Attorney General of New South Wales v Ramirez (bht Limbury) (Preliminary)

1. [1]

   The Attorney General of New South Wales seeks interim orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for the appointment of two mental health experts to examine Mr James Ramirez and provide the Court with reports and for an extension of the status of Mr Ramirez as a forensic patient for a further three months from its present expiration date of 28 December 2024.

2. [2]

   Mr Ramirez has a mental illness, Schizoaffective Disorder, which is chronic and treatment resistant. He also has a neurocognitive disorder with significant cognitive impairment. His intellectual functioning has been assessed as being within the Extremely Low range. [1] He is incapable of managing his affairs and a tutor has been appointed.

3. [3]

   He is a forensic patient under the Act and thereby subject to the jurisdiction of the Mental Health Review Tribunal because he was the subject of limiting terms of imprisonment in respect of serious sexual assault offences and subsequently subject to orders extending his status as a forensic patient.

4. [4]

   The response to the plaintiff’s application is neutral. The defendant neither opposes nor concedes it but accepts that the material relied upon by the plaintiff is sufficient to allow for the order of appointment of experts and justifies the making of an interim extension order.

Legislative requirements

1. [5]

   There is no dispute that all the necessary legislative requirements for the bringing of the application have been complied with and that the Court has jurisdiction to make the orders sought.

2. [6]

   The order relating to the appointment of experts to provide reports must be made if the Court is satisfied “that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order” (s 126(5)).

3. [7]

   An extension order can only be made if the Court, after considering each matter listed in s 127(2) and anything else it considers to be relevant, is “satisfied to a high degree of probability that (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means (s 122 (1)).

4. [8]

   An interim extension order may be made if it appears “the existing extension order will expire before the proceedings are determined” and “that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order” (s 130).

Background

1. [9]

   Mr Ramirez was born in 1984 and is currently aged 40. He committed three offences of sexual intercourse without consent and one of indecent assault against a fellow inpatient at Liverpool Hospital on 20 June 2014. He was at the hospital to receive treatment for mental health issues. While he had a rather lengthy criminal history, this offending was of a nature and seriousness unlike anything in the past.

2. [10]

   He was found unfit to be tried on 19 March 2015 in the District Court at Parramatta and thereby became a “forensic patient” pursuant to ss 14 and 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed) and was referred to the Tribunal. After it was determined that he would not become fit to be tried within 12 months, a special hearing was held in the District Court at Campbelltown where Graham ADCJ found “on the limited evidence available” he committed the four offences.

3. [11]

   On 2 September 2016, his Honour nominated four concurrent limiting terms of varying length, the longest being for four years. They were specified to commence on 9 July 2014 and the last expired on 8 July 2018. The status of Mr Ramirez as a forensic patient continued for the period of the limiting terms by virtue of ss 24(1) and 42 and he remained under the control of the Tribunal.

4. [12]

   The plaintiff commenced proceedings under the Mental Health (Forensic Provisions) Act on 1 March 2018 seeking orders extending the status of Mr Ramirez as a forensic patient beyond the expiration of the limiting terms. Lonergan J made interim extension orders to that effect until she made a final extension order on 28 September 2018 whereby he continued to be a forensic patient for four years commencing on 30 September 2018.

5. [13]

   On 11 May 2022 the plaintiff again commenced proceedings for an extension of the status of Mr Ramirez as a forensic patient. By this time the applicable legislation had become the Mental Health and Cognitive Impairment Forensic Provisions Act. On 19 September 2022, Harrison J (as his Honour then was) made an interim extension order commencing 30 September 2022 and concluding 29 December 2022. On 23 December 2022, McNaughton J made a final extension order extending the status as a forensic patient for two years, ending on 28 December 2024.

Evidence

1. [14]

   There are ample summaries in the earlier judgments of Mr Ramirez’s personal circumstances, his mental health and intellectual capacity, and assessments in 2018 and 2022 of the risk of causing serious harm to others he posed if he ceased to be a forensic patient. There is no useful purpose served by repeating all of that in this judgment. Regard should be had to Attorney-General of New South Wales v Ramirez [2018] NSWSC 662 at [5]-[7], [23]-[47] (Lonergan J); Attorney-General of New South Wales v Ramirez (No 4) (Final Orders) [2018] NSWSC 1466 at [16]-[57] (Lonergan J); Attorney General of New South Wales v Ramirez [2022] NSWSC 1241 at [3], [14]-[28] (Harrison J); and Attorney General of New South Wales v Ramirez (by his tutor Johnson) (Final) [2022] NSWSC 1776 at [5], [35]-[98] (McNaughton J).

2. [15]

   It is pertinent to note the reasons provided by McNaughton J (at [104]) for concluding that a further extension order for a period of 2 years should be made:

   1. (1)

      The experts agree that Mr Ramirez has Schizoaffective Disorder, Severe Substance Use Disorder (in remission) and Borderline Intellectual Function or Neurocognitive Disorder.

   2. (2)

      The court-appointed experts agree that Mr Ramirez poses at least a “medium to high” or “moderate to high” risk of causing serious harm to others based on his presentation, history and assessment if he ceases to be a forensic patient.

   3. (3)

      There is a recorded history of absconding, as well as non-compliance with treatment and previous CTOs.

   4. (4)

      Mr Ramirez shows limited understanding of his diagnosis, his symptoms and his need for treatment. He does not have insight into his violence risk, his Substance Use Disorder, his Neurocognitive Disorder nor his medical conditions.

   5. (5)

      All the experts were of the view, and I accept, that it would be appropriate to manage Mr Ramirez’ risk of causing serious harm to others by continuation of his forensic patient status as this would allow him to access appropriate specialist forensic mental health care for his conditions and would allow a gradual step-down to community care. An extension order would allow for continued care at Bloomfield, a forensic specialist unit; continued forensic rehabilitation including access to study and employment programs; further neuropsychological testing if appropriate; occupational therapy assessment; referral for placement in appropriate accommodation (likely NDIS supported accommodation); referral to appropriate community mental health support; and assistance with family contact.

   6. (6)

      An extension order of 2 years would be appropriate to allow for the gradual step-down to community care to occur (including the finding of appropriate accommodation), with appropriate supervision at every progression point.

3. [16]

   Since coming into custody on 9 July 2014 Mr Ramirez had been held at the Metropolitan Remand and Reception Centre and Long Bay Hospital (both correctional centres) and then the Forensic Hospital (a mental health facility) from 6 December 2017. He was transferred to Bloomfield Hospital (another mental health facility) on 15 September 2022 where escorted day leave would be available. [2]

4. [17]

   The Tribunal reviewed Mr Ramirez on 23 February 2023. It ordered he remain at Bloomfield Hospital for care and treatment but granted a request by his treating team that he be allowed unsupervised day leave at the discretion of the Medical Superintendent. The Tribunal was satisfied that the safety of Mr Ramirez and any other member of the public would not be seriously endangered (a threshold statutory requirement of s 84(2) of the Act before the Tribunal may make any release order). Such leave would involve the presence of NDIS support workers and would provide the treating team the opportunity to monitor him as he progressed to unsupervised leave. [3]

5. [18]

   On 27 June 2023 the Tribunal granted a request by the treating team for Mr Ramirez to be permitted supervised overnight leave seven nights per week to supported independent living accommodation. [4]

6. [19]

   The Tribunal ordered the discharge of Mr Ramirez from Bloomfield on 16 November 2023 with an extensive suite of conditions concerned with treatment and supervision. The conditions were modified at the Tribunal’s six-monthly review on 24 May 2024 but only to reflect changes in his treating psychiatrist and case manager. [5]

7. [20]

   The NSW Trustee and Guardian has managed finances for Mr Ramirez since 2010 and was appointed his guardian for a period of 2 years on 30 November 2023. [6] A National Disability Insurance Scheme plan was approved on 6 March 2024 and is to be reassessed by 6 March 2025. [7] There was an “interim behaviour support plan” put in place in February 2024 which included a requirement for line of sight supervision at all times in the community. It was to be reviewed in August 2024 but there is no evidence of what became of it. [8]

8. [21]

   There is a Risk Assessment Report by Dr Amanda White, forensic psychologist and clinical neuropsychologist, dated 25 March 2024. In her opinion, Mr Ramirez poses a risk of causing serious harm to others if his status as a forensic patient is terminated.

9. [22]

   In discussing the index offences, Mr Ramirez told Dr White that the sexual activity was consensual and the only wrongdoing was that it did not occur in a private location. [9]

10. [23]

    Dr White noted a mental health review in November 2023 in which it was recommended that he access a “psychosexual counsellor focussing on consent” but nothing appears to have been achieved in that respect. [10] She recounted observations by his treating team of his behaviour during community outings and what Mr Ramirez had told her: [11]

11. [24]

    A “Joint Memorandum of Facts and Issues” helpfully includes the following summary of Dr White’s findings on matters pertinent to the risk of Mr Ramirez causing serious harm to others:

12. [25]

    Dr White described the risk scenarios as follows: [12]

13. [26]

    As to the level of risk if Mr Ramirez ceased to be a forensic patient and whether the risk can be managed by less restrictive means, the Joint Memorandum provides the following summary of Dr White’s opinion

Conclusion

1. [27]

   The evidence supports a conclusion that there has not been sufficient change since the present extension order was made by McNaughton J in 2022 for the level of risk posed by Mr Ramirez to be downgraded to any significant extent. That is not to say that there has not been improvement. He has managed to progress to community care as McNaughton J envisaged. However, according to Dr White he continues to present a risk of causing serious harm to others if he ceases to be a forensic patient. The nature and gravity of the risk remains unacceptable and there is no less restrictive means of managing it. On the assumption the evidence is accepted, it is capable of establishing these matters to a high degree of probability.

2. [28]

   Dr White’s assessment and conclusions address the statutory criteria for the making of the orders sought. Adopting the legislative terminology, the matters alleged in the documents relied upon by the Attorney General would, if proved, justify the making of an extension order. Further, it appears the existing extension order may expire before these proceedings are determined.

Orders

1. [29]

   The following orders are made:

   1. (1)

      Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to be appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed.

   2. (2)

      The defendant is directed to attend those examinations.

   3. (3)

      The defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 28 December 2024 for a period of three months.