Re BBT

[2009] QMHC 11

MENTAL HEALTH COURT

CITATION:

Re BBT [2009] QMHC 11

PARTIES:

APPEAL FROM MENTAL HEALTH REVIEW TRIBUNAL

BBT
Appellant

DIRECTOR OF MENTAL HEALTH
Respondent by Election

ATTORNEY-GENERAL FOR QUEENSLAND
Respondent

PROCEEDING NO:

No 0143 of 2009

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATES:

4 September 2009

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr A Davison

FINDINGS AND ORDERS

1.          The appeal is allowed;

2.          The decision of the Mental Health Review Tribunal is set aside;

The forensic order is confirmed;3.          

Limited community treatment is approved.4.          

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where applicant appealed a decision of Mental Health Review Tribunal to revoke a Forensic Order – whether ongoing need for involuntary treatment – whether the Tribunal should have been satisfied that the respondent did not represent an unacceptable risk to the safety of the respondent or others

COUNSEL:

Mr S Crofton for the Defendant
Mr J Tate for the Director of Mental Health
Mr B Isdale for the Attorney-General for the State of Qld

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Attorney-General for the State of Qld

ANN LYONS J:

1. On 19 March 2009, the appellant was made the subject of a forensic order with limited community treatment.

1. On 27 March 2009, the appellant filed an application for a review of that decision which led to a further hearing on 28 May 2009 by the Mental Health Review Tribunal (MHRT).

1. On that date, the forensic order was confirmed and limited community treatment was approved in accordance with conditions that were attached to the Tribunal’s decision.  The appellant now appeals that decision.

1. His grounds of appeal are that during the incident, he was intoxicated with a large amount of alcohol, but under no circumstances, did he feel that he was mentally unstable.  The incident was alcohol-fuelled and he feels remorseful for the outcome.  The appellant states he would prefer for the Court to allocate him a suspended sentence, or probation.  At the time when he filed the appeal, he said his mental health had improved and been stable.  He also currently attends a psychologist for behaviour management which he says has been useful.  He stated, “I feel being on this forensic order inhibits my ability to lead a normal life”.

1. The Tribunal’s decision on 28 May 2009 acknowledged similar grounds by the appellant in his application to the Tribunal.  There was also evidence from Dr Calder-Potts in relation to the appellant’s treatment needs at the time.

1. In coming to its decision, the Tribunal looked at the appellant’s mental state and psychiatric history.  In particular, the decision stated that the appellant had a history of mental illness going back to 2005 and that he had first been placed on a forensic order in 2007.  The decision indicated that his mental illness had been complicated by the use of illegal drugs and alcohol along with the initial and intermittent non-compliance with medication.

1. The Tribunal also looked at the offences relating to the appellant becoming a forensic patient.  I note that it would appear from material that has been put before the Court today, but was not before the Tribunal, that the factual basis of the Tribunal’s conclusion about the circumstances of the offences would seem to have been incorrect.  The appellant was still, in fact, in a relationship when those offences occurred, and it was not a former girlfriend.

1. The Tribunal looked at the appellant’s social circumstances which are similar today in that the appellant usually shares a flat and he does not have a good relationship with his family.  He however does have some other support.

1. In its decision, the Tribunal also looked at the appellant’s response to treatment, and noted the appellant’s considerable improvement at that time in relation to his willingness to continue treatment.  Whilst the appellant’s prior presentation was that he had poor insight and judgment, it was noted that that had improved.

1. In relation to the question of whether there was an unacceptable risk to the appellant’s own safety, or that of others, the Tribunal concluded there was a low risk of his own safety.  The Tribunal’s primary concern was related to the potential risk to his ex-partner rather than to the general community.

1. The Tribunal also noted that the treating team was positive about the progress the appellant had made, but it was still concerned at that time, that the appellant was a risk to his ex-partner, given the fact that there had been a text messaging to his ex-partner.

1. The conclusion of the Tribunal was that the evidence supported a forensic order, and that there should have been some limited community treatment.  It found that the risk was manageable, and that it was such that it would not preclude limited community treatment, but the Tribunal concluded that the appellant should have escorted leave by two staff at all times, that he not contact his ex-partner, or members of her family, and that he not use illegal drugs.

1. Dr Calder-Potts has given evidence.  He indicated that he considered that the forensic order was in fact equivocal at the beginning, and the major concern was around contact with the appellant’s ex-girlfriend, and that his conclusion was that the appellant was an ex-stalker.

1. He also pointed to a history of acting out in a violent manner on the ward, and a history of aggression.  He also stated that because the appellant did not meet the criteria for an involuntary treatment order, but still had some remaining issues that a forensic order was required.

1. Dr Calder-Potts indicated in his evidence that a realistic plan to leave hospital was required.  He also noted there was no evidence of active psychosis.  He also stated that the current conditions are unduly restrictive, and that they exacerbate the appellant’s behavioural problems.  He considered that the Tribunal’s decision was mainly based around concerns of threats to the appellant’s ex-girlfriend.  He also stated that the stalking risk came from the appellant’s personality, rather than his mental illness.

1. Dr Splatt has also given evidence before the Court today.  She indicates that the appellant’s mental state is stable.  There are no thought disorders, but concedes that the appellant is still vulnerable, and easily frustrated.

1. She stressed, however, that the appellant is gaining insight and she indicated that the conditions that were imposed in May were too restrictive.  Dr Splatt indicated that the appellant has improved and is compliant.  He has completed all his psychological interventions and he has had no further incidents since May.  There have been no more text messages.  He has more insight, and that whilst the appellant does get frustrated, there have been no further incidents.  She does not consider he is a risk to the community.  She does consider, however, that there should be a graduated leave and a graduated return to the community.  She also conceded that the appellant’s limited community access was adding to his frustration.

1. Dr Splatt stated there has been no repetition of incidents with the appellant’s ex-girlfriend.  She considers the appellant accepts that the relationship is over and that he has moved on.  She also indicated that in relation to community treatment, she would be part of the process in ascertaining appropriate leave.

1. She also indicated that the appellant was not a risk with less than two staff and that he would not be a risk to staff members.  She did not think he would abscond.

1. Clearly, this is an appeal from the decision of the Mental Health Review Tribunal.  The Court has power to set aside, or to make a decision the Tribunal could have made, and it can take into account the facts as they are today. 

1. The appellant’s legal representatives have sought a full community treatment order.  Having considered all of the reasons of the Tribunal, and the evidence that has been presented to the Court today, I consider that there is clear evidence that a forensic order should be continued, however, there is clear evidence that three months have gone by.  There has been further improvement in the appellant’s attitude, insight, and compliance.  There should therefore be some changes to the order that was made in relation to community treatment.  The order that should come from today’s hearing is that the limited community treatment order should change in that the conditions should be changed.

1. The way in which I propose those conditions be changed is in this way.  If we turn to the conditions as set out in the Tribunal’s reasons, that Clause 1 should have an additional (c), so Clause 1 says, “the patient may undertake treatment or rehabilitation in the community by way of (a) escorted absences, limited to the grounds; (b) escorted absences, from the service, not limited to the grounds; (c) should be unescorted absence from the service, limited to the grounds; (d) unescorted absences from the services, not limited to the grounds.”  So, there are two additional conditions in relation to leave; one is there will be unescorted absences at the service, and unescorted absences away from the service, and that the remaining conditions of clause (1) stay.  That clause (2) should be altered to read, “on escorted absences, the patient is to be accompanied by one health staff member”.  The rest of the conditions remain the same. 

1. The essence of the decision today therefore is that the forensic order is to stay in place, but the conditions of the limited community treatment are changed, essentially allowing unescorted leave on the service and away from the service.  The remaining conditions of clause (1) remain, which is in relation to the number of hours, and that it only requires one staff member. 

1. That essentially means that there will be a graduated programme which can be put in place, and particularly before the next Mental Health Review Tribunal hearing, so that that can be a positive feature that can be discussed at that hearing which will be in November.

1. The appeal is allowed, and the conditions are altered.