Inquest into the death of Ian Fackender

Case Number: 2017/00264782

Date of Findings: 13 September 2022

Magistrate: State Coroner, Magistrate Teresa O’Sullivan

Catchwords: CORONIAL LAW – manner of death – death in the course of a police operation – police operation to enforce Community Treatment Order under Mental Health Act 2007 – uninvited entry into premises to enforce Community Treatment Order – planning and risk assessment of same – discharge of Taser - discharge of firearm by police - community mental health care – schizophrenia - NSW Police Force – Western NSW Local Health District – Memorandum of Understanding between NSW Police, NSW Ambulance and NSW Health 

Responses

Recommendations

To the NSW Police Force (“NSWPF”):

1. Careful consideration is given to re-introducing the section from the Memorandum of Understanding between NSW Health, Ambulance Service of NSW and NSWPF in respect of “Mental Health Emergency Response” (July 2007) (“the 2007 MOU”) on the “MARIA” guidelines into the current version of the MOU, or otherwise providing express guidance to officers within it, on assessing risk, specifically directed to police assisting in the execution of CTO breach orders. This guidance should take into account the limited availability of mental health services after hours and how information specific to a community treatment order (“CTO”) patient may be obtained after hours. 
2. If a risk assessment section is introduced to the MOU as above, consider how practical guidance can be given to general duties NSWPF officers as to how that section is to interact with the ANZPAA guidelines and the overarching search warrant procedures. 
3. An experienced forensic psychiatrist be engaged as a matter of priority, i.e. within 6 months, to review the NSWPF Weapons and Tactics training curriculum and advise on how mental health considerations be effectively integrated into that training. 
4. The Chifley Police Area Command (“PAC”) introduce a system to ensure that officers with four-day MHIT training are prioritized as responders to “mental health incidents”. 
5. The Chifley PAC introduce operational SOPs for the use of radio (if not already in existence) or reinforce the need for radio as the primary communication device between officers.

To NSW Health, NSW Ambulance and the NSW Police Force:

1. The current (2018) Memorandum of Understanding between NSW Health, Ambulance Service of NSW and NSWPF in respect of “Mental Health Emergency Response” be comprehensively reviewed and revised so that:
   (a) there is a section on CTOs and breach orders which provides clear guidance to all signatory parties as to:
       (i) the required contents of a handover between NSW Health staff and NSW Police Force officers where police are requested to assist in a CTO breach order (see further below);
       (ii) the agency which has responsibility for locating a person subject to a CTO breach order;
       (iii) when an ambulance should usually be contacted, i.e. prior to or after locating a person;
       (iv) the applicable legislative provisions and the NSW Police Force and NSW Health policies relevant to CTO breach orders including the relevant provisions of the Mental Health Act 2007, NSW Police Force policies on uninvited entry and other risk assessment policies and tools;
       (v) the use of firearms at CTO breach order executions involving NSW Police; (vi) the availability of mental health resources out of business hours; and
       (vii) the use of PACER, MHIT trained officers and other resources when executing a CTO breach order.
   (b) A section or appendix of the MOU be drafted on the handover or information exchange between police and mental health staff where police assistance is requested for a CTO breach. The section should outline appropriate practices including:
       i. the handover to be arranged in advance and take place in a setting where patient confidentiality can be maintained;
       ii. the exchange be performed (where practicable) by the case worker with carriage of the client or, if not practicable, by a person with some knowledge or awareness of the client and their history;
      iii. the police and case workers should have reference to a risk assessment tool or ‘ready reckoner’ of relevant considerations including:
           1. risk considerations, i.e. any history of self-harm, threats, impulsive or aggressive behaviour; any history of use of a weapon, the presence and nature of delusions, the level of compliance or cooperation at the time at which the operation will occur and known drugs and alcohol use;
           2. the personnel intended to attend at the scene;
           3. level of urgency and expected time frames for service of the notice/order, whether or not an afterhours approach should be attempted, and the number for the 1800 24/7 Mental Health Hotline;
           4. the particular profile of the patient including their condition, medication, perception of emergency services workers and likely attitude towards them, and techniques that may be effective for de-escalation; and
           5. resources for that patient including a photograph and contact details of helpful family or friends [the ‘Contact MHS bubble’ in Appendix B provides a helpful summary of relevant information];
       iv. How documentation of that information exchange should take place and the method for ongoing communication between police and health workers including the contact details of a nominated person from NSW Health and NSW Police Force.

To NSW Health:

1. That there be a review of the nature and layout of a “Breach Order” issued pursuant to s. 58 of the Mental Health Act to ensure that it provides relevant guidance including as to the relevant MOU. 
2. That consideration be given to the need for a review of the pro forma terms of a CTO Treatment Plan.

To the NSW Attorney General:

1. Consideration be given to modifying the terms of s. 58 of the Mental Health Act 2007 to provide for more flexible means of service where:
   (a) a non-complying patient is not contactable and reasonable attempts have been made to contact them and inform them of the need to comply with a CTO and the possible consequences of failure to comply; and
   (b) there is some clinical urgency/immediacy or issues of public safety that necessitate conveying the person for treatment quickly once they are located; and
   (c) police assistance is necessary to locate and transport the person. 
2. For the avoidance of doubt, consideration of any reform should include how principles relating to the rights and dignity of mentally ill people and restraint as a last resort can be safeguarded if service requirements are modified or removed. 
3. Consideration be given to removing the use of the word “apprehend” from the terms of s. 59 of the Mental Health Act.