MENTAL HEALTH — forensic patient — extension of status as forensic patient — preliminary hearing — whether unacceptable risk of causing serious harm to others — demonstrated risk of violence and sexual violence offending which may be increased by schizophrenia — history of reoffending upon release absent appropriate support systems — whether risk can be adequately managed by less restrictive means — no less restrictive means given ongoing treatment needs, past non-compliance, little time spent in the community, lack of motivation and insights and risk posed — interim extension of status as forensic patient ordered
Quick Take
1Under s 122 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the court must be satisfied to a high degree of probability both that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and that the risk cannot be adequately managed by less restrictive means; a demonstrated history of rapid deterioration and reoffending upon release without appropriate community support systems, combined with chronic mental illness, intellectual disability, substance use disorder and poor treatment compliance, can satisfy both limbs even where the index offence is not the most serious of its type.
2Where expert evidence establishes that a forensic patient's dynamic risk factors would increase absent assertive treatment and stable accommodation, and no structured community management regime has been put in place despite judicial encouragement to do so, the absence of viable less restrictive alternatives at the time of the hearing supports the making of an interim extension order.
3A risk assessment conducted by document review rather than personal interview carries acknowledged limitations, but may still be relied upon at a preliminary hearing where it is consistent with other expert assessments and the broader evidentiary record.
