Re AHW

[2005] QMHC 47

MENTAL HEALTH COURT

CITATION:

Re AHW  [2005] QMHC 47

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF AHW

PROCEEDING NO:

0134 of 2004

DELIVERED ON:

6 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1.   The defendant was not of unsound mind as described in the Mental Health Act 2000 (Qld), Schedule 2 at the time of the alleged offences.

2.   The defendant is fit for trial.

3.   The proceedings for the alleged offences are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assaulting police officers who were attempting to take her to hospital owing to her expression of suicidal thoughts – where defendant suffered from major depression – where defendant had had a change in medication and undergone electro-convulsive therapy – where defendant actively resisted the police officers’ attempts to restrain her – where defendant spat at the police officers – whether defendant, at the time of the alleged offence, deprived of the capacity to understand what she was doing, or the capacity of control, or the capacity to know that she ought not to do the act pursuant to the Criminal Code, s 27 – whether defendant fit for trial

Criminal Code (Qld), s 27

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

Mr C Callaghan for the defendant
Mr J Tate for the Director of Mental Health

Mr R Martin for the Director of Public Prosecutions

SOLICITORS:

Callaghan Lawyers for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

[1]      HOLMES J:  AHW is charged with two charges of assault occasioning bodily harm, two of serious assault, and one of obstruct police, all of which are said to have occurred on 14 February 2004.  On that day she had discharged herself from Toowong Private Hospital after an altercation of sorts with staff.  It is common ground that she suffers from major depression and that that produced some symptoms, over the preceding period, of volatility and irritability.

[2]      On 14 February, having been alerted by the staff of Toowong Private Hospital as to a concern about suicidality, police officers went to AHW's residence at Toowong, essentially to check on her status.  She was asked by one of the police officers, it is said in the police officer's statement, whether she had felt suicidal on that day and responded in the affirmative.  At that point the police officers decided they should take her to the Royal Brisbane Hospital.

[3]      The events thereafter are the subject matter of the charges.  A version of them, at any rate, is set out in the QP9.  According to the QP9, HW, having spoken calmly to the police officers previously, then told them to get out of the house.  When they attempted to take hold of her, it is alleged, she kicked the male police officer in the testicles and struck the female police officer in the breast.  They then got her on to her back and one of the officers moved on top of her to secure her.  It is alleged that she then spat at each of the officers.

[4]      There has been evidence from two psychiatrists:  Dr Sundin and Dr Young.  Dr oung was AWH's treating psychiatrist until very recently.  In his report, which he prepared on 28 May 2004, Dr Young gave his view of events.  At the time of the offences, soon after AHW's absconding from the hospital in a disturbed state, the relevant issues were the depressive illness, the electro-convulsive therapy (ECT), the medication used to treat that illness, her rage and her flashbacks to past abusive situations when the male police officer was trying to subdue her by getting on top of her.  I should mention that AHW had had two courses of ECT therapy at that stage.  In relation to the instances of past abuse, Dr Young went on to say that there was an incident of sexual assault when AHW was a child and then later there were instances in her first marriage of physical abuse.

[5]      In his report, Dr Young said this:

"At the time of the alleged offences she had had two ECTs.  That number of ECTs is unlikely to cause memory loss. However,after the full course of six ECTs it would not be unexpected for her to have some temporary, patchy loss of short-term or even longer-term memory.  It could be that the ECT she had after the incident is affecting her current recollection of the incident, but I cannot confirm this. 

The medication that she was taking for her depression may have made her disinhibited in that she may have been prone to more easily fly into a range. 

Her depressive illness is very likely to have imbued her with powerful feelings of anger."

[6]      Dr Young expanded somewhat in his evidence at the hearing.  He explained that the depression combined with the effect of the electro-convulsive therapy, might make AHW explode in a fashion which would not occur in a non-depressed person; that her feelings of being under threat, particularly when she was being held down, made her feel it was proper to defend herself, in terms of her sense of rightness and wrongness.  He said that being depressed made her more vulnerable and it caused her to have a greater level of rage.

[7]      I should say, Dr Sundin does not entirely agree with that. She says that the greater the degree of depression the more likely it is that rage will not be a symptom, because of the loss of function or initiative entailed in depression.

[8]      Dr Sundin has also given a report dated 17 January 2005.  She says that in her view AHW was in a state of heightened emotional tension on the day in question because of the conflict with the nursing staff at the Toowong Private Hospital.  The intensity of AHW's reaction, she says, is suggestive of a rage reaction driven by a sense of frustration because she could not convince them she was not suicidal and was aggravated by her memories of past situations of abuse.  She did not think that the ECT treatments would have been sufficient to produce disinhibition. 

Dr Sundin said this:

"The contribution of medication is a little unclear in that AHW was prescribed a higher dose of antidepressant than previous; was still taking a low but therapeutic dose of Rivotril and had continued to be prescribed a sedative antipsychotic medication."

[9]      AHW had indicated in the past that she thought a contributor to these offences might have been a reduction in the level of her medication. Dr Sundin's report seemed to contradict that.  It turns out that AHW was entirely correct and that there had been a change in her medication:  Efexor, which is an antidepressant, was reduced, as was Rivotril, a benzodiazepine.  I should mention, too, that there was a reduction in Lithium at the time of the ECT treatments.  There seems to be consensus amongst all the specialists, including Dr Wood and Dr Grant, that the result of that would be both a possible increase in irritability, as a distinct side-effect of withdrawal - a withdrawal symptom in itself - and also as the result of the reduced treatment of those symptoms as part of the depressive illness.

1. Dr Sundin explained that she thought in order to find absolute deprivation one would require a more severe depressive disorder, particularly with psychotic features.  In her view, what was occurring here was that AHW had a personality which had a tendency to project blame; that personality traits were a driving force in these events; that AHW was angry and enraged at being stopped from what she wanted to do, which was, that day, to take part in a St Valentine's dinner with her husband and child.  She considered AHW would be more sensitised than the average person to experiences such as that at the hands of the police by her previous experiences of abuse.

1. I should say, in respect of the evidence of changes in medication, it caused Dr Young to, if anything, firm in his view that there had been a complete deprivation of capacity.  Dr Sundin moved her view to the extent that she accepted it would be an important contributor to events, but it led her to the view that AHW was very substantially impaired, but still not deprived of her capacities.

1. Returning to what I make of the evidence of each of the doctors, I should mention this: Dr Young was influenced by what appeared to be a fragmentation of AHW's memory of events.  It seems to me it is not uncommon in a situation of high drama, like this struggle, for recall of exactly what happened to be patchy.  When one adds to that the acknowledged effect of ECT on the memory and the fact that AHW had had two treatments and had another six later, I do not think one can attach the significance to her recall of parts of the events, as opposed to others, that Dr Young considers appropriate.  What she does remember is the spitting.  She does not recall any kicking or punching.  Assuming, for these purposes, that they occurred, it seems to me they are the kind of physical reaction which happens in a struggle that witnesses often do not recall in detail.

1. The question of AHW's reaction to the police officer being on top of her was raised.  Dr Young suggested that what she had was a flashback to the time when she had been physically mistreated in the past, although he did not think that her symptoms rose to the level of post traumatic stress disorder.  It seems to me, having heard Dr Sundin's evidence of what AHW actually said, which was that she talked in terms of being reminded of those events, that Dr Young may be placing too high an interpretation on what would be understandably vivid memories.

1. It is certainly the case that AHW has no criminal history and is never said to have behaved in this way before, but one assumes she had never previously been confronted with two police officers who were physically taking steps to confine her.

1. I accept that the combination of factors, the illness and the effect of the changes in the medication, together with personality traits, are likely to have substantially impaired AHW’s capacities, particularly of control and to know that she ought not to do the acts, but it seems to me that the things that are alleged to have been done are explicable in terms of indignation at the intrusion, outrage at the physical restraint and a resulting fury vented in the behaviour.

1. There is, I think, reason to think that she was more vulnerable than she would have otherwise been because of those factors.  And I should say I do not consider they can be neatly compartmentalised so that one can say this bit is the illness, that bit is the result of the reduction in medication.  But more importantly, I do not think the evidence points to complete deprivation of the capacities.

1. One of the things that inclines me to that view is the evidence in the police officers’ statements that AHW told them when she was spitting at them that she had Hepatitis C.  That seems to find some support in her account to Dr Sundin of actively saying anything she could to upset them, including that she was either Hepatitis C or HIV positive.  That suggests a capacity for calculation of response which seems to me inconsistent with a complete loss of any of the relevant capacities.  I think Dr Young conceded as much: if things were said deliberately to upset the police, that rather detracted from the view of loss of capacity.

1. On the whole I accept the evidence of Dr Sundin. I accept that there was a very substantial impairment of the relevant capacities but on the balance of probabilities I cannot find a complete deprivation of capacities pursuant to s 27 of the Criminal Code.

1. Consequently I find that AHW was not of unsound mind within the meaning of the Mental Health Act 2000 (Qld), Schedule 2 at the time the offences are alleged to have been committed.

1. There is no dispute that she is fit for trial.  The matter should proceed according to law.