Supreme Court New South Wales Medium Neutral Citation: Attorney General for New South Wales v McGregor by his tutor Katherine Johnson (Final) [2023] NSWSC 1493 Hearing dates: 23 November 2023 Date of orders: 4 December 2023 Decision date: 04 December 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under s 127(1)(b) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the application for an extension order is dismissed. (2) Declare that the interim extension order pronounced on 24 August 2023 remains in force by dint of the provisions of s 131of the said Act until it expires at the end of the period specified in the order. (3) The Registrar is to send a copy of this judgment to the Registrar of the Mental Health Review Tribunal. Catchwords: MENTAL HEALTH — application for extension as forensic patient — whether unacceptable risk — whether cannot be adequately managed by less restrictive means — defendant has treatment resistant paranoid schizophrenia, neurocognitive impairment and profound neurosensory deafness — expert evidence establishes that a less restrictive means of treatment is available through a community treatment order — experts concurred that the threshold question was marginal in this case — not satisfied to the requisite high degree of probability that the s 122 condition is satisfied Legislation Cited: Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 72, 123, 126-128, 131 Cases Cited: Attorney General for New South Wales v McGregor (Preliminary) [2021] NSWSC 638 Attorney General for New South Wales v McGregor (Final) [2021] NSWSC 1085 Attorney General for New South Wales v McGregor (Preliminary) [2023] NSWSC 1029 Category: Principal judgment Parties: Attorney General for New South Wales (Plaintiff) Christopher McGregor by his tutor Dr Katherine Johnson (Defendant) Representation: Counsel: A Rose (Plaintiff) C Goodhand (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Ryan Payten Le (Defendant) File Number(s): 2023/179018 Judgment 1. This judgment deals with the Attorney General's application under Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for an extension order against Mr McGregor under ss 123 and 127 for a period of two years. All references to legislation in this judgment are references to the Act, unless otherwise specified. 2. Mr McGregor is a forensic patient within the meaning of s 72(1)(b). Relevantly he was charged with a violent crime of recklessly causing grievous bodily harm which occurred on 12 June 2018. He was found not fit to plead and after a special hearing before his Honour Judge Craige QC, the factual component of the offence was found to be proved on the limited evidence then available and his Honour imposed a limiting term of three years duration. He was released under a conditional release order by the Mental Health Review Tribunal ("MHRT"). As the expiration of his limiting term approached Beech-Jones J (as his Honour then was) made an interim extension order under s 130 ([2021] NSWSC 638), after the preliminary hearing required under s 126(4). After the final hearing, I made an extension order under s 127 of 2 years duration expiring on 9 September 2023. 3. By summons filed on 2 June 2023, the Attorney General sought a further extension order (s 128(2)) initially for a duration of one year but by an amended summons filed in court, the duration of the order sought was increased to two years having regard to the opinion of Dr Katy Seidler, clinical and forensic psychologist, one of the experts appointed by the Court under s 126(5) (Report dated 3 October 2023; Exhibit JWF [18]). I conducted the preliminary hearing for this new application under s 126(4) on 24 August 2023 ([2023] NSWSC 1029). I made an interim extension order which expires on 8 December 2023. 4. Only infrequently will a judge of this Court have the opportunity to progressively consider the evidence in relation to a person subject to an extension order over a number of years, but I have had that opportunity in relation to Mr McGregor. In my preliminary judgment (at [18]), I recorded that the evidence then led satisfied me that the regime established by the conditional release order made by the MHRT had been very effective in managing Mr McGregor's risk and greatly improving his quality of life. I also said that "overall his progress, so far as I can see at this preliminary hearing, has been positive". I noted a number of specific concerns, which I will now refer to, not in any order of particular importance. First, a large part of Mr McGregor's effective supervision and management in the community has been provided by his participation in the National Disability Insurance Scheme ("NDIS"). At the preliminary hearing, I was concerned that Mr McGregor was due for reappraisal, and I was uncertain whether the same level of support would continue ([19]). There had been some concerning incidents involving Mr McGregor reacting angrily to NDIS support workers when frustrated. The last incident of this type occurred on 21 September 2022. Mr McGregor's disabilities derive from comorbidities of the serious psychiatric condition of a somewhat treatment resistant paranoid schizophrenia, a congenital neurocognitive impairment, epilepsy and, not the least, his profound neurosensory deafness, also since birth. This combination of factors, particularly the last, makes communication extremely difficult. He requires the assistance of both an AUSLAN interpreter and a relay interpreter to communicate effectively. The interpreters are funded by NDIS. 5. Secondly, there had been some financial irresponsibility including an interest in playing the poker machines, notwithstanding a financial management guardianship order made by the New South Wales Civil and Administrative Tribunal (at [20]). Thirdly, there were a number of missed appointments with his treating psychiatrist, Dr Nadir Hafiz of the Liverpool Community Mental Health Team, during 2022. This issue seems to have resolved due the support and intervention of his clinical care coordinator, Ms Nadia Kolakovic. 6. Fifthly, there is concern about the combination of Mr McGregor's medication expressed by Dr Andrew Ellis, forensic psychiatrist, who prepared the statutory risk assessment report (s 125(b)) and gave oral testimony concurrently with the court appointed experts before me. After an increase in the dosage of his psychotic medication prescription, it took some time before support workers adjusted by amending the instructions on his Webster-pak. Perhaps more significantly, Dr Ellis had some concern about the current combination of medications Mr McGregor is receiving. He receives Aripiprazole and Olanzapine in combination with an anti-epileptic due to his propensity to seizures, and other medications. Dr Ellis expressed concern that these anti-psychotics were less effective in combination and suggested a review by the psychopharmacology resource network between the New South Wales Forensic Services and the California Department of State Hospitals (at [22]). This has not occurred. 7. Finally, Dr Ellis was quite clear that the less restrictive regime available under the Mental Health Act 2007 (NSW) including a community treatment order ("CTO") and the personal or financial management measures of a guardianship order would not be as effective as an extension order in managing Mr McGregor's risk. However, Dr Ellis also expressed the view that an extension order was necessary only "for the relatively short period of one year in order to clarify the outstanding issues to which I have referred" (at [27]). I was satisfied that the matters alleged in the Attorney-General's supporting document would, if proved, justify the making of an extension order. Overview 1. The evidence led at the final hearing has assuaged my concern about most of these issues and for the reasons I will give, I am not satisfied to the statutory high degree of probability that the risk that Mr McGregor poses of causing serious harm to others, if he ceases to be a forensic patient cannot be adequately managed by other less restrictive means. I am, of course, referring to the provisions of s 122, which constitute a mandatory precondition to the making of an extension order. Indeed, there is a double emphasis. Mr McGregor can be made the subject of an extension order if and only if s 122 is satisfied. The intense emphasis provided by the expression if and only if underpins s 122's essential or mandatory nature. As this precondition has not been established to my satisfaction to the requisite high degree of probability, I am bound to dismiss the application without consideration of the mandatory s 127 considerations and I will make that order. Previous orders 1. To put my decision in context, I think it worth setting out in full the terms of s 122, my central reasoning from 2021 for concluding that s 122 had been engaged and why I am of the view that circumstances have changed materially such that I am not satisfied to the requisite high degree of probability that the s 122(1)(b) limb (the second limb) has been established. Section 122 is in the following terms: "(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court 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. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others." 1. My conclusions as to s 122 in 2021 were expressed as follows ([2021] NSWSC 1085, at [44]-[46)]: "I am satisfied to a high degree of probability that Mr McGregor poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. It is clear from his history and from the opinions of the experts to which I have referred that the risk of serious, violent physical harm to others is closely related to the nature of his mental illness, neurocognitive deficits and deafness. I am satisfied to that high degree that if he were left to his own devices to support himself in the community, the co-morbidities affecting him could once again descend into homelessness, non-compliance with treatment and substance abuse. As the circumstances of the index offending demonstrate, minor negative social interactions can quickly escalate, not the least because of Mr McGregor's complete inability to communicate with others for the purpose of defusing the situation. His lack of insight means that in those circumstances his awareness of the possible harmful consequences of his actions are unlikely to operate as any effective brake upon a sudden violent impulse. I am also satisfied to the high degree of probability that the risk cannot be adequately managed by other less restrictive means. I am left with the overwhelming impression, from virtually the whole of the expert evidence in the case, that even the combination of a Guardianship Order and a CTO [Community Treatment Order] of themselves would be insufficient to manage the risk. Mr McGregor has been previously been subject to a CTO, before the index offending and, as it were, seemed to fall "off the radar". The evidence does not establish that, absent the Conditional Release Order as a forensic patient, the whole suite of conditions to which he is subject and by which he appears to be managing so well in the community in a supervised way can be replicated by other less restrictive means. Given my finding in relation to s 122, it's necessary to consider whether, in the exercise of my discretion, I should make an extension order or dismiss the application. Given my findings as to the s 122 conditions and my analysis of the matters relevant to my determination, I am satisfied that an extension order should be made." 1. What has materially changed is that I am not satisfied that Mr McGregor's risk cannot be adequately managed by other less restrictive means. Indeed, were it necessary to say so, which it is not, I am now satisfied, at least on the balance of probabilities, that Mr McGregor's risk can be managed by the combination of a guardianship order, financial management order and a CTO. In expressing this conclusion, it is also important to emphasise the significance of the high level of support Mr McGregor receives under the NDIS. 2. I will now go on to examine the evidence commencing with the expert evidence dealing firstly with the assessment of the risk made by each expert and secondly, with the oral testimony they gave concurrently. I will then deal with other evidence including the evidence of Mr McGregor's case worker, Nadia Kolakovic (affidavits affirmed 26 July 2023 and 31 October 2023), and his NDIS coordinator, Mr Clayton Ray (affidavit dated 27 October 2023). I will also make reference to the recent review of Mr McGregor's case made by Dr Sunny Wade, Forensic Psychiatrist, and Dr Gabrielle Gibson, Forensic Psychologist, on behalf of the NSW Community Forensic Mental Health Service ("CFMHS") (Report 7 November 2023; Annexure A to affidavit of Irene De Raya affirmed 20 November 2023). Dr Ellis's assessment of risk 1. Dr Ellis authored two reports. The first dated 27 February 2023 and the second dated 5 April 2023. They are dealt with at [22]-[28] of the preliminary judgment. I will not repeat the matters that I dealt with there. As expressed in his first report, and confirmed in his second, Dr Ellis assessed Mr McGregor's risk in the following terms (pp 13-14): "… in the absence of any treatment or supervision, Mr McGregor will fall into a group of persons with a risk of offending and serious harm that is high, and greater than a theoretical average offender or psychiatric patient. He would currently present with a risk profile equivalent to many general psychiatric patients managed in the community and his current treatment and supports significantly moderate his underlying risk making [it] now low. There would be clinical grounds to continue intervention to manage this risk as it would likely fluctuate quickly without his current living circumstances and support". Dr Ellis was of the view that the less restrictive regime available under the Mental Health Act would not be as effective as the current regime as a forensic patient under an extension order. However, Dr Ellis emphasised that he regarded the need for an extension order as being in the relatively short term. He suggested a duration of six to twelve months to further stabilise Mr McGregor's circumstances. Dr Seidler 1. In her report dated 3 October 2023, Dr Seidler relying upon her clinical judgment and the results of the risk assessment tools she applied, concluded that Mr McGregor's future risk of violent offending was in the moderate range. However, she expressed a view that if his current protective and stabilising factors were removed, the risk would increase. She concluded that Mr McGregor would pose a risk of causing serious harm to others if he ceased to be a forensic patient. Given the treatment resistant nature of Mr McGregor's schizophrenia, which continues to produce positive symptoms, she was not in favour of a less restrictive regime, but preferred that his status as a forensic patient be continued for a period of "up to two years" (pp 35-37). Dr Eagle 1. Dr Kerri Eagle, forensic psychiatrist, is the second court appointed expert. In her report of 2 October 2023, Dr Eagle, utilising her clinical judgment and the HCR-20V3, felt unable to give a clear answer to the question whether Mr McGregor poses a risk of causing serious harm to others if he ceased to be a forensic patient. She regarded the question as more complex (p 20), and not susceptible to "a dichotomous (yes or no) answer". She did say that the forensic order would provide more oversight and greater restrictions than other legislative schemes available. But she questioned whether a forensic order is necessary. She acknowledged that the historical factors reflected "a higher relative base line level of risk" compared to others which may crystalise if Mr McGregor lost access to his current supports. But she regarded his dynamic risk factors as having been effectively controlled or mitigated "by the implementation of a comprehensive support network, stable accommodation and access to regular mental health monitoring and treatment". He did not necessarily require a forensic order for the maintenance of these supports. 2. Dr Eagle did not regard the "recall powers" of the MHRT as, in a practical sense, resulting in a more rapid recall to hospital when necessary. The MHRT, in her experience, predominantly relies on the mental health treating team and other support networks to inform and advise if an individual requires an apprehension order, at least in the absence of reoffence. A forensic order does not determine what treatment Mr McGregor would receive under the care of a treating psychiatrist. NSW Health Policy (PD 201-050) for forensic mental health services requires all forensic patients to have a treating psychiatrist and care coordinator. However, a CTO similarly requires identification of a treating psychiatrist and care coordinator. Reference could be made to CFMHS for assessment regardless of whether Mr McGregor was a forensic patient or a high-risk civil patient. 3. In an interesting take on risk assessment, Dr Eagle acknowledged Mr McGregor would be at risk of relapse and causing harm if his currently available supports were withdrawn. In a practical sense, she regarded the risk of this occurring over the next 12 months to be low, particularly if Mr McGregor had a 12 month CTO in place under his current treating team and continued funding for his NDIS package at more or less the same level. If these supports were in place, the continuation of the extension order for 12 months would add little to Mr McGregor's risk management. Dr Eagle considered the real chance of risk materialisation would be in the longer term, if after an extended period of stability on, and compliance with, a CTO, the treating team decided to allow the CTO to lapse. In that event, the risk of him descending once again into worse symptoms and homelessness would escalate the risk of harm to himself and others. This prospect however it is to be rated could not be mitigated by an order of the duration sought by the Attorney General. 4. Dr Eagle was of the view that Mr McGregor would meet the criteria for a CTO and acknowledged that his treating team have indicated they would apply for a CTO in the absence of forensic order. In Dr Eagle's opinion, Mr McGregor should remain on a CTO "over the longer term" given his historical level of risk. Mr McGregor is under a guardianship order which should continue as it ensures Mr McGregor can access appropriate supports, including supported accommodation and NDIS funding even were he minded to decline those supports, which he is not. A financial management order as in place currently, ensures that Mr McGregor meets his financial obligations and likewise should continue. Dr Eagle regarded the NDIS funding as "a significant mitigating factor" not only for Mr McGregor's risk of aggression, but also providing him with stable supported accommodation, daily psychosocial supports, facilitated better communication and engagement through deaf support workers and fostered recreational pursuits. 5. Dr Eagle did not regard Mr McGregor as suitable for management as a voluntary patient. The concurrent evidence of the expert witnesses 1. Dr Ellis is the Director Superintendent of the Forensic Hospital, Malabar, Dr Eagle is the Clinical Director of the CFMHS and Dr Seidler is an Honorary Research Fellow at the Australian Graduate School of Policing and Security at Charles Sturt University. Clearly, each of the experts is highly qualified and of standing in their profession. 2. Each of the experts referred to the s 122 question as the "threshold question", just as it is legally (27.17T). Dr Seidler expressed the view that it was not the forensic order which "in and of itself" mitigates the risk. She regarded mitigation as involving consistency in the provision of relevant community support systems, abstinence from substance abuse and the stability of Mr McGregor's mental health. The question of whether those factors could be maintained in the absence of a forensic order "is a question for the Court" (27.40T). 3. Dr Ellis agreed (28.11T) but added "the legal orders can marshal and coordinate those services" (28.15T). This was the function of the forensic order. Coordination of those essential factors was Dr Ellis's main concern when he saw Mr McGregor earlier in 2023 (28.30T). Dr Ellis said, "[it is] a threshold point, whether determination about whether [Mr McGregor's management] should be under the forensic order or under other orders". In the absence of any order "whatsoever" Mr McGregor's risk becomes much more substantial (29.5T). It was his view that the forensic order "will end at some point" (30.5T). Dr Ellis also said, having considered the more recent evidence (31.8T): "[Mr McGregor's situation] certainly improved from when I saw him. I think that my certainty about the requirement for the forensic continuation is reduced, because there has been now attention turned to planning for community treatment orders, and there does appear to be better communication between disability and mental health, and it does appear to be … a better clinical understanding of his case by his treating team. … It does now line more marginally than when I saw him … the first time. But my evidence would be that there is still an improvement in co-ordination of services with the forensic order, and over the other orders, [than] it being managed by clinical services alone." 1. Dr Eagle agreed that the things that are reducing or managing Mr McGregor's risks are his supports and the consistency of those supports, his mental health treatment and his abstinence from substances. She said, "[w]hatever keeps those things in place will be the most effective way of managing Mr McGregor's risk". She also regarded it as "a threshold question" as to whether "a forensic order is necessary to keep those supports in place" (31.50T). But she had a different perspective to Dr Ellis. 2. Dr Seidler also regarded Mr McGregor's case as "a marginal case" (39.26T). She agreed with Dr Ellis's view given the "growing transition" and "increasing coordination" there would be a benefit in "a further short period of an [extension order] to ensure that is stable and in place and adequate". 3. Dr Ellis considered there was merit in a short-term order to allow a transition in an orderly fashion into a CTO guardianship and financial management regime. He said, "[t]hat's the overall position I've been putting forward" (57.48T). He acknowledged there was a risk that at the conclusion of a short-term order, a further application may be made requiring all issues to be reassessed in the very near future. Dr Seidler was of the same view (58.20T). Dr Eagle, however, was not. She said (58.26T ff): "WITNESS EAGLE: Sorry I'm going to make it difficult, because I don't actually agree. I've looked after forensic patients and I've looked after patients under CTOs, and I'm not really sure what would happen under a transition that wasn't already happening now. I mean, this has been flagged for six months. The community mental health team has identified that they will need to put a CTO in place in the next few weeks if the order doesn't continue. In a practical sense they're still going to see him as often as he's being seen, they're still going to liaise with the stakeholders, they're still going ‑ NDIS remains in place. It's not like he's coming out of an inpatient setting into a community setting. So I'm not really sure what transition is required, to be honest, and that's ‑ from a practical perspective I don't see that it adds anything, extending the order further on that particular issue. HIS HONOUR: I suppose what I had in mind was that rather than the guillotine falling on 8 December and people having to run around and put in place a new regime with a degree of urgency, I was just wondering whether there was some merit in, say, giving them a bit more time to do it. WITNESS EAGLE: Yes, and, your Honour, I think that's reasonable. But I think they've had that time. And I've seen people come out of hospital within a moment and a CTO in place within a week. So I think it's very straightforward for them to put a CTO in place and it will reflect his current management. But, I mean, a couple of extra weeks would certainly probably help the treating team. HIS HONOUR: Well, I don't know if I'd bother for a couple of extra weeks over Christmas. I was thinking of a couple of extra months perhaps. WITNESS EAGLE: Certainly, your Honour. HIS HONOUR: But if I didn't extend the order and there was the new regime came into place, would there be a case manager position involved in the CTO so he'd still have that person who was still available… to coordinate things? WITNESS EAGLE: It's the same case manager that's already in place, so that case manager would just remain exactly the same. And her role is exactly the same, because her role is defined by New South Wales Health policy, not by the order." The evidence of Nadia Kolakovic 1. Mr McGregor's clinical care coordinator or case worker, Nadia Kolakovic, as I have said, has affirmed two affidavits in the case. The first affidavit of 26 July 2023 was read at the preliminary hearing. She normally has face to face contact with Mr McGregor once a month and she has been his case worker since November 2022. I interpolate, I had the impression that the improvement in compliance and coordination upon which the experts commented is down to her. In any event, in her first affidavit she said ([7]) that as the expiry of the previous extension order approached, she attended a meeting with "various stake holders" on 6 June. It was decided at the meeting that if Mr McGregor's forensic patient status ceased, an application would be made for a CTO. She contemplated that, thereafter, there may be a slow transition from forensic patient status through a CTO and eventually to voluntary patient. I interpolate, on the evidence of the experts, it would be very inadvisable to attempt to progress Mr McGregor to voluntary patient status. A CTO is likely to be a permanent position having regard to the nature of the risk and the scenarios in which it may materialise. Obviously it would need to be renewed from time to time. 2. In her second affidavit of 31 October 2023, Ms Kolakovic confirmed that she continues as Mr McGregor's clinical care coordinator. She confirmed that Mr McGregor continues to see Dr Nadir Hafiz as his treating psychiatrist every 8 weeks. She said that Mr McGregor remained compliant with medication and had good engagement with the Community Mental Health Team. Ms Kolakovic raised Dr Ellis's opinion about a review of the medication Mr McGregor was receiving with the CFMHS team, being Dr Wade and Dr Gibson. But it is fair to say, according to Ms Kolakovic, that they deferred to Dr Hafiz's opinion, and expressed contentment with the current regime. I deal with the report of Dr Wade and Dr Gibson below. Ms Kolakovic confirmed that if Mr McGregor's forensic status were to cease, the Community Mental Health Team, will apply for a CTO so that they can continue to monitor Mr McGregor in the community. 3. I should say that in her detailed report of 30 October 2023, which is Annexure A to her affidavit, Ms Kolakovic attributed Mr McGregor's stability to his adherence with the conditions of his extension order, his involvement with NDIS and Community Mental Health Services. She pointed to the past history of Mr McGregor's non-compliance and deterioration before he was a forensic patient. She expressed the opinion that the order ensured that Mr McGregor continued to receive appropriate support in the community. 4. Notwithstanding Ms Kolakovic's assessment of the matter, one must acknowledge the opinion of the psychiatrists, and in particular Dr Eagle that it is questionable what contribution the order itself is making to Mr McGregor's current stability. National Disability Insurance Scheme 1. Mr Clayton Ray is the NDIS Senior Support Coordinator for Mr McGregor's case. He swore an affidavit on 27 October 2023. He described his role coordinating supports for Mr McGregor to ensure he has consistent care. 2. Mr Ray described the current support that Mr McGregor received from various sources as the following: 1. supported independent living provided by what I take to be a social housing agency. Mr McGregor is provided with accommodation and receives care on a 24 hours, 7 days a week basis. I understand from other evidence that the overnight shift is not active, but a person is present on the premises at all times; 2. the guardianship order. An officer of the NSW Trustee and Guardian is designated to look after Mr McGregor's interests and to advocate for him; 3. financial management order also under the NSW Trustee and Guardian; 4. Liverpool Community Mental Health – this is provided under the conditional release and extension orders and Ms Kolakovic and Dr Hafiz are identified as relevant stakeholders; 5. social and community support three hours per day Monday to Friday funded by NDIS; 6. an occupational therapist once fortnightly funded through NDIS; 7. speech therapist once every six weeks funded through NDIS; 8. allied health assistance once per week funded through NDIS; and 9. a behaviour support practitioner also funded through NDIS. From the point of view of the NDIS, Mr Ray coordinates maintenance of these supports. It is apparent that of these supports the Community Mental Health Team is provided under the extension order. However, the very same team, according to Dr Eagle, would be provided under a CTO. Looked at in the light of the other supports provided from other sources, I accept that it is difficult to see what actual contribution an extension order would make that could not be made under a CTO. 1. The provision of AUSLAN and relay interpreters for Mr McGregor's involvement in the community are provided through the NDIS. Mr Ray regarded Mr McGregor as "quite stable" (affidavit [12]) and the reports to him are that behavioural concerns in relation to budgeting, smoking or gambling are "of minor concern" (affidavit [14]). 2. It is Mr Ray's expectation that Mr McGregor will be on NDIS for the rest of his life, but "provisional levels of funding can change". The current package has a further period of 12 months to run. In his experience a person receiving a NDIS package "does not usually see a dramatic reduction in support funding unless there is a change to their capacity". I interpolate this seems extremely unlikely in Mr McGregor's case. Mr Ray confirms that if Mr McGregor were to cease being a forensic patient, his NDIS support would continue. New South Wales Community Forensic Mental Health Service 1. The report of Dr Wade and Dr Gibson of 7 November 2023 is annexed to the affidavit of Ms Irene De Raya affirmed on 20 November 2023. It should be borne in mind that the review carried out by CFMHS is for the purpose of the provisions of ss 75 and 84. The purpose of those provisions is different from, but not unrelated to, those I am exercising under Pt 6 of the Act. For the purpose of s 75, not unsurprisingly, the authors were of the opinion that Mr McGregor has a mental health impairment or cognitive impairment (or both) as defined by s 4, including the schizophrenia. It is the opinion of the authors that if not adequately treated Mr McGregor's condition is likely to deteriorate and he may then pose an increased risk of harm to others. This opinion accords with that of the other experts to whose evidence I have referred. 2. With regard to s 84, the authors opinion is that Mr McGregor's placement in supported accommodation offers the least restrictive safe and effective care that he currently requires. This, of course, is dealt with from other sources and does not depend upon the existence of a forensic order for its maintenance, I interpolate. It is the opinion of the authors that the safety of Mr McGregor or others will not be seriously endangered if his conditional release order is maintained. 3. CFMHS, in summary, support the current complex of community supports that Mr McGregor is receiving and have not suggested any changes to them. In particular, the authors recommended that Mr McGregor be reviewed by his case manager on a monthly basis and see his treating psychiatrist quarterly. There should be monitoring of his accommodation and service providers to deal with any concerns that may arise. Given his past history of substance abuse disorder, random urine drug screening and random breath test for alcohol consumption should be maintained. I interpolate that there is strong corroborative evidence that Mr McGregor has remained abstinent of illicit drugs and alcohol for a considerable period. He expresses satisfaction with his state of sobriety and a disinclination to change. Other matters 1. Other than the thorough review of the medication regime to address Dr Ellis's concern about whether Mr McGregor is obtaining the optimal benefit from his current prescriptions, each of the concerns I expressed in my preliminary judgment, in my view have been adequately addressed by the evidence led at the final hearing. There have been no reports of concerning aggression over the last 12 months. Under Ms Kolakovic's coordination, the community treatment regime has been operating as it should and from Mr Ray's evidence, I am satisfied that Mr McGregor's current level of support from NDIS will continue for at least the next 12 months and on the probabilities a similar level of support will be provided on an ongoing basis. The current guardianship and financial management orders will expire unless further orders are made in the early part of 2024. But having regard to the nature and permanency of Mr McGregor's disabilities, the likelihood is that these orders will be renewed on the application of the NSW Trustee and Guardian. 2. It is also clear that a community treatment order will be applied for. Since my decision has been reserved, I have been informed by the parties that the MHRT hearing listed for 27 November 2023 has been adjourned until 5 December 2023. Given that I will dismiss the application for a further extension order, it is my expectation on the evidence before me that an application will be made at that time for a CTO and that in accordance with Dr Eagle's evidence, there is a strong likelihood the order will be made and that the current treatment regime to which Mr McGregor is subject, and which is relatively successful, will continue with support from the same case worker and treating psychiatrist. Determination 1. There is a certain degree of tension in the application of s 122. While 122(1)(a) and (b) are generally referred to as "the first limb" and "the second limb" respectively, they are in truth interrelated. There is a certain tension in treating them as entirely separate. They are connected by the conjunctive "and" and in a sense need to be considered as one. There is a certain sophistry in holding that there is an unacceptable risk if Mr McGregor ceases to be a forensic patient and then going on to decide that the risk can be adequately managed under a less restrictive regime. I will deal with them more or less together. 2. As I have previously remarked Mr McGregor has made very significant progress under the supervision of the MHRT's conditional release order and the extension order made by me in September 2021. Despite him continuing to experience positive symptoms mainly of auditory hallucinations notwithstanding his strict compliance with his regime of treatment, he is on all the evidence before me relatively stable. And I must say I am finding it difficult to see what contribution the order itself is making to that stability and the management of his risk. I am satisfied that Mr McGregor, because of his various conditions, does pose a risk of harm to others (and to himself) which would be unacceptable were he left entirely to his own devices. However, Dr Seidler's "three-fold factors" of consistency in the provision of support services, abstinence from substances and the stability of his mental health through the provision of regular treatment in my judgment do not depend upon the continuance of Mr McGregor's status as a forensic patient. I interpolate that Dr Ellis and Dr Eagle, as I have pointed out, agreed with Dr Seidler's analysis. It is obvious from the evidence before me, that with the addition of a CTO, those three factors depend upon providers other than the CFMHS. 3. I should add the only matter that has not been addressed is Dr Ellis's concern about medication. When raised with Dr Wade and Dr Gibson, according to the evidence of Ms Kolakovic, which I accept, they prefer to defer to the treating psychiatrist. But as Dr Eagle pointed out, the type of detailed review that Dr Ellis had in mind can be carried out even if Mr McGregor is not a forensic patient and perhaps this should occur. Ms Kolakovic took the matter up with Dr Wade and Dr Gibson and it may be that she can arrange for the matter to be pursued if a community treatment order, as I expect, is made. 4. I had the advantage of evidence from three highly qualified experts in their respective fields. I found each of them impressive and I was impressed by what they had to say. The differences between them really came down to matters of degree and to the extent to which Dr Ellis and Dr Seidler were in favour of a further extension order, it was only for a short period to enable an orderly transition onto a CTO. In the end, I was very impressed by what Dr Eagle had to say about that, which I have extracted in full above. I am not persuaded that a complex transition is necessary. I am persuaded that the transition from an extension order to CTO will be smooth and that the same personnel, i.e. Ms Kolakovic and Dr Hafiz will be involved in coordinating and administering the same regime of treatment. 5. I should also say, at a factual level, it is difficult for me to be satisfied to a high degree of probability that the s 122 condition has been satisfied when each of the highly qualified experts have expressed the view that this "threshold question" is marginal. 6. I am not satisfied to the requisite high degree of probability that the s 122 condition is satisfied. There is no doubt, as I have said more than once, that Mr McGregor presents an unacceptable risk if left to his own devices. However, I am satisfied that that will not occur, at least not in the foreseeable future, and that the less restrictive regime to which I have referred is appropriate to manage his risk. I emphasise, it is only ever so slightly less restrictive. 7. Given this conclusion, I am required to dismiss the application. Extension order 1. There is no occasion for me to consider s 127. Given the s 122 condition is not satisfied, the application of s 127 simply does not arise. 2. It is my intention, however, that the interim order under s 131 run its course, notwithstanding the order I am required to make dismissing the summons. That order, having been made, in my view inures by force of s 131 alone. That is to say, I am not satisfied, that given the provisions of the statute, that it merges in the judgment. 3. My orders are: 1. Under s 127(1)(b) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the application for an extension order is dismissed. 2. Declare that the interim extension order pronounced on 24 August 2023 remains in force by dint of the provisions of s 131 of the said Act until it expires at the end of the period specified in the order. 3. The Registrar is to send a copy of this judgment to the Registrar of the Mental Health Review Tribunal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2023