the consent of the parties. Instead, it must be independently satisfied that the relief agreed to is appropriate. For the reasons that follow the Court is so satisfied.

Mental Health (Forensic Provisions) Act

1. [3]

   Schedule 1 to the MHFPA provides a scheme for the extension of the status of a person as a forensic patient. Clause 1 confers on the Court the power to make an order for the extension of a person's status as a forensic patient where an application is made in accordance with cl 2. Clause 2 provides as follows:

2. [4]

   Division 1 of Part 2 of Schedule 1 deals with applications for an extension order. Clause 3 empowers the Minister to apply for an order. Clause 4(1) provides that the application may be made in respect of a forensic patient, only if the forensic patient is subject to either a limiting term or an existing extension order. As I will explain, it is satisfied in relation to Mr Paciocco. Clause 5 deals with the material that must accompany such an application. In light of Fullerton J’s decision in Paciocco (No 5), it is not necessary to address that further other than to state that it was clearly satisfied.

3. [5]

   Clause 7(1) confers on the Court the power to determine an application for an extension order by making the order or dismissing the application. Clause 7(2) specifies the criteria to which regard is to be had in determining whether or not to make an extension order. It relevantly provides:

4. [6]

   Clause 8 deals with the term of such an order. Such an order cannot exceed a term of five years.

Status as a Forensic Patient

1. [7]

   On 18 October 2016, I heard and granted an application for an interim extension of Mr Paciocco’s then status as a forensic patient for a period of twenty-eight days (Minister for Health v Paciocco [2016] NSWSC 1530; “Paciocco (No 1)”). As at that date, Mr Paciocco had the status of a forensic patient as a consequence of an order made under s 14 of the MHFPA by Jeffreys DCJ as a consequence of a finding by his Honour under s 22(1) that, on the limited evidence available, Mr Paciocco had committed the offence of reckless wounding and assaulting an officer in the execution of his duty. I summarised the matters found by his Honour in Paciocco (No 1) as follows:

2. [8]

   Following Paciocco (No 1), on 16 January 2017 Campbell J made a (final) extension order for a period of fourteen months (Minister for Mental Health v Paciocco [2017] NSWSC 4; “Paciocco (No 2)”). That order was due to expire on 16 March 2018, however on 8 March 2018 Fullerton J made an interim extension order (Minister for Mental Health v Paciocco [2018] NSWSC 277; “Paciocco (No 3)”). On 13 June 2018, Davies J made a second (final) extension order, that one being for a period of eighteen months (NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866; “Paciocco (No 4)”). It was that order that was due to expire before Fullerton J determined Paciocco (No 5). I have reviewed the terms and the findings made in each of those judgments.

Mental Health and Background

1. [9]

   In Paciocco (No 5) at [17] to [21], Fullerton J summarised the relevant background and psychiatric history of Mr Paciocco in the following terms:

2. [10]

   I have reviewed the material tendered in this matter. It amply supports her Honour’s description.

Reports Under Clause 6(b)

1. [11]

   Clause 7(2) of Schedule 1 obliges this Court to consider the reports received from the persons appointed under cl 6(5) to conduct examinations of a forensic patient, that is, Mr Paciocco. To that end, and consistent with the orders made by Fullerton J in Paciocco (No 5), reports from Dr Kerri Eagle dated 6 February 2020 and Associate Professor John Vincent Basson of the same date were tendered.

2. [12]

   In her report, Dr Eagle provided a diagnosis of Mr Paciocco's mental conditions in terms that were similar to the history extracted by Fullerton J in Paciocco (No 5). In particular, Dr Eagle stated:

3. [13]

   Dr Eagle also noted that Mr Paciocco had a cannabis use disorder but described that as being “in remission in a controlled environment”, specifically while being detained as a forensic patient.

4. [14]

   Dr Eagle’s report addressed the various matters and factors relevant to an assessment of the criteria for the making of an extension order in cl 2 of Schedule 1. Dr Eagle summarised her opinion as follows:

5. [15]

   In relation to the last part of this summary, Dr Eagle addressed, in detail, the relative advantages and disadvantages so far as risk management is concerned of a comparison between Mr Paciocco continuing as a forensic patient and Mr Paciocco continuing as an involuntary patient admitted under the MHFPA.

6. [16]

   Dr Eagle’s overall conclusion was that, “[i]n order to effectively manage his risk he requires the oversight of the MHRT [Mental Health Review Tribunal] in his ongoing care and the benefit of the forensic pathway with appropriate forensic input”. Dr Eagle contrasted that with a position if responsibility for Mr Paciocco’s treatment and risk management fell to an individual clinician as an involuntary patient under the Mental Health Act 2007.

7. [17]

   So far as the period of any appropriate order might be concerned Dr Eagle’s opinion is that Mr Paciocco “is likely to require considerable further time to progress through the high secure Forensic Hospital before it would be suitable or safe to facilitate a transition to a less secure hospital environment”.

8. [18]

   Associate Professor Basson’s diagnosis of Mr Paciocco’s mental state was not relevantly different to that of Dr Eagle. Associate Professor Basson described Mr Paciocco as having shown a “good response to pharmacological treatment for schizophrenia”, but added that when he was “non-compliant this interacts with the historical risk to raise the frequency of impulsive violent acts”. Associate Professor Basson described Mr Paciocco as falling “into a group of persons with a risk of offending that is moderate to high”.

9. [19]

   Like Dr Eagle, Associate Professor Basson addressed the relative advantages and disadvantages of Mr Paciocco continuing as a forensic patient compared to him being an involuntary patient. In short, Associate Professor Basson considered that the more rigorous and secure structure of the forensic provisions would better manage the risk posed by Mr Paciocco than if he was an involuntary patient. In particular, he noted that the “MHRT assessments of him would be less rigorous if it is a civil order”.

Clause 7(2)(d) – “Other Reports”

1. [20]

   Clause 7(2)(d) of the MHFPA requires this Court to consider “any other report of a qualified psychiatrist” or relevant medical practitioner concerning Mr Paciocco. To that end a number of other reports were placed before the Court addressing Mr Paciocco’s mental state, progress and risk profile. I have reviewed them all and, subject to what follows, they are not materially different to the reports of Dr Eagle and Associate Professor Basson.

2. [21]

   I note that one of the reports is from Dr Adam Martin dated 10 May 2019. Dr Martin concluded that the effect of all Mr Paciocco’s conditions is that he is “at significant risk of re-offending violently”. This opinion was formed after having undertaken an assessment that used, amongst other matters, “the HCR 20 Version 3 … judgment tool”.

3. [22]

   In relation to whether the risk posed by Mr Paciocco could be adequately managed by him being scheduled as an involuntary patient or continuing as a forensic patient, Dr Martin stated:

4. [23]

   This conclusion needs to be seen in a context whereby Dr Martin considered that clinically there should be no difference in the management of the patient such as Mr Paciocco either as a forensic patient or an involuntary patient. However, earlier in his report Dr Martin acknowledged that “systemic issues” justified a difference in relation to risk management in that a “continuation of his forensic status provide adequate oversight of his management and would reduce the possibility of such needs not being met”, whereas the same could not be said for the range of options available for Mr Paciocco as an involuntary patient. This difference in an assessment of risk management under the two regimes reflects the effect of the relevant authorities concerning the means by which the criteria in cl 2(1)(b) of Schedule 1 is to be assessed (see, for example, Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107, at [109]; “Doolan”).

5. [24]

   Another report that needs particular mention is that provided by Dr Ellis and Dr Singer to the MHRT, dated 28 November 2019. It comprehensively reviewed Mr Paciocco’s psychiatric condition, as well as documenting in detail his progression in the Forensic Hospital since his admission as a forensic patient in November 2017. The report notes that Mr Paciocco progressed to the Clovelly unit of the Forensic Hospital in October 2018 and that there were some positive signs. However, in relation to the period from July to November 2019, the report states:

6. [25]

   Their overall conclusion was that Mr Paciocco has a “continuing condition that is likely to worsen without supervision and treatment” and that there are reasonable grounds for concluding that “care, treatment and control of Mr Paciocco is necessary for the protection of himself and others from serious harm”.

Order or Decision of the Tribunal – Clause 7(2)(e)

1. [26]

   Clause 7(2)(e) of Schedule 1 obliges this Court to consider any order or decision made by the MHRT with respect to Mr Paciocco that is relevant to the application.

2. [27]

   Over the last 18 months Mr Paciocco has been the subject of a number of reviews and consequential orders made by the MHRT, specifically on 10 July 2018, 19 December 2018, 11 January 2019, and 9 January 2020.

3. [28]

   In its report dated 9 January 2020, the MHRT noted material suggesting that Mr Paciocco told the relevant staff that he “wants more treatment and he would harm himself and be a threat to others if released into the community”, that he “felt safer in hospital”, but also he could imagine being at other hospitals and living in particular suburbs. Their report noted a concern by Mr Paciocco about the possibility of “suddenly being discharged into the community”.

4. [29]

   The MHRT’s conclusion was as follows:

Level of Compliance as a Forensic Patient – Clause 7(2)(g)

1. [30]

   Clause 7(2)(g) of the Schedule 1 requires the Court to consider the level of the forensic patient’s compliance with any obligations to which he has been subject to while as a forensic patient. This topic is addressed in the reports to which I have referred. In short, the most important determinate concerning Mr Paciocco’s behaviour appears to be his compliance with his medication regime.

2. [31]

   At the hearing of the summons, counsel for the plaintiff took the Court to various entries in the case notes of Mr Paciocco’s time in the Forensic Hospital which showed, even over recent months, repeated instances of aggressive and paranoid behaviour on his part. This included acts of violence. They appear to be especially directed to staff of Asian descent. There is also in the material reason to believe that progress could be made if, as I have said, Mr Paciocco is compliant with his medication regime.

3. [32]

   It is suffice to state that, at this point, if Mr Paciocco was to be released into the community, in the short-term it is extremely unlikely that he would have such self-sufficiency to enable him to be sufficiently compliant with his medication regime for there to be any confidence that the risk he poses could be managed.

Views of the Court that Impose the Limiting Term – Clause 7(2)(h)

1. [33]

   I have reviewed the decision of Davies J in Paciocco (No 4). His Honour reached conclusions in relation to Mr Paciocco which was consistent with those expressed in the other decisions to which I have referred. In particular, his Honour found that he was satisfied to a high degree of probability that “the unacceptable risk of his causing serious harm to others cannot be adequately managed by less restrictive means than a further extension order” (at [65]).

2. [34]

   His Honour nominated a number of reasons for that conclusion, including that before his release Mr Paciocco would have to be stabilised on Clozapine and that would take a considerable time; that when he is sufficiently stabilised on Clozapine Mr Paciocco would need to be stepped down to some lesser form of security; that thereafter there is the possibility that he might be released into the community, but then his risk associated with cannabis and other drug use would have to be addressed; and the evidence was unclear about his ability to access the NDIS (at [66] to [71]).

3. [35]

   Accordingly, Davies J concluded as follows (at [72]):

Other Information About Risk to Others – Clause 7(2)(i)

1. [36]

   As is usual in these matters a significant amount of other material, including case and progress notes, were placed before the Court. This material is potentially relevant to the criteria in cl 2(a) and (b) of Schedule 1. I have already outlined the effect of this material when referring to counsel’s submissions, specifically that it discloses instances of aggressive and violent behaviour. It also shows some instances where Mr Paciocco has displayed insight into his condition and has taken the step of requesting medication before more drastic action is required.

Unacceptable Risk and Less Restrictive Means

1. [37]

   The assessment of unacceptable risk required by cl 2(1)(a) of Schedule 1 needs to be undertaken based upon the absence of any protective measures, that is, on the assumption that Mr Paciocco is neither a forensic patient or even an involuntary patient but is instead released into the community unsupervised (see Attorney General for New South Wales v Kapeen by his tutor Jennifer Thompson (Preliminary) [2018] NSWSC 619). Having regard to Mr Paciocco’s past conduct, his diagnosis and the effect of the expert opinion, which is uniform in this respect, I have no doubt that cl 2(1)(a) is clearly satisfied.

2. [38]

   In relation to cl 2(1)(b), I have already referred to the decision in Doolan and I addressed the approach to assessing less restrictive means in Paciocco (No 1) at [56] to [72]. I will not repeat that discussion. It suffices to state that the analysis undertaken there of Mr Paciocco’s circumstances and the difference in the legal regimes between the forensic patient provisions and the involuntary patient provisions are still apposite at present, even allowing for the fact that Mr Paciocco has been in the Forensic Hospital since the end of 2017. That analysis is reflected in the reports of Dr Eagle and Associate Professor Basson, as well as the report of Dr Martin. I otherwise agree with the conclusion of Davies J in Paciocco (No 4) at [72], to which I have referred.

3. [39]

   Accordingly, I am satisfied that the risk of causing serious harm as posed by Mr Paciocco cannot be adequately managed by less restrictive means than a continuation of his status as a forensic patient.

4. [40]

   There remains to consider the term of the order. As noted, the parties have proposed a period of three years. As I understand it, from the plaintiff’s perspective that reflects its assessment that the various instances of aggressive behaviour by Mr Paciocco, and his overall diagnosis, suggest that there is a relatively bleak prospect of him sufficiently progressing within a short period of time to warrant his release into the community. Conversely, as I understand it, the defendant’s position is that there is in the material enough to indicate that at times he shows insight and that he otherwise has aspirations for eventual community release.

5. [41]

   Bearing in mind both those matters, I consider that a period of three years is appropriate. This is especially so because the material indicates that, even as a forensic patient, there is still some scope for flexibility in the level of supervision of Mr Paciocco and his living arrangements. It follows that I will make the order proposed in relation to prayer 3.

Orders

1. [42]

   Prayer 4 of the summons seeks an order restricting access to the Court’s file in the matter such that access by a non-party to the proceedings would only be permitted by leave of a judge of the Court and only with prior notice to the parties, so as to allow them an opportunity to be heard in respect of any application for access.

2. [43]

   As I understand it, Fullerton J has already made an order to that effect. I am being asked to renew it, as it were, on a final basis. Although I do not think it is necessary for one judge to put conditions on which another judge may grant leave, given that the order has already been made by Fullerton J, I am content to make that order on a final basis.

3. [44]

   Accordingly, the court orders as follows: