Attorney General of New South Wales v Skerry (Preliminary)

1. [1]

   HIS HONOUR: The Attorney General of New South Wales ("the Attorney") applied for an extension of the status of Michael John Skerry as a forensic patient pursuant to cl 3 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act").

2. [2]

   There was a preliminary hearing before me on 26 June 2015, at the conclusion of which I made the orders that are set out at the end of this judgment. The following are my reasons for making those orders.

3. [3]

   Mr Skerry is currently a forensic patient because he is subject to a limiting term imposed pursuant to s 23 of the MHFP Act. It is due to expire on 5 July 2015. He can be made the subject of an extension order if the provisions of cl 2 are satisfied:

4. [4]

   The question for determination at a preliminary hearing is whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I was satisfied that this was so. Consequently it became necessary to make orders appointing two qualified psychiatrists to conduct separate examinations of Mr Skerry and to furnish reports to the Court (cl 6).

5. [5]

   I also made an "interim extension order" (cl 10). That was necessary because Mr Skerry's limiting term will expire before the proceedings are determined. An interim extension order may operate for up to 28 days. It may be renewed, but not so as to extend it beyond a period of 3 months (cl 11). The interim extension order was specified to take effect on 5 July 2015 when Mr Skerry's limiting term expires.

6. [6]

   In considering whether the supporting documentation would, if proved, justify the making of an extension order, it was necessary to have regard to the matters that would be considered in relation to the making of such an order. They are the matters listed in cl 7(2) in addition to any other matter thought to be relevant.

7. [7]

   In Attorney General of New South Wales v McGuire [2013] NSWSC 1862, Davies J noted that the provisions of Sch 1 of the MHFP Act closely mirror the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) for applications for continuing detention orders and extended supervision orders in relation to high risk sex offenders and high risk violent offenders.

8. [8]

   His Honour made the following observations (with which I respectfully agree):

9. [9]

   The submissions for the Attorney identified a divergence of judicial opinion in this Court as to the "unacceptable risk" phrase used in the Crimes (High Risk Offenders) Act which is also used in cl 2(1)(a) of Sch 1. It was discussed in the context of the MHFP Act by Hoeben CJ at CL in Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [41]-[44]. There was no need at the preliminary hearing stage of this matter to dwell upon it as I was satisfied by the submissions for the Attorney that whichever approach was adopted, the "unacceptable risk" test was satisfied.

10. [10]

    The Attorney's submissions also raised the issue of the meaning of the "other less restrictive means" limb of the test for making an extension order (cl 2(1)(b)). Garling J discussed this in Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288 and I had particular regard to what his Honour said at [60]-[65].

11. [11]

    The provision in cl 2(1)(b) requires consideration of the concept of being "an involuntary patient under s 53". The term "involuntary patient" has the same meaning as in the Mental Health Act 2007 (NSW) (s 3(1) of the MHFP Act). Under s 35(5) of the Mental Health Act, the Mental Health Review Tribunal ("the Tribunal") may make an order that a mentally ill person be detained in a mental health facility for observation and treatment as an involuntary patient for a period of up to three months if "the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection".

Forensic patients and the Mental Health Review Tribunal

1. [12]

   It is necessary to have regard to what is involved in being a "forensic patient" as this is the status Mr Skerry has and which the Attorney wishes to have extended. This involves a consideration primarily of the provisions of Part 5 of the MHFP Act (ss 40 to 76K) which is headed "Forensic patients and correctional patients".

2. [13]

   Section 40 provides for the following objects of Part 5:

3. [14]

   The functions of the Tribunal under the MHFP Act are exercised by its Forensic Division which is constituted by a President or Deputy President; a psychiatrist, psychologist or other suitable expert in relation to a mental condition; and a member who has other suitable qualifications or experience (s 73).

4. [15]

   The Tribunal is required to review the case of each forensic patient within certain timeframes but in the case of a person the subject of an extension order, at least every six months (s 46). Following any such review, the Tribunal may make an order for the forensic patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or order the patient's release, conditionally or unconditionally (s 47(1)). The latter cannot be ordered in the case of a patient the subject of an extension order but the Tribunal may apply to this Court for a variation or revocation of the order (s 47(2A)). The Tribunal may also make an order following a review for the transfer of a forensic patient to a mental health facility, correctional centre or other place (s 48).

5. [16]

   The Tribunal may make an order for the release of a forensic patient but only if it is satisfied that the safety of the patient or any member of the public will not be seriously endangered and that other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available, or that such care is not required (s 43). Section 74 provides mandatory criteria for the Tribunal to consider.

6. [17]

   A leave of absence from a mental health facility, correctional centre or other place may be granted by the Tribunal for such period and subject to such terms and conditions as the Tribunal thinks fit (s 49(1)). Such an order cannot be made unless the Tribunal is satisfied of the same safety aspect that relates to an order for release (s 49(3)).

7. [18]

   Section 75 provides a list of matters in relation to which conditions may be imposed in respect of release or leave of absence. Victims may apply to the Tribunal in respect of the making of non-association and place restriction conditions (s 76). Section 68 authorises the President of the Tribunal to order the apprehension of a person if it appears there has been a breach of a condition of release or leave of absence, or there has been a deterioration of the person's mental condition giving rise to a risk of the person causing serious harm to him or herself or another person.

8. [19]

   The Tribunal may make a community treatment order ("CTO") in respect of a forensic patient involving compulsory treatment in the community pursuant to Pt 3 of Ch 3 of the Mental Health Act (s 67).

9. [20]

   The Attorney and the Minister or Health are entitled to appear before the Tribunal or make submissions to it in relation to the possible release or grant of leave of absence to, or recommendation to revoke an extension order in respect of, a forensic patient (s 76A(2)). The Tribunal must inform the Minister of Police, the Minister for Health and the Attorney of any order it makes for the release of a person and of the date of release (s 76A(6)). There are provisions for appeals against certain decisions of the Tribunal (s 77A).

Background

1. [21]

   Mr Skerry was born in 1967 and so he is now aged 47. He is subject to a limiting term that was set by the District Court at Parramatta on 5 November 2013. This arose from his commission of an offence of sexual intercourse without consent on 6 July 2012. It involved him entering the apartment of the victim, a 61 year old neighbour, uninvited. He threatened her and then pushed and dragged her by the hair to a bedroom where he forced her to give him oral sex while telling her to "shut up, stop crying or I'll kill you" before ejaculating into her mouth.

2. [22]

   Mr Skerry has a history of schizophrenia and polysubstance dependence. His first admission to a psychiatric hospital was in 1990 when he was aged 23. He has had two subsequent admissions, the last at Concord Hospital. Police records disclose that on 8 June 2003 Mr Skerry allegedly absconded from Rozelle Hospital.

3. [23]

   Mr Skerry has also been the subject of 16 CTOs under the Mental Health Act since 2001. He was the subject of such an order at the time of the index offence. There is reference in the materials to a history of non-compliance and breaches of CTOs.

4. [24]

   On 13 December 2012 he was found unfit to be tried and was referred to the Tribunal. He was remanded in custody. On 19 December 2012 he was transferred from the Metropolitan Remand and Reception Centre at Silverwater to the Long Bay Hospital where he has remained.

5. [25]

   On 7 February 2013, the Tribunal determined that Mr Skerry was mentally ill and should continue to be detained in a mental health facility. He remained unfit to be tried.

6. [26]

   On 4 and 5 November 2013, a special hearing was held pursuant to s 19 of the MHFP Act. Mr Skerry was found, on the limited evidence available, to have committed the offence mentioned. The presiding judge nominated a limiting term of 3 years dating from 6 July 2012; referred Mr Skerry to the Tribunal; and ordered that he be detained in a mental health facility. This gave rise to his present status as a forensic patient (s 42). He has been held ever since at the Long Bay Hospital.

Criminal history

1. [27]

   Mr Skerry has a criminal history dating back to 1985 but not for any offences of the type or seriousness of the index offence. There are, however, a number of quite serious and concerning incidents that have been reported to police, not all of which resulted in prosecution and none of which resulted in conviction. The Attorney submitted that these could be taken into account pursuant to cl 7(2)(i) which requires the Court to have regard to "any other information that is available as to the risk that the forensic patient will in future cause serious harm to others".

2. [28]

   Mr Skerry was a "person of interest" to the police in relation to an indecent assault on 18 August 1993. The victim met Mr Skerry, who she said she vaguely knew from school. They had a few drinks at a club together and she agreed to go with him to an address in order for him to collect something. When they got to that address, he disrobed and pulled her head down attempting to have her perform oral sex. She managed to escape.

3. [29]

   He was again a "person of interest" in relation to an incident on 24 March 1994. The victim met him through a third party. He took her to a hotel where he produced a handgun and demanded to have sex. He proceeded to have anal and vaginal intercourse against her will. He was arrested and taken to a police station. The victim was taken to a hospital for a medical examination which she declined. She did not wish to make a complaint and Mr Skerry was released without charge.

4. [30]

   On 23 February 2009 Mr Skerry propositioned a young man near Town Hall for sex. They went to a nearby fast food restaurant where he followed the young man into a disabled toilet. He locked the door and then masturbated before forcing his penis into the young man's mouth and ejaculating. Mr Skerry later claimed that the act was consensual.

Sex offender rehabilitation programs

1. [31]

   Ms Danielle Matsuo is the Statewide Manager of Programs within Corrective Services NSW and a registered psychologist. She provided an affidavit containing information as to various rehabilitation programs available to sex offenders in custody and in the community. Such programs are available to forensic patients in the Long Bay Hospital but not those in the Forensic Hospital. Programs in the community are available to forensic patients on a conditional release order. Mr Skerry would be eligible if he had that status. He has previously declined to engage in such a program, explaining that he did not wish to be associated with sexual offenders.

Psychiatric reports

1. [32]

   Dr Jeremy O'Dea, forensic psychiatrist, was engaged by the Crown Solicitor's Office. Following a review of Mr Skerry's history and an assessment of him in an interview on 22 February 2015, he provided a report dated 1 March 2015. Dr O'Dea made a diagnosis of Severe Chronic Treatment Resistant Schizophrenic Illness, complicated by Polysubstance Use Disorder. He noted that Mr Skerry remained acutely psychotic despite assertive ongoing treatment in a secure forensic psychiatric facility for more than two years.

2. [33]

   Dr O'Dea agreed with the assessment of Mr Skerry's psychiatric treating team that he requires ongoing psychiatric treatment in such a facility in order to optimise his response to treatment and manage his ongoing risk of causing serious harm to others.

3. [34]

   Addressing the specific issues in cl 2 he stated:

4. [35]

   Mr Skerry was more recently assessed by Dr Andrew Ellis, forensic psychiatrist, having been engaged by Mr Skerry's solicitor. Dr Ellis saw Mr Skerry at the Long Bay Hospital on 19 June 2015. Upon that assessment and a review of various documents he concluded that Mr Skerry met the criteria for a diagnosis of Schizophrenia. He said:

5. [36]

   Dr Ellis also made a diagnosis of Substance Use Disorder (Cannabis, Stimulants, Alcohol and Opioids), currently in remission in a controlled environment.

6. [37]

   Similar psychiatric diagnoses have been made in the past: Dr Furst in a report of 26 August 2012; Dr Nielssen in a report of 11 December 2012

7. [38]

   Dr Ellis expressly agreed with Dr O'Dea's psychiatric diagnosis, assessment of risk status and the type of clinical care required. He provided his own very detailed analysis of factors relevant to the assessment of the risk of further offending. He concluded:

8. [39]

   Dr Ellis' report also contains a very detailed analysis of the options of Mr Skerry being maintained as a forensic patient or being treated as an involuntary patient. There are various factors which favour one over the other but, as I understand the analysis, little difference in the overall effect of each. Dr Ellis favours treatment as an involuntary patient but appears to be uncritical of the alternative approach being taken.

Can it be established to a high degree of probability that Mr Skerry poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient - cl 2(1)(a)?

1. [40]

   It was the submission of counsel for Mr Skerry that the test in cl 2(1)(a) is not made out because if Mr Skerry ceases to be a forensic patient he will be made an involuntary patient by order of the Tribunal and detained pursuant to the Mental Health Act. In my view, this elided the issues in (a) and (b) of cl 2(1). The question of whether Mr Skerry poses an unacceptable risk of causing serious harm to others is to be assessed for the purposes of cl 2(1)(a) on the assumption that he is not a forensic patient nor an involuntary patient. The question of how Mr Skerry might otherwise be managed is relevant to the second issue in cl 2(1)(b). So, for the purposes of cl 2(1)(a), what must be considered is the risk Mr Skerry would present he ceased to be a forensic patient and was released at the end of his limiting term.

2. [41]

   The expert psychiatric opinion is unanimous that there is a high degree of probability that Mr Skerry would, in these circumstances, pose an unacceptable risk. I am satisfied that if proved, this would, subject to the second limb of the test, justify the making of an extension order.

Can it be established to a high degree of probability that the unacceptable risk of Mr Skerry causing serious harm to others cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under section 53) – cl 2(1)(b)?

1. [42]

   The question posed by cl 2(1)(b) is more problematic in this case and represents the real issue joined between the parties. It is whether there is a high degree of probability that the level of risk can or cannot be adequately managed by other less restrictive means.

2. [43]

   It is common ground that if Mr Skerry is not to remain a forensic patient he will become an involuntary patient. The expert opinions put before the Tribunal support this occurring. The Tribunal has intimated that it will make an order to this effect before his limiting term expires if this Court does not make an interim extension order. For this reason, on 18 June 2015 it adjourned a review of Mr Skerry's case to 3 July 2015 to await the decision of this Court on the interim extension order application.

3. [44]

   The submissions for Mr Skerry on the ultimate question of whether an extension order, including an interim extension order, should be made were to the effect that an adequate regime exists for him to be appropriately managed as an involuntary patient and so there is no utility in prolonging his status as a forensic patient.

4. [45]

   Counsel referred to the second reading speech in support of a submission that the insertion of Schedule 1 in the MHFP Act by the Mental Health (Forensic Provisions) Amendment Act 2013 (NSW) was intended to fill a gap because the Tribunal had no power to do other than release forensic patients at the end of their limiting term if they were not mentally ill. In other words, Schedule 1 was not intended to apply in the case of a mentally ill person such as Mr Skerry.

5. [46]

   The problem with that submission is that the terms of cl 2(1)(b) require consideration of management of the person by less restrictive means "including classification as an involuntary patient". One of the conditions for a person being detained as an involuntary patient under the Mental Health Act is that the person is mentally ill: see, for example, ss 12, 14 and 35(5). So, despite what might have been said in Parliament, the legislation contemplates application of the provisions to persons who are mentally ill.

6. [47]

   Dr Adrian Keller is the Clinical Director of the Forensic and Long Bay Hospitals. He has considered the options available for placement of Mr Skerry upon the expiry of his limiting term. This did not include a consideration of the possibility of an extension order being made. The most appropriate treatment plan, in his view, was to propose to the Tribunal that Mr Skerry be made an involuntary patient and transferred to the Forensic Hospital. Dr Bhattacharyya, Mr Skerry's treating psychiatrist, supports this approach.

7. [48]

   In his report of 1 March 2015, Dr O'Dea considered that maintaining Mr Skerry’s status as a forensic patient was preferable, but that was on a comparison of him being in the community subject to a CTO with him being a forensic patient subject to a conditional release order.

8. [49]

   In a further report dated 15 June 2015, Dr O'Dea responded to a question as to whether Mr Skerry posed an unacceptable risk of causing serious harm to others if he became an involuntary patient. He said:

9. [50]

   Dr O'Dea also said in this report that he expected that if Mr Skerry became an involuntary patient he would be detained in a secure psychiatric facility indefinitely. He did not expect release under a CTO or otherwise in the foreseeable future; not where any risks of causing serious harm to others had not been adequately resolved.

10. [51]

    He was also asked about the difference in the level of psychiatric treatment, supervision and monitoring between conditional release of a forensic patient and release of an involuntary patient on a CTO. He said:

11. [52]

    The submissions for the Attorney compared the differences in Mr Skerry being a forensic patient under the MHFP Act with him being an involuntary patient under the Mental Health Act.

12. [53]

    Paragraph (b) of cl 2(1) implicitly recognises that classification as an involuntary patient is "less restrictive" than having the status of a forensic patient. However, there were arguments about whether being a forensic patient is more or less restrictive than being an involuntary patient. It seems to me that it depends upon whether one is comparing the two in a theoretical sense by reference to the statutory regimes or looking at the practical reality in the context of Mr Skerry's circumstances.

13. [54]

    Whilst considerable effort was devoted to this issue in the course of submissions it did not require resolution (at least at the preliminary hearing stage). The focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other.

14. [55]

    Both Dr O'Dea and Dr Ellis are of the opinion that there can be adequate management of the risk posed by Mr Skerry if he is detained in a secure psychiatric facility as an involuntary patient. If that was the only issue under the second limb of the test in cl 2(1), then the Attorney's application for an extension order would necessarily fail.

15. [56]

    However, the doctors are looking at the issue from a medical perspective and upon an assumption that Mr Skerry will remain in a secure psychiatric facility for a lengthy period of time. Neither are able to forecast how long that period might be. That is understandable given that there are a number of variables and matters presently unknown.

16. [57]

    The Attorney seeks an extension order for a period of five years. That is the context in which this issue must be assessed. No-one can predict what the position might be in two, three or four years’ time. Among the variables and unknowns is that Mr Skerry at some stage may agree to taking a medication that he is presently resisting; one that is thought might better treat his illness. Another is that there must be a chance that as time passes he may come to gain some insight into his illness and thereby better respond to therapy. The Court is not considering the issue only in the context of the present time but must be mindful of the entire period for which the order is sought. It may well be that at some stage during the next five years an authorised medical officer under the Mental Health Act may consider that he is sufficiently well to be released into the community.

17. [58]

    The material in the documentation supporting the Attorney’s application would, if proved, justify a conclusion that management of Mr Skerry as an involuntary patient would not be adequate having regard to the greater oversight, control, intervention, outside input, and potential appellate review that is available if he were to be maintained as a forensic patient. Put in terms of cl 2(1)(b) in the context of the term of the extension sought by the Attorney, it would, if proved, establish that there is a high degree of probability that the risk posed by Mr Skerry cannot be adequately managed by means that are less restrictive than maintaining his status as a forensic patient for all, or at least a substantial portion, of the period of the order that is sought.

Orders

1. [59]

   It was for the foregoing reasons that at the conclusion of the hearing on 26 June 2015 I made the following orders: