Attorney-General of New South Wales v Ramirez (No 4) (Final Orders)

1. [1]

   By Amended Summons filed in court on 18 September 2018, the Attorney-General of New South Wales, the plaintiff, seeks an order to extend the status of James Aaron Ramirez, the defendant, as a forensic patient for the maximum period of 5 years pursuant to cl 7(1)(a) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”).

2. [2]

   On 14 May 2018, following a preliminary hearing, I made an order appointing two psychiatrists to conduct examinations of the defendant and furnish the reports to court.

3. [3]

   On 18 May 2018, I made an order pursuant to cl 10 of Sch 1 that the defendant be subject to an interim extension order from 8 July 2018 for a period of 28 days: Attorney-General of New South Wales v Ramirez [2018] NSWSC 662. The interim extension order was renewed by me on 1 August 2018 (Attorney-General of New South Wales v Ramirez (No 2) [2018] NSWSC 1305) and again by me on 30 August 2018 (Attorney-General of New South Wales v Ramirez (No 3) (Interim Orders) [2018] NSWSC 1444), that order dating from 2 September 2018 to 30 September 2018. No further interim order can be made beyond 30 September 2018: cl 11(2) of Sch 1. A final order is required.

4. [4]

   It was not in issue at this final hearing that the requirements of the Act were met. It was conceded by the defendant’s legal representatives that an order extending the status of the defendant as a forensic patient should be made. The issue is whether the extension should be for 3 years or for up to the statutory maximum of 5 years.

5. [5]

   I am entirely satisfied, to a high degree, that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. I am satisfied to a high degree that the risk cannot be managed by other less restrictive means.

6. [6]

   The defendant submitted that in making the determination, I should take into account that “less restrictive means” entails with it a consideration of the length of the proposed extension, and that given that both the objects of the Act (ss 30 and 74B) cross-reference s 68 of the Mental Health Act, I must factor into my decision the shortest appropriate extension.

7. [7]

   The psychiatric experts provided evidence, both oral and written, supporting a range of 3 to 5 years as the necessary extension period.

8. [8]

   I have concluded an appropriate extension period of 4 years and these are my reasons.

The provisions relating to extension orders

1. [9]

   Section 54A of the Act gives power to the Court to extend a person’s status as a forensic patient in accordance with Sch 1 to the Act.

2. [10]

   Section 40 sets out the objects of Pt 5 of the Act which deals with forensic patients. They are:

3. [11]

   The test for making an extension order is set out in cl 2 of Sch 1 as follows:

4. [12]

   I am required to take into account a non-exclusive list of matters set out in cl 7(2) of Sch 1 which provides as follows:

5. [13]

   A number of these matters were referred to in my earlier decisions regarding the defendant and they continue to add to the evidentiary basis for the making of the final order.

Background to the application

1. [14]

   The background to the application is set out in Attorney-General of New South Wales v Ramirez [2018] NSWSC 662 in [5]-[10] and [23]-[27]. I will not repeat that background here other than to note that the defendant was said to have engaged in a sexual assault upon a female fellow patient at the PECC Unit at Liverpool Hospital in 2015. He was found unfit to be tried and was remanded in custody in March 2015, with the District Court imposing a limiting term on 2 December 2016 making the defendant a forensic patient pursuant to s 42(a) of the Act.

2. [15]

   The expert opinions that were considered for the interim orders I have made included psychiatrists Dr Chew and Dr White and other opinions of healthcare professionals who had observed the defendant whilst in the forensic patient custodial setting.

3. [16]

   Dr Chew concluded that there was a risk of the defendant causing serious harm to others if he does not receive intensive psychiatric support, treatment and rehabilitation which he stated is best managed, at least initially, in the forensic psychiatric system. Dr Chew diagnosed schizoaffective disorder and identified that the defendant needed “the usual Forensic Patient pathway - a period stepping through in a graded fashion the rehabilitation wards at the hospital and the medium secure unit system”. Dr Chew expressed a concern that reliance on the civil mental health system pursuant to the Mental Health Act 2007 was risky because a patient like Mr Ramirez could “fall between the cracks” due to the prioritising of forensic beds over civil patients.

4. [17]

   Dr Chew gave evidence in a concurrent evidence session with forensic psychiatrists Dr Eagle and Dr Keller on 18 September 2018. I will return to this evidence later in this judgment. I obtained significant assistance from the experts giving evidence in this format as the respectful and considered debate between them clarified the areas of contention and the bases for the differing views as to how long was an appropriate time for the necessary order to last.

5. [18]

   I was also assisted by the evidence of Dr Ma, who is a staff specialist psychiatrist at the forensic unit in which the defendant currently lives.

Reports of court-appointed experts Dr Eagle and Dr Keller

1. [19]

   Dr Eagle conducted an interview with the defendant face to face on 16 July 2018 over a period of approximately 80 minutes. Her report is comprehensive, having carried out the clinical assessment summarising current presentation, history of presenting illness, past psychiatric history and substance use history. She noted the account of the index offences and the defendant’s forensic history and personal history. She completed a mental state examination and the examination of the historical documents.

2. [20]

   Dr Eagle reached a diagnosis of schizoaffective disorder and described it as a chronic psychotic illness, characterised by relapses in psychosis and episodes of severe mood disturbance such as mania or depression. She noted recurrent relapses of psychosis giving rise to grandiose delusions as well as some disorganised thought processes, disorganised behaviour, and features of mania including elevated mood, increased energy and activity, pervasive grandiosity and increased sexualised behaviour during relapses. Significantly, Dr Eagle noted these symptoms persisted, although they attenuated following treatment with anti-psychotics including Clozapine.

3. [21]

   Dr Eagle also diagnosed a severe substance use disorder, in remission in the controlled environment the defendant is in, and that substance use previously involved cannabis, alcohol and stimulants.

4. [22]

   Whilst noting there are inherent limitations in any process of risk assessment, Dr Eagle concluded that the defendant has a moderate to high loading of historical risk factors for future violence, including a history of problems with violence, anti-social behaviour, substance use, difficulties with relationships and employment and his major mental disorder, and the treatment resistant nature of his illness. She also noted clinical factors being the active symptoms of major mental disorder and his problems with insight and instability.

5. [23]

   Dr Eagle concluded that release into the community carries with it a risk that the defendant would have problems with professional services and plans, bearing in mind previous community treatment orders and assertive case management have not been effective in managing his illness and behaviours.

6. [24]

   In terms of sexual reoffending, analysis and scoring places the defendant in the highest category of potential reoffending putting him in a category of well above average risk. Dr Eagle noted dynamic risk factors included problems with significant social influences, lack of capacity for relationship stability, hostility to women, impulsivity, poor problem solving skills, lack of cooperation with supervision and sexual preoccupation.

7. [25]

   The risk of relapsing into substance use potentially interacts with the defendant’s severe mental illness in a risky and negative way. Dr Eagle said this:

8. [26]

   Dr Eagle then goes on to identify the variety of problematic violent behaviours including the opportunistic sexual violence directed at a stranger in an inpatient setting involved in the index offence.

9. [27]

   In respect of the severe substance use disorder (page 19), Dr Eagle noted that the defendant will remain vulnerable to relapse to substance use, particularly given his mental illness, although better control of his substance use disorder may be able to be achieved with adequate support and supervision. She also noted that “the stabilisation of his mental illness will optimise his prospects of addressing his substance use disorder”.

10. [28]

    Dr Eagle stated that in her view, the defendant does pose a risk of causing serious harm to others in future if he ceases to be a forensic patient. However she noted that if he ceased to be a forensic patient he will most likely continue to be detained at the Forensic Hospital as an involuntary patient under the Mental Health Act. She noted in this regard that forensic beds are generally prioritised for forensic patients and this could create accommodation difficulties, because his presentation would be dealt with having regard to resources available at the relevant mental health service to which he presented at any given time.

11. [29]

    In terms of whether classification as an involuntary patient under the Mental Health Act is an option, Dr Eagle said (page 22) that the defendant is at risk of causing serious harm to others that cannot be adequately managed as an involuntary patient under the Mental Health Act at least following discharge from the Forensic Hospital. She articulated her concern that the supervision regime available under the Mental Health Act would not be sufficient to effectively manage the defendant’s risk of serious harm to others. It is also noted that the index sexual offending occurred when the defendant was under the care regime of the Mental Health Act in a PECC Unit at a hospital.

12. [30]

    Dr Eagle concluded that she is of the view that continuation of the defendant’s forensic patient status is the least restrictive available means of providing ongoing effective risk management.

13. [31]

    Dr Eagle concluded in terms of the time needed before release as follows:

14. [32]

    Dr Keller assessed the defendant in July where he took a history, a strange description of the index offending as told by the defendant, and noting that the defendant had a lack of insight and understanding into the pathway through which the Forensic Mental Health Network would work such as moving him to a medium secure unit at an appropriate time. The defendant did however know that he was rated C2 which meant that he was able to move around the grounds of the hospital, accompanied by members of nursing staff and groups of several patients. In terms of attitude to treatment and understanding of his illness, Dr Keller noted that Mr Ramirez agreed with his diagnosis of schizoaffective disorder and agreed he needed to take medication. The main side effect noted was drooling, some weight gain and sedation. There were still some grandiose beliefs expressed including that he had studied law from the age of 7 to 11 from a “Head Barrister”, that he was a commando and a professional dancer.

15. [33]

    Dr Keller concluded that the defendant’s insight into his illness was superficial at best, although the defendant was accepting he had a serious mental illness.

16. [34]

    Dr Keller carried out an analysis of the assessments and opinions of other psychiatrists who had reviewed the defendant in 2014, 2015, 2017 and 2018.

17. [35]

    Dr Keller reached the view that the defendant had schizophrenia with a differential diagnosis of schizoaffective disorder, characterised by the presence of multiple bizarre grandiose delusions, some hallucinations and formal thought disorder. There are also negative symptoms such as flat affect, apathy and lack of motivation and a reduction of functioning in several domains including interpersonal relationships and self-care. Dr Keller noted the disorder had been continuously present for over 15 years, and that, combined with his presentation and evidence of misusing multiple substances in the past including amphetamines, ecstasy, cannabis and alcohol, created a high risk profile.

18. [36]

    Dr Keller relevantly concluded that the illness, which he thought met the criteria for a diagnosis of schizophrenia, has been:

19. [37]

    In terms of serious risk of harm to others if he ceases to be a forensic patient, Dr Keller was of the view that the defendant does pose a risk of causing serious harm to others if he ceases to be a forensic patient. He agreed with the assessments completed by Dr Chew and Dr White that the defendant presents with a very high level of static or historical risk factors along the lines of those also identified by Dr Eagle. He has also dynamic risk factors particularly his ongoing significant clinical symptoms of his mental illness, his persistent poor insight into his mental health and the substance misuse issues.

20. [38]

    Dr Keller noted that some of the risk factors may diminish with further treatment and rehabilitation through the Forensic Mental Health Network (“FMHN”) because at that stage he had only spent about six months in the Forensic Hospital and he had not prior to that had the opportunity to have an intensive period of forensic psychiatric rehabilitation. Treatment at the MRRC where he had been housed previously would have only consisted of medication and monitoring, and no psychiatric rehabilitation.

21. [39]

    Dr Keller noted however that:

22. [40]

    Importantly, Dr Keller in the concluding parts of his report where he addresses why he is of the view that the defendant should remain as a forensic patient for 5 years, concluded that really the defendant is in the “slow stream” of progress through the FMHN. He noted that the application initially made by the Attorney-General sought an extension of a period of only 3 years, and that in his view would be “a minimum feasible period” to enable the defendant to receive further treatment as a forensic patient within the FMHN. Dr Keller made it clear that an order for an extension of Forensic Patient status for 5 years would be what is appropriate to manage the defendant’s risk of causing serious harm to others. He sets out his reasons for this which are cogent and well-argued.

23. [41]

    First is that nearly all of the 4 year limiting term was served in a correctional setting, not a rehabilitation setting. Having had 8 years’ experience as the Clinical Director of the Forensic Hospital, a patient such as the defendant would ordinarily take at least 3 and often up to 5 years to transition through all the necessary steps and it was important that this not be rushed.

24. [42]

    Dr Keller stated that he could see:

25. [43]

    Dr Keller concluded that the slowness with which people like the defendant were likely to transition through a medium secure unit was at least 2 years, and often longer. There were also concerns about the defendant’s level of support and ability to reintegrate into the community after that, given his background of itinerancy and homelessness and instability of social networks.

26. [44]

    There is also the long history of substance abuse which is another risk.

27. [45]

    Dr Keller concluded that all the factors suggest the maximum period available under the legislation that is, 5 years, should be strongly considered to enable “a graded transition through the levels of care within the FMHN”.

Conclave evidence focusing on the defendant’s forensic progress and the length of the extension period required

1. [46]

   Dr Keller reiterated the reasons set out in his report as to why the defendant ought to have an extension of 5 years. He also expanded on the problematic nature of the community aspect of the defendant’s rehabilitation and care and explained in more detail the “slow stream” analysis he had mentioned in his report as follows:

2. [47]

   Dr Keller was of the view that if an order was made for only 3 years, this would not make sufficient allowance for transitioning to the community in a safe fashion. He would anticipate that the defendant would still be only in a medium security unit at the 3 year mark and he should not be released into the community without forensic supervision. If the defendant is still in a medium secure unit at the end of 3 years, it seems likely that a further application could be made, but there are risks that if his forensic pathway has not been properly completed, he would be released to the “vagaries of the Civil Mental Health System” and “that would be a poor outcome”.

3. [48]

   Dr Eagle on the other hand described a “different formulation to Dr Keller” of the defendant’s progress. She explained the main obstacle was lack of available beds and that the system has provided delays in the defendant’s care to date and it is likely to continue to provide or present obstacles to his transition into the community. She was of the view that:

4. [49]

   Dr Eagle also outlined the downside of an order for 5 years being that in her experience of instances where forensic patients in extension applications have been given extensions, those extensions have allowed those forensic patients to remain, for instance, in gaol:

5. [50]

   Dr Eagle then outlined why she thought 3 years was an appropriate length taking into account that:

6. [51]

   Dr Chew indicated agreement with Dr Eagle generally in respect of her responses and assessment.

7. [52]

   Dr Keller emphasised that in his opinion 3 years was insufficient, and that for in-hospital care alone he thought 3 years was insufficient and that does not include a period in the community which is absolutely essential for Mr Ramirez, to be conditionally released as a forensic patient, before one would even contemplate a community treatment order. Dr Keller concludes the following to be a realistic path:

8. [53]

   Dr Eagle maintained her opinion:

9. [54]

   Dr Ma co-wrote a detailed report in April 2018 for the Mental Health Review Tribunal. Inappropriate comments, touching staff and dressing in an unusual fashion was noted. Dr Ma said that the defendant’s behaviour generally improved after transfer to the other side of the Bronte unit. Dr Ma stated that transfer to the Clovelly unit within the next 6 months was expected and appropriate progress.

10. [55]

    Dr Ma gave evidence that in his view and from his experience focused on Mr Ramirez:

11. [56]

    Dr Ma agreed that there were moderate loading of clinical risk factors with the defendant and a moderate to high loading of static historical risk factors.

12. [57]

    Dr Ma agreed that 18 months is generally the minimum time the patients will spend in a medium secure unit and he expected approximately 18 months to 2 years probably closer to the 2 years’ mark because he agreed with Dr Keller that the defendant is likely to be “slow stream” although noting that he had gone through Bronte relatively quickly compared to other patients. Dr Ma made the following observations about that:

Decision

1. [58]

   Dr Ma, Dr Chew and Dr Eagle agree that the necessary lower limit for the defendant to properly progress through the forensic mental health pathways and resultantly reduce the risk that he will pose of serious risk to others is a minimum of 3 years, although Dr Eagle’s view and Dr Ma’s optimism, given the defendant’s good progress recently, would support a conclusion that 3 years may be sufficient. Dr Keller’s well-argued if pessimistic view also made some significant points.

2. [59]

   Given the exigencies and problems identified with releasing to the community for management under the Mental Health Act, and the obvious advantages of careful management and stepping down through the FMHN, it seems that a period of 4 years would take into account the concerns and considerations set out in the evidence of the experts, including the allowance for possible relapse and to cover the difficult re-integration into the community in the well-supported, consistent, conservative, structured process that the FMHN would provide.

Order

1. [60]

   Pursuant to cl 1 and cl 7(1)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 the defendant be subject to an order for the extension of his status as a forensic patient for a period of four (4) years commencing on 30 September 2018 to continue to 29 September 2022.