Garden; Department of Family and Community Services [2000] AATA 419 (30 May 2000)

Last Updated: 8 June 2000

DECISION AND REASONS FOR DECISION [2000] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1339

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And Neville GARDEN

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date 30 May 2000

Place Melbourne

Decision The Tribunal sets aside the decision under review. In substitution it sends the matter back to the Secretary for reconsideration in accordance with the direction that while Mr Garden is in Thomas Embling Hospital he is "in gaol" for the purposes of ss 98(1)(e) and 1158(1)(a)(i) of the Social Security Act 1991 ("the Act") within the extended meaning of that term in s 23(5)(b) of the Act.

(Sgnd) Joan Dwyer

Senior Member

DISABILITY SUPPORT PENSION - whether applicant "in gaol" within the meaning of that term in ss 23(5), 98(1) and 1158(1)(a)(i) of the Act while in a forensic psychiatric centre or hospital - whether connection between conviction and hospitalisation - decision set aside

Mental Health Act 1986 s 16(1) and 3(b)

Sentencing Act 1991 (Vic) s 93(1)(e)

Social Security Act 1991 ss 23(5), 98(1)(e) and 1158(1)(e)

Sentencing (No 2) Regulations 1992 - No. 54/1992 Reprint No. 1

Blunn v Bulsey and Others (1994) 53 FCR 572

REASONS FOR DECISION

30 May 2000 Mrs Joan Dwyer, Senior Member

1. This is an application for review of a decision of the Social Security Tribunal ("SSAT") which set aside a decision to reject Mr Garden's claim for disability support pension ("DSP"). The SSAT remitted the matter to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that, for the purpose of s 98(1)(e) of the Social Security Act 1991 ("the Social Security Act"), Mr Garden is not in goal or undergoing psychiatric confinement because he has been charged with an offence. Under s 1283(2)(d) of the Social Security Act the decision the Tribunal is reviewing is taken to be the direction of the SSAT as to the reconsideration.

2. Mr M Todd an employee of Centrelink appeared for the Secretary, Department of Family and Community Services. Mr I Freckelton of Counsel appeared for Mr Garden. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with the exhibits tendered during the hearing. Mr J O'Donahoo, who is Mr Garden's case coordinator and the Acting Senior Social Worker at Thomas Embling Hospital ("Thomas Embling"), gave evidence.

3. On 13 April 1995 Mr Garden was convicted of murder and attempted murder. The order of the Supreme Court of Victoria (Coldrey J) was (T16 p34):

. . . that Neville Colin Garden be admitted to and detained in the psychiatric in-patient service being the Ararat Forensic Centre for a period of 18 years and 9 months. Further, a non parole period of 11 years and 9 months is fixed.

4. That order is described as a Hospital Security Order (T16 p35) under s 93(1)(e) of the Sentencing Act 1991 (Vic). His Honour made the Hospital Security Order on the basis of a certificate of Dr Johnson a psychiatrist, and a report of an authorised psychiatrist, Dr Vine. Dr Johnson had examined Mr Garden and was of the opinion that he appeared to be suffering from a mental illness that required treatment and that he should be admitted as "as security patient for his or her health or safety or for the protection of members of the public" (T14. p32). Dr Johnson wrote that she based her opinion on the following facts (T14 p32):

He has a long documented history of schizophrenia. Presents with a blunted affect, and is essentially insightless. His judgment is impaired. HAS BEEN/IS RECEIVING TREATMENT WITH ANTI PSYCHOTICS.

5. Dr Vine, an authorised psychiatrist under Regulation 16 of the Sentencing (No 2) Regulations 1992 - No. 54/1992 Reprint No. 1 recommended, on the basis of Dr Johnson's certificate, that Mr Garden "be admitted to and detained in Aradale Forensic Psychiatric Centre psychiatric in-patient service ["Aradale"] as a security patient under s 93(1)(e) of the Sentencing Act 1991" (T15 p33).

6. In accordance with the order of Coldrey J, Mr Garden was admitted to Aradale in April 1995. On 13 December 1996 Dr Johnson recommended that he be discharged. She wrote (T17 p36):

No overt psychiatric symptomatology. Compliant with medication. But, passive aggression ++ and having a negative influence on other patients.

7. It is not clear when Mr Garden was transferred from Aradale to Rosanna Forensic Psychiatric Centre ("Rosanna"), but he was transferred from Rosanna to the Acute Assessment Unit/Psycho-Social Unit at Pentridge in December 1996. While there he received psychiatric treatment and counselling until about April 1997 when he was transferred to Barwon Prison (A3).

8. According to a letter dated 10 May 2000 from Human Services, Victoria to Mr Todd at Centrelink (A3):

While at Barwon Prison Mr Garden was receiving ongoing follow up from a psychiatric nurse and treatment until the end of October 1997. There are no notes on the file of ongoing nursing/psychiatric treatment from the end of October 1997 until May 1998.

On 29 May 1998 Mr Garden was transferred to the Acute Assessment Unit at the Melbourne Assessment Prison due to non-compliance with medication and concerns about his mental state.

On 29 June 1998 he was transferred again to Barwon Prison. He was subsequently transferred to Loddon Prison. Between July 1998 and November 1998 there are no nursing notes on the file relating to psychiatric treatment.

In late November Mr Garden was transferred from Loddon Prison to the Acute Assessment Unit at the Melbourne Assessment Prison and then back to Rosanna.

For the whole period from December 1996 until Mr Garden's return to Rosanna in November 1998 Mr Garden was on antipsychotic medication.

9. In April 1999 Mr Garden and other patients at Rosanna were transferred to Thomas Embling which was a brand new "purpose designed" hospital run by Forensicare. Exhibit R3 states:

Forensicare is the trading name for the Victorian Institute of Forensic Mental Health, a statutory agency recently created by the Victorian Government and mandated to provide a range of specialist mental health and associated services to the criminal justice system.

10. Mr O'Donahoo said that all the patients at Thomas Embling have been involved in some way with the criminal justice system. With some prompting from Mr Freckleton he said there are six categories of patient:

1. Patients on remand

2. Patients found not guilty on the ground of mental impairment.

3. Patients found unfit to stand trial on the ground of mental impairment.

4. Patients on hospital orders as an involuntary patient under s 93(1)(d) of the Sentencing Act.

5. Patients on hospital security orders as a security patient for a specified period under s 93(1)(e) of the Sentencing Act.

6. Patients transferred for part of a sentence under s 16(3)(b) of the Mental Health Act.

11. Mr Garden lodged a claim for DSP on 6 May 1999 (T3 pp12-15), shortly after he was transferred to Thomas Embling. The claim was supported by Mr Garden's social worker. A file note (T7 p19) indicates that Centrelink was advised by a social worker that the matter was seen as a test case.

12. Mr Garden's entitlement to payment of DSP must be determined in accordance with the relevant legislative provisions. Section 94 of the Social Security Act provides qualification for DSP. As at 11 May 1999 s 98(1)(e) read as follows:

SECTION 98 DISABILITY SUPPORT PENSION NOT PAYABLE IN SOME CIRCUMSTANCES

98(1) [Circumstances where pension not payable] Even though a person is qualified for disability support pension, the pension may not be payable to the person because:

. . .

(e) the person is in gaol (see Part 3.13)

. . .

Part 3.13 of the Social Security Act includes s 1158(1) which, at the relevant time, read as follows:

SECTION 1158 SOME SOCIAL SECURITY PAYMENTS NOT PAYABLE DURING PERIOD IN GAOL OR IN PSYCHIATRIC CONFINEMENT FOLLOWING CRIMINAL CHARGE

1158(1) [When instalment of pension not payable] An instalment of a social security pension is not payable to a person on a day on which such an instalment would normally be paid to the person if:

(a) on that day the person is:

(i) in gaol; or

(ii) undergoing psychiatric confinement because the person has been charged with an offence;

(b) that day is not the first day, and is not the last day, in the period of imprisonment or confinement on which such an instalment would normally be paid to the person.

Note 1: For in gaol see subsection 23(5).

Note 2: For psychiatric confinement see subsections 23(8) and (9).

13. Section 23(5) contains the following definition of "person in gaol"

23(5) For the purposes of this Act, a person is in gaol if the person:

(a) is imprisoned in connection with the person's conviction for an offence; or

(b) is being lawfully detained in a place other than a prison, in connection with the person's conviction for an offence; or

(c) is undergoing a period of custody pending trial or sentencing for an offence.

14. Mr Garden remains at Thomas Embling. The issue is whether while he is there he is "in gaol" within the meaning of that term in ss 23(5), 98(1)(e) and 1158(1)(a)(i) of the Social Security Act so that, even though he may be qualified for DSP, instalments of DSP are not payable to him.

15. It was accepted by Mr Todd that Mr Garden is not "in gaol" while he is in Thomas Embling, unless he is "in gaol" within the extended meaning of that term in s 23(5) of the Act. In Blunn v Bulsey and Others (1994) 53 FCR 572, the parties agreed that paragraph 23(5)(a), when read together with 23(5)(b) must be understood to require "incarceration in a prison". That seems to be correct. Thus, as in Bulsey, the relevant paragraph is s 23(5)(b) and the issue is whether Mr Garden "is being lawfully detained in a place other than a prison, in connection with the person's conviction for an offence" (emphasis added). It is clear that s 23(5)(c) is not relevant.

16. The emphasised words in s 23(5)(b) were considered by Einfeld J in Bulsey. His Honour said at p576:

[A]lthough clearly not requiring a causal relationship, the words "in connection with" in the context of s 23(5) require some real relevance of the conviction to the detention. There must be more than just a temporal coincidence. The requirement is not satisfied merely by the fact that Mr Bulsey also happens to be serving a prison sentence, or that the conviction has some impact on the details of his detention. There was not even the vaguest suggestion of a link between Mr Bulsey's mental condition and either of the crimes for which he was imprisoned. The possibility of a connection appears never to have been investigated. (emphasis added)

17. Einfeld J summarised the arguments of the Secretary to the effect that the Social Security Act evinces an intention that no person serving a term of imprisonment should receive social security benefits. His Honour added:

The Department pressed the fact that s 43 of the Queensland Act [the Mental Health Act 1974 (Qld)] involves patients retaining some connection with their convictions. It was said that this connection, maintained in part by the fact that the patient continues to serve a sentence whilst in the hospital, means that the detention in the hospital is in connection with the conviction. However, the relevant inquiry is not whether the conviction of the person so confined continues, but whether the detention in the hospital is itself connected with the conviction, that is, whether there is some firm relationship or connection between the conviction and the hospitalisation, as would clearly be the case, for example, if the sentencing judge had recommended psychiatric counselling or treatment after sentence. (emphasis added)

18. The facts of this matter place it in the class to which Einfeld J, in Bulsey, was referring when he said as quoted above:

However, the relevant inquiry is . . . whether there is some firm relationship or connection between the conviction and the hospitalisation, as would clearly be the case, for example, if the sentencing judge had recommended psychiatric counselling or treatment after sentence.

As set out in paragraph 3 of these reasons, the sentencing judge did recommend psychiatric treatment after sentence. Not only did he recommend such treatment, but he made a Hospital Security Order sending Mr Garden to Aradale under s 93(1)(e) of the Sentencing Act.

19. Mr Freckelton submitted that once Mr Garden was sent from Aradale or Rosanna to a prison, the connection between the conviction and the hospitalisation ceased, and a subsequent hospitalisation was as a patient and not as a prisoner and no longer had the requisite connection with the conviction. He also pointed out that once in Thomas Embling or Rosanna, Mr Garden was no longer within the physical confines of a prison.

20. Various factual matters are relevant in considering that submission. First, the evidence is that Mr Garden has had psychiatric treatment in the form of medication throughout the period since his arrest. Secondly he has been in psychiatric centres or units for much of the time leading up to and since his conviction. Thirdly he has had psychiatric counselling or treatment for some of the time he has been in the prison system at Pentridge or Barwon Prison as set out in paragraph 8 of these reasons and in exhibits A1 and A2. Thus psychiatric treatment has continued, even after Mr Garden was discharged from forensic psychiatric centres to prison. Further, once Mr Garden was discharged from Rosanna, in December 1996, under s 93(5) of the Sentencing Act, the unexpired portion of the hospital security order had effect as a sentence of imprisonment. Section 93(5) provides:

(5) If at any time before the end of the period specified in a hospital security order the Mental Health Review Board or the chief psychiatrist orders under Division 4 of Part 4 of the Mental Health Act 1986 that the person be discharged as a security patient, the hospital security order has effect as a sentence of imprisonment for the unexpired portion of it and that unexpired portion must be served in a prison unless the person is released on parole.

The fact that the unexpired portion of a Hospital Security Order under s 93(1)(e) of the Sentencing Act has effect as a sentence of imprisonment shows a connection between detention in forensic psychiatric centres such as Aradale, Rosanna and Thomas Embling under s 93(1)(e) and conviction.

21. Mr Freckleton submitted that periods of detention in a forensic psychiatric hospital after December 1996 were not "in connection with [Mr Garden's] conviction." The later periods of hospitalisation occurred because, while Mr Garden was serving the unexpired portion of his hospital security order as a sentence of imprisonment, his mental health deteriorated so that he again required treatment in a hospital (T18 p37). He was returned to Rosanna on 7 December 1998 under a Restricted Hospital Order for Admission as a Security Patient made under s 16(1) and 3(b) of the Mental Health Act (T19 p39) Mr Garden then became "a security patient" which is defined in s 3 of the Mental Health Act as:

"security patient" means -

(a) a person detained in an approved mental health service under section 16(3)(b) of this Act or section 93(1)(e) of the Sentencing Act 1991;

22. Mr Freckelton submitted that once the original hospital security order under s 93(1)(e) of the Sentencing Act had been discharged, Mr Garden was in a similar position to Mr Bulsey. I do not consider that to be an accurate analysis. It does not acknowledge the facts that Mr Garden was treated for mental illness from the time of conviction and that imprisonment occurred as a consequence of the discharge of a Hospital Security Order made by the Judge immediately upon conviction. In Bulsey there had been almost 20 years of imprisonment prior to hospitalisation.

23. The facts in Bulsey were summarised by Einfeld J as follows at p573:

Mr Bulsey is an Aborigine who grew up on Palm Island. On 20 October 1977, when aged 30 and serving a prison sentence for robbery with violence for which he was gaoled in 1975, he was sentenced by the Supreme Court of Queensland to life imprisonment for a murder committed in prison. Whilst in prison, he was paid $15 for each seven days of work, and a further $8 a week whether he worked or not. At some time during his imprisonment he was observed to develop a mental illness, later diagnosed as a type of paranoid schizophrenia. Accordingly, on 28 September 1992, he was removed from Townsville Correctional Centre to the John Oxley Memorial Hospital where he remains pursuant to s 43 of the Mental Health Act 1974 (Qld).

24. Mr Garden has had an ongoing history of treatment for mental illness right from the time of his conviction, both when in a forensic psychiatric centre or hospital and when he was in prison. The periods in Aradale, Rosanna and Thomas Embling are the times when he has required treatment in a hospital rather than in a prison.

25. Einfeld J said in Bulsey at p376:

There was not even the vaguest suggestion of a link between Mr Bulsey's mental condition and either of the crimes for which he was imprisoned. The possibility of a connection appears never to have been investigated.

That passage points to a further distinction between this matter and Bulsey. Although there was no evidence as to the nature of the murder and attempted murder in respect of which Mr Garden was convicted, there is a fairly strong suggestion of a link between Mr Garden's mental state and the crimes for which he was imprisoned. On 9 May 2000 Forensicare advised Mr Todd by letter (A2):

Question: Mr Garden has been the subject of 2 security detention orders, 13/4/95 and 7/12/98. Are the grounds for the detention as a security patient the same for both orders.

Answer: Yes, the grounds for both orders were that at the time the orders were made Mr Garden had a long standing mental illness which required treatment which was not available in prison.

Note: Mr Garden has in fact been subject to four orders to be detained as a security patient under the Mental Health Act 1986. The first order was made following his remand on arrest following his offence. The order was made on 25 January 1994 under section 16(3)(b) of the Mental Health Act 1986. The grounds for this order were the same as for the subsequent orders, that his mental illness required treatment which was not available in prison. He was discharged on 22 April 1994.

A further order was made on 9 November 1994 as Mr Garden's mental illness again required treatment which was not available in prison. This order continued in force until he was ordered to be detained as a security patient under section 93(1)(e) of the Sentencing Act 1991. (emphasis added)

26. The facts that Mr Garden was found to be suffering from mental illness from the time of arrest following his offence, and that he spent much of his time on remand between January 1994 and April 1995 detained as a security patient, and that after conviction he was ordered to be admitted to Aradale under a hospital security order, suggest that there was a link between Mr Garden's mental condition and the crimes for which he was imprisoned. That suggestion is strengthened by the information that Mr Garden received psychiatric treatment and counselling while he was in prison, and has been on anti psychotic medication for the whole period since his arrest. There was no evidence called on behalf of Mr Garden to the effect that there was no link between his mental state and the crimes of which he was convicted. Thus I infer that there was such a link.

27. Those facts distinguish this matter from Bulsey. Mr Bulsey was sentenced to imprisonment for robbery with violence in 1975. While imprisoned he committed a murder for which he was further sentenced in 1977. But it was not until 1992 that he was removed from Townsville Correctional Centre to be detained in hospital. There was, as Einfeld J said, "not even the vaguest suggestion of a link between Mr Bulsey's mental condition and either of the crimes for which he was imprisoned." Here there is evidence suggesting such a link.

28. Mr Todd, in the applicant's Statement of Facts and Contentions, set out five factors which he extracted from the reasons of Einfeld J as supporting the finding that Mr Bulsey was not in gaol as defined in s 23(5) while an inpatient in a hospital. They were:

(a) Mr Bulsey was no longer regarded as a prisoner, he was not receiving the money he would have been entitled to if he was in prison,

(b) that there was no link between Mr Bulsey's mental condition and the crimes for which he was imprisoned,

(c) there was no firm relationship or connection between the conviction and the hospitalisation,

(d) there was no indication that the sentencing judge had recommended psychiatric counselling or treatment after sentence and,

(e) there was no evidence of a connection between the mental illness and the conviction.

29. I have already considered factors (b) to (e) and found that the facts in this matter lead to the opposite findings to those made in Bulsey. The evidence as to factor (a) is somewhat equivocal. The evidence is that Mr Garden receives $24.50 a week while in Thomas Embling. Mr O'Donahoo said that he had been informed that the payment is made by Forensicare Victoria. There was no evidence as to whether that is the same amount Mr Garden would be receiving if he were still in prison, or as to whether Forensicare also makes payments to prisoners in gaols.

30. In Bulsey, Einfeld J placed considerable emphasis on what he saw as the "inhumanity" of the situation where Mr Bulsey received no payments while in hospital, either from the Commonwealth under the Social Security Act, or from the State of Queensland. The situation is different in Mr Garden's case. He does receive payments of $24.50 a week from Forensicare, a Victorian government entity. The payments are less than Mr Garden would receive if he were receiving DSP, but he does not need to pay for his board and lodging. There does not appear to be any "inhumanity" or injustice.

31. For the reasons set out above I find that Mr Garden's lawful detention in Thomas Embling is "in connection with his conviction for an offence." Thus I find that at all relevant times he has been "in gaol" as defined in s 23(5) of the Social Security Act.

32. The decision under review will be set aside. In substitution I will send the matter back to the Secretary for reconsideration in accordance with the direction that while Mr Garden is in Thomas Embling Hospital he is "in gaol" for the purposes of ss 98(1)(e) and 1158(1)(a)(i) of the Social Security Act 1991 ("the Act") within the meaning of that term in s 23(5)(b) of the Act.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Anne O'Rourke

Associate

Date/s of Hearing 18 May 2000

Date of Decision 30 May 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Nil

Departmental Advocate Mr M Todd

Counsel for the Respondent Mr I Freckelton

Solicitor for the Respondent Ms S Delaney