The New South Wales Supreme Court decided to extend the “forensic patient” status of a 21-year-old Indigenous person, SK, for another three years. This decision came after SK, who was found unfit to stand trial for attacking her stepfather with a knife, was considered to still pose a high risk of serious harm to the community. The court heard that SK has a complex history of mental health issues, trauma, and violent behaviour, and that even with a significant NDIS funding package, there weren’t any less restrictive ways to manage the risk she posed. The main argument in court wasn’t about whether to extend her status, but for how long, with the Attorney General pushing for four years and SK’s representative arguing for three, which the judge ultimately agreed with.
Key details of the case
- Case Name: Attorney General of New South Wales v SK (a pseudonym) (by her tutor Dr Katherine Pavlidis Johnson) (Final) NSWSC 1173.
- Case Number: 2025/00134982.
- Court: Supreme Court of New South Wales.
- Judge: N Adams J.
- Hearing Date: 8 September 2025.
- Decision Date: 8 October 2025.
- People Involved:
- Plaintiff: Attorney General of New South Wales.
- Defendant: SK (a pseudonym), a 21-year-old Indigenous person.
- Defendant’s Tutor: Dr Katherine Pavlidis Johnson.
- Expert Witnesses: Ms Lisa Zipparo (neuropsychologist), Dr Yolisha Singh (psychiatrist), Dr Carollyne Youssef (psychologist).
- Institutions Involved:
- Legal Aid Commission of NSW.
- Crown Solicitor’s Office.
- Mental Health Review Tribunal.
- National Disability Insurance Scheme (NDIS).
- Corrective Services NSW.
Simple summary of the case
This case was about a young person, SK, who has had a really tough life. She grew up with a lot of instability, neglect, and abuse, and has been involved with Family and Community Services since she was born. As a result of her upbringing, she has complex mental health and cognitive issues, though experts couldn’t quite agree on the exact diagnoses. Some said she has an intellectual disability and PTSD, while another expert thought it was more like autism spectrum disorder and borderline personality disorder. Because of her condition, she was found unfit to stand trial for attacking her stepfather with a sword and then stabbing him with a knife. Instead of going to a normal prison, she was made a “forensic patient,” which means she’s kept in a secure facility for care and treatment because of her mental state and the risk she poses.
Her time as a forensic patient was coming to an end, and the Attorney General applied to the Supreme Court to extend it. The main reason was that all the experts agreed she still poses a “high” and “unacceptable” risk of seriously harming other people. She has a history of violent offences and has continued to be aggressive and self-harm while in custody, including assaulting correctional officers. The court had to decide two things: first, if she was still a big risk, and second, if there was a less restrictive way to keep the community safe from that risk. The evidence was pretty clear on the first point; risk assessments put her in a very high percentile for reoffending.
The second point was the tricky part. SK has a large NDIS funding package worth over $660,000 a year to support her. However, the experts and support coordinators all said this wasn’t enough. Finding suitable housing and support workers who could safely manage her complex behaviours was proving impossible. Her needs were so high that it was believed she required specialised disability accommodation and 24/7 one-on-one support, which her current NDIS plan didn’t cover. Because she isn’t considered “mentally ill” under the Mental Health Act, she can’t be kept as an involuntary patient in a regular mental health facility. Therefore, the court found that extending her status as a forensic patient was the only way to adequately manage the risk. The judge decided on a three-year extension, siding with the more recent expert reports, rather than the four years the government’s lawyer wanted. You can read the full judgement on the NSW Supreme Court website.
For more summaries of cases from the NSW Supreme Court, you can check out Medigosa Legal Summaries.
Q&A
- Is it legal for a court to keep someone detained even after their sentence ends?
Yes, in specific circumstances like this one, it’s legal. If a person is a “forensic patient” because they were found unfit for trial due to mental or cognitive impairment, a court can extend their detention if they are still considered an unacceptable risk of causing serious harm to the community.
- What is a forensic patient?
A forensic patient is someone who has been involved in the criminal justice system but, due to a mental health impairment or cognitive impairment, has been found unfit to be tried or not guilty by reason of mental illness. They are typically detained in a hospital or other secure facility for care and treatment, with a focus on community safety.
- Is it illegal to refuse mental health medication?
For most people, it’s not illegal. However, for a forensic patient, non-compliance with treatment plans, including medication, can be a major factor for the court when deciding if they still pose a risk and whether their detention should be extended, as it was in SK’s case.
- Is having NDIS funding a guarantee that you won’t be detained?
No. As this case shows, even a very large NDIS package might not be considered enough to manage a person’s risk to the community. The court decided that despite the funding, there were no “less restrictive means” to keep the public safe.
- Can a person be detained just because they have a disability?
No. The detention is not because of the disability itself. It’s because the person has been involved in a serious criminal matter and their disability is linked to them posing an unacceptable risk of serious harm to others.
- What does “unacceptable risk” mean in this context?
It means the court is satisfied to a “high degree of probability” that the person poses a risk of causing serious harm to others that the community should not have to tolerate. It involves looking at the likelihood of them reoffending and how severe the harm could be.
- Is it legal for my history as a juvenile offender to be used against me as an adult?
Yes, in cases like this, a person’s entire history, including juvenile offences, can be considered by experts and the court when assessing their long-term risk of violence.
- Can I be forced into treatment if I’m not considered “mentally ill”?
Generally, no. This was a key issue for SK. Because she didn’t fit the definition of “mentally ill” under the Mental Health Act, she couldn’t be made an involuntary patient in a civil mental health facility. This is why the forensic order was seen as the only option.
- Is it legal for different experts to have different diagnoses?
Yes, it’s quite common in complex cases for medical and psychological experts to have differing opinions on diagnoses. The court has to consider all the expert reports and evidence to make its decision.
- What happens if a forensic patient assaults staff while in custody?
They can be charged with further offences. SK was charged with assaulting correctional officers, but these charges were dismissed because of her cognitive impairment. However, the behaviour itself was used as strong evidence that she remains a risk.
- Is it legal for the court to restrict access to the case file?
Yes. The judge in this case made an order that non-parties (like the general public or media) cannot access documents on the court file without a judge’s permission, likely to protect SK’s privacy due to her history and condition.
- Does a person’s difficult childhood excuse their violent behaviour?
It doesn’t legally excuse it, but it is a very important factor that the court and experts consider. SK’s traumatic childhood was seen as a key reason for her complex mental state and behavioural issues.
- Can a Guardianship Order be used instead of a forensic order?
It was considered, but the experts and the court concluded that a Guardianship Order wouldn’t be powerful enough to manage the high level of risk SK presented to the community.
- Is it legal to be detained based on things you *might* do in the future?
Yes, this is the basis of preventative detention orders like this one. The decision is based on a detailed assessment of the risk of future harm, not just on past actions.
- What rights does a forensic patient have in these proceedings?
They have the right to legal representation (SK was represented by the Legal Aid Commission), and their legal team can make submissions to the court. SK’s lawyer argued for a shorter extension period, and the court agreed with that submission.