Minister for Mental Health v Paciocco (Preliminary)

1. [1]

   HER HONOUR: By summons filed 18 September 2019 the NSW Minister for Mental Health (“the Minister”) seeks orders with respect to the defendant, Steven Mark Paciocco, pursuant to s 54A and Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the MHFP Act”).

2. [2]

   By way of final relief, the plaintiff seeks an order under cl 1 of Sch 1 of the MHFP Act that Mr Paciocco be subject to a (further) extension order for a period of 18 months from the date of that order.

3. [3]

   On 13 November 2019, a preliminary hearing of the summons was convened at which the Minister sought an interim extension order pursuant to cll 10 and 11 of the MHFP Act, commencing on 13 December 2019, for a period of 3 months.

4. [4]

   Preliminary orders pursuant to cl 6(5) of Sch 1 of the MHFP Act were also sought requiring two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of Mr Paciocco and to furnish reports to the Court with the results of those examinations, together with an order that Mr Paciocco attend those examinations.

5. [5]

   Clause 10 of Sch 1 provides that the Court may make an order for the interim extension of a person’s status as a forensic patient if it appears to the Court:

6. [6]

   Each of cll 6(5) and 10 direct attention to the requirements of cll 2 and 7 of the MHFP Act set out below.

7. [7]

   Mr Paciocco did not oppose the orders sought by the Minister at the preliminary hearing. Neither did he take issue with the evidence or the plaintiff’s submissions in support of those orders.

8. [8]

   The plaintiff relied on the following evidence:

9. [9]

   The materials annexed to Mr Holcombe’s affidavit comprise a vast quantity of material produced in answer to orders which issued to both the Mental Health Review Tribunal (“the Tribunal”); the New South Wales police force; and the Justice Health and Forensic Mental Health Network. I have considered that material. For present purposes, it is unnecessary to refer to all of it in detail.

Background

1. [10]

   Mr Paciocco is currently detained at the Forensic Hospital. He has been detained in that facility as a forensic patient (as defined in s 42 of the MHFP Act) since November 2017. He has been the subject of ongoing review by the Tribunal pursuant to s 46(1) of the MHFP Act since that time.

2. [11]

   The limiting term which established Mr Paciocco’s status as a forensic patient was imposed by Jeffreys DCJ on 8 September 2016 after a qualified finding of guilt in respect of one count of reckless wounding and one count of assault police officer in the execution of duty was entered. The offence of reckless wounding occurred in the context of a random attack on a young woman in the street with a knife.

3. [12]

   On 8 September 2016, his Honour imposed a limiting term of 2 years and 6 months to date from 20 April 2014. The limiting term expired on 19 October 2016.

4. [13]

   On 12 October 2016, the Minister applied to extend Mr Paciocco’s status as a forensic patient under cl 1 of Sch 1 of the MHFP Act.

5. [14]

   On 16 January 2017, following a series of interim extension orders, Campbell J made an order under s 54A of the MHFP Act extending Mr Paciocco’s status as a forensic patient for a period of 14 months (“the first extension”) (Minister for Mental Health v Paciocco [2017] NSWSC 4). That extension order expired on 16 March 2018.

6. [15]

   On 13 June 2018, Mr Paciocco was the subject of a further extension order (“the second extension order”) made by Davies J, also under cl 1 of Sch 1 of the MHFP Act, extending his status as a forensic patient for a period of 18 months (NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866). That extension order is due to expire on 13 December 2019.

7. [16]

   Mr Paciocco is next due for review by the Tribunal in December 2019.

Mr Paciocco’s background and psychiatric diagnoses in summary

1. [17]

   Mr Paciocco is currently aged 47. He is single and has no dependents. He is an Australian citizen. Before entering into custody he was living alone in Department of Housing accommodation in Annandale. He was in receipt of a Disability Support Pension prior to entering custody. He is interested in model-making and enjoys reading and music. He has a close relationship with his mother who resides in Balmain.

2. [18]

   Since at least 1994 Mr Paciocco has had multiple psychiatric admissions. He has also attempted suicide on multiple occasions. His most serious suicide attempt was in 1996 when he jumped in front of a train, sustaining injuries which resulted in bilateral lower limb amputations. He currently mobilises by means of a wheelchair.

3. [19]

   Mr Paciocco was diagnosed with schizophrenia (or a schizoaffective disorder) in his early 20s. This remains his current diagnosis with an accompanying substance abuse disorder (in remission). The potential for a comorbid personality disorder remains open as a diagnosis. That diagnosis can only be considered after Mr Paciocco is in remission from the chronicity of his psychotic symptoms which impair his personality functioning. His cognitive function is in the borderline range, likely related to his chronic psychotic illness.

4. [20]

   Mr Paciocco’s history of treatment-resistant schizophrenia is dominated by auditory hallucinations and various persecutory delusions. The expert evidence establishes that schizophrenia is frequently complicated by poor insight and self-awareness, inclusive of the need for treatment. It also classically takes on a relapsing and remitting course, culminating in a lifelong vulnerability requiring treatment under a psychiatrically coordinated regime of antipsychotic and mood stabilising medications.

5. [21]

   Mr Paciocco was case managed in the community before he entered custody. He has been closely pharmacologically managed as a forensic patient since that time. He is considered to have very poor insight into his illness or the triggers to adverse behaviours that are the feature of his illness or the need for treatment. He is, however, generally compliant with his treatment regime but continues to be reluctant to accept the diagnosis of schizophrenia.

Legislative provisions

1. [22]

   Part 5 of the MHFP Act deals, inter alia, with forensic and correctional patients.

2. [23]

   The objects of Part 5 set out in s 40 of the MHFP Act are in the following terms:

3. [24]

   Section 54A of the MHFP Act provides that a person’s status as a forensic patient may be extended in accordance with Sch 1, the relevant clauses of which include the following:

4. [25]

   Even where an extension order is made, it is not final. It can be revoked or varied at any time pursuant to cl 12 of Sch 1 of the MHFP Act.

5. [26]

   The assessment of the risk of causing serious harm as comprehended in cl 2(1)(a) above is by reference to a defendant’s past conduct and the seriousness of the possibility of future conduct in the period over which the risk may manifest. That assessment must be based on an absence of protective measures, relevantly on the assumption that a defendant is neither a forensic patient under the MHFP Act, nor an involuntary patient under the Mental Health Act 2007 (NSW) (see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619).

6. [27]

   In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76, Wright J analysed the process of assessment of “less restrictive means”:

The first and second extension orders

1. [28]

   I have read and considered the judgments of Campbell and Davies JJ and the various medical reports and other documents to which their Honours made reference in making orders for the extension of Mr Paciocco’s status as a forensic patient in 2017 and 2018. I note that Davies J at [19] acknowledged that the material tendered before Campbell J for the purposes of the Minister's application for the first extension order satisfied both tests in cl 2(1) of Sch 1 to the MHFP Act, as did the evidence tendered before him.

2. [29]

   I also note that Davies J’s approach to the Minister’s application for a second extension order (an approach with which I respectfully agree) focused upon the evidence which detailed the changes in Mr Paciocco’s treatment and placement since the making of the first extension order by Campbell J, a focus which facilitated a fresh consideration by his Honour of the statutory preconditions for the making of a further extension order.

The reviews by the Tribunal since June 2018

1. [30]

   Since the imposition of the second extension order by Davies J in June 2018, Mr Paciocco has been the subject of three review hearings before the Tribunal pursuant to s 46(1) of the MHFP Act. In the reviews of 13 December 2018 and 29 June 2019, the Tribunal determined that no orders in respect of Mr Paciocco’s care, treatment and control were necessary for his protection or the protection of others from serious harm in substitution for those that were in place following the first review hearing on 28 June 2018. I have read each of those reviews.

2. [31]

   I have also taken into consideration the reports of Dr Kerri Eagle of 25 April 2018 and Dr Andrew Ellis of 31 May 2018 (each of whom provided reports upon which both Davies and Campbell JJ relied). Those reports satisfy the requirements of cl 10(b) of Sch 1 to the Act, as they do cl 7(2)(c). In the most recent review by the Tribunal in June 2019 access to those expert reports, amongst others, was noted.

3. [32]

   A report from Dr Adam Martin, forensic psychiatrist, of 10 May 2019, prepared at the request of the solicitor for the Crown Solicitor in anticipation of the Minister’s application for an extension of Mr Paciocco’s status as a forensic patient has also been read and considered by me. In that report, Dr Martin addressed particular questions posed for him, namely, whether Mr Paciocco meets the diagnostic criteria for a psychiatric condition, together with the level of chronicity and likely duration of any diagnosed psychiatric condition; and the extent to which any psychiatric condition affects his risk of reoffending, including posing a threat of serious harm to others were he to cease to be a forensic patient. Finally, Dr Martin was asked to address the need for the ongoing management of Mr Paciocco as a forensic patient, inclusive of the least restrictive means of providing that management.

4. [33]

   I will consider Dr Martin’s report later in this judgment. Before doing so, however, and having regard to the balance of the material tendered for the purposes of the preliminary hearing, inclusive of reports from Mr Paciocco’s treating practitioners, Drs Haque and Colquhoun, in the combined psychiatric and nursing report by Dr Ellis, Ms Fairweather and Ms Callagher of 17 June 2019, and their focus on Mr Paciocco’s recent conduct and compliance as a forensic patient and his progress between December 2018 through to June 2019, I note the following:

5. [34]

   The earlier nursing report to the Tribunal of 3 December 2018, for the review of 13 December 2018, is also of relevance although it would appear that Mr Paciocco’s violent verbal outbursts, inclusive of threats, were potentially, if not highly likely to be the result of his medication falling short of the therapeutic range.

6. [35]

   That view is further reinforced in the Tribunal’s determination of July 2019 where they noted the evidence given by Dr Ellis, including the following observations:

7. [36]

   In granting the second extension order Davies J noted at [64] (with some prescience) the following:

8. [37]

   At [65]-[69] his Honour went on to consider whether, even if Mr Paciocco were stabilised on Clozapine, a change in his living arrangements by a move from the Forensic Hospital to the community might precipitate an increase in violence and aggression, rendering his management in the community highly problematic and presenting an unacceptable risk of him causing serious harm to others for that reason. His Honour noted that decompensating mood and irritability has frequently occurred whilst Mr Paciocco has been detained as a forensic patient at the Forensic Hospital.

9. [38]

   Dr Ellis’ evidence before the Tribunal in June 2019 also included the following:

Discussion of clause 7(2) considerations

1. [39]

   The evidence tendered on the application for an interim extension order reveals that, since the making of the second extension order, Mr Paciocco has been consistently assessed as posing a medium to high risk of violent reoffending presenting an appreciable risk to community safety should he cease to be a forensic patient.

2. [40]

   In giving close consideration to the question of risk in the instructing letter from the Crown Solicitor earlier referred to, Dr Martin opined as follows:

3. [41]

   In assessing the adequacy of less restrictive means of management, Dr Martin said:

4. [42]

   Dr Martin ultimately opined:

5. [43]

   Dr Ellis did not come to any different view to the views of Dr Martin summarised above in his report of 17 June 2019. Dr Ellis applied the HCR-20 V3 risk assessment tool using combined structured professional and clinical parameters and concluded that in the absence of treatment or supervision Mr Paciocco falls within a group of persons with a moderate to high risk of offending. He went on to explain as follows:

Consideration

1. [44]

   On the whole of the evidence, I am satisfied that in circumstances where the existing extension order posed by Davies J will expire before the proceedings commenced by summons are determined, and where I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, that the interim extension order and the ancillary orders sought by the Minister should be made.

2. [45]

   In coming to that determination, I have given consideration to Mr Paciocco’s stated lack of confidence in being able to transition at this time into the community to be housed as an involuntary patient under the MHFP Act. I have also taken into account his stated preference for remaining at the Forensic Hospital. While the structure of the MHFP Act does not allow for his wishes to be determinative in considering whether an interim extension order should be made, I consider that it is appropriate that his wishes are noted.

Orders

1. [46]

   I make the following orders:

   1. (1)

      Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW):

   2. (2)

      Pursuant to clauses 10 and 11 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Mr Paciocco is subject to an interim extension order for a period of 3 months, commencing on 13 December 2019 and expiring on 13 March 2020.

   3. (3)

      Access to the Court’s file in this matter is restricted such that access by a non-party to the proceedings is permitted only by leave of a Judge of the Court and only with prior notice to the parties so as to allow them an opportunity to be heard in respect of any application for access.