In the matter of KBC - [2016] QMHC 2

MENTAL HEALTH COURT

CITATION:

In the matter of KBC [2016] QMHC 2

PROCEEDING:

Reference

DELIVERED ON:

2 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16 and 18 December 2015

JUDGE:

Dalton J

ASSISTING PSYCHIATRISTS:

Dr JJ Sundin and
Dr S Harden

DETERMINATION:

1. KBC was not of unsound mind at the time of the offending.

2. She is fit for trial.

3. The charges against her should proceed according to law.

APPEARANCES:

JP Benjamin on behalf of KBC
J Tate for the Director of Mental Health
MB Lehane for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for KBC
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

This is a reference of offending which occurred on 2 April 2014. The defendant is a young woman (born in 1997) who at the time was residing in the New Farm Clinic because of her mental health problems. She left the clinic at night and was observed by police officers in New Farm Park with some broken glass. I accept she probably had this with a view to harming herself. The officers approached KBC and she responded with distress, and ultimately violence against them. She is charged with one count of serious assault and two counts of assault or obstruct police. One of the police officers was seriously hurt in this encounter.
I heard this matter on 16 and 18 December 2015. Four respected psychiatrists gave evidence, as well as having previously given reports to the Court. The case throws up difficult philosophical questions of both law and medicine, concerning what will be regarded as a “mental disease” for the purposes of the Mental Health Act 2000 (Qld) and indeed s 27 of the Criminal Code. In particular this case raises whether or not a personality disorder, dissociative identity disorder (DID), can be regarded as a disease of the mind.
In what I thought was a thoughtful remark, counsel for KBC submitted that in times past a person presenting with DID may well have been described as having a disease of the mind. Further, that in times to come, when medical science is more advanced, such a person may be properly described as having a disease of the mind. My task of course is not to address matters at that philosophical level, but to apply well-established concepts of law and current established medical concepts. Doing that, I think that it is clear KBC did not have a disease of the mind at the time of the offending, and is not entitled to a defence of unsoundness. I made that decision and consequently directed that the criminal matters proceed according to law on 18 December 2015.[1] What follows are the reasons for my decision of 18 December 2015.
[1] I extended the time for appeal from my decision so that it runs from the date of delivery of these reasons, rather than the date of my decision.
Childhood History
KBC displayed significant emotional and behavioural difficulties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QMHC 2
Decision Date: 2 March 2016

CaseChat Overview and Summary

In the matter of KBC, the respondent was subject to an involuntary treatment order under the Mental Health Act 2000 (Qld). The central dispute in this case was whether the respondent’s conditions, specifically borderline personality disorder, dissociative disorder not otherwise specified (DD(NOS)) and dissociative identity disorder (DID), qualified as mental diseases under the Act or as abnormalities of mind under s 27 of the Criminal Code. The case was heard and decided by the Queensland Mental Health Tribunal.

The legal issues at hand involved interpreting the definitions of "mental disease" and "abnormality of mind" under the Mental Health Act and the Criminal Code, respectively. The court had to determine if the respondent's conditions could be classified as mental diseases or abnormalities of mind, given their impact on the respondent's mental capacities and moral culpability. This necessitated a detailed analysis of psychiatric opinions and previous case law concerning similar conditions.

After considering the psychiatric evidence and relevant case law, the Tribunal concluded that the respondent's conditions did not meet the criteria for mental diseases or abnormalities of mind. The Tribunal accepted the expert opinion that personality disorders are not diseases but rather fundamental patterns of behaviour, and they do not cause a loss of contact with reality like psychotic illnesses do. This decision aligns with previous court findings, such as those in GMB and McDermott v The Director of Mental Health; ex parte Attorney-General (Qld), which held that similar personality disorders do not constitute abnormalities of mind.

The Tribunal’s decision was grounded in the understanding that treatment for personality disorders focuses on managing symptoms rather than curing the disorder itself. Consequently, the Tribunal found that the respondent’s conditions did not qualify as mental diseases or abnormalities of mind, and thus the involuntary treatment order was not applicable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Sundin did not believe that KBC suffered from a mental disease – t 1-21. Nor did Dr Harden. Dr Harden’s reasoning in relation to that accords with that of Drs Van de Hoef and Grant in that, as well as involving the idea of an illness being something supervening over and above a person’s natural personality, he saw the distinction as based in whether or not the condition in question was capable of affecting a person’s capacities and taking away their moral culpability for their actions. He saw personality disorders as conditions which were not capable of doing that – t 1-22.Conclusions as to Mental Disease For reasons which I hope fall out of the above discussion, I am not persuaded that borderline personality disorder, DD(NOS) or DID are conditions which are mental diseases within the meaning of the Mental Health Act 2000 (Qld) or s 27 of the Criminal Code. I accept the orthodox psychiatric view that these personality disorders are not diseases. Someone’s personality is a fundamental pattern of behaviour which is part of them. When it is so dysfunctional as to amount to a disorder, treatment is aimed not at relieving the person of their personality, or curing the person of their personality, but enabling the person to use strategies and tactics so that their personality does not cause them such problems in their interaction with the world. To the contrary, a disease is something which supervenes and exists independently of someone’s baseline personality. Treatment is aimed at curing or at least relieving the illness. I accept the psychiatric opinion from Drs Grant and Van de Hoef, in accordance with Dr Harden’s advice that, however severe a personality disorder may be, it does not cause a loss of contact with reality the way a psychotic illness does. It does not therefore have the potential to deprive a person of one of the three capacities listed in s 27 of the Criminal Code. This conclusion is consistent with previous decisions in this Court or its equivalent: GMB.[10]I note from the report of R v O’Ryan,[11] that DID was apparently left to the jury pursuant to a defence under s 27 of the Criminal Code in that case. The Court of Appeal made no adverse comment on that, but it does not appear to have been an issue which was raised before that Court. In McDermott v The Director of Mental Health; ex parte Attorney-General (Qld)[12] the Court of Appeal by majority held that the personality disorder in that case was insufficient to constitute an abnormality of mind when the partial defence of diminished responsibility was considered. Generally speaking, the conditions capable of amounting to an abnormality of mind are less stringently defined than is a mental disease amounting to unsoundness of mind.[10] (2002) 130 A Crim R 187, [40]ff per Chesterman J sitting as the Queensland Mental Health Tribunal. The decision is strictly obiter on this point. GMB cited Re Cuffe, unreported Mental Health Tribunal Qld 2001. See also Re CAW [2007] QMHC 34.[11] [2008] QCA 390.[12] [2007] QCA 51.

Ratio Decidendi

Legal Principle Established

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CITATION:	In the matter of KBC [2016] QMHC 2
PROCEEDING:	Reference
DELIVERED ON:	2 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	16 and 18 December 2015
JUDGE:	Dalton J
ASSISTING PSYCHIATRISTS:	Dr JJ Sundin and Dr S Harden
DETERMINATION:	1. KBC was not of unsound mind at the time of the offending. 2. She is fit for trial. 3. The charges against her should proceed according to law.
APPEARANCES:	JP Benjamin on behalf of KBC J Tate for the Director of Mental Health MB Lehane for the Director of Public Prosecutions (Qld)
SOLICITORS:	Legal Aid Queensland for KBC Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld)