Attorney General of New South Wales v Maurice Collings

1. [1]

   HIS HONOUR: By Summons filed in Court on 30 January 2024, the Attorney General of New South Wales (“the Attorney”) sought an order, pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), that Maurice Collings (“the defendant”) be subject to an order for the extension of his status as a forensic patient for a period of three years.

2. [2]

   By an ex tempore judgment delivered after a preliminary hearing on 16 February 2024: Attorney General of New South Wales v Collings (Preliminary) [2024] NSWSC 135 (“Collings No 1”), Hamill J made orders, inter alia, appointing two qualified psychiatrists, registered psychologists or registered medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to this Court. The Court also ordered, pursuant to ss 121, 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of the first limiting term of 29 February 2024 that expired three months later.

3. [3]

   In the result, the Court received the following reports from court appointed experts:

   1. (1)

      a report by Dr Gordon Elliot, Forensic Psychiatrist, dated 23 March 2024; and

   2. (2)

      a report by Ms Lisa Zipparo, Neuropsychologist, dated 25 March 2024.

4. [4]

   On 24 April 2024, the matter returned before the Court for final hearing. Supplementary submissions were received on 6 May 2024 and 10 May 2024 respectively.

5. [5]

   The defendant was represented by Mr B Fogarty of counsel and had a tutor Mr Tri Tran, who accepted an invitation to act as his tutor in the course of these proceedings and in an earlier related proceeding.

6. [6]

   The evidence from the Attorney was as follows:

   1. (1)

      the affidavit of Dylan Swanborough, solicitor for the Attorney, affirmed 29 January 2024 and a bundle of material identified as “exhibit DS-1” annexed to Mr Swanborough’s affidavit. This included:

   2. (2)

      statement of agreed facts for final hearing dated 8 April 2024.

7. [7]

   The evidence from the defendant was as follows:

   1. (1)

      consent to act as tutor dated 5 February 2024;

   2. (2)

      a bundle of material identified as “Defendant’s Bundle” filed 19 April 2024. This included:

   3. (3)

      Dr Fajumi, the defendant’s current treating psychiatrist at Morisset Hospital, wrote a letter in response to a request for information from the defendant’s solicitor, Ms Sousan Gheham on 16 April 2024.

   4. (4)

      In Dr Fajumi’s letter, she made the following observations:

   5. (5)

      Dr Fajumi anticipated that the defendant will be referred to the local Community Mental Health Team (“CMHT”) and discharged under a Community Treatment Order (“CTO”) once suitable accommodation has been found. She noted CTOs are usually 6 and possibly 12 months in duration and the defendant “would not require discharge to an assertive outreach team as his mental state would need to be stable at the time of discharge”. She noted this was subject to change and “determined by the community mental health team”.

   6. (6)

      Lastly, on the topic of “bed pressure”, Dr Fajumi stated that “[a]s we are not an acute service we are not subject to bed pressures influencing clinical decisions”.

8. [8]

   As mentioned above, the Court also had in evidence the reports of court appointed experts, Dr Gordon Elliott dated 23 March 2024 and Ms Lisa Zipparo dated 25 March 2024.

The position of the parties:

1. [9]

   The Attorney:

   1. (1)

      The Attorney sought an order pursuant to ss 121, 127(1)(a) and 128 of the Act that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years.

2. [10]

   The defendant:

   1. (1)

      The defendant submitted that, on all of the evidence, the Court would not find to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

   2. (2)

      In the alternative, if the Court does so find, the defendant submitted that the Court should find that such risk can be adequately managed by less restrictive means, namely, either:

The defendant

1. [11]

   The defendant is a 64-year-old man who was born in Sydney. He has an older brother, Mr John Collings (“John”), a younger brother Mr Stephen Collings, and had a younger sister who died some decades ago. His mother is 99 years old. The defendant is close to his younger brother, Mr Stephen Collings. His mother and Mr Stephen Collings both live (separately) on the Central Coast.

2. [12]

   The defendant was married many years ago and had two children from that marriage, but he has not had contact with his wife or his (now adult) children for many years.

3. [13]

   The defendant left school during high school. While he worked for some years in retail and as a cleaner, he has been unemployed for many years since.

4. [14]

   The defendant has experienced times of social isolation and homelessness. In 2004 – 2005 he went missing for 12-18 months and was found living in bushland. This period coincides with the first of the three sets of offences (including the index offence as described below) on the defendant’s criminal history in 2004, being a charge and conviction for assault occasioning actual bodily harm.

5. [15]

   Records suggest that the defendant’s mental health may have been affected as early as 2002. However, he was only first formally diagnosed with a mental illness (schizophrenia) in 2021 after he came into custody for the index offence.

6. [16]

   In 2018 the defendant’s brother, John, ceased contact with him because of his aggression. At this point the defendant had little community support or engagement in prosocial activities. However, his brother Mr Stephen Collings now offers him support.

7. [17]

   The defendant has type two diabetes, hypertension and hyperlipaemia. In addition to schizophrenia, he has been diagnosed with cognitive impairment, related to his schizophrenia.

8. [18]

   The defendant has approved NDIS funding from 4 August 2023 to 3 August 2024 in the amount of $66,529.85, covering core supports for personal activities of daily living and capacity building (improved daily living, improved relationships and support coordination).

9. [19]

   There was no SIL component within the defendant’s NDIS plan at the time of the final hearing.

10. [20]

    It is conceded on behalf of the defendant that:

11. [21]

    The defendant is a ‘mentally ill person’, as defined in s 14 of the Mental Health Act 2007 (NSW) (“MH Act”), with diminished, but still active, symptoms including poor insight into his mental illness and treatment needs, arising from a continuing condition of schizophrenia.

12. [22]

    He does not have insight into his mental illness, or the importance of the medication and treatment prescribed for it, and this is unlikely to improve.

13. [23]

    While he has a current NDIS plan, he needs those assisting him with his NDIS to apply to the National Disability Insurance Agency for SIL accommodation funding for his discharge into appropriate supported accommodation.

14. [24]

    While he does not have a guardian or financial manager appointed by the NSW Civil and Administrative Tribunal, Guardianship Division, (“NCAT”) or NSW Supreme Court. His brother, Mr Stephen Collings, filed applications in NCAT on 26 February 2024 to be his guardian and financial manager, to assist the defendant with his release into the community.

15. [25]

    At the time of the final hearing, the defendant did not have a CTO application before the MHRT.

Preliminary matters

1. [26]

   At the outset it may be noted that s 121 of the Act empowers the Court to extend a person’s status as a “forensic patient” in accordance with Pt 6 of the Act. I accept the defendant is a “forensic patient” for the purposes of the Act: s 72.

2. [27]

   An application for an extension order can only be filed if the defendant is on a limiting term (or an existing extension order) and any such application must be filed within the last 6 months of that limiting term (or current extension order): s 124 of the Act. The formal preconditions are met as:

   1. (1)

      on 4 October 2023, Bright DCJ imposed a limiting term of 2 years and 8 months, which was backdated until 1 July 2021 and expired on 29 February 2024;

   2. (2)

      and the Summons was filed on 30 January 2024, whilst the defendant was subject to the limiting term, and within the last 6 months of that term.

3. [28]

   As required by s 125 of the Act, the application brought by the Attorney is supported by:

   1. (1)

      documentation addressing each of the matters in s 127(2), to the extent relevant; and

   2. (2)

      two reports prepared by qualified psychiatrist Dr Richard Furst, namely the RAR and the Supplementary RAR, that assessed the risk of the defendant causing serious harm to others and addressed the need for ongoing management of the patient as a forensic patient and the reasons why his risk cannot be adequately managed by other less restrictive means.

4. [29]

   Prior to turning to the relevant principles, I provide a summary of the index offending.

The index offence

1. [30]

   The index offence was ‘wound with intent to cause grievous bodily harm’ contrary to s 33(1) of the Crimes Act 1900 (NSW) (“Crimes Act”).

2. [31]

   The index offence occurred on 1 July 2021, when the defendant struck the victim, with a hammer causing wounds to his arm. The index offence occurred at the Oasis Caravan Park at Kanwal. The defendant was a long-term resident of the park. He was living in a caravan owned by his brother. The victim was the manager of the park.

3. [32]

   In April 2021, the victim had served the defendant with an eviction letter as the caravan he was living in had been sold. At the time the notice was served, the defendant swung at the victim with a closed fist but missed. No charges were laid in connection with that incident. Consistent with paperwork from NCAT and a notice to leave served on 28 June 2021, the defendant was required to leave the cabin by 9:00am on 1 July 2021. The index offence occurred that morning.

4. [33]

   At approximately 9:30am, the victim and a colleague went to see the defendant at his cabin to inform him that he was required to leave the property on that date. The defendant refused to leave and denied knowing anything about the sale of the property or the need to vacate.

5. [34]

   At 10:31am on 1 July 2021, the defendant walked towards the caravan park office carrying a canvas bag. The victim left the office around this time and saw the defendant. The defendant walked towards the victim and when he was about 2-3 metres away from the victim, the defendant suddenly pulled a silver claw foot hammer from the bag with his right hand and raised it up high above his head and swung it down hard and fast at the victim, with the claw foot facing outwards. The victim was taken by surprise and sought to shield himself from the attack by raising his left forearm. The claw foot of the hammer gouged the victim’s left forearm, which caused a deep wound.

6. [35]

   The victim attempted to run away from the defendant who was being chased by the defendant. The defendant again swung the hammer at the victim and caused a further deep wound to his left forearm. Two male witnesses heard the noise and came to the door of the office. When the defendant saw them, he walked back down the driveway away from the victim and the office.

7. [36]

   Police attended the location a short time later. The defendant resisted arrest by tensing up his arms and moving his body around when police were trying to handcuff him. In addition to the index offence, the defendant was also charged with resist officer in execution of duty contrary to s 58 of the Crimes Act.

8. [37]

   The defendant remained in custody from 1 July 2021.

9. [38]

   On 9 September 2022, Judge Wilson SC determined that the defendant suffered from a mental health impairment within the meaning of s 4 of the MH Act and was unfit for trial. His Honour made an order pursuant to s 49 of the Act referring the defendant to the MHRT.

10. [39]

    On 4 October 2023, following a special hearing on 21 and 25 August 2023, Bright DCJ found, on the limited evidence available, that the defendant had committed the index offence: R v Maurice James Henry Collings [2023] NSWDC (Unreported) (Bright DCJ), (“R v Collings”). Her Honour did not deliver a verdict in relation to the charge of resist arrest, noting that it was an alternative verdict.

11. [40]

    Her Honour imposed a limiting term of 2 years and 8 months commencing on 1 July 2021 and expiring on 29 February 2024. Her Honour also made orders pursuant to s 65 of the Act referring the defendant to the MHRT, and for the defendant's detention in a correctional centre pending review by the MHRT.

12. [41]

    The defendant has been residing at the Kestrel Unit of the Morisset Hospital. He was transferred from Long Bay Hospital to Morisset Hospital following orders made by the MHRT on 15 December 2023.

The Act and relevant principles

1. [42]

   I now turn to a summary of the principles governing proceedings of this kind. It may be noted, in that respect, the relevant provisions of the Act substantially repeat the wording of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“Former Act”).

2. [43]

   At the final hearing, in order to make a forensic patient extension order, the Court must be satisfied to a high degree of probability of the statutory tests under s 122 of the Act.

3. [44]

   Section 122 provides:

4. [45]

   As to s 122 (1)(a), the Court is not required to determine that the risk of the person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm: s 122(2). The risk is to be assessed on the assumption that the defendant is not a forensic patient or an involuntary patient: Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 (“Rohan”) at [26] (Hoeben CJ at CL).

5. [46]

   Assessing whether a forensic patient would pose an unacceptable risk of causing serious harm to others is an evaluative exercise and involves considering both the likelihood of the risk of harm eventuating as well as the gravity of the risk that may eventuate: Attorney General for NSW v MZ [2017] NSWSC 1773 (“MZ”) at [11] (Fullerton J). The assessment is to be made in the context of the objectives of the forensic patient scheme which includes: protecting the safety of members of the public, ensuring the appropriate care of forensic patients, and protecting the victims of forensic patients (s 69 of the Act) – but acknowledging that the Court’s obligation is to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection: MZ at [11]; see also Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [59] (Garling J).

6. [47]

   The relevant objects of Pt 5 of the Act appear at s 69:

7. [48]

   Serious harm is not defined in the Act, some further principles are applicable to the consideration of the concept of “serious harm” referred to in s 122(1)(a) of the Act.

8. [49]

   The "serious harm" referred to in s 122(1)(a) encompasses a broader range of conduct than the concept of "serious sex offences" or "serious violence offences" under the Crimes (High Risk Offenders) Act 2006 (NSW): Rohan at [35]. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 ("Kereopa No 2") at [16] (R A Hulme J).

9. [50]

   So far as physical harm is concerned, "serious harm" need not be "grievous bodily harm" but involves "something more than would satisfy the minimum threshold for “actual bodily harm” under the criminal law…[and] psychological harm must be something more than emotions such as fear or panic": Kereopa No 2 at [16], cited approvingly in Rohan at [36].

10. [51]

    At [24] of Attorney General of New South Wales v Haines (Preliminary) [2022] NSWSC 458, Lonergan J wrote:

11. [52]

    The defendant submitted that there was insufficient evidence before the Court that would satisfy it to a high degree of probability that any risk of harm that he currently poses is "serious” in the sense contemplated by the Act and the common law. I will return to that issue after examining the factors in s 127(2).

12. [53]

    The expression “high degree of probability” indicates something “beyond more probably than not”, so that the existence of the risk does have to be proved to a higher degree than the normal civil standard of proof, but not to the criminal standard of beyond reasonable doubt: Rohan at [22], citing Cornwall v Attorney General of New South Wales [2007] NSWCA 374 at [21] (in the context of the Crimes (High Risk Offenders) Act).

13. [54]

    The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether they pose an unacceptable risk for the purposes of s 122(1)(a): Rohan at [33] (Hoeben CJ at CL, citing Attorney General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 and Lynn v State of New South Wales [2016] NSWCA 57).

14. [55]

    In considering whether or not to make an extension order, the Court must have regard to the matters in s 127(2) of the Act.

15. [56]

    Section 127(2) provides:

16. [57]

    Under s 122(1)(b) of the Act, evaluating whether the defendant’s risk can be adequately managed by other less restrictive means involves more than considering the defendant’s proposed treatment regime and care: Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 at [96] (Adamson J).

17. [58]

    In Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859, R A Hulme J stated (at [54]): “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”.

18. [59]

    In Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288 at [63], Garling J said that the phrase “adequately managed” in s 122(1)(b) means that:

19. [60]

    In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76, Wright J stated that the process for assessing whether the risk can be adequately managed by other less restrictive means involves the following (at [28]-[29] and [33]):

20. [61]

    “Adequate management of risk” is more holistic than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, monitoring risk, the ability to quickly respond to elevations of risk or deterioration of mental health, what is considered before the defendant is released and how he may be reintegrated in the community.

21. [62]

    The defendant made a series of submissions about the operation of the MH Act.

22. [63]

    Section 4 of the MH Act (Definitions) defines “mental illness” as follows:

23. [64]

    In order to maintain the involuntary (civil) patient status of a person in a mental health facility and keep them detained, an Authorised Medical Officer (“AMO”) (and the Tribunal on review of that status) must be satisfied that:

    1. (1)

       the person is a ‘mentally ill person’ (s 14 of the MH Act) or a ‘mentally disordered person’; and

    2. (2)

       “there is no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person”.

24. [65]

    Section 14 of the MH Act reads:

    1. (1)

       A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary—

    2. (2)

       In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.

25. [66]

    In Re J (No. 2) [2011] NSWSC 1224, White J considered the term “serious harm” for the purposes of s 14 of the MH Act. At [89] – [95] his Honour stated the following:

26. [67]

    The defendant submitted that, for the purposes of ss 12 and 14 of the MH Act (found in Chapter 3, Part 1 – Requirements for involuntary admission, detention and treatment) “serious harm” encompasses a broad range of types of harm (e.g. financial, misadventure, reputational, physical and emotional) that an AMO (and the Tribunal on review of an involuntary (civil) patient status) need to consider when deciding whether a person poses a risk of “serious harm” and whether they should continue to be detained or be discharged.

27. [68]

    The defendant further submitted that an assessment of “serious harm” by a clinician includes “consideration of the harm that may arise should an illness not be treated” as is directed in the 2014 Risk of Serious Harm Communique.

28. [69]

    Subsection 14(2) of the MH Act requires an AMO (and the Tribunal on review of an involuntary (civil) patient status), when considering whether a person is a “mentally ill person”, to take into account the “continuing condition” of that person, including any likely deterioration in their condition and likely effects of any such deterioration. The “continuing condition” of a person must be taken into account.

29. [70]

    The defendant submitted that it is the opinion of Dr Furst and Dr Elliott that he has a “continuing condition” on the basis of their reports that are before the Court.

30. [71]

    The Defendant submitted that the import of the judgment of Presland v Hunter Area Health Service & Anor [2003] NSWSC 754 (“Presland”) on the scope of the duty of care owed by an AMO (and/or their delegate treating team including an assessing psychiatrist) when assessing whether a person is a “mentally ill person” or a “mentally disordered person” and whether they should be detained under the MH Act is such that today such assessments (including that which the defendant would be subjected to if he were no longer a forensic patient but rather an involuntary (civil) patient) are conducted with considerable caution, care and diligence with a view to avoiding a repetition of what happened in Presland.

31. [72]

    In Presland, the plaintiff (Mr Presland) had been brought to the John Hunter Hospital by police following an episode of bizarre and extremely violent behaviour. After some treatment, he was transferred to the James Fletcher Hospital, a psychiatric institution, for assessment. He was released into the company of his brother at about 11am the following day and killed Ms Laws, his brother’s fiancée, about six hours later.

32. [73]

    The plaintiff’s case was that it was negligent for the Hunter Area Health Service, responsible for the operations of the two hospitals to which he had been admitted, and the doctor who discharged him, not to have detained him as an involuntary (civil) patient under the MH Act, an action, which would have averted the death of Ms Laws, his subsequent incarceration and the distress and economic loss which resulted from those events.

33. [74]

    The plaintiff succeeded in his negligence claim and the Court awarded him, inter alia, general damages and damages for economic loss.

34. [75]

    The defendant submitted that the reasoning set out in Presland and the evidence before this Court established:

    1. (1)

       the defendant is and will remain a ‘mentally ill person’ by reason of his ‘continuing condition’; and

    2. (2)

       an AMO undertakes to (and the Tribunal on review of an involuntary (civil) patient status) decide whether an involuntary (civil) patient should remain so detained or should be discharged,

35. [76]

    As earlier mentioned, it was submitted by the defendant that the Court would be satisfied that the defendant will remain an involuntary (civil) patient if his forensic patient status comes to an end and he will remain detained in a mental health facility unless and until safe, effective and appropriate community care and supports are in place that adequately manage any risk of serious harm he is assessed (by an AMO or the Tribunal) as posing.

36. [77]

    The next matter for consideration is the factors under s 127(2) of the Act.

Factors under s 127(2) of the Act

1. [78]

   Consideration of the safety of the community involves consideration of the index offences and the patient’s prior criminal history: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701 at [38] (Davies J). The circumstances of the index offence have been set out earlier in this judgment.

2. [79]

   As earlier mentioned, Bright DCJ imposed a limiting term on 4 October 2023. In imposing the limiting term, Bright DCJ assessed “the objective seriousness [of the index offence] as falling below the middle range. An important factor in that assessment was the nature and extent of the injuries sustained by the victim recognising that this offence often concerns much more serious and often catastrophic injuries caused”: R v Collings at p 5.

3. [80]

   In sentencing the defendant for the index offence, Bright DCJ was satisfied that he was suffering from mental health issues and continued to suffer from chronic schizophrenia. Additionally, her Honour observed that the defendant’s prospects of rehabilitation “would be largely dependent on the stability or otherwise of his mental health once he is in the community”. While noting that the defendant’s mental health had improved in custody, Bright DCJ observed: “I am unable to find that his [sic] unlikely to reoffend” (at p 13).

4. [81]

   The index offence was not the first time the defendant had committed a violent offence. On 7 July 2004, the defendant was convicted of common assault contrary to s 61 of the Crimes Act and assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. The offences occurred on 10 June 2004. The victims had attended the defendant’s rental premises after serving a Notice to Quit. A verbal altercation took place, and the defendant punched the first victim repeatedly in the head 6-8 times. The defendant then struck the second victim with a closed first to the left cheek, causing swelling and bruising to the cheek area. The defendant was fined in respect of each of these offences.

5. [82]

   On 16 March 2018, the defendant was convicted of the offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. The offence occurred on 27 November 2017. The defendant attended an employment agency and spoke with a worker. The worker informed the defendant that if he did not attend a meeting his welfare payments may be impacted. The defendant responded by punching the victim twice in the face with a closed fist, causing redness and selling around the victim’s eye. The defendant was sentenced to a good behaviour bond with conditions, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. [83]

   The 2017 offence had some parallels to those surrounding the index offence as in both instances the defendant reacted to a set of frustrating circumstances with an otherwise unprovoked violent attack.

7. [84]

   The 2004 offences also had some significant similarities to the index offence. The defendant punched a male victim in the head six to eight times in the context of a dispute about rental premises before striking a female victim in the face, which caused extensive swelling and bruising.

8. [85]

   In imposing the limiting term on 4 October 2023, Bright DCJ considered the defendant’ criminal history to be “limited”. Further, Dr Elliott acknowledged that his offences were widely spaced. When asked about the defendant’s risk of reoffending Dr Elliot stated as follows:

Court appointed experts

1. [86]

   As mentioned at the outset, the court appointed experts, Dr Gordon Elliot and Ms Lisa Zipparo, produced expert reports dated 23 and 25 March 2024, respectively, and gave oral evidence.

2. [87]

   Both court appointed experts adjudged the defendant to present a risk of serious harm to others if he ceases to be a forensic patient.

3. [88]

   I now turn to a summary of their respective reports and oral evidence given on 24 April 2024 assisted by the parties’ summaries in that respect.

4. [89]

   Dr Gordon Elliott, forensic psychiatrist, assessed the defendant on 15 March 2024 at the Kestrel Unit of the Morisset Hospital.

5. [90]

   Dr Elliot described the defendant as a poor historian, which Dr Elliott attributed to “the negative symptoms and cognitive deficits of his chronic schizophrenia” rather than any unwillingness to participate.

6. [91]

   According to Dr Elliott, the defendant has “an extremely poor understanding of his treatment”. The defendant was said to have “firmly resisted the suggestion he is being treated for a mental illness” and “flatly denied that he was prescribed an antipsychotic currently or that he had ever been prescribed one in custody or at any time previously”. Thus, the defendant denied any history of mental health problems; denied ever being in a mental health unit and any contact with psychiatrists in custody.

7. [92]

   Dr Elliott considered that the defendant displayed “a complete lack of insight into having a mental illness”, going so far as to “rigidly” deny his mental health history and even “the blatantly obvious fact he was currently in a mental health unit”.

8. [93]

   Dr Elliott employed the Addenbrooke Cognitive Examination for this assessment. The defendant returned a total score of 81 out of 100, with marked problems in verbal fluency. There were only mild impairments in memory and his visuospatial abilities were relatively intact.

9. [94]

   In Dr Elliott’s view, the defendant has chronic schizophrenia. He now presents primarily with the negative symptoms and cognitive deficits of the illness. Dr Elliot stated in his report:

10. [95]

    Further, Dr Elliot observed in his report the defendant displayed an occasional and subtle formal thought disorder and, whilst he may be guarding delusional beliefs, his positive symptoms of schizophrenia did not appear prominent and he did not appear to be suffering from hallucinations.

11. [96]

    In cross-examination, Dr Elliott confirmed his view that the defendant’s paranoid delusions have diminished. He reaffirmed, however, that the defendant continues to display the “broader features of his underlying illness, schizophrenia”.

12. [97]

    Dr Elliott considered that the negative symptoms and cognitive deficits displayed by the defendant will be permanent; his diagnosis is a lifelong one.

13. [98]

    The defendant’s various cognitive impairments, including severe deficits in social cognition would, in Dr Elliott’s view, likely lead to him becoming homeless and sleeping on the streets if not supported.

14. [99]

    According to Dr Elliott, the defendant’s condition is a mental illness as defined under the MH Act. Dr Elliott expressed less certainty as to whether the defendant is currently a mentally ill person. Dr Elliot recorded if the defendant were “to hypothetically present to a mental health service afresh as he presents currently, he would not be considered to be acutely mentally ill and would not be admitted”. Were the defendant to be released as a voluntary patient, it is “almost inevitable”, in Dr Elliott’s opinion, that he would "immediately become non-compliant with treatment and again drift into itinerancy and homelessness”.

15. [100]

    Dr Elliott considered the defendant posed a risk of causing serious harm to others if he ceases to be a forensic patient. In his report, Dr Elliot described the defendant as “entirely insightless about having a mental illness and his need for treatment”.

16. [101]

    Dr Elliot accepted that as long as all support structures, orders and supervision are in place for the defendant then the defendant’s risk of reoffending can be managed.

17. [102]

    However, Dr Elliot observed the key concern is around the defendant’s medication and ensuring that it remains enforced. He described the risks of the defendant stopping medication as follows:

18. [103]

    Dr Elliot observed that it is difficult to predict when and how the defendant’s risk might elevate, but noted “it would be a situation in which he feels confronted or his hand forced that might lead to serious harm to others and such situations could be viewed as relatively benign for a mentally well person but perceived as hostile through Mr Collings’ lens when the situation is distorted by his untreated mental illness”.

19. [104]

    The defendant submitted that the evidence of Dr Elliott supports his submission that, what risk the defendant may pose can be adequately managed by other less restrictive means than a forensic patient order, initially as an involuntary (civil) patient in the Kestrel Unit, then transitioned into the community with the supports that the evidence shows will be in place.

20. [105]

    The defendant also submitted that this significantly broadens the accommodation stock available to the defendant to be discharged into in the community and does not require such a high level of NDIS funding.

21. [106]

    Under cross-examination, Dr Elliott accepted that the supports proposed for the defendant’s discharge are ‘infinitesimally greater’ than those that have been in place prior for him. He also accepted that “if the support structure around him were to reduce, or ideally, eliminate stresses like paying the bills, Centrelink income …, organising appointments, going to them, assistance with getting groceries, those sorts of things, …[that] he remains medicated and engage with his treatment providers, that that would significantly reduce the risk that he would re-offend violently’”.

22. [107]

    He further agreed that this support structure “can be achieved by family support from [the defendant’s] brother, CTO for 12 months, … NDIS support daily, housing, a housing place, background, guardianship order, and financial management order for [his] brother or public trustee public guardian” with the key concern being “around medication and ensuring that it remains enforced”. He said he was “not so certain that it is necessary for him to be living in a locked unit. I do think a Department of Housing with appropriate supports and everything you’d mentioned would be sufficient”. However, Dr Elliott confirmed he entirely agreed with Dr Furst that the defendant’s forensic patient status reduces his risk of causing serious harm to others. The continuation of his forensic patient status assures that he will remain in care until such time as the MHRT is satisfied that his unconditional release will not endanger members of the public.

23. [108]

    Dr Elliott raised several concerns in respect of the management of the defendant as an involuntary (civil) patient under the MH Act. Notably, he observed:

24. [109]

    Similarly, Dr Elliott observed that a CTO would not provide the same protection as a forensic patient status in managing the defendant’s risk of causing serious harm. Dr Elliott identified a range of difficulties likely to be associated with management by community mental health teams via a CTO. Dr Elliot stated in his report:

25. [110]

    Dr Elliott was taken in cross-examination to an email exchange on 22 and 23 April 2024 he had with one of the defendant’s current treating psychiatrists, Dr Fajumi (“Dr Fajumi Email Exchange”). That email exchange was Exhibit 2 in the proceeding. Dr Elliot wrote to Dr Fajumi on 22 April 2024, he stated as follows:

26. [111]

    In response, Dr Fajumi wrote to Dr Elliot on 23 April 2024:

27. [112]

    In terms of the defendant being stepped down to be an involuntary (civil) patient continuing to be detained in the Kestrel Unit at Morisset Hospital, Dr Elliott noted in his report that his treating registrar, Dr Fajumi, "voiced an intention to keep him at the Kestrel Unit as a mentally ill person under the MH Act should his forensic patient status be allowed to lapse", "conceivably … by the continuing condition specifier of Subs 14(2) of the MH Act …"

28. [113]

    Under cross examination, Dr Elliot "entirely" agreed when he was asked whether he was confident from what Dr Fajumi had expressed to him in the Dr Fajumi Email Exchange and the Dr Fajumi Letter, that if he were not a forensic patient, that firstly he would remain an involuntary (civil) patient.

29. [114]

    During the course of the evidence, Dr Elliott expressed the view, consistent with the observations made in his report, that without his forensic patient status, the defendant “wouldn’t stand a chance” of securing a placement in a mental health placement as an involuntary (civil) patient subsequent to his discharge from the Kestrel Unit. According to Dr Elliott, “they wouldn’t look at him longer than ten minutes, and – and he’d be sent home”.

30. [115]

    The defendant submitted that one of the reasons why they would not admit him is because he does not pose a serious enough risk of harm to others to be scheduled. As Dr Elliott said, just prior to the above quote:

31. [116]

    The defendant submitted that this evidence from Dr Elliott supports his submission that he does not presently pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. The first limb, therefore, is not made out.

32. [117]

    However, in Dr Elliott’s opinion, the “nub” of the matter relates to the defendant’s treatment compliance. Dr Elliott recommended the defendant be transitioned from oral anti-psychotic medication to a monthly depot injection, which would take about one month to safely titrate to. He said:

33. [118]

    Dr Elliott observed that it is “so difficult to get someone to take oral medications on a daily basis” such that in the absence of depot medication, a CTO is rendered “effectively useless”.

34. [119]

    Additionally, CTOs commonly do not remain in place for a sufficient period of time. In that respect, Dr Elliott made the following observations:

35. [120]

    Having regard to the very significant staff and resourcing pressures currently confronting the mental health system, CTOs are, in Dr Elliott’s experience, “frequently” allowed to lapse within the term of the order itself. Dr Elliot in re-examination provided the following example:

36. [121]

    Dr Elliott stated bluntly that if a CTO applicable to the defendant were allowed to lapse, he would likely see the treatment as unnecessary and stop medication.

37. [122]

    In respect of a Guardianship Order, Dr Elliot considered while a Guardianship Order combined with an extensive NDIS support package could potentially offer a means of managing the defendant’s risk, such support would likely require a NDIS Package of around $300,000 per annum as compared to the $60,000 per annum that is currently available to the defendant.

38. [123]

    With respect to his reservations regarding the likelihood of SIL accommodation being made available to the defendant, Dr Elliott acknowledged that a NDIS Specialist Support Coordinator would have greater experience dealing with SIL applications to the NDIS. Nevertheless, he expressed concern that the support available to the defendant would not be increased to the level required for such support to be made available. In evidence, Dr Elliott described the basis for his concern – which was derived from his own experience with patients – as follows:

39. [124]

    Dr Elliott agreed that the Guardianship and financial management orders applied for by the defendant’s brother may have a positive impact on the defendant, though noted that he was typically “loath” to put that responsibility on a family member given its “burdensome” nature. In Dr Elliott’s experience, “family members struggle to negotiate the mental health system, to advocate for care” and the Public Guardian “is in a better objective state to make those decisions”. Indeed, even the Public Guardian “struggles with mental health teams to ensure people remain in care”.

40. [125]

    In addition to the difficulties patient’s’ families might have advocating for them within the system, the family’s role in a guardianship, treatment or financial management context may exacerbate the prospect of relationship breakdown.

41. [126]

    While unsure whether the defendant would secure NDIS funding for SIL accommodation, Dr Elliott proffered an alternative form of accommodation, being the defendant being housed in his own Housing NSW accommodation (not a group home):

42. [127]

    However, Dr Elliott observed that, having regard to the matters contained in the Defendant’s Bundle, he remained of the view that the least restrictive means of adequately managing the defendant’s risk is a continuation of his status as a forensic patient, he stated as follows:

43. [128]

    Ultimately, Dr Elliott was of the opinion that a 3 year extension order would be appropriate given the graded steps that the defendant needs to take to achieve a successful community placement.

44. [129]

    Ms Lisa Zipparo, a clinical neuropsychologist, assessed the defendant on 6 March 2024 via audiovisual link (“AVL”) from the Morisset Hospital.

45. [130]

    When asked about his mental health, the defendant told Ms Zipparo “there is nothing wrong with my mental health”. Consistent with the statements he made to Dr Elliott, the defendant did not believe he was at Morisset Hospital for treatment of a mental health condition.

46. [131]

    Ms Zipparo conducted a neuropsychological assessment of the defendant. As part of that assessment, she administered the Weschler Adult Intelligence Scale – Fourth Edition. Ms Zipparo’s analysis suggested that the defendant’s overall intellectual ability was at approximately the 4th percentile, placing him in the “Borderline range”. He performed in the Low Average range (16th percentile) in an assessment of his auditory attention span and in the Borderline range (5th percentile) in recent memory functioning. The defendant’s performance on tests of executive functioning was variable, ranging from the 2nd and the 16th percentile on verbal and non-verbal abstract reasoning tasks and, on a task that required him to inhibit undesirable responses, his performance fell in the 1st percentile – the “severely impaired” range.

47. [132]

    Ms Zipparo expressed agreement with previous assessments that the defendant meets the criteria for schizophrenia, which is characterised by persecutory and somatic delusions, psychosocial decline, blunted affect, cognitive impairment and poor insight. She described his mental illness as “chronic and permanent”.

48. [133]

    Ms Zipparo confirmed in oral evidence that there has been an improvement in the defendant’s mental state in terms of a decrease in his level of paranoid delusions or voicing of them. However, there has been “no change in terms of his level of insight or his cognitive impairment”. That cognitive impairment played a key role in the risk presented by the defendant and in Ms Zipparo’s view, is not likely to improve via medication.

49. [134]

    Ms Zipparo conducted a risk assessment by utilising the Historical Clinical Risk Management-20 (“HCR-20”). This is a structured professional judgement risk assessment tool which seeks to predict an individual’s future risk of violence based on the number of risk factors across 20 items and three scales. The Historical scale (10 items) focuses on past events, experiences, and psychiatric conditions (e.g., past violence, young age at first violence, major mental illness, psychopathy, personality disorder, childhood maladjustment). The Clinical scale (5 items) addresses recent functioning (e.g., negative attitudes, psychiatric symptoms, non-compliance, impulsivity). The Risk Management scale (5 items) deals with future risk factors such as personal support, non-compliance with remediation attempts.

50. [135]

    The application of those assessments suggested the defendant’s overall score for risk of future violent offending fell in the 46th percentile compared with an Australian sample of forensic psychiatric patients. This suggested an ‘average’ risk of reoffending based on existing risk factors, equating to a risk rating of Low-Moderate for future violent reoffending.

51. [136]

    The defendant submitted that this risk rating is lower than the majority of defendants the subject of applications by the Attorney for forensic patient extension orders.

52. [137]

    However, during cross-examination, when asked whether the assessment of the defendant was predicated on him having no pro social supports, Ms Zipparo answered as follows:

53. [138]

    Ms Zipparo was asked some further questions specifically about Dr Fajumi’s view of the assistance and support that may be provided by Mr Stephen Collings as a means of reducing the risk rating. I will mention that further evidence below, however, in my view, when properly understood the defendant’s reliance upon this factor as being protective and mitigating risk is somewhat problematic in the light of the court appointed expert’s evidence and the concerns expressed by them as to the issues arising from family acting in a supervisory or management role whilst offering support.

54. [139]

    Both court appointed experts raised real concerns as to Mr Stephen Collings providing support in the management of the defendant including guardianship and financial management. It was suggested by Ms Zipparo that the engagement of Mr Stephen Collings in that way may well be counterproductive.

55. [140]

    The defendant further submitted that there are inherent challenges in predicting the probability of a specific event occurring in the future, despite the use of validated risk assessment instruments and that they are best utilised as a broad guide only to forming a professional opinion on the risk posed by an individual.

56. [141]

    In the course of cross-examination, Ms Zipparo stated that risk assessment tools, like the HCR-20 tool, she used to assess the defendant, were best utilised as a broad guide in terms of assessing risk for future offending. Plainly, Ms Zipparo overall assessment also involved, the exercise of her clinical expertise and experience.

57. [142]

    The defendant submitted that the HCR-20 tool defines “violence” as “actual, attempted or threatened infliction of bodily harm on another person” and it was submitted, a lower threshold than that of “serious harm” under the Act as discussed in Kereopa. That is, the HCR-20 test does not, it was contended, match or equate to the statutory test. The defendant submitted that the Court would exercise caution in what weight it attributed to the results of this test as assessed by Ms Zipparo.

58. [143]

    It is appropriate that the Court exercise caution when approaching the question of risk based upon the use of such risk assessment tools. However, this reservation must be understood in context. First, the Court appointed experts each considered this tool to be a useful guide in making their assessments. Secondly, as mentioned above, whilst the test in HCR-20 does not equate to the statutory test; the notion of “serious harm” under the statutory test nonetheless is less than grievous bodily harm. The difference which emerges is solely that between ‘violence’ involving actual, attempted or threatened infliction of bodily harm in the case of the HCR-20 tool and the statutory test which involves something more than actual bodily harm but less than grievous bodily harm.

59. [144]

    Overall, the HCR-20 is useful as a tool providing broad guidance to experts in making risk assessments. However, such assessments must be ultimately based upon their professional assessments as experts in the field of psychiatry and neuropsychology. That is what occurred in this case.

60. [145]

    Ms Zipparo identified a range of risk factors including the defendant’s history of problems with violence; his chronic schizophrenia (and lack of insight, which suggests poor future medication compliance if he is not supported); and his cognitive impairments, which make him more likely to be easily overwhelmed when confronted with high stress situations. According to Ms Zipparo, the defendant’s “poor inhibitory control contributes further to his risk of disinhibited aggressive responses when under stress”.

61. [146]

    Ms Zipparo gave evidence of the impact of his cognitive impairment on his risk of violence or aggression as follows:

62. [147]

    In such a circumstance, Ms Zipparo was of the view that the biggest risk factor for the defendant ceasing to comply with his medication is his continuing lack of insight into his illness.

63. [148]

    Ms Zipparo additionally noted that it is difficult to determine whether the defendant’s degeneration of his illness will have an impact on his risk of further aggression. Ms Zipparo opined there are general rules to the degeneration of schizophrenia. As people age their positive symptoms, such as paranoid delusions, tend to decrease. While their negative symptoms, being the “psychomotor retardation” and the cognitive impairments tend to increase. Ms Zipparo goes on to say:

64. [149]

    Ms Zipparo recommended that the defendant’s forensic patient status be continued. In that respect, she observed in her report:

65. [150]

    In evidence, Ms Zipparo accepted that the defendant’s level of risk of non-compliance with medication would be significantly reduced by contact with his brother, daily NDIS support, stable accommodation, a CTO for 6 or 12 months, a financial management order and a guardianship order, provided there was someone who could supervise his taking of medication, or it were to be provided via a monthly depot injection.

66. [151]

    When asked under cross-examination about the protective layers proposed now for the defendant to re-enter the community, Ms Zipparo said the following:

67. [152]

    However, Ms Zipparo indicated that she shared Dr Elliott’s concerns about the potentially counterproductive impact that may result from the defendant’s brother playing a role in his finances and other decision-making.

68. [153]

    Further, Ms Zipparo was asked questions by Mr B Fogarty of counsel about her utilisation of the HCR-20 risk assessment tool of the defendant, which she had performed without the benefit of the material contained in the Defendant’s Bundle. There was the following exchange:

69. [154]

    When asked about the prospect of the defendant receiving SIL accommodation under the NDIS, Ms Zipparo expressed concerns in respect of the potential for him to be placed in a group home setting, which she indicated might place “extra stresses” upon him. She stated such stresses can trigger reactive aggression on the defendant’s part.

70. [155]

    As for the support the defendant would receive when discharged into the community under a CTO, Ms Zipparo expressed concern in relation to the level of attention that could be afforded to the defendant given the resourcing constraints at play:

71. [156]

    In those circumstances, Ms Zipparo confirmed that she considered that a forensic order is likely to serve as a “better safety net” in the defendant’s case for at least the next 3 years.

72. [157]

    As for the likelihood that the defendant would continue to adequately comply with treatment subsequent to his discharge into the community, Ms Zipparo confirmed her experience that community mental health team social workers are “overworked” and “have limited resources” which may not allow them to ensure CTOs are implemented properly.

73. [158]

    In that respect, Ms Zipparo also confirmed that, notwithstanding the presence of various supports including NDIS funding, assistance with medication and family support, the defendant’s “risk of violence is unacceptably high should he cease to comply with his treatment, and his condition would deteriorate”. Ms Zipparo concluded by noting that the defendant’s forensic patient status should be extended “for a minimum of three years to enable an extended period of transition and monitoring once back in the community”. Ms Zipparo expressed the view that the defendant’s forensic status should continue until he “develops some insight and demonstrates some capacity to adhere to treatment regimes”.

74. [159]

    In the result, I do not agree with the submissions of the defendant that the evidence of Ms Zipparo supports a submission that any risk the defendant would pose can be adequately managed by other less restrictive means including the potential for his retention for some period in as an involuntary (civil) patient in the Kestrel Unit if he ceases to be a forensic patient.

75. [160]

    As mentioned, on 13 December 2023, Dr Furst, forensic psychiatrist, provided the RAR in relation to the defendant, pursuant to s 125(b) of the Act.

76. [161]

    On 21 December 2023, Dr Furst provided the Supplementary RAR.

77. [162]

    In the RAR, Dr Furst considered the defendant met the DSM-5TR criteria for schizophrenia and concluded that:

78. [163]

    Dr Furst opined that the defendant did not understand why his medication had been and was still being prescribed. He also referred to the observations of Dr Rae who opined that the defendant had a complete lack of insight into his mental illness.

79. [164]

    Dr Furst opined in the Supplementary RAR that, even though the MHRT had not defined the defendant as a mentally ill person as defined under the MH Act, he was of such a view, owing to his ‘continuing condition’, chronic delusional ideation, lack of insight, and the likelihood of further deterioration without treatment.

80. [165]

    Before turning to the balance of Dr Furst’s opinions in the RAR and Supplementary RAR, it is necessary to mention some issues that arose about his evidence during the final stages of the hearing of the matter.

81. [166]

    After the completion of the evidence of the court appointed experts, counsel for the Attorney indicated that attempts had been made to contact Dr Furst over some days with a view to attending to give evidence and that those attempts had been unsuccessful. It was suggested that the Court may consider having regard to submissions made about his reports.

82. [167]

    The Court expressed reservations as to that approach, notwithstanding the court appointed experts have been made privy to the Dr Furst’s opinions (and not expressed any disagreement). The parties were alerted to those concerns because the opinions of Dr Furst were given with clarity and exactitude and his views sat contrary to a number of key propositions that the defendant wished to advance. Further, he is a forensic psychiatrist with some considerable experience.

83. [168]

    The defendant initially responded by indicating that he intended to raise issues about the weight that the Court should afford Dr Furst’s challenged opinions because he had not seen the Defendant’s Bundle or offered any opinion about NDIS support. The Court reiterated its concern but provided the parties, with their consent, an opportunity to address the question further in supplementary written submissions (in the absence of either party electing to make arrangements to have Dr Furst called at a later time).

84. [169]

    The Court received submissions from the parties in the form of amended submissions in this respect. Counsel for the defendant made a submission bearing upon the issues raised by the Court in which he properly acknowledged that Dr Furst was not called for cross examination, and that this “would loom large in the Court’s consideration of the [defendant’s] submissions herein concerning Dr Furst’s opinions and what weight ought to be given to them”. Nonetheless, he made submissions as to the weight that may be given to Dr Furst’s opinions in certain aspects of the RAR and Supplementary RAR.

85. [170]

    Before turning to the defendant’s submissions in that respect it is appropriate to closely examine the RAR and Supplementary RAR

86. [171]

    In the RAR, Dr Furst opined that the defendant met DSM-5 TR criteria for the diagnosis of schizophrenia which Dr Furst described as “a chronic and severe mental disorder that affects approximately 20 million people worldwide.” It is to be characterised by “distortions in thinking, perceptions, emotions, language, sense of self and behaviour.” Dr Furst also opined that the defendant’s “observed and/or reported cognitive difficulties are a function of his chronic schizophrenia and should gradually improve over time with ongoing treatment, rather than being a distinct cognitive impairment.”

87. [172]

    Dr Furst was then asked (in question 3, which was set out in the RAR), whether the mental illness suffered by the defendant affected his risk of reoffending. In answer to that question, Dr Furst gave the following answer:

88. [173]

    Dr Furst indicated that it was difficult to quantify the precise risk at an individual level for the defendant but available evidence for people with schizophrenia suggests that “his risk of becoming aggressive and/or committing a serious violence offence would be much higher if he were to stop medication and disengage from treatment, at least for him [at] an individual level”.

89. [174]

    In answering question 5, Dr Furst opined that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient and identified the following primary risk factors in relation to the defendant:

    1. (1)

       the presence of a major mental illness in the form of schizophrenia;

    2. (2)

       previous serious violence [his index offending in 1 July 2021];

    3. (3)

       poor level of insight into his illness and treatment needs;

    4. (4)

       poor level of insight into the reasons for his offending on 1 July 2021;

    5. (5)

       social isolation/lack of social support; and

    6. (6)

       risk of non-compliance with follow-up and medication when released from custody.

90. [175]

    Dr Furst further opined that “risk is both foreseeable and unacceptable without assertive treatment and supervision”. In that respect, Dr Furst’s observations were plainly directed to the terms of s 122 of the Act which he set out earlier in his report. Further, in the same part of his report, Dr Furst described the meaning of the phrase “serious harm” and pointed, in that respect, to the judgment of Hulme J in Kereopa No 2 at [16].

91. [176]

    It was in that light that Dr Furst was asked a series of questions regarding the defendant’s ongoing treatment and what was the least restrictive form of management of the defendant’s risk of harm (as Dr Furst had described it).

92. [177]

    Dr Furst’s opinions, in that respect, are found in his answers to questions 6 to 8 that were posed to him for the purposes of the RAR. Those questions and his answers appear below:

93. [178]

    In his Supplementary RAR, Dr Furst answered three questions posed to him. The first question was expressed in these terms: “whether [the defendant] could be appropriately managed as an involuntary civil patient under the MH Act to facilitate medication adherence, followed by a [CTO]”.

94. [179]

    Dr Furst was of the opinion that the most appropriate pathway for future care for the defendant was via admission to the Kestrel Unit at Morisset Hospital when a bed became available, with the defendant to remain in the Long Bay Correctional Complex until such time. He considered that the defendant met criteria for admission to Morisset Hospital or another psychiatric unit or hospital as an involuntary (civil) patient to facilitate medication adherence, followed by a CTO upon his discharge from hospital, however observed that management as a civil patient did not preclude the defendant from being managed as a forensic patient as well.

95. [180]

    In that answer and in the answer to the following question: “If management under the MH Act as described above is not considered sufficient, the bases for this view”, it is clear that Dr Furst did not consider that it was appropriate that the defendant be managed as an involuntary (civil) patient under the MH Act in order to manage the risks he had identified.

96. [181]

    Dr Furst expressed the view that management as a civil patient would be inadequate to manage the defendant’s present risk owing to the following factors:

    1. (1)

       the defendant’s very poor insight into his mental illness and treatment needs;

    2. (2)

       the defendant would be at elevated risk of absconding from the Kestrel Unit, e.g. whilst on leave, or directly from the hospital, to avoid treatment, care and supervision;

    3. (3)

       the defendant’s history of homelessness (during which time he was cut off from support services within the community);

    4. (4)

       the defendant not being tied down to any particular family unit or social network, which means he has the capacity to move elsewhere in NSW or leave the jurisdiction and would be difficult to retrieve without a forensic order;

    5. (5)

       the lack of predictability and reliability of enforcement of assertive treatment under civilian patient involuntary orders compared with forensic orders; the superintendent or delegate can discharge a patient based on their own clinical judgement and authority without any involvement of the MHRT effectively ending the application of the MH Act pertaining to that episode of care.

    6. (6)

       if the defendant were to be absent from hospital without official leave and/or deemed well enough, he could be discharged without any further treatment plans;

    7. (7)

       the limited resources available to mental health services in terms of managing the defendant on a CTO.

97. [182]

    In that regard, Dr Furst opined that an extension of the defendant’s forensic patient status was necessary to act as a “safety-net” or “umbrella” to ensure the defendant accessed and engaged in appropriate hospital-based treatment under a CTO is instituted and maintained. Dr Furst also considered that the enforcement and breach options available under a forensic order would manage any long-term risks which may emerge.

98. [183]

    Returning to the defendant’s submissions on weight that should be attached to Dr Furst’s opinion, the defendant made submissions as to Dr Furst’s assessment of risk and whether there was less restrictive treatment available. I will examine those propositions in turn.

99. [184]

    First, as to the question of risk, the defendant made the following contentions:

    1. (1)

       As to the opinion of Dr Furst that the defendant was not suitable to be an involuntary (civil) patient under the MH Act, the defendant challenged Dr Furst’s opinion that he had an “elevated risk of violence”. In that respect, the defendant made the following submission:

    2. (2)

       The defendant then purported to extract an opinion of Dr Furst by conflating his answers to question 3 in the RAR (regarding the risk of reoffending) and opinion expressed in question 5 (as to the risk of causing serious harm to others if the defendant ceased to be forensic patient) (see at [95] of the defendant's submissions). It was from this inappropriate conflation of Dr Furst’s opinions, that the following submission was advanced:

    3. (3)

       As to whether management can be achieved by less restrictive means the following submission was advanced by the defendant:

100. [185]

     I do not consider the issues raised by the defendant do warrant less weight being given to Dr Furst’s opinions in the RAR and Supplementary RAR for the following reasons:

     1. (1)

        It is plain from the opinions given in answer to questions 3 and 5 of the RAR that Dr Furst was of the opinion that, if the defendant were to stop medication and disengage from treatment, that there was a higher risk of the defendant becoming aggressive and/or committing a serious violent offence. Dr Furst found that risk was both foreseeable and unacceptable without assertive treatment and supervision. That opinion was not confined merely to the symptoms on schizophrenia as a continuing condition. Some primary risk factors in that respect were the presence of a major mental illness in the form of schizophrenia, previous serious violence and a poor level of insight into his illness (and the need for medication) and the reasons for his offending.

     2. (2)

        when regard is had to the entirety of the RAR and the Supplementary RAR, it is plain that the assertive follow-up or treatment and supervision that Dr Furst envisaged could adequately mitigate the risk is that the defendant would be retained as a forensic patient. In other words, Dr Furst was making the assessment of risk based on the absence of such supervision and the concomitant risk of the defendant stopping medication and disengaging from treatment. That is precisely how the assessment of risk is to be undertaken under s 122(1)(a), namely, that risk is to be assessed on the assumption that the defendant is neither a forensic patient nor an involuntary (civil) patient.

     3. (3)

        The asserted deficiency in Dr Furst analysis because the lack of application of a formal risk assessment tool and the challenge to his assessment of the risk of violent offending by persons having schizophrenia, are really matters that should have been tested under cross examination. That is more so because the RAR refers to Dr Furst having had regard to various psychiatric and psychological reports and “Risk and Psychometric Scoresheets” and because there was no challenges to Dr Furst’s qualifications or objections taken to the receipt of the RAR (or the opinions in the RAR). As to the remaining aspects of Dr Furst’s opinions, they are expressed with the clarity and detail expressed by a forensic psychiatrist well qualified and experienced in making assessments of the kind required by an RAR. His opinions were not disputed by the court appointed experts

     4. (4)

        Submissions were made by the defendant that prosocial and proactive supports (including assertive follow-up and treatment) would effectively and adequately manage any identified risk sit contrary to the RAR and Supplementary RAR. Dr Furst opined that there is a risk of the defendant causing serious harm if he ceased to be a forensic patient; that he requires forensic patient status in order to ensure adequate and assertive psychiatric treatment including whilst in custody at the current time and when transitioned to Morisset Hospital and when ultimately discharged to the community at a later date; that management as an involuntary (civil) patient under the MH Act is not sufficient to manage the risks (for reasons given in the Supplementary RAR) and that a CTO and guardianship order and financial management order were insufficient to manage the risk of serious harm.

     5. (5)

        Some particular reliance was placed on an NDIS support. The other court appointed experts pointed to the inadequacy of the present level of NDIS support offered to the defendant, and to difficulties in increasing the sum by a significant amount.

101. [186]

     Two other considerations arise. First, it is very unlikely that, given his experience, Dr Furst would have simply ignored the prospect of NDIS care when considering the questions raised with him for the RAR. In any event, the current support is relatively insubstantial as a means of averting the risk identified by Dr Furst whether viewed in isolation or in combination with other support factors.

102. [187]

     Secondly, further, Dr Furst answered in the negative, the question as to whether the risk of the defendant causing serious harm to others can be adequately managed by other less restrictive means than forensic patient status. His answer incorporated reference to ongoing care, support and treatment involuntary (civil) patients status under the MH Act, a CTO and guardianship order and financial management orders.

103. [188]

     Returning to the RAR, Dr Furst recommended an extension of the defendant’s forensic patient status for a period of 3 years as a “safety-net” or “umbrella” to allow extended treatment, stabilisation and rehabilitation at Morisset Hospital and a further period of management in the community under a CTO.

Other reports of qualified psychiatrists, registered psychologists or registered medical practitioners provided in support of the application

1. [189]

   The psychiatric report of Dr Rae was also prepared for the purposes of the defendant’s fitness to stand trial of the index offence. She noted the defendant had poor engagement during the attempted interview. Dr Rae concluded:

2. [190]

   Cindy Stoupas, a clinical nurse consultant for the Specialist Mental Health Service for Older People, also prepared a report for the purposes of the defendant’s fitness to stand trial of the index offence Ms Stoupas conducted an assessment of the defendant utilising the Montreal Cognitive Assessment tool. She scored the defendant 23/30 with points lost in the areas of language 0/3, abstraction 0/2 and delayed recall 3/5, suggestive of mild cognitive impairment. She noted that he presented with unusual beliefs but no clear evidence of mood disorder or perceptual disturbance.

3. [191]

   Ms Stoupas concluded the defendant required a closer period of mental health assessment in the Mental Health Screening Unit at Metropolitan Reception and Remand Centre Silverwater where he was housed at the time of assessment.

4. [192]

   The medical report of Dr Custodio was also prepared for the purposes of the defendant’s fitness to stand trial of the index offence. Dr Custodio noted the defendant did not recall being subject to an assault or having a head injury. He noted the defendant also could not remember ever being married or having children. Additionally, he had periods of thought disorder with some loosening of associations. He demonstrated little insight into his condition as well as his current circumstances. Dr Custodio concluded the defendant remained unfit to be tried.

5. [193]

   Dr Joshua Barber, Neuropsychologist, assessed the defendant on 8 and 16 March 2023 and prepared a report dated 23 March 2023. Dr Barber reported that the cognitive domains of the defendant that were below expectation could possibly be associated with the presence of a psychiatric condition. He observed that the defendant’s slowed processing speed and executive dysfunction (including reductions in verbal abstract reasoning, divided attention and mental flexibility/switching) were characteristic of what might be seen in someone with chronic schizophrenia. He found no evidence of a neurogenerative disease process, but recommended reassessing the defendant “once his mental health is optimised” to “gauge any potential improvements in his cognition and aid in clarifying the diagnostic position”.

6. [194]

   Dr Trevor Ma, Forensic Psychiatrist and Dr Andrew Custodio, Psychiatry Registrar, prepared a report for the MHRT dated 16 May 2023. The doctors expressed the view that the defendant met the diagnostic criteria for chronic schizophrenia characterised by “persecutory and somatic delusions, psychosocial decline, blunted affect and cognitive impairment”. They concluded the defendant was unfit to be tried and was unlikely to become fit in the next 12 months.

7. [195]

   Dr Rae, , assessed the defendant on 7 November 2023 and forwarded a letter to Dr Ma following that assessment.

8. [196]

   Dr Rae noted that the defendant “engaged reasonably well in the interview and was certainly less paranoid and suspicious than when I met him a year ago”.

9. [197]

   Dr Rae made the following observations in respect of the defendant’s presentation:

10. [198]

    Further, Dr Rae noted that “[h]is insight is absent and he would benefit from depot medication in the long term”.

11. [199]

    Dr Rae concluded that the defendant could be safely managed in a medium-secure unit and recommended the defendant be transferred to the Kestrel Unit with escorted, supervised (NDIS) and unescorted ground leave.

12. [200]

    Dr Ma, Forensic Psychiatrist, assessed the defendant on 7 November 2023 and prepared a report for the MHRT. The report provided an update on his progress and current recommendations.

13. [201]

    Dr Ma noted the defendant was generally logical, albeit vague in some responses. He noted the defendant demonstrated limited insight into his mental illness and need for treatment. Dr Ma further noted whilst “he doesn’t appreciate the diagnosis of schizophrenia he was not opposed to the diagnosis and prescribed treatment”.

14. [202]

    Dr Ma determined the defendant suffered from a mental illness as defined under the MH Act, namely schizophrenia, characterised by delusions, severely disorganised behaviour and impaired functioning.

15. [203]

    The defendant had been compliant with his obligations within the confines of a custodial setting. As outlined earlier, various experts have noted the defendant’s lack of insight into his illness.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others

1. [204]

   A NDIS plan for the defendant was approved on 4 August 2023. The plan provides for a total of $66,529.85 in support between 4 August 2023 and 3 August 2024. The funding was to be directed to assisting the defendant with his daily living activities, funding to engage with allied health professionals, specialist behavioural intervention support, behaviour management planning and specialist support coordination.

2. [205]

   However, a level of support that allows for supported-independent living would be required. There is some doubt as to whether such a level of support would be approved. In Dr Elliott’s experience, there is significant unpredictability around NDIS grants to persons suffering mental illness:

3. [206]

   Dr Elliott cast doubt on to whether a grant would be offered to give a level of support that would result in independent living.

4. [207]

   The Attorney raised a further relevant matter regarding NDIS, namely, the potential for the defendant to fully engage with that assistance. As mentioned, the defendant has a total lack of insight into his illness and appears to lack insight into his need for additional support. In that respect, Dr Rae noted on 7 November 2023, that the defendant “acknowledged that he had NDIS funding but did not believe that this was required.” Moreover, he “was not willing to accept that he may be encouraged to live in alternative NDIS funded accommodation close to his mother”.

5. [208]

   In any event, and consistently with Dr Elliot’s evidence, the current level of support provided for by NDIS would not address the defendant’s needs in a way that adequately facilitated his stability in the community.

6. [209]

   The defendant relied on three pages of Judicial Commission JIRS sentencing statistics graphs which were outlined in their written submissions:

7. [210]

   The defendant also relied upon the 2014 Risk of Serious Harm Communique and submitted that this comminque had three areas of significance:

   1. (1)

      it provided guidance to psychiatrists, registrars and other mental health clinicians as to what may constitute “serious harm” when they are making decisions regarding involuntary treatment under the MH Act regarding the “risk of serious harm” criterion.

   2. (2)

      It encouraged those clinicians to consider “serious harm” as a “broad concept” that may encompass not just physical harm, but also:

   3. (3)

      It encouraged those clinicians to “undertake a comprehensive assessment of the person including review of the history of mental and physical illness, family history, psychosocial factors impacting on the presentation, and evaluation of the risk of self-harm and of harm to others” and to consider “the harm that may arise should an illness not be treated”.

8. [211]

   The defendant submitted that, based on this guidance and the relevant authorities bearing upon the notion of “serious harm” under the MH Act, that the term “serious harm” has a broader meaning under the MH Act. Further, in combination with the import of Presland and the Dr Fajumi Letter, the Court could be comfortably satisfied that the defendant would remain an involuntary (civil) patient if his forensic patient status comes to an end and that he will remain at the Kestrel Unit until the necessary community supports (including accommodation) are in place to ensure any risk of serious harm he poses is adequately managed.

9. [212]

   Two affidavits of Mr Stephen Collings, the defendant’s brother, were read into evidence without objection and form part of Exhibit 1. Mr Stephen Collings was available for cross examination and attended the hearing in the company of his brother, the defendant, and other Kestrel Unit staff. The defendant submitted the Attorney did not elect to cross-examine Mr Stephen Collings and, on that basis, the evidence in his two affidavits were unchallenged and ought be taken at its highest.

10. [213]

    Accordingly, the defendant submitted the submissions from the Attorney that cut across or speculated about Mr Stephen Collings such as the defendant having not been historically supported by his brother and that their relationship may be susceptible to deterioration as a result of the defendant’s illness and the potential for conflict around the management of his affairs or treatment compliance ought to be rejected. On its face, this submission may be accepted so far as it concerned Mr Stephen Colling’s intentions to support his brother. However, Mr Stephen Collings cannot be expected to know the meets and bounds of what is required to care for his brother given his complicated mental health and cognitive state. The evidence of Dr Elliot and Ms Zipparo was that, in their experience, management or supervision by a family member is undesirable having regard to that very prospect.

Consideration

1. [214]

   The defendant is a “mentally ill person” as defined in s 14 of the MH Act who suffers the mental illness of schizophrenia as a “continuing condition”. The defendant has ongoing and continuing, though diminishing under care, symptoms of paranoid delusions and poor insight into his condition and need for treatment. He is and will remain permanently a mentally ill person.

2. [215]

   It may be accepted that if he is no longer a forensic patient then he will likely transition to being initially an involuntary (civil) patient detained in a mental health facility until an AMO of that facility or their delegate is of the opinion that there is alternative care available to him. If he was discharged into that care, then it is most likely that the discharge will be conditional upon a 6-month (or perhaps 12 month) CTO with other support, presently available or subject to application and approval.

3. [216]

   In order to make a final forensic patient extension order, as previously discussed, the Court must be satisfied, to a high degree of probability, of the two limb test in s 122 (1) of the Act.

4. [217]

   Under the first test, the Court must be satisfied to the requisite degree that the defendant poses an unacceptable risk of causing serious harm to others if the defendant ceases to be a forensic patient. Without traversing the earlier discussion of principles, it may be noted that that assessment will include an examination of the likelihood of harm eventuating and the gravity of the harm that might eventuate.

5. [218]

   The defendant submitted that the Court would not be satisfied that he posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, although the defendant did not dispute that there was a risk of him causing “some” harm. That assessment, in the submission of the defendant, was to be made upon the basis of the defendant ceasing to be a forensic patient and either being discharged into the community with SIL accommodation, NDIS support (core supports of daily assistance and a disability support worker) and orders such as a CTO (with supervision by a CMHT or possibly an AOT including a case manager and psychiatrist) and guardianship and financial management orders (being sought by his brother) (“the supports”), or that he remain as an involuntary (civil) patient.

6. [219]

   Whilst the assessment as to the first test may be properly undertaken having regard to the supports provided or intended to be provided to the defendant when discharged into the community of the kind identified by the defendant (even assuming that NDIS support would extend to SIL accommodation), the assessment of unacceptable risk may not be undertaken upon the basis that the defendant will become an involuntary (civil) patient under the MH Act (even if there is a high likelihood of the defendant becoming an involuntary (civil) patient in the event that his forensic patient status is not extended). In other words, the risk posed by the defendant under the first test must be assessed upon the basis that the defendant is neither a forensic patient nor involuntary patient: Attorney General for New South Wales v Kapeen Preliminary [2018] NSWSC 619 at [48]-[49] (per Johnson J) and Rohan at [26]. In any event, as I will discuss below, Dr Furst did not consider that placement as an involuntary (civil) patient would adequately mitigate the identified risks.

7. [220]

   Bearing in mind those considerations, the Court is satisfied that, on the evidence in these proceedings, and to a high degree of probability, the defendant poses an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient for the purposes of s 122(1)(a) of the Act.

8. [221]

   That conclusion is consistent, in my view, with the evidence of the court appointed experts and the RAR and the Supplementary RAR produced by Dr Furst. I do not repeat my earlier summation of that evidence and interim conclusions reached, but will point to some salient aspects.

9. [222]

   Dr Furst opined that the risk of the defendant becoming aggressive and/or committing a serious violent offence would be much higher if he stopped medication and disengaged from treatment. In the context of considering the provisions of the Act and the notion of serious harm, Dr Furst opined that the risk was both foreseeable and unacceptable in the absence of assertive treatment and supervision. Dr Furst’s reference to treatment and supervision, in that respect, was a reference to the defendant remaining a forensic patient.

10. [223]

    In terms of his assessment of the defendant’s risk, Dr Elliott confirmed in oral evidence, that he considered “there is a pattern to his offending and were he to become, were he to fall into the same situation again, I do think he would act in the same way again”.

11. [224]

    Dr Elliott opined the defendant’s risk of causing serious harm to others is attributable to his schizophrenia. In making that observation, Dr Elliot noted:

12. [225]

    Dr Elliot accepted that support structures, orders and supervision could manage the risk of reoffending by the defendant but emphasised the risk occasioned by the defendant stopping medication and avoiding treatment. He considered that, in those circumstances, the defendant’s risk would elevate and noted that there is a pattern to his offending when he felt confronted or had his hand forced. Ms Zipparo was of the same mind as I will discuss below. The culmination of these assessments is that there exists a significant likelihood of serious harm to others if the defendant is not subject to an extension of his forensic patient status.

13. [226]

    Ms Zipparo referred to the defendant’s cognitive impairments, communication difficulties, executive dysfunction, rigid thinking and borderline impaired verbal memory combined with his mental illness, meant that there was a risk that the defendant would misinterpret situations and would be unable to make logical and good decisions. Ms Zipparo also stated that the defendant poor inhibitory control contributed to his risk of disinhibited aggressive responses when under stress. She agreed that the biggest risk factor for the defendant ceasing to comply with his medication (which she identified as a major risk factor) was his continuing lack of insight into his illness.

14. [227]

    Having regard to these opinions, the defendant’s lack of insight into his diagnosis and understanding why he is anti-psychotic medication is being prescribed is a significant factor contributing to risk. The court appointed experts and Dr Furst came to similar conclusions in that respect. To that consideration may be added a poor level of insight into his reasons for his index offending as opined by Dr Furst. These factors illustrate why the experts had strong concerns about the prospect of the defendant not taking his medication or disengaging with treatment thereby significantly increasing the risk of serious harm to others.

15. [228]

    I will turn to the various forms of management and supervision of the defendant in the discussion as to the second test, but generally the experts were of the view that supervision and management provided by the supports identified on behalf of the defendant, putting aside involuntary (civil) patient supervision, would not be sufficient to manage the risk posed by the defendant as discussed above. Certainly, those supports have clear limitations as discussed by the experts, even allowing for the prospect of the acquisition of those supports presently unavailable (noting that the SIL accommodation maybe a considerable distance in the future). I will deal separately, below, with the question of the defendant remaining an involuntary (civil) patient.

16. [229]

    Further, as discussed earlier, the defendant has historically lacked support, and whilst his brother is currently supportive, the relationship may be susceptive to deterioration, as identified by the court appointed experts, as a result of the defendant’s illness and the potential for conflict around the management of his affairs or treatment compliance.

17. [230]

    The alternative case advanced by the defendant in the event that the Court found the first limb of the s 122(1) test satisfied, was that the Court should find that the risk of causing serious harm found to exist for the first limb of the test could be adequately managed by less restrictive means.

18. [231]

    The Court has earlier set out the defendant’s propositions in that respect and it is unnecessary to repeat them here except to note that the defendant suggested that the management may be achieved by either him being released from the Kestrel Unit of Morisset Hospital into the community subject to various orders and supports, or being admitted as an involuntary (civil) patient continuing to be detained in the Kestrel Unit at Morisset Hospital.

19. [232]

    The foundation stones for those propositions were as follows:

    1. (1)

       Given the defendant’s mental illness is a continuing condition, if he were to be no longer a forensic patient, he would transition to being an involuntary (civil) patient detained in a mental health facility (as confirmed by Dr Fajumi).

    2. (2)

       The defendant would remain in that facility until an AMO or his delegate was of the opinion, or the Tribunal found, there is other care of a less restrictive kind, that is consistent with safe and effective care and is appropriate and reasonably available to the defendant until discharged into the community.

    3. (3)

       That it was likely the defendant would be discharged under a CTO, but in any event, having regard to the 2014 Risk of Serious Harm Communique, the authority of Presland and the Dr Fajumi Letter, the defendant would remain at Kestrel Unit until the necessary community supports including accommodation were in place to ensure any serious harm, he posed was adequately managed.

    4. (4)

       In the primary proposition advanced by the defendant, it was contended that the orders and supports that would be offered in the community would be sufficient to adequately manage the risk.

20. [233]

    On the evidence before the Court, the first contention may be readily accepted. The second proposition needs to be approached with some caution in light of the evidence before the Court to which I will further discuss below. In any event, real questions nonetheless remain about whether any management including involuntary (civil) treatment are sufficient to adequately manage the identified risks. Further, substantial issues arose in the evidence as to whether, if the defendant was released into the community, the combination of orders and support would be sufficient to adequately manage the risk. The third proposition advanced by the defendant raises the question of whether involuntary (civil) patient status is adequate to manage the risk and, further, the risks of reversion to the community with orders and supports, even if some level of stability were to be demonstrated leading to discharge. I will discuss these issues below but note that the opinion of all experts was that any management of risk less than the defendant being a forensic patient would be inadequate.

21. [234]

    The phrase “adequately managed” in s 122(1)(b) of the Act means that the risk is mitigated by the proposed management regime. Whether the means are more or less restrictive “is to be judged by the legal powers of others to control the defendant’s actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance” Notably, “less restrictive means” includes classification as an involuntary (civil) patient.

22. [235]

    I will firstly turn to whether the defendant’s management as an involuntary (civil) patient would result in the risk being adequately managed.

23. [236]

    Dr Elliott, Ms Zipparo and Dr Furst each considered that there should be an extension of the defendant’s status as a forensic patient as this constituted the least restrictive means of adequately managing the risk posed by the defendant. Dr Elliott and Ms Zipparo adhered to this overall view in their oral evidence notwithstanding strenuous cross-examination. Dr Furst was not cross-examined on his views in that respect in the RAR and the Supplementary RAR.

24. [237]

    Dr Furst was of the opinion that management of the defendant as an involuntary (civil) patient would not be sufficient to manage the defendant’s present risk owing to the following factors: the defendant’s very poor insight into his mental illness and treatment needs, the elevated risk of absconding from the Kestrel Unit (such as whilst on leave, or directly from the hospital to avoid treatment, care and supervision); the defendant’s history of homelessness (during which time he was cut off from support services within the community) and his capacity to easily ‘live rough’ or ‘go bush’ again; a heightened capacity to move elsewhere in NSW or leave the jurisdiction owing to historical limitations of familial support, which would make it difficult to retrieve him without a forensic order; the lack of predictability and reliability of enforcement of assertive treatment under civilian patient involuntary orders compared with forensic orders; and, if the defendant were to be absent from hospital without official leave and/or deemed well enough, he could be discharged without any further treatment plans.

25. [238]

    Dr Elliot also raised concerns in respect of the management of the defendant as an involuntary (civil) patient. Notably, he observed that, as a civil patient, the decision on whether to discharge the defendant from hospital may no longer be subject to Tribunal oversight and could be made by his treating team (that are subject to change). This combined with bed pressures in mental health units can force treating teams to consider whether patients can be discharged for the more acutely unwell (although Dr Fajumi did not consider there was pressure on beds in her unit). In the case of the defendant, Dr Elliot noted that he does not present as acutely ill and his quiet and cooperative manner on the ward may lead to a decision to inappropriately or prematurely discharge.

26. [239]

    Finally, I defendant has revealed a capacity for significant violence in response to adverse circumstances. He has very poor insight into his mental health and treatment needs and is said by Dr Furst to be at an elevated risk of absconding. He has been subject to appropriate mental health treatment for only a relatively short period of time. In concluding the Supplementary RAR, Dr Furst provided the following useful summary of why an extension order is required:

27. [240]

    Ms Zipparo gave evidence regarding these questions as follows:

28. [241]

    Finally, as previously noted Dr Furst observed that management as a civil patient does not preclude the defendant from being managed as a forensic patient. Put in a slightly different way, a patient with forensic status can be admitted to a hospital under the civil provisions under the MH Act.

29. [242]

    The expert opinion then is to the effect that the defendant’s extension as a forensic patient is necessary to adequately manage the risk and to attain sufficient stability over a period of time to allow for the prospect of discharge to the community.

30. [243]

    In that light, I turn to consider the contention advanced by the defendant that the risk discussed with respect of the first limb can be adequately managed by means of supports and orders such as the defendant being subject to a CTO, guardianship and financial management orders, funding from NDIS including SIL accommodation and support from case workers, psychiatrists and Mr Steven Collings.

31. [244]

    I turn firstly to Dr Elliot’s evidence. Again, I do not repeat Dr Elliot’s evidence save to mention some salient points.

32. [245]

    Dr Elliot accepted that supports of the kind proposed by the defendant would be significantly greater than those that had been previous in place and that a support structure of that kind may be achieved.

33. [246]

    However, Dr Elliot observed that a CTO would not provide the same protection as forensic patient status and that there were difficulties associated with management by CMHT under a CTO. It might be noted in that respect, in her letter Dr Fajumi indicated that, if the defendant’s order were to lapse, he would be detained under the MH Act but then would be discharged under a CTO. Once under the care of a CMHT then the CTO would be allowed to lapse given the usual order was for 12 months. As previous mentioned, Dr Elliot expressed serious concerns about the defendant ceasing treatment and stopping medication. This issue may be alleviated by a depot medication although Dr Elliot emphasised that taking oral medication, in the absence of a depot medication, would render a CTO effectively useless. In any event, CTOs were frequently allowed to lapse with corresponding risks of medication and treatment lapsing.

34. [247]

    Further, Dr Elliot expressed concerns as to the likelihood of SIL accommodation being made with respect to the defendant and that such a level of support was required in order to have a prospect of managing the defendant.

35. [248]

    Dr Elliott opined that guardianship and management orders may be applied for by the defendant’s brother. These may have a positive impact on the defendant but there were real difficulties in placing that responsibility upon the brother.

36. [249]

    Ms Zipparo accepted that the defendant’s level of non-compliance with medication would be significantly reduced by the support proposed on behalf of the defendant and that his brother would offer support particularly in the form of alerting the presence of departure of medication or treatment.

37. [250]

    However, like Dr Elliot, Ms Zipparo questioned the engagement of the defendant’s brother in that fashion and indicated that it may well be counter-productive. She raised similar concerns as to the effectiveness of a CTO, particularly regarding resourcing restraints in play in that respect. She was concerned at the risks associated with placing the defendant in a group home.

38. [251]

    Overall, she remained concerned that the defendant’s risk of violence was unacceptably high in the absence of a forensic order, particularly if he were to lapse in compliance with treatment.

39. [252]

    I do not repeat for present purposes, the observations of Dr Furst in this respect that I have earlier summarised, except to note that he considered the support and orders proposed by the defendant were insufficient to manage the identified risks of causing serious harm.

40. [253]

    Overall, I consider the submission by the Attorney as to this aspect of the defendant’s case to be of some real force in demonstrating that the risk cannot be adequately managed by less restrictive means such as the supports and other orders proposed by the defendant.

41. [254]

    In substance, the Attorney’s contention was that it was possible to perceive a pathway by which the defendant’s risk might be addressed in the absence of an extension order (assuming the defendant attained a significant level of stability to be discharged into the community). However, the Attorney correctly submitted that the pathway proposed by the defendant in that respect was a “precarious one”. Further, in my view, it is not which conforms with the objects of the Act.

42. [255]

    That precarious pathway, in that respect, was described by the Attorney, properly in my view, as follows:

    1. (1)

       The defendant’s NDIS funding being increased by approximately 500%, so as to provide for accommodation and core support in circumstances where Dr Elliot cast doubt on the availability of such funding to that level.

    2. (2)

       The defendant’s treating team needing to decide to transition into depot medication, the absence of which would render a CTO ineffective.

    3. (3)

       Guardianship and financial management orders would need to be granted and successfully implemented.

    4. (4)

       The defendant’s relationship with his brother would need to continue. This support was advanced by the defendant, notwithstanding the potential strains produced by dealing with the defendant’s mental illness, and managing the defendant’s affairs and the doubts cast by the court appointed experts as to the suitability of such arrangements which may be, in fact, be counterproductive.

    5. (5)

       CMHTs would need to adequately monitor the defendant’s condition and treatment compliance despite resource deficits and real concerns expressed by the court appoint experts as to the veracity of such arrangements.

    6. (6)

       Those same teams would have to avoid prematurely discharging the defendant from his CTO obligations, notwithstanding those resource constraints and that the presentation might suggest the prospect of premature discharge.

    7. (7)

       If the defendant ceased to comply with medication or his condition otherwise deteriorated, he would likely need to be re-admitted for involuntary treatment, despite the possibility that he would present without obvious symptoms of psychosis and the difficulties of re-admission which were identified by Dr Elliot.

43. [256]

    As mentioned at the outset of this judgment, the evaluative exercise which the Court must undertake must be made in the context of the objects of the forensic patient scheme, having regard to protecting the safety of members of the public and ensuring the proper care of forensic patients. In my view, having regard to the above analysis, the Attorney has demonstrated that the risk cannot adequately be managed by other less restrictive means of the kind promulgated in the defendant’s contentions in this matter and that it is clear that, as Dr Furst put it, the defendant’s status as a forensic patient remains necessary to adequately address the risk that he presents.

44. [257]

    The defendant submitted that, if the Court finds to a high degree of probability that the defendant posed an unacceptable risk of serious harm and that risk could not be adequately managed other than as a forensic patient, as the Court has found, then, any extension order made by the court should be for a maximum of 18 months.

45. [258]

    It was submitted that that period would allow sufficient time for his treating team to secure community support mechanisms, SIL accommodation, care, treatment and supervision as proposed in the defendant’s primary submission concerning the operation of s 122(1)(b) of the Act.

46. [259]

    The defendant further submitted that he could then transition from being a forensic patient to an involuntary (civil) patient and thereafter discharge into the community sooner than the 3 years proposed by the Attorney. The defendant also submitted that Dr Elliot had agreed that having a lengthier period as a forensic patient may have a negative impact on him transitioning to a community setting. Similarly, an order of 3 years would diminish the momentum of Kestrel Unit staff to apply for and set up accommodation, supports and supervision in the community for the defendant.

47. [260]

    Dr Furst was asked to opine on an appropriate period if an extension order were to be made. He expressed the view that a period of 3 years was required to allow for “extended treatment, stabilisation and rehabilitation at Morisset Hospital and a further period of management in the community under a CTO, and in order to better gage his response to treatment and management over time”.

48. [261]

    It was suggested by counsel for the defendant that opinion merely adopted what was proposed by the Attorney without adequately explaining why. I do not agree.

49. [262]

    When considered with the detailed analysis by Dr Furst of the defendant’s mental illness and his need for treatment, care and management, the opinion more than adequately sets out the basis upon which it is made. Allowances also need to be made for Dr Furst’s experience as a forensic psychiatrist in managing forensic patients.

50. [263]

    It was also suggested that Dr Furst’s opinion was given without the benefit of measures, orders and supports relied upon the defendant as the means of management of the defendant in the community and without the benefit of Mr Stephen Collings evidence, the Dr Fajumi Letter and the 2014 Risk of Serious Harm Communique.

51. [264]

    It is not clear from the defendant’s submission, how those measures and the content of that evidence might affect Dr Furst’s opinion which was primarily directed to his treatment as a forensic patient. If the defendant was contending that the level of stability reached by the defendant when discharged into the community and the corresponding supports in the community may enable suitable management of the defendant, then those propositions needed to be put squarely to Dr Furst. That is because his opinion is predicated upon making proper arrangements for the defendant’s transition into the community and the desirability of him maintaining a forensic patient status to facilitate that process.

52. [265]

    In his report, Dr Elliot agreed with Dr Furst that a “three-year order is an appropriate duration given that the graded steps [the defendant] needs to take to achieve community placement”. Dr Elliot also indicated that his treating team would need to be guided almost entirely by his behaviour rather than information they can gather from him in a formal interview because of the lack of insight he displays into his illness. It would also appear from Dr Elliot’s evidence that the success of support for the defendant including stable accommodation with a financial management order would also depend on continued observations of his adaptive functioning. In cross-examination, Dr Elliot adhered to his view as to the appropriate duration noting that his opinion concerned the gradual move of the defendant to community living whilst having a forensic patient status. Dr Elliot agreed, however, that a longer period as a forensic patient has the potential to have a negative impact in terms of those supporting him getting community supports in place.

53. [266]

    Ms Zipparo considered that the extension of the defendant’s forensic patient status should be for a minimum of 3 years to provide for an extended period of transition and monitoring once back in the community. Ms Zipparo considered that a forensic order for at least the next 3 years served as a better safety net for the defendant.

54. [267]

    Dr Fajumi identified that the most likely barrier to discharge would be finding appropriate accommodation given the age of the defendant and the prospect that he may not receive adequate NDIS funding. She stated that “in our experience it can take up to 18months to find suitable accommodation, in some cases longer”.

55. [268]

    The high watermark of the defendant’s submission in this respect is that Dr Fajumi estimated that it may take up to 18 months to find suitable accommodation in the community, and in some cases longer and Dr Elliot’s evidence that a longer duration may stagnate efforts made by the defendant’s support team and perhaps have a negative impact on the defendant.

56. [269]

    However, Dr Fajumi’s communication was not finite as to the time required to move the defendant into the community and seemed to rest on the period of time required for the accommodation and not for the full suite of measurements and supports that Dr Furst had taken into consideration. Dr Elliot opined that there was a risk of stagnation in the support team’s preparation for transition but he did not alter his view as to the period of time required to put in place care, treatment and management permitting the transition of the defendant on a proper basis into the community.

57. [270]

    Whilst I have given close consideration to whether a shorter duration of an order may be properly made and acknowledging the discretion residing in the Court in that respect, such a conclusion would sit contrary to the opinions of the court appointed experts and Dr Furst and sit ill with the further steps apparently required to move the defendant safely into the community. The countervailing consideration, such as they are, seem to be inadequately formed and do not represent a proper alternative analysis to that given by the experts. I consider that the longer duration than 18 months will assist the defendant’s transition to the community and better accord with the obligations of the Act. In the result, the duration of the orders shall be 3 years.

Conclusion

1. [271]

   The Attorney has established that the defendant should be the subject of an order for the extension of his status as a forensic patient pursuant to ss 121, 127(1)(a) and 128 of the Act. The Court is satisfied to a high degree of probability that the defendant, being a forensic patient, poses an unacceptable risk of causing serious harm to others, if he ceases to be a forensic patient and that that risk cannot be adequately managed by less restrictive means.

2. [272]

   The duration of the extension order should be 3 years.

Orders and Directions

1. [273]

   The Attorney shall bring in Short Minutes of Order reflecting this judgment by 4:30pm on Tuesday 28 May 2024.