IN THE SUPREME COURT OF VICTORIA		
AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0004

IN THE MATTER of an application for further extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997	
	
and	
	
IN THE MATTER of an application for further extended leave by SJ	

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JUDGE:	Niall JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 September 2023	
DATE OF JUDGMENT:	19 October 2023	
CASE MAY BE CITED AS:	Re SJ	
MEDIUM NEUTRAL CITATION:	[2023] VSC 614	

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CRIMINAL LAW – Mental Impairment – Application for further extended leave – Whether safety of the person subject to the order or members of the public will be seriously endangered as a result of the further extended leave – Application supported by treating experts, the Secretary, Department of Health and the Attorney-General – Application for further extended leave granted with conditions.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr J Dalrymple (solicitor)	Victoria Legal Aid	
			
For the Secretary, Department of Health	Ms MS Wilson	—	
			
For the Attorney-General of Victoria	Mr N Boyd-Caine	Victorian Government Solicitor’s Office	

HIS HONOUR:
Introduction
1	By notice dated 16 June 2023, the applicant (‘SJ’) applies for a grant of further extended leave under s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). On 12 September 2023 I granted that leave. These are my reasons.
2	The application is supported by SJ’s treating team, the Secretary to the Department of Health and the Attorney-General on the conditions proposed by Dr James Belshaw in a report dated 10 August 2023.
Background
3	SJ is a 42-year-old woman with a well-established diagnosis of schizophrenia. On 26 December 2010, SJ, who was then impaired by the symptoms of her psychotic illness, attempted to kill her partner at their home in a regional Victorian town by stabbing him in the throat, chest and back. Following these events, SJ was charged with attempted murder. 
4	On 15 February 2012 the matter proceeded as a consent mental impairment hearing, following which Lasry J directed a verdict of not guilty of attempted murder by reason of mental impairment and declared SJ liable to supervision under pt 5 of the Act. On 4 April 2012, the Court imposed a custodial supervision order (‘CSO’) on SJ with a nominal term of 25 years, to commence from 26 December 2010. Pursuant to the CSO, SJ resided and received treatment at Thomas Embling Hospital (‘TEH’) for over a decade, before being granted extended leave on 30 September 2022, allowing her to reside full-time in the community for a period of 12 months. 
5	On 16 June 2023, SJ filed an application for a further period of 12 months’ extended leave.
Applicable legislation
6	Extended leave allows a forensic patient to be absent from their place of custody for a period of not more than 12 months, subject to any conditions imposed by the Court. The Court may grant an application for extended leave if satisfied on the evidence available that the safety of the forensic patient or members of the public will not be seriously endangered as a result.
7	When determining whether to grant a period of extended leave the Court must apply the principle in s 39(1) that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, and have regard to the following factors in s 40(1):
(a) 	the nature of the person's mental impairment or other condition or disability; and
(b) 	the relationship between the impairment, condition or disability and the offending conduct; and
(c) 	whether the person is, or would if released, be likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and 
(d) 	the need to protect people from such danger; and
(e) 	whether there are adequate resources available for the treatment and support of the person in the community; and
(f) 	any other matters the court thinks relevant.
8	Section 40(4) provides that a further grant of extended leave cannot be made unless the court has obtained and considered the report of at least one registered medical practitioner, or registered psychologist, who has personally examined the person on their mental condition and the possible effect of a proposed further grant of extended leave on their behaviour, together with a leave plan filed pursuant to s 57A. 
9	The leave plan filed under s 57A proposes that further extended leave be granted on substantially the same conditions as those of SJ’s existing grant of extended leave. Therefore, because the granting of the application would not significantly reduce the degree of supervision to which SJ is subject, the obligations on the Director of Public Prosecutions to notify family members and victims of the hearing are not enlivened under s 38C(2)(d). 
Personal and psychiatric history
10	Due to a traumatic birth, SJ was born with cerebral palsy which limits her ability to move freely. SJ has a long-standing history of chronic paranoid schizophrenia. Her mental illness is characterised by auditory and persecutory hallucinations, including hearing voices commanding her to cause harm to herself and others. Prior to the index offence, SJ exhibited poor compliance with medication, and had a history of carrying weapons to protect herself when experiencing psychotic symptoms. She reports a history of cannabis use and benzodiazepine dependence, for which she attended Narcotics Anonymous for recovery. 
11	SJ’s first known admission to hospital was in 2002 following an overdose, and she was admitted at least a further 13 times before the index offence. In September 2009, SJ was admitted to hospital after she had allegedly threatened to kill her partner. At the time of the index offending she was being case managed by a regional mental health service and receiving fortnightly antipsychotic depot injections. 
Index offending
12	SJ and her then partner have a history of mental illness and had been in a relationship for approximately nine years prior to the index offending and had a child together. At the time of the index offence the child was not in their care. 
13	The events leading to and surrounding the offence are described in detail in Lasry J’s reasons dated 4 April 2012. It is unnecessary to repeat them. It involved multiple stab wounds to the throat, neck and chest. At the time of the event SJ was psychotic.
Expert reports 
14	Reports by forensic psychiatrists Dr Kevin Ong on 3 June 2011; Dr Kelly McKenna-Kerr and Dr Danny Sullivan on 28 July 2011; and Dr Nina Zimmerman, forensic psychiatrist, on 23 March 2012 found that SJ:
(a)	had a fixed delusional belief that she was being made unconscious at night by euthanasia injections and had paranoid delusions about her case management team trying to poison her, as well as beliefs that the victim was rendering her unconscious or murdering her;
(b)	could not reason with a moderate degree of sense and composure about the wrongfulness of her actions; and 
(c)	had a significant risk of relapse and treatment required to adequately manage her psychotic symptoms.
Contemporary evidence
15	The Court has received the following reports for the purposes of this application:
(a)	report and leave plan of Dr James Belshaw dated 10 August 2023, in satisfaction of s 40(4) of the Act; and
(b)	report of Donna Melia dated 9 August 2023. 
Dr Belshaw’s report
16	Dr Belshaw is SJ’s treating psychiatrist and is employed by Forensicare, working within the Community Treatment and Transition (‘CTT’) team. 
17	Dr Belshaw summarises SJ’s progress over the preceding 12 months as follows:
(a)	SJ’s mental state has remained stable. Her attendance at appointments has been excellent and she has been candid and well engaged with her treating team. SJ still presents with chronic delusions of being murdered each night, and persisting auditory hallucinations. SJ’s auditory hallucinations reduced in frequency during the early months of her extended leave, coinciding with her settling into a routine at her new supported independent living (‘SIL’) accommodation in the community, and leaving TEH (an environment which Dr Belshaw described as traumatising for SJ). 
(b)	There have been no issues with substance use over the preceding 12 months. Earlier this year a number of factors led to a clinical decision being made to cease requesting urine samples from SJ. These factors included SJ’s increasing frailty, history of urinary incontinence, and an unsuccessful attempt by SJ to provide a urine sample in February 2023 (causing stress). Dr Belshaw notes that SJ is considered a very low risk of substance use, but that any observations made by SIL staff in future with respect to risk of, or actual, substance use can be reported to SJ’s treating team. 
(c)	A significant oversight with respect to SJ’s medication administration occurred in November 2022. SJ’s local pharmacy failed to supply her with her primary antipsychotic medication (clozapine) for 4-5 days, which would ordinarily be considered a psychiatric emergency necessitating admission to a mental health inpatient unit to recommence clozapine gradually over a number of months. Despite psychoeducation having been provided to both SJ and SIL staff on earlier occasions, neither actioned SJ’s crisis management plan or contacted the CTT team to report the incident. SJ later said that she did not appreciate the seriousness of failing to take her medication, which was not challenged by the SIL staff who advised her to wait to inform Dr Belshaw of the incident at her next scheduled review. Fortunately, SJ did not experience any significant mental state deterioration as a result of the incident, and the CTT team were able to support her recommencement on clozapine in a community setting, avoiding the need for a readmission to TEH and the negative impact it would likely have had on SJ’s recovery. 
(d)	In June 2023, SJ’s clozapine dosage was reduced following a steady increase in her clozapine serum levels to a potentially toxic degree. It was hypothesised that this increase may be due to a decrease in SJ’s smoking, or her advancing age, noting that both have the propensity to impact on how clozapine is processed in the body. Positively, there was no change to SJ’s mental state as a result of the reduction. The CTT team intend to further reduce SJ’s clozapine dosage until her blood serum levels are in a safer range. 
(e)	SJ continues to see a general practitioner (‘GP’) for her physical health issues, which includes motoric deficits arising from her cerebral palsy diagnosis. Dr Belshaw notes SJ has suffered two significant falls over the last 12 months while residing at the SIL. This has caused SJ anxiety and, in combination with issues around weight gain, led to SJ using a wheelchair almost exclusively (rather than her walking frame). The CTT team consider SJ’s current GP, NDIS occupational therapy and physiotherapy supports to be insufficient to address her physical health and mobility needs, and are presently advocating for additional funding to more optimally monitor and manage these areas. 
(f)	Due to the incident with SJ’s medication, and her subsequent fall, an emergency meeting was held between Forensicare, NDIS and the SIL facility in November 2022. The purpose of this meeting was to emphasise the seriousness of both incidents and ensure that SJ’s support providers care were properly aware of her mental health condition and treatment needs. Dr Belshaw reports that there have been no further issues with medication compliance, and that there has since been a significant improvement in the level of communication between the SIL staff, SJ’s current pharmacist and Forensicare. SJ’s medication is now managed by a more experienced community pharmacist and SJ reports taking extra care of herself following the mishap to avoid future incidents occurring. 
(g)	SJ’s weekly routine is limited with respect to rehabilitative, vocational, familial and social activities which might ordinarily be viewed as positive protective factors in a forensic patient’s rehabilitative pathway. However, Dr Belshaw notes — with reference to SJ’s neurodivergent presentation — that SJ does not appear to benefit from these type of activities, and in fact can find them both distressing and confusing, especially if mandated. Dr Belshaw notes that SJ is content with her current routine, and he does not recommend that she engage in any additional activities. 
18	Based on a risk assessment conducted using the Historical Clinical Risk Management‑20 (HCR-20) tool, Dr Belshaw assessed SJ as a low risk of committing future violence, subject to ongoing compliance with clozapine, continued support from appropriate mental health services, and efficient coordination of care between all services involved in SJ’s care. 
19	Dr Belshaw concludes his report by stating: 
… the preceding 12 months of Extended Leave should be viewed as a partial success. The initial setback with medication compliance led to the development of more robust plans to reduce the likelihood of any future recurrence of such an issue, and provided a level of assurance that [SJ] would not immediately become psychotic or violent in the event clozapine was omitted again. …[SJ’s] mental health needs [and] risks are being sufficiently mediated by the current level of CTT input. 
In my opinion [SJ’s] mental health needs [and] risks are being sufficiently mediated by the current level of CTT input, which has been reduced to its lowest possible level (fortnightly reviews) with input from two different junior doctors, for the preceding eight months. This is a positive indication that a local AMHS will once again be able to assume the role of her primary treating team; which would occur in future in the event [SJ] is successful in applying for a variation of the CSO to a Non-Custodial Supervision Order (NCSO). 
The CTT team’s current concerns are related more to her physical health and general wellbeing. In approximately the next six months the CTT team therefore intends to adjust her clozapine medication to safer and more sustainable doses and engage her with a specialist physical health team. Once these goals are achieved, and provided there are no further adverse incidents, changes to her clinical presentation or increase in her risks; it is likely that the CTT team would support [SJ] to apply for variation of the CSO to an NCSO.
20	Dr Belshaw supports SJ’s application for further extended leave and proposes that the following conditions be imposed if further extended leave is granted:
1. 	That [SJ] be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate. 
2. 	That [SJ] resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate. 
3. 	That [SJ] abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate. 
4. 	That [SJ] complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate. 
5. 	That [SJ] abstains from the abuse of alcohol and use of illicit drugs. 
6. 	That [SJ] not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH.
Ms Melia’s report
21	Ms Melia is a senior mental health nurse employed at Forensicare. Ms Melia is SJ’s case manager on the CTT team. 
22	Ms Melia’s report outlines similar matters in respect of SJ’s progress on extended leave as is contained in Dr Belshaw’s report. However, Ms Melia provides some further relevant detail in relation to SJ’s supports and progress on extended leave as follows:
(a)	SJ has progressed well at her SIL accommodation, which is NDIS funded and is a facility that is specifically designed for persons with physical disabilities. She has established a meaningful routine, has cordial relationships with other residents, and enjoys the freedom and autonomy her accommodation offers her. Ms Melia notes that SJ can be rigid and inflexible in relation to her routine, and that changes to routine can lead to frustration and anxiety. 
(b)	SJ’s NDIS funding provides her with access to a psychologist, physiotherapist, occupational therapist and support workers who assist her with transport, shopping and socialisation needs. 
(c)	SJ reported two falls at her accommodation over the preceding 12 months. The first in her courtyard, where staff were unable to lift her and SJ reported being left on the ground in the rain for up to two hours before additional help arrived, and one from her bed. Notably, SIL staff did not schedule a GP review for SJ following her fall in the courtyard, and it was the CTT team who arranged over the counter pain relief for SJ. Fall mats were placed beside SJ’s bed as a result of her second fall and she was provided with a personal alarm to utilise in future, if the need arises. 
(d)	SJ’s cerebral palsy affects the use of her lower limbs. SJ has historically used a walking aid to assist with her mobility, but ceased this practice a number of months after moving to the SIL facility and now uses a wheelchair instead of a walker. This has contributed to decreased mobility, which is compounded by issues of weight gain in the context of longstanding unhealthy eating patterns. 
(e)	SJ has limited phone contact and visits with her mother and daughter, she derives most of her support from her NDIS support workers and the SIL staff. 
(f)	A crisis plan and relapse prevention plan were developed before SJ was granted extended leave in 2022, which details her diagnosis, medication, key contacts, crisis numbers and early warning signs of relapse. These plans will be updated and distributed when required if SJ is granted a further period of extended leave. 
(g)	If further extended leave is granted, the CTT team will review SJ fortnightly via alternating case management sessions and psychiatric reviews. These reviews will include home visits to SJ’s accommodation, and can be increased at any time if deemed clinically necessary. It is anticipated that SJ will also continue to have access to supports through her GP, pharmacist, SIL staff and NDIS plan, and the CTT team will maintain regular contact with these (and other relevant) services insofar as they continue to be involved in SJ’s care. 
23	Ms Melia supports SJ’s application for a grant of further extended leave. 
Conclusion
24	I am satisfied that there should be a grant of further extended leave. I note that all parties support that course. Importantly, SJ’s treating team supports her application. I am satisfied that SJ’s treating team is well placed to assess her current mental state, risk factors and how they might be managed.
25	Although there was an episode of noncompliance with medication, this arose through no fault of SJ and warning signs were not picked up by her support workers. That issue has now been addressed. I am satisfied that appropriate steps have been taken, including training, to ensure that staff are vigilant to the warning signs of noncompliance and that such events will be better managed in the future. This episode does not cause me to doubt the suitability of a further grant of leave. To refuse leave would not be conducive to the care of SJ and would not be appropriate. A return to custody would undermine the progress that has occurred and may lead to a deterioration in her health that would increase rather than decrease the risk of harm to SJ herself or to members of the community.
26	I am satisfied that SJ and members of the public will not be seriously endangered as a result of SJ being granted further extended leave. I am satisfied that her mental health can continue to be safely managed in the community. There are both sufficient supports and adequate insight on the part of SJ, developed through participation in psychotherapeutic programs and treatment, to satisfy me that members of the public will not be seriously endangered.
27	The order made under s 75 of the Act that precludes publication of details identifying SJ should continue in place because I am satisfied that publication would not be conducive to her mental health and would undermine her therapeutic care.
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