IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
 Suitable for Publication	

IN THE MATTER of a major review of the
Non-Custodial Supervision Order pursuant to
s.35 of the Crimes (Mental Impairment and
Fitness to be Tried) Act 1997

and

IN THE MATTER of SM

BETWEEN

SECRETARY TO THE DEPARTMENT OF HEALTH & HUMAN SERVICES	Applicant	
		
V		
		
SM	Reviewee	

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JUDGE:	HIS HONOUR JUDGE TAFT 	
WHERE HELD:	Melbourne	
DATES OF HEARING:	19 December 2019, 11 March 2020	
DATE OF REASONS FOR JUDGMENT:
	6 April 2020	
CASE MAY BE CITED AS:	Secretary to the Department of Health & Human Services v SM	
MEDIUM NEUTRAL CITATION:	[2020] VCC 378 		

REASONS FOR JUDGMENT

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Subject:		
Catchwords: 	Non-Custodial Supervision Order (NCSO) – reviewee is 42 year old female – complex mental health and behavioural needs – low level index offending 
Legislation Cited:	Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:		
Judgment:		NCSO confirmed

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APPEARANCES:
	Counsel	Solicitors	
For the Secretary of the DHHS
	Ms M Wilson		
For the Attorney-General

For the DPP (11 March 2020)

For the Reviewee 
	Ms J Gibbs 
(19 December 2019)
Mr K Grinberg
(11 March 2020)

Ms L Wilkinson

Mr T Marsh		

HIS HONOUR:
1	On 11 March 2020 this Court conducted a major review of a Non-Custodial Supervision Order (NCSO) attaching to SM, confirmed the Order and ordered that a further major review be commenced within 12 months.  
2	Pursuant to s.75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act) the Court made a suppression order preventing publication of any information that might enable SM to be identified. That order extends until the conclusion of the next major review. 
3	I now publish brief reasons for that decision. The reasons should be read in conjunction with my Reasons for Sentence of SM dated 12 February 2018, which are appended to this judgment, and with the Report of the Victorian Ombudsman ‘Investigation into the imprisonment of a woman found unfit to stand trial’ released on 16 October 2018. 
4	Given that the circumstances of SM are fully described in those other documents I do not propose to canvass them in any detail. 
5	As I have previously noted it is intolerable that SM, who has been variously diagnosed as suffering from a lifelong autism spectrum disorder or a  pervasive developmental disorder with borderline intellectual function, should have spent 1 year, 6 months and 16 days on remand in prison for having resisted police who were attempting to enforce an intervention order taken out by her parents. 

Evidence adduced in the Major Review
6	This Court was assisted by a number of reports which included:
•	Report pursuant to s 41(3) of the Act authored by Michelle Tartaggia, Acting Senior Advisor, Complex Clients DHHS, dated 24 February 2020;
•	Approved NDIS plan for SM dated 3 November 2019;
•	Reports dated 16 December 2019 and 21 February 2020, authored by Dr Charu Gandhi, consultant psychiatrist, Clinical Director Specialty Services -Mental Health, Austin Health, augmented by oral evidence from Dr Gandhi on 11 March 2020;
•	Report from Joan Ryan, occupational therapist dated 25 November 2019;
•	Treatment Order dated 12 August 2019, made pursuant to s 55 of the Mental Health Act 2014.
7	After many difficulties in finding suitable accommodation and treatment, in 2019 SM was admitted to the Brain Disorders Unit (BDU) at the Royal Talbot Rehabilitation Centre.  She is housed in the Heath Unit which is a secure ward, authorised to provide compulsory psychiatric treatment under the Mental Health Act. It is a rehabilitation ward for patients with severe cognitive and psychiatric disability where the focus of the treatment is on managing complex cognitive and behavioural issues.
8	SM is currently subject to an Inpatient Treatment Order under the Mental Health Act that will expire in May 2020 and a guardianship order. 
9	Dr Gandhi reported that SM’s mental state and behaviour have remained largely settled with infrequent episodes of aggression that have been quickly resolved. In late 2019 SM absconded while on leave with a single carer and took a bus to her parents’ house. Police easily brought her back to the BDU. The notable exception was an incident on Christmas evening when SM unexpectedly attacked and attempted to choke a nurse who was attending to her care. The incident occurred in circumstances where SM had made telephone contact with her father on 23 December 2019 and had been preoccupied with ideas of returning to her parents’ home. In marked contrast to the past, there have been no incidents of property damage. 
10	Dr Gandhi reported that SM is currently on a depot medication of the antipsychotic medication paliperidone. She is usually pleasant and calm. She continues to be focused on a range of limited topics, including a desire to get married and have children, her desire to be discharged home with her father and her interest in clothes and perfume.  There was no evidence of delusional thought content or thoughts of self-harm. She did not report any perceptual disturbance and does not appear to be responding to external stimuli. Dr Gandhi notes that her ‘insight appears to be very limited and her judgement is chronically impaired.’
11	SM is regularly reviewed by the ward neuropsychologist and her occupational therapist who have developed a comprehensive behavioural support plan for her. She has leave for community access with carers 2-3 times a week and is looking at starting swimming.  SM also undertakes an exercise program with her carers. She is engaged in supervised cooking one day a week with staff and appears to enjoy the activity. Dr Gandhi observes that consistency of the carer support program and predictability of planned outings are important for her and sudden changes in routine activities or new carers can pose a risk of behavioural disturbance. 
12	SM’s treating team felt it was important to facilitate SM’s wish to be in contact with her parents and a cautious but supportive approach has been pursued. In October 2019 the first planned phone contact with her father went well. Contact resumed in February 2020 after a pause that arose from the incidents that occurred in December 2019.  There have been difficulties in making on-going contact with SM’s father and the ward neuropsychologist is now liaising with SM’s parents’ case coordinator to facilitate regular phone contact. 
13	At a clinical review conducted on 6 December 2019 all stakeholders and SM agreed on a plan which provided for a slow transition to ‘Step 2’ which is a more independent style hospital unit that mimics the living arrangement of  Specialist Disability Accommodation. Step 2 is not a closed unit and SM is supported with one-to-one carer support during the day and a single carer supporting her and the other current resident overnight.  Dr Gandhi emphasised that the planned transition would be very slow and supported by familiar carers/support workers over a 3-6 month period. Initially SM would have overnight stays with the support of her carers and there would be the potential for slowing down or delaying the transition process if there were concerns about an escalation of difficult behaviours. 
14	It was anticipated that when SM moved into Step 2 her care team would seek a hearing before the Mental Health Tribunal to enable her to be made subject to a Community Treatment Order.

Submissions
15	Counsel for DHHS and the Attorney submitted that the NCSO should be confirmed. Mr Marsh, for SM, foreshadowed an application for revocation of the NCSO but after cross-examination of Dr Gandhi conceded that there were countervailing considerations that justified the confirmation of the NCSO at this stage.
16	When foreshadowing an ultimate submission for revocation of the NCSO, Mr Marsh contended that the legal scaffolding supporting SM was provided by the Involuntary Treatment Order under the Mental Health Act and that her interests were well protected by the appointment and active involvement of the public guardian. In those circumstances the NCSO was effectively redundant.
17	In responding to questions asked by Mr Marsh, Dr Gandhi expressed the opinion that at this stage SM’s treatment was facilitated by a combination of the Mental Health Act and the resources triggered by the presence of the NCSO. 
18	While addressing the statutory framework imposed by the Act, Mr Marsh emphasised the low objective gravity of the index offending that brought SM into the criminal justice system. In my view that observation is apt.
19	In my view in the case of SM the ultimate interplay between the Mental Health Act and the CMIA remains uncertain. It may well be the case that if SM transitions successfully into community supported services that are largely funded through the NDIS, there will be no justification for retaining the NCSO. However this Court cannot predict what orders, if any, the Mental Health Tribunal will make in respect of SM. Nor can this Court predict how successful SM’s transition into a less supervised framework in long term accommodation will be and whether her volatile impulsivity will be managed in that setting. Currently the level of SM’s risk to herself and others is low. That result is the consequence of the preparedness of the Brain Disorders Unit to accept SM and the enlightened approach adopted by her entire care team. To some extent that fortuitous outcome is also a product of the publicity attaching to SM and the supervisory framework imposed by this Court. 
20	Mr Marsh addressed the factors specified by s.40 of the Act that are required to be taken into account. It is unnecessary to recite those considerations which were addressed by all counsel and the subject of discussion.
21	However there is one final observation that I must make. Mr Marsh decried the continued necessity for the court system to case manage disability clients in order for them to receive the services that allow them to live humane, dignified lives in the community.  I entirely endorse those remarks.