A Melbourne woman has been held for almost nine years in solitary confinement after being found not guilty because of mental impairment on assault charges, a court has heard.
The woman, whose identity is suppressed, has been held at Thomas Embling hospital, a secure forensic mental health facility since 2015.
She was formally placed on a custodial supervision order in June that year for charges of recklessly causing injury and common law assault. Each charge has a maximum penalty of five years in prison.
But the Victorian county court heard last month that the woman had instead spent much of the past nine years in seclusion at Thomas Embling.
The judge, Nola Karapanagiotidis, said the woman’s situation was now “urgent”.
“It is an emergency situation, her situation is entrenched and longstanding,” she said.
Karapanagiotidis implored the state’s health and attorney general’s departments, and Forensicare, the state’s specialist provider of forensic mental health services, to work towards transitioning her away from “the highly restrictive conditions she’s been under for years now”.
The woman told the court she wanted to be released. “I’ve been in here for 10 years basically, and I think it’s time for me to go home,” she said.
Under a custodial supervision order, a person is held in a forensic psychiatric hospital to receive treatment.
The orders, under the Crimes Mental Impairment and Unfitness to be Tried Act, are subject to annual reviews in court. If a court hears that a person has responded to treatment, then its conditions can be changed, including to allow the person to be released.
The court heard lawyers for the woman had obtained an independent psychiatric report as part of the review that raised questions about her treatment.
The court denied a Guardian Australia request for access to that report, and to reports by a forensic psychiatrist at Forensicare.
There was no dispute that the woman needed to remain on the order because of the risk she posed to others and herself, and there was agreement from experts that she suffered from treatment-resistant schizophrenia.
There had been episodes of violence towards staff, which the Forensicare psychiatrist said were partly driven by trauma, including reports of neglect and sexual abuse in childhood and adolescence, the court heard.
But he agreed that her continued seclusion was itself a trauma that was contributing to her behaviour. “Absolutely … no doubt about it,” he said.
Karapanagiotidis said she was concerned about the lack of progress made in her treatment. “[She] seems to progress, go forward, go back, but there’s always that issue of what [impact] her current … seclusion is having on her, and what’s the continuity in treatment,” Karapanagiotidis said.
“It cannot be … overemphasised that there is a need for a very robust approach in this case.”
Dr Tobias Mackinnon, the executive director of forensic mental health at Forensicare, told the court that the board of the service had been informed about the woman’s case and were committed to working towards her “de-seclusion”.
He said that in a period of about three weeks in June she had been allowed out of seclusion on about four occasions. These occasions involved trips to a courtyard with an “immediate support team”.
“There have been a number of hours, as I understand it, out of seclusion,” he said.
Mackinnon said it was hoped that she would no longer be in seclusion within six months.
“I am optimistic as we develop a plan and commit to things it might progress more quickly than that,” he told the court.
The author of the independent psychiatric report questioned the use of soft restraints in this plan, which the court heard were essentially a Velcro belt with straps attached and soft handcuffs that prevented the patient moving their arms rapidly.
“I’m generally not a fan because of the optics and the demeaning aspect of it … but I’m not totally opposed to it,” he said.
But he said it was positive that Forensicare was planning to handle the case from board level in consultation with a treatment team.
The court heard the woman was visited by her family and enjoyed activities such as cooking, as it reminded her of making gnocchi with her grandmother. These activities were limited in seclusion, but could be set up by an occupational therapist.
The woman watched part of the hearing from behind a Perspex screen in the hospital, with the bottom part of the screen taken up by a small slot known as a “therapeutic portal”.
She was then allowed to watch the hearing using a laptop while sitting in a room by herself.
Karapanagiotidis repeatedly commended her for her attentiveness to the hearing.
“Again thank you for your participation today, for being present and being a part of this,” she said. “It cannot be an easy thing to do and I really am impressed that you’re able to do it.
“You’ve heard a lot said about you, we’ve heard from the doctors, we’ve had a big discussion about seclusion and de-secluding you [and] … making a positive change, that’s what we’re all concerned in doing.”
The matter will return to court in three months so that Karapanagiotidis can be updated on Forensicare’s progress.
“The deprivations of her liberty have continued for years and are extreme,” she said.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
