MMC Re
[2011] QMHC 20
•3 November 2011
MENTAL HEALTH COURT
CITATION:
Re MMC [2011] QMHC 20
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
PROCEEDING NO:
0264/11
DELIVERED ON:
3 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
1 November 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr E N McVieFINDINGS AND ORDERS:
1. The appeal is dismissed
2. The decision of the Mental Health Review Tribunal dated 12 August 2011 is confirmed.
COUNSEL:
J Briggs for the appellant
J Tate for the Director of Mental Health
S Ryan for the Director of Forensic Disability
B McMillan for the Attorney-GeneralSOLICITORS:
Legal Aid Queensland for the appellant
Crown Law for the Director of Mental Health
Director of Forensic Disability (Qld)
Crown Law for the Attorney-General
ANN LYONS J:
Background
MMC was placed on a forensic order by the Mental Health Court on 11 October 2005. He was found to be not fit for trial and it was considered that the unfitness was of a permanent nature. He had been charged with four counts of indecent treatment of a child under 12, as well as sexual assault and deprivation of liberty. MMC was ordered to be detained and limited community treatment was approved on various conditions. Three of the indecent treatment offences had occurred in late 2002. The other offences occurred in March 2005. His forensic order has been regularly reviewed by the Mental Health Review Tribunal.
In February 2010 his forensic order was reviewed by the Tribunal and permission was given to reside at an approved place provided professional staff were present at all times when he was on or off the premises, unless he was having approved unsupervised limited community treatment allowed during day time hours for up to eight hours. MMC ultimately moved to a unit at Kangaroo Point in July 2011.
On 12 August 2011 the Mental Health Review Tribunal reviewed the forensic order and once again confirmed the forensic order and allowed limited community treatment with 14 conditions.
1)a) That the patient reside at… Kangaroo Point, Brisbane or at a such other place approved in advance by the treating psychiatrist
b)That either a DSQ staff member or staff from a funded non-government service provider (as defined by the Disability Services Act 2006) be present at all times unless engaging in Disability Services Act 2006 approved unsupervised LCT (see condition 11) or residential support officers must be present;
2)That the patient must be accompanied by DSQ staff members or staff from a funded non-government service provided (as defined by the Disability Services Act 2006) or a health service staff members when not at the residence referred to in condition 1 or The Park - Centre for Mental Health Authorised Mental Health Service unless engaging in approved unsupervised LCT (see condition 12);
3)That contact with his brother, be supervised in accordance with the directions of the treating psychiatrist;
4)That contact with his parents be supervised in accordance with the directions of the treating psychiatrist;
5)That his contact with his sister be in accordance with the directions of the treating psychiatrist under supervision arranged by that psychiatrist at all times;
6)That he have no contact either directly or indirectly with either victim;
7)That he attend any appointment relating to his care and treatment as directed by the treating psychiatrist;
8)For any travel to the Sunshine Coast area namely north of Caboolture, the patient must be accompanied by DSQ staff member/s or staff from a non-government funded service provider as defined by the Disability Services Act 2006 or a health services staff member;
9)The patient must not consume more than two standard drinks over any period of 24 hours;
10)The patient must not consume any illicit substances and must comply with medical testing for these substances;
11)That any arranged contact between the patient and a child be in accordance with the directions of the treating psychiatrist under any treatment plan arranged by that psychiatrist at all times;
12)That the patient be permitted periods of up to 8 hours unsupervised limited community treatment between the hours of 8am and 5pm daily to occur on a graduated staged basis and to be managed at the discretion of the treating;
13)If the patient has not complied with any of the conditions listed in the limited community treatment conditions, he is to be returned to the Authorised Mental Health Service to be examined by an authorised psychiatrist and/or the psychiatrist for the Mental Health Outreach Team, DSQ prior to recommencing any limited community treatment;
14)The limited community treatment is to be implemented subjected to the assessment of the treating psychiatrist that it is appropriate having regard to the patient's mental condition at the time of implementation.”
On 12 September 2011 MMC appealed that decision citing the following reasons.
1. I am at risk whilst I am on the forensic order
2. I don’t believe I need support workers.
3. I can do things on my own.
4. I think I am not a risk to the public.
At the hearing of the appeal MMC gave evidence and he made it very clear to the court that he was unhappy on the present forensic order as he considered that it significantly curtailed his life. In particular in his evidence to the court He stated that he wants to run his own life and that he is sick of dealing with people. He also indicated that he has made huge efforts to improve his behaviour and because of that he should now have the forensic order removed.
In his evidence MMC indicated that he was happy with his current support workers because they all have respect for him. He outlined how happy he was in his new home and that he had a pet dog who, he said, helped him to keep calm. He stated that he cannot go out anymore at night because he needs to be home and look after his dog, which is a good thing. MMC told the court that he has changed and is trying to get his life better. He also acknowledges that what he did was wrong. He states that he has no organised activities that he takes part in, but he does his shopping and goes for walks along the cliffs and he rides his bike. Whilst he indicated he would like to go to TAFE he has made no further steps towards undertaking a course other than asking for the paperwork.
MMC indicated that he had been accessing three hours of unsupervised access to the community on three days a week and he had one day of four hours a week in order to see Mr Hatzipetrou. He indicated however that in early October his leave had been curtailed and he was now only allowed one hour of leave three times a week. It would seem that those periods of leave were restricted as he had been absent from his unit for seven hours one night endeavouring to obtain keys he had left behind in his brother’s car. He had not obtained the appropriate permissions to travel to the North Coast to retrieve the keys. MMC indicated that he had a good relationship with Mr Hatzipetrou and considered his meetings each Friday with him were helpful. However he considered that his relationship with Dr O'Brien was different from that with Mr Hatzipetrou as he believes Mr Hatzipetrou is trying to help him and to manage his anger. He indicated that his sister is currently 14 or 15 and is still at school and his brother is 21. He acknowledged that he sees his brother on occasions by himself.
Dr O'Brien also gave evidence to the court during the appeal hearing. He indicated that MMC is essentially bored and needs to do something active. However, he does not wish to cooperate and he will not partake in structured activities. Dr O'Brien indicated that MMC has the determination of someone who resists a structured environment. He also indicated that there had been a major breach of his forensic order conditions in the week beginning 10 October where he had been absent without leave for more than seven hours. Dr O'Brien outlined that MMC is constantly in breach of limited community treatment conditions in relation to unescorted leave. In particular, he said there is a real concern about his constant breaching of the limited community treatment conditions when he is fully aware of the restrictions. Dr O'Brien indicated however that the move to Kangaroo Point had been very successful and indeed MMC had settled down and was progressing much more rapidly than he had anticipated.
Dr O'Brien reiterated that in his view there is no concern about MMC’s reoffending in a sexual way in relation to children. He was quite clear that MMC’s sexual interest is now in adults. In relation to the current limited community treatment conditions, Dr O'Brien indicated that whilst he had no strong view about revoking the condition which restricted his contact with his brother, it had been helpful to have that condition as it allowed them to monitor his mood after his contact with his brother. It is considered that his contact with his brother is quite problematic and they have a difficult relationship. Similarly, he considers that he has a difficult relationship with his parents and he has a strong view that he should be supervised in his contact with his parents as this contact still leaves him very unsettled. Whilst the aim would be to progress to unsupervised contact within a two year period he is concerned about unsupervised contact at this point in time.
Dr O'Brien indicated that there was no real need for a condition requiring substance testing as there was no evidence that he used illicit drugs and his last test had been negative. Dr O'Brien indicated he would agree with a plan whereby MMC was able to go on a holiday. In particular he considered that the Public Trustee could be approached to fund such a holiday. Dr O'Brien considered that if things proceeded well it might be possible to have the forensic order revoked in about a year if MMC settled down and worked on the progress he needed to make. He indicated that MMC’s real risk relates not only to the risk to others but also the risk to himself.
In particular he referred to an assessment done in relation to the Tribunal hearing. The clinical report for the forensic order review was dated 12 August 2011. In that report Dr O'Brien stated that MMC continues to exhibit functional intellectual and social deficits that increase his level of vulnerability within the community without some form of support. Dr O'Brien indicated in the report that MMC’s poorly developed sense of appropriate interpersonal and social boundaries exposes him to a variety of risks ranging from being a victim of exploitation through to physical harm. Dr O'Brien indicated MMC’s vulnerabilities in terms of risk of victimisation has been evidenced throughout his documented history. He was the victim of assaults primarily as a result of his intrusive and at times abrasive interpersonal style. Dr O'Brien indicated that MMC at times attempts to advocate for others that he perceives as being vulnerable and that this has historically resulted in poor outcomes. Dr O'Brien noted that his vulnerability in terms of limitations on his capacity to make informed decisions has been formally acknowledged through the appointment of a substitute decision-maker via the Office of the Adult Guardian. MMC is often absent without permission. In his report Dr O'Brien made it clear that the goal of the limited community treatment is to enable MMC to obtain the necessary life skills to enable a successful transition into the community. Dr O'Brien indicated that there was a plan to increase the progression to build the number of hours of limited community treatment. Dr O'Brien considered there should be emphasis on organised constructive activities including the option of obtaining potential occupational skills through TAFE attendance.
Is a forensic order required?
It is clear that an appeal to this court in relation to a decision of the Mental Health Review Tribunal is an appeal by way of rehearing and no error needs to be shown in the decision of the Tribunal below. It is also clear that the court should make a decision on the basis of the evidence which was before the Tribunal as well as any evidence which has subsequently become available. The court can make any decision that the Tribunal could make.
The Mental Health Review Tribunal reviews forensic orders every six months pursuant to s 200 of the Mental Health Act 2000 (Qld) (the Act). Section 203(1) of the Act provides that on review the Tribunal must decide to confirm or revoke the forensic order.
Section 203(2) then provides that if the Tribunal decides to confirm the forensic order the Tribunal may decide to make one or more of the following orders.
(a)an order that the patient have limited community treatment subject to the reasonable conditions the tribunal considers appropriate;
(b)an order approving limited community treatment for the patient subject to the reasonable conditions the tribunal considers appropriate;
(c)an order revoking an order or approval for limited community treatment for the patient; or
(d)an order that the patient be transferred from one authorised mental health service to another authorised mental health service; …”
Section 203(6) provides that in making a decision under subsection (1) or (2) the tribunal must have regard to the following—
“(a) the patient’s mental state and psychiatric history;
(b)each offence leading to the patient becoming a forensic patient;
(c) the patient’s social circumstances;
(d) the patient’s response to treatment and willingness to continue treatment.”
Section 204(1) provides:
“(1)The tribunal must not do either of the following unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability—
(a) revoke the forensic order for the patient;
(b) order or approve limited community treatment for the patient.”
Therefore, the issue before this court is whether I am satisfied that MMC does not represent an unacceptable risk to his own safety or that of others.
Dr McVie considered a forensic order should be continued on the current conditions. MMC’s offending had commenced in 2002 and he had committed sexual offences in the background of a prejudicial childhood. Dr McVie considered that, given that he was initially charged with sexual offences which occurred in 2002 and 2005 and related to offences against children, before condition 11 can be deleted in relation to his having limited contact with children, a formal risk assessment needs to be carried out and that reasons needs to be provided as to why the psychiatrists have now changed their opinion in relation to his risk to children. Dr McVie considered that the current forensic order manages his risk and that the conditions currently imposed are appropriate. She considered that any alterations to the limited community treatment conditions should be considered by the Tribunal when it next reviews the order.
Both Dr Lawrence and Dr McVie considered that it was in MMC’s best interests to stay on the forensic order and that if he was not on the forensic order he would not be receiving the assistance he is currently receiving. In particular both assisting psychiatrists considered that he needed to make the most of the assistance he is being given so that he can build his skills to manage by himself in the community. Both psychiatrists considered that there needed to be some considerable improvement in his compliance with his limited community treatment conditions and some enlargement of the number of hours he was accessing limited community treatment in the community before the forensic order could be revoked.
MMC has been in his own unit at Kangaroo Point for some months and he is continuing to receive comprehensive accommodation support, clinical services and transitional support. Whilst he is making significant progress in managing his behaviour and responding to therapeutic interventions, it is clear that MMC is finding it difficult to comply with all of the conditions of his limited community treatment. It is also clear that he is resisting structured activities and is also resisting the reasonable boundaries and restrictions that are placed on his behaviour.
As Dr O'Brien made clear, MMC’s behaviour in this regard needs to show considerable improvement and he needs to comply with the requirements of his limited community treatment. It is clear that the involvement with Mr Hatzipetrou involves focusing on treatment for behavioural regulation and impulse control and attempts to increase MMC’s coping, anger management and problem solving skills.
Whilst MMC is responding positively it is clear that a lot more work needs to be done before he could be considered to not require a forensic order. It would also seem clear to me that MMC would need to have a gradual withdrawal of services rather than a revocation of a forensic order in the way he proposes. It is also quite clear that MMC engages in oppositional behaviour and resists any intervention which he considers is a way of controlling him.
The index offences were serious and there was a reoccurrence of the offences in 2005 after the initial offences in 2002.
It is clear that the court cannot revoke a forensic order unless satisfied that there is not an unacceptable risk to the community or the safety of others. In all of the circumstances, I am not satisfied that there is sufficient evidence to indicate MMC has currently reached that stage of progress to address all of those risks.
Therefore, I consider that the forensic order should be confirmed on the limited community treatment as set out in the decision of the Tribunal and that the current limited community treatment should be reviewed by the Tribunal when it next meets.
Accordingly, the forensic order is confirmed and the appeal is dismissed.
0
0
0