NSW Minister for Mental Health v Paciocco (No. 2)

1. [1]

   By a summons filed 8 March 2018 the Minister seeks an order pursuant to clause 1 and clause 7(1)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act) that the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from the date on which the order commences.

Background

1. [2]

   On 20 April 2014 the defendant was arrested and charged for an unprovoked and racially motivated knife attack on a young Asian woman, Ms Ghan (the victim), who was a stranger to him. He was charged with wounding with intent to cause grievous bodily harm or in the alternative reckless wounding, and assaulting a police officer in the execution of his duty.

2. [3]

   On 2 September 2014 the defendant was committed to the Downing Centre District Court for trial.

3. [4]

   On 20 April 2015 Judge Flannery SC found the defendant unfit to be tried, referred him to the Mental Health Review Tribunal and remanded the defendant in custody. From then the defendant was a forensic patient within the meaning of s 42(a) of the Act.

4. [5]

   On 18 July 2016 in the Downing Centre District Court before Judge Jeffreys a special hearing was conducted to determine whether the defendant committed the alleged offences.

5. [6]

   On 20 July 2016 Judge Jeffreys found the defendant not guilty of wounding with intent to cause grievous bodily harm but found that the defendant recklessly wounded the victim and assaulted a police officer.

6. [7]

   On 8 September 2016 Judge Jeffreys nominated a limiting term of 2 years and 6 months which commenced on 20 April 2014 and expired on 19 October 2016.

7. [8]

   On 12 October 2016, the plaintiff applied to extend the defendant's status as a forensic patient. Pending the determination of the application, the Supreme Court ordered an Interim Extension Order, which was renewed on three occasions.

8. [9]

   On 16 January 2017, Justice Campbell granted an Extension Order in respect of the defendant's limiting term, which commenced on 17 January 2017 and expired on 16 March 2018: Minister for Mental Health v Paciocco [2017] NSWSC 4.

9. [10]

   The defendant is a forensic patient as defined in s 42 of the Act because he is a person in respect of whom an extension order is in force: s 42(a)(a1) of the MHFP Act.

Legislative provisions

1. [11]

   Part 5 of the MHFP Act deals with forensic and correctional patients. Section 40 (within Pt 5) sets out the objects of Pt 5, and those objects include the protection of the safety of members of the public.

2. [12]

   Clause 2 of Schedule 1 to the Act provides:

3. [13]

   Clause 7(2) of Schedule 1 sets out the matters to which regard must be had by the Court in determining whether or not to make an extension order. Clause 7(2) provides:

4. [14]

   The words “to a high degree of probability” in cl 2 indicate something more than the civil standard of the balance of probabilities but something less than the criminal standard of proof beyond reasonable doubt: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

5. [15]

   On 15 March 2018 Latham J made an interim extension order from 15 March 2018 for a period of 28 days. The order has subsequently been extended on two occasions to expire on 7 June 2018. On the day of the hearing before me I made a further interim extension order until 14 June 2018.

6. [16]

   Latham J also ordered the appointment of two psychiatrists to examine the defendant and provide reports. There are two reports in evidence from the independent psychiatrists, being a report from Associate Professor John Basson, undated but filed 26 April 2018 and a report from Dr Jonathan Adams dated 3 May 2018.

7. [17]

   The defendant did not concede that he was an unacceptable risk of serious harm to others if the limiting term was not extended. However, no submissions were made by the defendant against that proposition. Rather it was submitted only that the plaintiff bore the burden of proving to a high degree of probability that he did pose such an unacceptable risk.

8. [18]

   The defendant’s principal submission was that he could be managed as an involuntary civil patient in the forensic hospital for an unrestricted period of time subject to the provisions of the Mental Health Act 2007 (NSW) being fulfilled. In that way the defendant submitted that the second requirement in cl 2 of Schedule 1 was not made out; namely, that the risk could not be adequately managed by other less restrictive means. The defendant submitted that managing him as an involuntary civil patient was management by less restrictive means.

9. [19]

   As I noted when I set out the background to the present application, Campbell J made an extension order in respect of the defendant for a period of 13 months commencing 17 January 2017 and expiring on 16 March 2018. I have read his Honour’s judgment and the various medical reports and other documents to which his Honour has made reference. The material his Honour referred to has been placed before me on the present application. I respectfully agree with his Honour’s determination that both tests in clause 2(1) of Schedule 1 to the Act were then made out.

10. [20]

    The evidence in the present matter details the changes in the defendant’s treatment and placement since his Honour’s judgment. It is not necessary in the circumstances to consider in any detail the medical reports and other documents that predate his Honour’s judgment, except for the purpose of assessing whether and to what extent there has been a change in the situation of the defendant for the purpose of considering the two requirements of cl 2(1). I note in that regard that Dr Eagle, Dr Adams and Dr Ellis were doctors who provided reports upon which Campbell J relied, and each of them has provided a report or reports in 2018 that enable a comparison to be drawn between the defendant’s position at the time of Campbell J’s judgment and at the present time.

11. [21]

    The reports of Dr Eagle and Dr Ellis are reports which satisfy cl 5(b) of Schedule 1 to the MHFP Act, and therefore cl 7(2)(c). In addition, I have had regard to a report of Dr Daria Korobanova, a psychologist, of 29 June 2017: cl 7(2)(d). I have read the reports of the Mental Health Review Tribunal of 2 March 2017, 6 July 2017 and 11 January 2018: cl 7(2)(e). I have read the Remarks on Sentence by Judge Jeffreys when he imposed the limiting term on the defendant, and the judgment of Campbell J when he made an Extension Order: cl 7(2)(h). The matters to be considered under cl 7(2)(a) and (g) are expressly dealt with in the reports of the various psychiatrists, particularly Dr Eagle and Dr Ellis.

Clause 2(1)(a) – unacceptable risk of serious harm

1. [22]

   The unacceptable risk must be evaluated on the assumption that the defendant was not a forensic patient or an involuntary patient: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [49].

2. [23]

   The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J’s formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words “unacceptable risk” should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn v State of New South Wales [2016] NSWCA 57 at [58] (noting that the reference in Lynn to [38] in Thomas appears to be a transcription error).

3. [24]

   In the course of his judgment, Campbell J set out a summary of the defendant’s acts of violence in the community and whilst he has been in custody as follows:

4. [25]

   Those matters are of some historical interest, and I note that the doctors who provided reports that were before Campbell J were aware of these incidents. Of greater significance is what those doctors, and Professor Basson, say about the defendant’s risk of serious harm to others at the present time.

5. [26]

   In her report of 25 April 2018 Dr Eagle said this:

6. [27]

   In his joint report of 13 March 2018 with his Registrar, Dr Kirsty McDonald, Dr Andrew Ellis said this, when asked to give his assessment of the defendant’s risk of serious harm to others:

7. [28]

   In a further joint report of 31 May 2018, Dr McDonald and Dr Ellis said this, in relation to the risk of serious harm to other people:

8. [29]

   In his report, Associate Professor Basson identified the following matters relevant to the unacceptable risk of causing serious harm to others:

9. [30]

   In his report of 3 May 2018 Dr Adams, who had previously examined the defendant in November 2016, said this:

10. [31]

    On the basis of that material I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

Clause 2(1)(b) – risk cannot be adequately managed by less restrictive means

1. [32]

   In Attorney General of NSW v McGuire (No. 2) [2014] NSWSC 288 Garling J said at [63]:

2. [33]

   In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 Adamson J said at [96]:

3. [34]

   Justice Adamson also analysed at [97] – [129] in some detail the differences between management under the MHFP Act and under the Mental Health Act 2007 (NSW). That analysis was summarised by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 as follows:

Expert evidence

1. [35]

   The doctors who were more inclined to consider that the defendant might possibly be able to be managed as a civil patient under the provisions of the Mental Health Act were Dr Eagle and Dr Ellis. It is necessary to give close attention to their evidence.

2. [36]

   In her report of 5 September 2017 Dr Eagle said this:

3. [37]

   Although Campbell J had expressed the strong view in his judgment that the defendant should be admitted to the Forensic Hospital (see at [13] and [45]) the defendant was not in fact admitted to the Forensic Hospital until 29 November 2017. It is apparent from Dr Eagle’s report and from the clinical notes that, after the move, there were initially a number of problems that resulted in acts of violence and aggression by the defendant towards staff and other patients. However, when he was reviewed by the Mental Health Review Tribunal on 11 January 2018, the Tribunal reported that the defendant’s move to the forensic hospital “has been beneficial so far”. The Tribunal noted that Dr Ellis thought that, whilst there was an element of disorder in his thoughts, that had been less so since he had been on fortnightly clopixol depot medication.

4. [38]

   Thereafter, on 6 March 2018 the defendant agreed to re-commence Clozapine, an antipsychotic medication for treatment-resistant schizophrenia.

5. [39]

   All of this appears to have led Dr Eagle to modify her approach to his management. In her report of 25 April 2018 she said this:

6. [40]

   In her oral evidence Dr Eagle was asked about medium secure units for civil patients such as the Concord Centre for Mental Health. She said that in part of that Centre, the McKay Unit, one could have similar levels of restriction but there would not be a forensic approach to security. She said that the needs of people in the civil mental health service are different from those in the forensic mental health service. In the latter, crimonogenic needs and risks were significant. A relevant example related to urine drug testing for persons in such a unit that went out on leave. That testing would not normally be done in a civil mental health unit but, even if it was, the mechanisms are not available to take appropriate action if it is ascertained that the person has been using drugs. A breach of a restriction such as using drugs is more readily dealt with by bringing a forensic patient back to the hospital so that the breach can be properly addressed.

7. [41]

   She agreed that under a conditional release order (for a forensic patient) there is a greater ability to implement appropriate strategies. There is the further safeguard of the requirement for a review by the Mental Health Review Tribunal every six to twelve months. In such circumstances the Tribunal requires a report from the clinician as to how the patient is being managed and any problems with their management.

8. [42]

   Dr Eagle agreed that at the time she saw the defendant there was evidence that the Clozapine was working. Although he still had symptoms of psychosis, his level of distress had reduced, and he was cooperative and less aggressive. Dr Eagle said that the full effect can take up to six months to be demonstrated so that ideally a doctor would want to see the defendant on Clozapine for at least six months to see how stable his illness was. For that reason she said she would expect that he would probably need to stay in the forensic hospital for six to twelve months, subsequent to which a further twelve months might be needed to transition him through a medium secure locked facility into the community.

9. [43]

   Dr Eagle described his risks as follows:

10. [44]

    She said that his illness was still not stable. When it became stable he would need to be gradually transitioned into less restrictive environments. At the same time it would be necessary to manage his access to drugs and his exposure to other destabilising factors to see that his aggression would not continue in other less restrictive environments.

11. [45]

    Dr Eagle saw a difficulty because of the defendant’s often expressed desire to remain in the forensic hospital. She said that although that view of his fluctuated, it was going to make it difficult to have a clear management plan in stepping him down into a less restrictive environment. It would desirable to have some form of mandatory orders in place to do that.

12. [46]

    Dr Ellis, who became the defendant’s treating psychiatrist in December 2017 after the defendant moved to the Forensic Hospital, gave evidence before Latham J on the application for the interim extension order. He made clear, as Dr Eagle had done in her report of 25 April 2018, that whether the defendant remained as a forensic patient or was treated within the forensic hospital as an involuntary patient under the Mental Health Act, his treatment would be the same and he would be under the same security conditions.

13. [47]

    Dr Ellis did not envisage that the defendant would simply be discharged from the forensic hospital if his condition improved as an involuntary patient. Rather, Dr Ellis anticipated that he would go to another hospital first and at some stage thereafter might be discharged under a community treatment order. He agreed that the powers of recall were more rapid for a forensic patient who breached some condition in the community than if he were under a community treatment order as an involuntary patient. He accepted that there was a greater level of control if the patient is in the community under a forensic order.

14. [48]

    In his report with Dr McDonald of 31 May 2018 Dr Ellis said this:

15. [49]

    In his oral evidence before me, Dr Ellis said that there were additional safeguards in the use of a forensic order in general. The first was the oversight of the Mental Health Review Tribunal over discharge decisions. The second was that conditional release under the MHFP Act could be revoked more readily when necessary than a community treatment order under the Mental Health Act.

16. [50]

    Dr Ellis agreed that the safeguards provided if the defendant were a forensic patient would be more apparent once he leaves the forensic hospital. He considered that once the defendant had been in the forensic hospital for a period of time and had further rehabilitation addressing the areas from where his risk stems, his risk was likely to be smaller than it is now and certainly than it was in 2016. He went on to say:

17. [51]

    Dr Ellis accepted that the defendant had received varied care as an involuntary patient under the Mental Health Act in the past and that this was a factor that operated periodically in terms of his risk of harm to others. He said that reviews undertaken when a patient is a forensic patient:

18. [52]

    Dr Ellis thought that the legal order surrounding a forensic patient provided a framework to support their clinical care. When I asked him how the framework could improve the clinical care Dr Ellis said:

19. [53]

    Professor Basson considered that the defendant was still suffering from delusions, ideas of reference and hallucination and was partially treated. He said, however, that until the defendant was fully treated and had gained as much improvement in his mental state as he could from the Clozapine at a stable dose, it was difficult to comment on his risk. He said other therapeutic work by psychology and occupational therapy would help but those matters would take time. He was of the opinion that the defendant should remain a forensic patient. That was partly due to his history of a difficult-to-treat mental illness, and longstanding beliefs which might have their root in longstanding personality traits. He also observed that a civil patient had less monitoring on leaving hospital.

20. [54]

    Dr Adams concluded that his mental state examination findings were consistent with his assessment on 23 November 2016. He noted vague ideas expressed by the defendant which were suggestive of continuing delusions and hallucinations. Like the other doctors, he thought that the defendant’s level of insight was minimal.

21. [55]

    Dr Adams thought that in the short term the same risk management and treatment plan could be offered to the defendant whether he was a forensic patient or an involuntary patient under the Mental Health Act if he remained in the Forensic Hospital. However, he thought that a change to being an involuntary patient might impact on his progress in the medium to long term. He went on to say:

22. [56]

    Dr Adams thought that he would require assertive input from forensic mental health services in the medium to long term, and that it was not inappropriate to consider that the treatment and monitoring would last for several years.

Submissions

1. [57]

   Counsel for the defendant submitted that the expert evidence agreed that the defendant would be treated the same way whilst he was in the Forensic Hospital, whether he was a forensic patient or a civil patient. Counsel submitted that Dr Ellis’ evidence was that when the defendant was stabilised on Clozapine, which he said would not occur “any time soon”, he would be transferred to a medium secure unit. Thereafter, when he was discharged from that unit as a civil patient into the community, it would likely be under a community treatment order. At that point his risk would be smaller than it is now.

2. [58]

   Counsel pointed to the evidence from Dr Ellis that people with similar risk profiles to the defendant had been adequately managed as civil patients. Counsel pointed to the evidence from Professor Basson that there was no limit to the number of times that a community treatment order could be sought.

3. [59]

   Counsel submitted that civil patients such as the defendant who were considered at high risk could be referred to the Complex Needs Committee to assist in finding him a bed in a medium secure unit, notwithstanding that he was not a forensic patient. Counsel submitted that, in any event, the defendant could be transferred to the Concord Centre where there was now a forensic psychiatrist available to assist in managing patients such as the defendant.

4. [60]

   Counsel also pointed to the support that the defendant would be able to obtain from the National Disability Insurance Scheme (NDIS) to assist him in adjusting to his release into the community at the appropriate time. Counsel pointed to Professor Basson’s evidence of what he had experienced in relation to the assistance from the NDIS for various patients with mental health issues.

5. [61]

   Counsel for the defendant submitted that the Court should distinguish between what would be the optimum basis upon which the defendant could ultimately be released into the community and what could adequately manage his unacceptable risk of serious harm to others by the least restrictive means. She submitted that Dr Ellis’s evidence provided support for the defendant’s current progress and risk being adequately managed from a clinical point of view by the civil scheme of the Mental Health Act.

6. [62]

   Finally, counsel for the defendant submitted that if an extension order was to be made, consideration should be given to the fact that Campbell J in 2017 imposed a 14 month period, which was less than the three year period sought then by the Minister.

Consideration

1. [63]

   I noted earlier that Campbell J in his judgment of 16 January 2017 had expressed the strong view that the defendant should be admitted to the Forensic Hospital. It seems to me on the whole of the evidence that the failure to transfer the defendant to the Forensic Hospital for a further ten months has to a large extent delayed the stabilisation of the defendant’s condition. Since the defendant has been in the Forensic Hospital he has told each of the psychiatrists who interviewed him that he wished to remain in the Forensic Hospital and did not want to be transferred elsewhere, either back to Long Bay Correctional Centre or to any other mental health facility. Further, he did not want to be released into the community. He said to some doctors that, if he was released, he would offend again so that he would be returned to custody.

2. [64]

   Within four months of being transferred to the Forensic Hospital, and after some initial difficulties, the defendant agreed to be put back onto Clozapine. It is clear from the expert evidence, particularly that of Dr Eagle and Dr Ellis, that the beneficial effect of that has already become apparent. However, further time must elapse, perhaps four to six months, before it can be seen whether the defendant’s condition can be said to have stabilised on the Clozapine.

3. [65]

   In the light of Mr Paciocco’s troubled history of mental health problems, which do not appear to have been adequately stabilised at any time, I am 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. There are a number of reasons for that conclusion.

4. [66]

   First, the doctors agree that before anything further can happen, including release from the forensic hospital, the defendant must be stabilised on Clozapine. That will take a further four to six months. I accept that the doctors could effectively deal with this aspect of his treatment with no increase in the risk whilst he remains in the Forensic Hospital. However, it is what happens thereafter that raises sufficient concern to justify his remaining as a forensic patient.

5. [67]

   Secondly, when he is sufficiently stabilised on Clozapine he will need to be stepped down to some lesser form of security. Given his strongly expressed desire to remain in the Forensic Hospital, problems may well arise at that time as the doctors acknowledge. Subject to some extent to his being stabilised on Clozapine, a change in his living arrangements may well bring about an increase in violence and aggression on his part, as has occurred on many occasions in the past even whilst he has been at the Forensic Hospital. He will need a period of time to adjust to the new arrangements and become settled.

6. [68]

   Thirdly, at some suitable time after those arrangements are changed, the defendant will be released into the community. At that point a particular risk arises because of his past use of cannabis and his intention, expressed to some of the doctors, to use cannabis again if he is able to obtain it. In my opinion it is essential at that point that there be the facility available for drug testing with a means of enforcement if breaches are found. The defendant’s past history demonstrates that the use of cannabis in particular, but perhaps alcohol as well, has been related to his offending and to his aggression generally.

7. [69]

   I cannot be satisfied that he is likely to be adequately managed whilst he is in the community unless he is a forensic patient. The evidence of Dr Ellis was that the minds of the clinicians are likely to be better focused by the legal framework that surrounds a forensic patient. There are the reports which must be made to the Mental Health Review Tribunal and the reviews which it conducts. There is limited enforcement of the drug testing regime if the defendant is a civil patient. The care as a civil patient generally is likely to be more variable as the defendant’s history has shown. That variability was said by Dr Ellis to have contributed to the defendant’s problems.

8. [70]

   Fourthly, although suggestions were made that, when the defendant was to be transitioned or stepped down to a less secure facility than the Forensic Hospital, he would be eligible for a bed in a medium secure unit used for forensic patients, such as the Castlereagh Unit at Bloomfield, even if he was a civil patient, the evidence from the doctors was clear that the problem is bed availability. The doctors said that there were not enough beds for forensic patients so that the likelihood of the defendant, as a civil patient, being able to transition to a medium secure facility was poor. I note, particularly, the evidence of Dr Eagle highlighted in the extract from her report of 25 April 2018 at [39] above.

9. [71]

   Fifthly, whilst I accept the evidence, particularly of Professor Basson, that the defendant would qualify for assistance under the NDIS, the evidence about that assistance was provided at a high level of generality, as counsel for the defendant accepted. Given that some period of time would have to elapse before the defendant was ready to move into the community, which would be the crucial time for such assistance as the NDIS could provide, it seems likely that specific evidence about the nature of that assistance could not be provided at this stage. Without such specific evidence, the NDIS is not a consideration that assists the submissions that the defendant can be adequately managed as a civil patient.

10. [72]

    The evidence demonstrates that any change of the defendant’s status to that of a civil patient is premature. He needs to be stabilised on Clozapine, and it needs to be seen if transition, first to a less secure facility, and then into the community, can be effected without a recurrence of the aggression, violence and drug-taking that have characterised the defendant before he first went into custody. The unacceptable risk which I have earlier found can only be managed by the defendant remaining a forensic patient until he has been released into the community without a recurrence of the matters mentioned. I reject the submission on behalf of the defendant that such a course represents an optimum pathway, and that he could be adequately managed as a civil patient.

The length of any order

1. [73]

   The Minister sought an extension of the defendant’s status as a forensic patient for three years and submitted that the evidence of Dr Ellis and Dr Eagle provided support for that period. The Minister submitted that, taking into account the need to stabilise the defendant on Clozapine, Dr Eagle considered he should remain in the Forensic Hospital for about a 12 month period, and thereafter a further 12 month period would be needed to transition him to a less secure facility and then into the community.

2. [74]

   Counsel for the defendant submitted only that, if any order was to be made, it should be made for the period that it continues to be the least restrictive means necessary to manage the defendant’s risk. However, attention was directed to Campbell J’s order for a 14 month period notwithstanding what the Minister had then sought.

3. [75]

   Both Dr Ellis and Dr Eagle thought that a period of four to six months was needed to stabilise the defendant on Clozapine. By that time the Defendant will have been at the Forensic Hospital for about 12 months. I note that Dr Ellis considers that the defendant could be managed effectively in a medium secure unit at the present time. Dr Ellis has been the defendant’s treating psychiatrist since November 2017 and had the advantage of having examined him in November 2016.

4. [76]

   I note the high standard of proof set out in cl 2 of the Schedule and that the aim is to manage the patient as far as possible by the least restrictive means. I could not be satisfied to that standard that the defendant should be managed as a forensic patient for any period longer than 18 months. I consider on the evidence that such a period will be sufficient to transition the defendant ultimately into the community in such a way that the risk of serious harm to others ceases to be an unacceptable risk.

Restricting the court file

1. [77]

   The Minister seeks an ancillary order that would restrict access to the court file to a non-party only by leave of a judge of the court and with prior notice to the parties. Counsel for the defendant consented to that order.

2. [78]

   Given the nature of the case and the evidence adduced in the proceedings, I consider that such an order should be made.

Conclusion

1. [79]

   Accordingly, I make the following orders:

   1. (1)

      Order pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that the status of the defendant as a forensic patient be extended up to and including 13 December 2019.

   2. (2)

      Order that access to the court file by a non-party to the proceedings be permitted only with the leave of a judge of the Court and only with prior notice to the parties.