In the matter of MGL
[2017] QMHC 7
•30 August 2017
MENTAL HEALTH COURT
CITATION: In the matter of MGL [2017] QMHC 7 PROCEEDING: Reference DELIVERED ON: 30 August 2017 DELIVERED AT: Brisbane HEARING DATE: 31 May 2017; 27 July 2017 JUDGE: Flanagan J ASSISTING Dr S J Harden and PSYCHIATRISTS: Dr E N McVie ORDER:
1. The Court determines that at the time of the alleged offences the defendant was of unsound mind.
2. The Court makes a forensic order (mental health) for the defendant.
3. The category of the forensic order is community.
4. The Court approves that pursuant to section 140(b) of the Mental Health Act 2016 (Qld) an authorised doctor under section 212 may, at a future time, change the nature or extent of treatment in the community including by changing the category of the forensic order from community to inpatient, with or without limited community treatment.
5. The Court recommends that:
(a) an experienced forensic psychiatrist undertake a comprehensive risk assessment of the defendant;
and
(b) an assessment be undertaken by the Community Forensic Outreach Service in relation to the
defendant’s repeated setting of fires.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the
defendant was charged with serious assault of public officer performing function, possessing a knife in public and wilful
damage – where, at the time of the offences, the defendant suffered from Schizophrenia – where the defendant had a history of being non-compliant with treatment – whether,
under the Mental Health Act 2016 (Qld) a forensic order or treatment support order should be imposed – whether the circumstances warrant a more restrictive forensic order –
whether a treatment support order was sufficient to protect the defendant and the community – whether the defendant would be of unacceptable risk if not subject to a forensic order Mental Health Act 2016 (Qld), ss 3, 5, 6, 16, 21, 116, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 143, 144, 145, 305, 433, 444, 445, 457, 465
Mental Health Act 2000 (Qld), s 288 COUNSEL: A E Loode for the Director of Public Prosecutions (Qld)
J Tate for the Office of the Chief PsychiatristJ D Briggs for the defendant SOLICITORS: Director of Public Prosecutions (Qld)
Crown Law for the Office of the Chief PsychiatristLegal Aid Queensland for the defendant
This reference under the Mental Health Act 2016 (“the MHA 2016”) concerns three
charges allegedly committed on 25 August 2016, namely serious assault of a public officer, possession of a knife in public and wilful damage. On 27 July 2017 I determined, pursuant to section 116(1)(a), that the defendant was of unsound mind when the offences were allegedly committed. The Court was assisted by Dr McVie and Dr Harden. The basis of the finding of unsoundness was that at the time of the alleged offences the defendant was suffering from paranoid schizophrenia which deprived her of the capacity to know that she ought not do the acts.
Having made the finding of unsoundness, section 131(2) provides that the Court must make the order required under division 2 or 3,[1] that is, either a forensic order or a treatment support order. Section 131(3) provides that if the Court is not required under division 2 or 3 to make an order, the Court may make no order for the person. In the present case the issue was whether a forensic order or a treatment support order should be made. No party submitted that no order should be made.
[1] Chapter 5, Part 4, division 2 or 3 of the MHA 2016.
When the reference was first before the Court on 31 May 2017 the parties were directed to file and serve written submissions as to the appropriate order which should be made. This direction was given because this was the first reference under the MHA 2016 where the Court had to consider the relevant statutory criteria under that Act in considering whether to make a forensic order or a treatment support order.
On 27 July 2017 I made a forensic order (mental health) for the defendant, community category. These are my reasons for making that order.
Background
The defendant was 44 years of age at the time of the offending. Her criminal history includes one count of behaving in a disorderly manner from 1995 and one count of arson which involved lighting fire to her own house in 2007. The defendant has a history of psychotic symptoms which, according to her treating psychiatrist, developed in the context of post-traumatic stress disorder resulting from an experience when she was working as a corrective services officer. The defendant was attacked by two inmates and left in a toilet for several hours. She periodically has intrusive images and recollections of this experience, as well as reporting hypervigilance and hypersensitivity to external stimuli.[2]
[2] Report of Dr J Butler dated 2 March 2017, page 2, lines 20-22.
Her symptoms of psychosis began in 2003. Her paranoid schizophrenic illness was first diagnosed after she set fire to her own house. The defendant reported that she had been
hearing voices and believed that the person residing upstairs was ‘perving’ on her and ‘poisoning’ her. She began to carry a knife for her own protection. Dr Jeremy Butler
assessed her at this time, as well as providing a report for the purposes of these proceedings. The Court found her to be of unsound mind in April 2007 and imposed a forensic order (inpatient) under the Mental Health Act 2000. She was treated by community mental health and maintained her medication, Aripiprazole. That forensic order continued until 2010.
The defendant thereafter became non-compliant with her medication. In 2011, she suffered a psychotic relapse resulting in serious self-injury. She had developed severe pain in her anus and, in an effort to cleanse herself, perforated her colon with a high- pressure water source. As a result, she required a bowel resection and ileostomy for 11 months. She was returned to her general practitioner, Dr Spurling, for management. Her psychotic symptoms resolved on the resumption of her medication regime.
In 2013, an admission was recorded with persecutory delusions but no evidence of any behaviour causing risk to herself or others.
On 25 August 2016 the defendant was admitted to the Royal Brisbane and Women’s
Hospital Mental Health Unit again as a result of her non-compliance with medication. This is when the present offences were allegedly committed. At the time of the offences the defendant was terrified and believed that someone was trying to kill her. While in the Secure Admissions Wing, she went into the toilet area and shortly thereafter came out and told a nurse there was a fire in the toilet. The nurse went into the toilet and extinguished the fire in the waste bin that had been set alight. The nurse confronted the defendant about the fire. She handed over a lighter that she had in her possession. When the defendant was asked if there was anything else in her possession, she pulled out an extendable knife from her jacket pocket which the nurse took off her.
As the defendant had concealed a knife on her person in the Secure Admissions Wing, she was transferred to a secure padded room to change into clothing to reduce her risk of injury to herself and others. She was assisted by a female nurse. The defendant became upset that there were male security officers present where she was changing, and she became abusive and aggressive. Those security officers then left, leaving the female
nurse alone with the defendant. When the nurse bent down to collect the defendant’s
clothing, the defendant shoulder charged the nurse, sending her backwards into a wall.
The nurse suffered bruising and leg pain.
Ultimately the treating team deemed that the defendant was suitable for referral back to her general practitioner for management. She now resides in a caravan park near Maleny. She has a daily routine and maintains contact with her mother and close friends. She reports that she finds living near nature less stressful than living in the city.
Dr Butler’s Report
Dr Butler has provided a report dated 2 March 2017. He opines that the defendant is aware of her schizophrenia and depression and regularly attends appointments with her general practitioner, Dr Spurling. She is prescribed Aripiprazole (20 mg daily), Fluoxetine (20 mg daily) and Thyroxine and Alprazolam (1 mg as-required).
Dr Butler believes that the instance of setting fire to the bin was not rationally explained by any motive other than one due to psychosis.[3] In relation to all three charges, Dr Butler is of the opinion that the defendant did not have adequate insight into her behaviour and was deprived of the capacity to know that she ought not do the acts.
[3] Report of Dr J Butler dated 2 March 2017, page 11, lines 1-2.
Dr Butler’s opinion is that when “more unwell” the defendant experiences “distressing
referential persecutory delusions, auditory hallucinations and passivity phenomena all of which cause a significantly heightened level of anxiety resulting in social withdrawal and
an increased propensity to react aggressively to perceived threat.” He states that the instances of the defendant’s pyromaniac tendencies and self-harm indicate the level of
behavioural disturbance that can occur when she is unwell.[4]
[4] Report of Dr J Butler dated 2 March 2017, page 9.
[15] Dr Butler’s view is that if the defendant “were to discontinue her antipsychotic
medication, she would inevitable suffer a severe lapse into psychosis, thereby creating a
scenario where her own welfare and potentially that of others would be jeopardised.”[5]
[5] Report of Dr J Butler dated 2 March 2017, page 10.
Dr Butler recommends that the defendant receive ongoing treatment with antipsychotic medication with regular reviews of her mental state. He further recommends that a forensic order (limited community treatment) is appropriate, considering her history, persecutory symptomology and her relatively isolated living location. According to Dr Butler a forensic order of this type would allow the defendant to maintain continual community engagement. Dr Butler does not think that the defendant satisfies the criteria for treatment under the auspices of an involuntary treatment order (involuntary treatment orders no longer exist under the MHA 2016 and have been replaced by a new alternative
called a treatment authority).[6] Dr Butler’s recommendations are similar to those of the
psychiatrists who assist this Court.
[6] Report of Dr J Butler dated 2 March 2017, page 13.
Recommendations of the Assisting Psychiatrists
When this reference was initially heard on 31 May 2017, Dr McVie recommended a
forensic order, “because there is a significant risk to the community when (the defendant) is unwell.”[7] Dr McVie advised that a forensic order could later be stepped down to a
treatment support order by the Mental Health Review Tribunal, should that be considered appropriate in the future.[7] T1-4 (Hearing, 31 May 2017), lines 40-41.
At the later hearing on 27 July 2017, Dr McVie’s recommendation remained unchanged.
Dr McVie had however, further considered the issue in light of the parties’ written
submissions. Her opinion is that the defendant requires a comprehensive risk assessment by an experienced forensic psychiatrist. She also believes that the defendant requires a specific assessment in relation to her repeated setting of fires by the Community Forensic
Outreach Service. Both these recommendations fall within the ‘intervention programs’
which are able to operate under a forensic order.[8]
[8] MHA 2016, s 136.
In providing her assistance to the Court, Dr McVie stated:
“The policy on treatment support orders, to my mind, is insufficient. The
previous policy under the previous Act had very clear directions for management of forensic patients. They were to be reviewed by the treating psychiatrist monthly and by a case manager fortnightly and it appears, even for forensic orders now, the frequency of review is determined by the area
risk management committee.”[9]
[9] T1-3 (Hearing, 27 July 2017), lines 41-46.
Dr McVie advises that section 136 of the MHA 2016 permits the Court to make recommendations for intervention programs if a forensic order is made, but there is no
reciprocal provision for a treatment support order. Accordingly Dr McVie’s view is that
it would be unsafe for the defendant to only be subject to a treatment support order.
Dr McVie states:
“I consider it would be in (the defendant’s) best interests to have access to
specialised forensic assessment and future planning to minimise the risk of
her being involved in similar activities in the future.” [10]
Dr McVie concludes that a forensic order (mental health – community) is appropriate.[11]
[10] T1-4 (Hearing, 27 July 2017), lines 32-34.
[11] T1-5 (Hearing, 27 July 2017), line 1.
Dr Harden agrees with Dr McVie. Dr Harden’s view is that a forensic order (mental
health – community) is appropriate given the defendant has been in the community for
some time, and further, the defendant having access to specialised forensic assessment is important given her history and the dangerous behaviour associated with her being unwell.[12]
[12] T1-4 (Hearing, 27 July 2017), lines 39-44. .Statutory Framework
Section 21(2) of the MHA 2016 provides that if the Court decides a person was of unsound mind when the offence was committed, or was of diminished responsibility or is unfit for trial, the Court may make a forensic order or treatment support order for the person. Forensic orders and treatment support orders are dealt with under chapter 5 part 4 of the MHA 2016. The Court may, on a reference in relation to a person make either a forensic order (mental health or disability) under division 2 or a treatment support order under division 3: section 130(1). Section 130(2) provides that a forensic order (mental
health) operates in a way that is more restrictive of a person’s rights and liberties than a
treatment support order. Section 130(2) gives various examples of these restrictions. These include that the Court may decide the category of a forensic order (mental health) is community only if the Court considers there is not an unacceptable risk to the safety of the community. This is to be contrasted where the Court may decide the category of a
treatment support order is inpatient only if the Court considers the person’s treatment and
care needs, the safety and welfare of the person, or the safety of others, cannot reasonably
be met if the category of the order is community.
Section 131 identifies the orders the Court must make where there is a finding of unsoundness of mind or permanent unfitness for trial. In such circumstances section 131(2) states that the Court must make the order required under division 2 or 3 for the person. The relevant inquiry under section 131(2) is whether the Court is required to make a forensic order under division 2 or a treatment support order under division 3. If there is no such requirement, section 131(3) provides that the Court may make no order for the person.
Section 131 is to be contrasted with section 132 which deals with orders where there is a finding of temporary unfitness for trial. Section 132(2) simply provides that the Court must make an order for the person under division 2 or 3. That is, a forensic order or a treatment support order must be made in circumstances where there is a finding of temporary unfitness for trial.
The matters to be considered in deciding whether a forensic order or treatment support order is necessary are detailed in section 133 of the MHA 2016:
“133 Matters to which Mental Health Court must have regard
(1) In making a decision under this part in relation to an order for a person, the Mental Health Court must have regard to the following—
(a) the relevant circumstances of the person; (b)
the nature of the offence to which the reference relates and the period of time that has passed since the offence was allegedly committed;
(c)
any victim impact statement produced by the prosecuting authority for the offence under part 5, division 3.
Examples of decisions under this part in relation to an order—
● deciding whether a forensic order or treatment support order is necessary ● deciding the category of the order ● deciding whether the person is to receive any treatment in the community ● deciding the conditions, if any, to impose on the order
(2) Subsection (1) does not limit any other provision of this part that requires the court to have regard to a stated matter.”
‘Relevant circumstances’ is defined in the Schedule to the MHA 2016 to mean the
person’s mental state and psychiatric history, any intellectual disability, the person’s
social circumstances, the person’s response and willingness to receive treatment and care
and the person’s response to previous community treatment.
Section 134 provides that the Court must make a forensic order if it considers such an
order is necessary because of the person’s mental condition, to protect the safety of the
community, including from the risk of serious harm to other persons or property. Section
134 states:“Requirements for making forensic order
(1) The Mental Health Court must make an order (a forensic order (mental health) or forensic order (disability)) for the person if the court considers a forensic order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the
risk of serious harm to other persons or property.Note— If the court does not consider a forensic order is necessary, see division 3 in relation to the making of a treatment support order. (2) In deciding whether a forensic order is necessary, the court must have
regard to the policies mentioned in section 305(1)(e) and (f).(3) If the court makes a forensic order for the person, the order must be—
(a) a forensic order (mental health) if the court considers— (i) the person’s unsoundness of mind was, or unfitness for trial
is, because of a mental condition other than an intellectual
disability; or(ii) the person has a dual disability and needs involuntary
treatment and care for the person’s mental illness, as well
as care for the person’s intellectual disability; or
(b) a forensic order (disability) if the court considers—
(i) the person’s unsoundness of mind was, or unfitness for trial is, because of an intellectual disability; and
(ii) the person needs care for the person’s intellectual disability
but does not need treatment and care for any mental illness.
(4) Subsection (3)(a)(ii) applies regardless of the basis on which the court decides the person was of unsound mind when the offence was allegedly committed, or is unfit for trial.”
When sections 133 and 134 are read together the matters to which the Court must have regard in considering a forensic order are not dissimilar to the three criteria provided in section 288(4) of the Mental Health Act 2000 which states:
“(4) In deciding whether to make an order under subsection (2), the court must have regard to the following –
(a) the seriousness of the offence; (b) the person’s treatment or care needs; (c) the protection of the community.”
Both Acts require the Court to have regard to the offence, the circumstances of the person and the protection of the community. Section 133(1)(c) of the MHA 2016 additionally requires the Court to have regard to any victim impact statement. Section 7 of the MHA 2016 provides that in performing a function or exercising a power under the Act a person is to have regard to the principles mentioned in sections 5 and 6. The principles identified in section 6(2) apply to the administration of the Act in relation to a victim which includes a victim of an unlawful act and a close relative of such a victim. The requirement of the Court under section 133(1)(c) to consider any victim impact statement is therefore consistent with the principles for victims identified in section 6.
It is convenient at this point to deal with an oral submission made by counsel for the Chief Psychiatrist at the hearing conducted on 31 May 2017. That submission was as follows:
“In the Chief Psychiatrist’s submission, a forensic order under the new Act is
really meant to be restricted to the most serious cases.”[13]
I do not accept this submission. As correctly submitted by the DPP, the MHA 2016 does not provide any particular guidance on the types of offences or circumstances that might lead to the imposition of a forensic order as opposed to a treatment support order. The Court must impose a treatment support order if it considers that a treatment support order,
and not a forensic order, is necessary considering the person’s mental condition and the
safety of the community, including the risk of serious harm to persons or property.[14]
[13] T1-3, lines 44-45.[14] MHA 2016, s 143(1).A treatment support order is a new concept which did not exist under the previous Mental Health Act 2000. Section 143 provides:
“Requirements for making treatment support order
(1)
The Mental Health Court must make an order (a treatment support order) for the person if the court considers a treatment support order,
but not a forensic order, is necessary, because of the person’s mental condition, to protect the safety of the community, including from the
risk of serious harm to other persons or property.(2)
In deciding whether a treatment support order, but not a forensic order, is necessary, the court must have regard to the policy that must be made by the chief psychiatrist under section 305(1)(g) in relation to persons subject to treatment support orders.
(3) This section does not apply if the court considers—
(a) the person’s unsoundness of mind was, or unfitness for trial is, because of an intellectual disability; and
(b) the person does not need treatment and care for any mental illness.”
The Explanatory Notes to the Mental Health Bill 2015, in introducing treatment support
orders, state that the “purpose of the order is to ‘step-down’ a patient from a forensic order as part of the patient’s recovery, when it is appropriate to do so”. In discussing section
143 requirements for making treatment support orders, the Explanatory Notes state as
follows:
“Clause 143 outlines circumstances where the Mental Health Court must
make a treatment support order. A treatment support order is a lower-level order where the level of community treatment is determined by an authorised doctor in a similar way to that for treatment authorities. It is also anticipated
that, under the Chief Psychiatrist’s policies and practice guidelines, the level
of oversight and scrutiny for a person on a treatment support order will be less than for a person on a forensic order. This type of order may be
appropriate where the person’s role in an offence was relatively minor.”
The Explanatory Notes suggest that one of the purposes of including the option of a treatment support order is to provide a less-stringent option for those patients who had been on forensic orders and their treatment and care needs and risk profile were so reduced such as to subsequently require less clinical management and oversight. A treatment support order may also be appropriate for those patients whose offending was relatively minor.
The only prescription in the MHA 2016 in respect of specific offences is that, in relation to prescribed offences, a non-revocation period may be imposed. Section 137 deals with non-revocation periods. It provides that where the Court makes a finding of unsoundness or permanent unfitness for trial where the person is charged with a prescribed offence and the Court makes a forensic order for the person the Court may state in the order a period of not more than 10 years during which the Mental Health Review Tribunal may not revoke the order, other than under section 457. In deciding the non-revocation period the Court must have regard to the object of the Act in relation to protecting the community. This is a reference to section 3(1)(c), which identifies as one of the main objects of the MHA 2016 is to protect the community if persons diverted from the criminal justice
system may be at risk of harming others. The term “prescribed offence” is defined in
Schedule 3 of the MHA 2016 and includes such offences as murder, manslaughter, attempted murder, acts intended to cause grievous bodily harm and other malicious acts, grievous bodily harm, rape, attempt to commit rape and assault with intent to commit rape. The provisions of section 137 do not exclude a forensic order being imposed in relation to other offences that do not constitute a prescribed offence. The imposition of a non-revocation period is an additional measure applicable in relation to a forensic order concerning prescribed offences but is not mandated in all instances. It follows that the alleged offence need not be a prescribed offence for a forensic order to be imposed in respect of the person. The primary consideration in determining the non-revocation period imposed is the aim of the MHA 2016 to protect the community.[15] What section 133(1)(b) requires is that the Court have regard to the nature of the offence for the purposes of determining whether division 2 requires the imposition of a forensic order or division 3 requires the imposition of a treatment support order. This does not reflect any
requirement for a forensic order only to be made in respect of the “most serious of cases”
as submitted by the Chief Psychiatrist.
[15] Outline of Submissions on behalf of the Crown, [8].In deciding whether a forensic order is necessary the Court must have regard to the policies mentioned in section 305(1)(e) and (f). Section 305(1) requires the Chief Psychiatrist to make a policy about a number of matters. These include those matters identified in sections 305(1)(e) and (f) which provide:
“(e) the treatment and care of forensic patients and the assessment and
management of risks relating to forensic patients receiving treatment in
the community;
(f) without limiting paragraph (e), the treatment and care of forensic patients whose forensic order was made on a reference in relation to a prescribed offence allegedly committed by the person, and the assessment and management of risks relating to those forensic patients
receiving treatment in the community.”
Pursuant to section 143(2) the Court, in deciding whether a treatment support order but not a forensic order is necessary, must have regard to the policy that must be made by the Chief Psychiatrist under section 305(1)(g) in relation to persons subject to treatment support orders.
The relevant Chief Psychiatrist’s Policy made under section 305(e), (f) and (g) is the
“Treatment and Care of Forensic Order, Treatment Support Order and High Risk Patients,
effective 5 March 2017” (“the Policy”). A copy of the current version of this Policy is
Annexure 1 to these Reasons. The scope and application of the Policy is:
“This policy is mandatory for all AMHSs (the assessment and risk
management committee). An authorised doctor, authorised mental health practitioner, administrator of an AMHS, or other person performing a function or exercising a power under the Act must comply with this Policy. This policy must be implemented in a way that is consistent with the Objects
and Principles of the Act.”[16]
[16] The Policy, part 2 ‘Scope’.The purpose of the Policy is:
“This policy outlines the Chief Psychiatrist’s Policy regarding the treatment
and care of patients who are subject to a forensic order, treatment support
order or patients whose risk profile is assessed as high by the treating team.
This includes those patients whose forensic order was made on a reference in
relation to a ‘prescribed offence’ allegedly committed by the person.
This Policy establishes a clinical governance framework for the management of patients subject to a forensic order, treatment support order and patients whose risk profile is assessed as high by their treating team. The framework operates as a clinical peer review that strengthens the assessment and risk
management of these patients.”
I deal below with the practical differences between a forensic order and a treatment support order. I refer to the Policy in more detail in that context. The purpose of section 134(2) and 143(2) is to incorporate the Policy as a relevant matter for consideration by the Court in determining whether a forensic order or a treatment support order is
necessary. The purpose of section 134(2) and 143(2) is not to confine the Court’s
statutory discretion conferred under sections 134(1) and 143(1). Rather, by requiring the Court to have regard to the Policy, the legislative intent is that the Court, in determining whether a forensic order or a treatment support order is necessary, is informed of the practical consequences of making such an order. These practical consequences include such matters as risk assessment, management, monitoring and review for a person who is made subject to a forensic order or a treatment support order. By having regard to the Policy the Court is better able to properly consider whether a forensic order or a treatment
support order is necessary because of the person’s mental condition, to protect the safety
of the community, including from risk of serious harm to other persons or property.
The task of the Court under section 134(1) is to consider whether a forensic order is necessary. If the Court considers that a forensic order is necessary, then section 134(1) mandates that such an order must be made. Section 143(1) is in slightly different terms. The Court must make a treatment support order if the Court considers a treatment support order, but not a forensic order, is necessary. This would suggest that prior to the Court considering whether a treatment support order is necessary it should first determine that a forensic order is not necessary. The Court must have regard to similar matters in determining whether either order is necessary. The Policy summarises the legislative considerations as follows:
“● The relevant circumstances of the person; ● The nature of the offence to which the reference relates and the period
of time that has passed since the offence was allegedly committed;● Any victim impact statement, and ● This Chief Psychiatrist Policy.”
Apart from the requirement for the Court to have regard to these matters, the Court’s
consideration of whether a forensic order or a treatment support order is necessary is
otherwise unfettered. The Court’s consideration of whether a particular order is necessary
should be exercised in accordance with the purpose and objects of the MHA 2016. The main objects of the MHA 2016 and how those objects are to be achieved are stated in section 3:
“3 Main objects of Act
(1) The main objects of this Act are—
(a)
to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated; and
(b)
to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial; and
(c)
to protect the community if persons diverted from the criminal justice system may be at risk of harming others.
(2) The main objects are to be achieved in a way that –
(a) safeguards the rights of persons; and (b)
is the least restrictive of the rights and liberties of a person who has a mental illness; and
(c) promotes the recovery of a person who has a mental illness, and the person’s ability to live in the community, without the need for
involuntary treatment and care.
(3) For subsection (2)(b), a way is the least restrictive of the rights and liberties of a person who has a mental illness if the way adversely affects the person’s rights and liberties only to the extent required to protect the person’s safety and welfare or the safety of others.”
As correctly submitted by the DPP, the statutory scheme implemented by the MHA 2016 is not only diversionary and remedial, but also protective in nature. This is evident from
section 3(1)(c) which has as one of its main objects, “to protect the community if persons
diverted from the criminal justice system may be at risk of harming others”. There is an
important qualification as to how the main objects of the MHA 2016 are to be achieved. Section 3(2) provides that the main objects are to be achieved in a way that is the least restrictive of the rights and liberties of a person who has a mental illness. Section 3(2) is qualified by section 3(3) which provides that a way is the least restrictive of the rights
and liberties of a person who has a mental illness if the way adversely affects the person’s
rights and liberties only to the extent required to protect the person’s safety and welfare
or the safety of others. Whilst the Court ought to impose orders that are the least restrictive of the rights and liberties of a person with a mental illness, they must still be orders that achieve the object of the MHA 2016 to protect the community from the risk of harm to others.
By reference to section 3(2) and section 131 the defendant submits that there is, in effect, a statutory hierarchy which establishes the order in which the Court should consider the making of any order. It is submitted that the Court should commence its deliberation by first considering whether any order is necessary: section 131(3). If the Court finds that the community will not be protected unless the Court makes some order, the Court should then consider whether to make a treatment support order and if not, only then consider whether the making of a forensic order is necessary.[17] The Chief Psychiatrist submits however, the Court should first consider whether a forensic order is required and if not, that the Court should then move to consider if a treatment support order is required. I
accept this submission. The Chief Psychiatrist’s submission is supported by the words of
section 143(1) which provides that the Court must make a treatment support order if the Court considers a treatment support order, but not a forensic order, is necessary.[17] Outline of Submissions on behalf of the Defendant, pages 3-4.
The Court may, in relation to both a forensic order and a treatment support order, impose the conditions it considers appropriate: section 135(1) and section 144(1). An important distinction however, is that the Court has an additional power in relation to a forensic order to make the recommendations it considers appropriate about particular intervention programs that a stated authorised mental health service or the forensic disability service should provide for the person: section 136. Another important distinction as to the
Court’s power is that the Court may only impose a non-revocation period in respect of a
forensic order made in circumstances where there is a finding of unsoundness or
permanent unfitness for trial in relation to a prescribed offence: section 137.
Where the Court makes a forensic order or a treatment support order the Court must also decide the category of the order, whether community or inpatient: section 138(1) and section 145(1).
Section 138(2) states that if the Court makes a forensic order (community), it must be satisfied there is no unacceptable risk to community safety. Conversely, section 145(2) states that if the Court makes a treatment support order it may only make the order
‘inpatient’ category if the person’s treatment and care needs, their safety and welfare
and/or the safety of others cannot reasonably be met if the order is ‘community’ category.
The Policy addresses this delineation:
“The general expectation is that when a person is made subject to a treatment
support order the category of the order is community.”
If a treatment support order (inpatient) is made, the Court may only do so where a treatment support order (community) fails to adequately protect the safety and welfare of the patient and/or the community. This is the opposite burden to where the Court considers a forensic order (community) where the Court can only impose such an order if it is satisfied that there is no unacceptable risk to community safety.
The defendant submits that this delineation suggests that if a person is already living in the community, the Court should make a treatment support order unless there is some specific restriction required to protect the community from the risk which can only be addressed by a forensic order. I do not accept this submission. The fact that a person may be living in the community may be a consideration under section 133(1)(a) which requires the Court to have regard to the relevant circumstances of the person. This however, is only one of many considerations the Court must have regard to in considering whether either a forensic order or a treatment support order is necessary.
Section 139 provides that if the Court decides the category of a forensic order for a person
is inpatient the Court must do one of the following –
(a) order that the person have no limited community treatment;[18] (b) approve that an authorised doctor under section 212 or a senior practitioner under [18] An order under s 139(1)(a) may be amended by the Tribunal, but may not be amended by an authorised doctor: see sections 112(2) and 445(2)(b) and (c).
the Forensic Disability Act, section 20 may, at a future time –
(i) authorise limited community treatment for the person, to the extent and subject to the conditions decided by the Court; or
(ii) change the category of the order to community, subject to the conditions decided by the Court;
(c) order that the person have limited community treatment –
(i) of a stated extent; and (ii)
subject to the conditions decided by the Court, including whether, or the extent to which, an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may amend the forensic order in relation to treatment in the community.
The Court may make an order under section 139(1)(b) or (c) only if the Court is satisfied
there is not an unacceptable risk to the safety of the community, because of the person’s
mental condition, including the risk of serious harm to other persons or property. Section 139(3) identifies those matters the Court must have regard to in being satisfied of the matters mentioned in section 139(2). These include the purpose of limited community
treatment. That purpose is to support a patient’s recovery by transitioning the patient to
living in the community with appropriate treatment and care: section 16.
If the Court decides that the category of a forensic order for a person is community,
section 140 requires the Court to –
(a) order that an authorised doctor or a senior practitioner under the Forensic Disability Act must not change the category of the order to inpatient;[19] or (b) approve that an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may, at a future time, change the nature or extent of treatment in the community received by the person, to the extent and subject to the conditions decided by the Court. The statutory example makes it clear that this approval can include giving the authorised doctor the power to change the category of treatment to inpatient with or without limited community treatment.
For treatment support orders, section 145(3) provides that if the Court decides the category is inpatient, the Court may approve limited community treatment for the person, to the extent and subject to the conditions decided by the Court. Again the Court in deciding whether to approve limited community treatment must have regard to the purpose of limited community treatment as identified in section 16.
The practical differences between a forensic order and a treatment support order
I have already outlined above in considering the statutory framework some of the
differences between the Court’s powers in respect of making a forensic order and a
treatment support order. The DPP has provided an extensive analysis of what are the practical differences between a forensic order and a treatment support order under the MHA 2016. This analysis also highlights the differences in the application of the Policy to forensic orders and treatment support orders. I gratefully accept and incorporate this analysis into these reasons.
If the Mental Health Court imposes a forensic order in respect of a person, the following occurs:[20]
[20] Outline of Submissions on behalf of the Crown, [9].
(a)
The Court must decide whether the category is inpatient or community. The Court may decide that the category is community only if the Court considers there is not an unacceptable risk to the safety of the community;[21]
(b)
The Court may approve limited community treatment only if the Court considers there is not an unacceptable risk to the safety of the community;[22]
(c)
An authorised doctor may authorise treatment in the community only to the extent approved by the Court or Tribunal;[23]
(d)
The Court may impose appropriate conditions on the order, including, for example, a non contact condition;[24]
(e)
The Court may make recommendations about intervention programs, for example, drug and alcohol programs, anger management counselling, programs or sexual offender programs;[25]
(f)
The Court may impose a non-revocation period for a person charged with a prescribed offence;[26]
(g)
A psychiatrist will assess and determine treatment and care within 7 days of the patient becoming a forensic order patient;[27]
(h)
The Assessment and Risk Management Committee (ARMC) must review treatment and care of the patient within 30 days of being made subject to a forensic order;[28]
(i)
The first ARMC meeting is to consider the appropriateness of a Community Forensic Outreach Service (CFOS) referral;[29]
(j) CFOS must review all forensic order patients charged with prescribed offences;[30] (k) The ARMC must review forensic order patients at least twice per year;[31] (l)
The ARMC must determine the frequency of review of the patient by the case manager, forensic liaison officer and an authorised psychiatrist;[32]
(m) The clinical director of an AMHS is to be notified and briefed on: [21] Sections 130(2) and 138.
[22] Section 139.
[23] Section 130(2), example 3.
[24] Section 135(2).
[25] Section 136.
[26] Section 137.
[27] The Policy, 5.2.1.
[28] As above.
[29] As above.
[30] As above.
[31] As above.
[32] As above.(i) The matter being escalated to the Chief Psychiatrist because of media attention, controversial events or situations, serious and/or continued breaches of LCT or any matter is of such importance that it should be reported to the Chief Psychiatrist; or
(ii) The patient’s risk profile is assessed by the treating team to have changed
from low/moderate to high; or
(iii) A material change to the patient’s circumstances; or
(iv) Limited Community Treatment (LCT) is breached, suspended or cancelled.[33]
[33] The Policy, 5.2.1.
(n) On notification of events listed in (m)(i) – (iv), the clinical director may determine the ARMC should meet to review the treatment and care of the patient;[34]
[34] As above.
(o) The Chief Psychiatrist may determine that an ARMC should be held to review the patient’s treatment and care;[35]
[35] As above.
(p) forensic order patients not inpatients at The Park Centre for Mental Health – High Security charged with a prescribed offence must be assessed by CFOS within 60 days;[36]
[36] As above, 5.2.2.
(q)
The patient must be photographed and have their photograph uploaded to CIMHA;[37]
(r) The patient must be reviewed at least every 3 months;[38] (s)
The patient must have a Care Plan and interventions to manage risk must be documented in the Care Plan;[39]
(t) Liaison with or referral to CFOS must occur when:
(i) A patient’s risk of violence is escalating, or (ii) A patient is an inpatient at The Park Centre for Mental Health – High Security [37] As above, 5.2.4.
[38] As above, 5.3.1.
[39] As above, 5.3.2.
in order to support community transition, or
(iii) Revocation of a forensic order is being considered to determine whether there is a need for CFOS opinion, and
(iv) At all other times, referrals can be made on CFOS referral criteria.[40]
[40] As above, 5.3.3; Annexure 2 to these Reasons.
(u)
An Involuntary Patient Summary with current information and circumstances must be uploaded to CIMHA;[41]
[41] The Policy, 5.3.4; Annexure 3 to these Reasons.(v) It must be immediately reported to the Chief Psychiatrist if media attention, controversial events or situations, serious and/or continued breaches of LCT arise or any matter of such importance it should be reported to the Chief Psychiatrist;[42]
(w) Administrators of AMHSs are to report to the Chief Psychiatrist quarterly regarding the treatment and care of patients.[43] (x) The Attorney-General’s representative has a right to appear on the review of the
forensic order by the Mental Health Review Tribunal to make submissions for the protection of the community on the appropriateness of proposed changes to the order, for example, changes to LCT conditions, revocation of the order, or stepping- down to a treatment support order.
[42] As above, 5.4.1.
[43] As above, 5.4.2.
If the Mental Health Court imposes a treatment support order in respect of a person, the following occurs:[44]
[44] Outline of Submissions on behalf of the Crown, [10].
(a)
The Court must decide whether the category is inpatient or community. The Court may decide that the category is inpatient only if the Court considers one or more of:
the person’s treatment and care needs, the safety and welfare of the person or the
safety of others, can not reasonably be met if the category is community;[45]
[45] Section 145.
(b) The Court may approve LCT;[46] (c)
An authorised doctor may authorise treatment in the community subject only to the Court or Tribunal deciding whether the authorised doctor may reduce the extent of treatment in the community received by the person;[47]
(d)
The Court may impose appropriate conditions on the order, including, for example, a non contact condition;[48]
(e) The AMRC will review the treatment and care of a patient if:
(i) Previously on a forensic order and the patient has been ‘stepped down’ to a [46] Section 145.
[47] Section 130(2), example 4.
[48] Section 144.treatment support order. This review must be done within 90 days of being
placed on a treatment support order, or(ii) A patient subject to a treatment support order has a change of their risk profile and has been assessed as high risk by the treating team, or
(iii) The clinical director, administrator or Chief Psychiatrist determine the ARMC should review the patient;[49]
[49] The Policy, 5.2.3.
(f) Other than the circumstances outlined in (e), monitoring and review timeframes for the patient are as determined by the treating psychiatrist;[50] (g) The patient may be photographed if determined by the treating team, clinical director or administrator as appropriate;[51] (h) The patient must be reviewed at least every 3 months;[52] [50] As above.
[51] As above, 5.2.4.
[52] As above, 5.3.1.
(i) The patient must have a Care Plan and interventions to manage risk must be documented in the Care Plan;[53]
[53] As above, 5.3.2.
(j) An Involuntary Patient Summary with current information and circumstances must be uploaded to CIMHA;[54] (k) If the patient’s risk profile is assessed by the treating team as being high, then an [54] As above, 5.3.4; Annexure 3 to these Reasons.
immediate report must be made to the Chief Psychiatrist if media attention, controversial events or situations, serious and/or continued breaches of LCT arise or any matter of such importance it should be reported to the Chief Psychiatrist;[55]
[55] As above, 5.4.1.
(l) If the patient satisfies any of the following criteria, they may be referred to CFOS:
(i) Risk of serious violence, as evidenced by:
●
Charge or conviction for murder, attempted murder, manslaughter, assault occasioning bodily harm, grievous bodily harm, rape, attempt rape or assault with intent to cause rape; or
●
Assault behaviour (where the victim sustained serious physical injury and/or a weapon was used and/or the assault was part of a repeated or escalating pattern of such behaviour); or
● A repeated and/or escalating pattern of threats, violent behaviour or
morbidly violent thoughts; or● Any ‘high risk’ psychotic phenomena, the presence of which may be associated with a higher likelihood of more serious or imminent
violence:
o Delusional jealousy; o Auditory command hallucinations of a violent or sexual nature; o Delusional misidentification (‘Capgras’ delusions) where
‘impostors’ are perceived as persecutors;
o ‘End of tether’ language (reference to ‘last resort’, ‘only hope’,
‘final attempt’, ‘last hope’) or evidence of ‘last resort’ thinking
(where they feel no other possible course of action remains).
(ii) Initial referral of forensic order (Prescribed) to CFOS;
(iii) Persons who are engaging in ‘problem behaviours’ with a high potential
to cause serious harm, distress or disruption to others. These include:
● Sexually deviant behaviours; ● Stalking behaviours; ● Threats and harassment of public figures or public officials; ● Fire setting behaviours; ● Persistent abnormal complainants (querulous or vexatious behaviours).
(m) The Attorney-General’s representative has no ability to appear on the review of the treatment support order by the Tribunal to make submissions for the protection of the community on the appropriateness of proposed changes to the order, for example, changes to LCT conditions or revocation of the order.
Disposition of the present case
I consider that a forensic order, community category is necessary. I have outlined above the relevant circumstances of the defendant. These include that she suffers from paranoid schizophrenia. When she ceases her medication she becomes unwell. As noted by Dr Butler, when the defendant is unwell she experiences distressing referential persecutory delusions as well as other symptoms which cause a significant heightened level of anxiety and an increased propensity to react aggressively to a perceived threat. Although the defendant has indicated that she intends to remain compliant with her medication, her history evidences previous occasions where she has ceased to medicate.
As noted by Dr Butler, “If she were to discontinue her antipsychotic medication, she
would inevitably suffer a severe lapse into a psychosis, thereby creating a scenario where
her own welfare and potentially that of others would be jeopardised.”[56]
[56] Dr Butler’s report, dated 2 March 2017, page 10.The nature of the offences were, in my view, serious. The offending included not only lighting a fire in a waste bin which could have led to further property damage, but also the concealment of a knife in the secure area of a mental health ward. The assault on the nurse by the defendant was a serious assault. The complainant nurse suffered bruising and pain to her leg. The previous occasion on which the defendant burnt a house down and had been armed with a knife saw a forensic order imposed which was in place for approximately five years.
I accept the DPP’s submission that on a consideration of the Policy, the more intensive
supervision under a forensic order as opposed to a treatment support order is more appropriate in this instance.[57][57] Outline of Submissions on behalf of the Crown, [23].
The making of a forensic order in the present case as stated by Dr McVie in assisting the Court, also permits a recommendation to be made for an intervention program pursuant to section 136. Further, should the Tribunal determine that the defendant can
subsequently be stepped down to a treatment support order, the Attorney-General’s
representative would be present at that review to be able to represent the community and
address issues concerning the community’s protection.
Both Dr McVie and Dr Harden advise that the category of the forensic order should be community. As such, the Court must make an order under either section 140(a) or (b) of the MHA 2016. Given the considerations identified above in relation to the making of the forensic order, it is appropriate that the Court pursuant to section 140(b), approves that an authorised doctor under section 212 may, at a future time change the nature or extent of treatment in the community including by changing the category of the forensic order from community to inpatient, with or without limited community treatment.
Pursuant to section 136 the Court recommends that:
(a)
an experienced forensic psychiatrist undertake a comprehensive risk assessment of the defendant; and
(b) an assessment be undertaken by the Community Forensic Outreach Service in relation to the defendant’s repeated settings of fires.
ANNEXURE 1 – In the matter of MGL [2017] QMHC 7
ANNEXURE 2 – In the matter of MGL [2017] QMHC 7
ANNEXURE 3 – In the matter of MGL [2017] QMHC 7
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