Re CD

[2005] QMHC 13

MENTAL HEALTH COURT

CITATION:

Re CD [2005] QMHC 013

PARTIES:

APPEAL BY ATTORNEY-GENERAL OF QUEENSLAND AGAINST DECISION OF  MENTAL HEALTH REVIEW TRIBUNAL IN RESPECT OF CD

PROCEEDING NO:

0033 of 2005

DELIVERED ON:

13 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

Appeal allowed. The decision of the Mental Health Review Tribunal dated 14 January 2005 is set aside. 1.   

The respondent is to be detained as a forensic patient in the Cairns District and Area Network Authorised Mental Health Service and limited community treatment is approved on the following conditions:2.   

That he reside at a specified address or at a place approved in writing by the authorised psychiatrist;a)       

That he comply with all appointments for follow-up and prescribed treatment, including the taking of prescribed medication, and undergo random tests for those medications as required by the treating psychiatrist; b)       

That he not use alcohol or illicit drugs and must cooperate fully in random medical tests for those substances as required by the treating psychiatrist; c)        

That limited community treatment be implemented, subject to the assessment of the authorised psychiatrist, that is appropriate having regard to the patient's mental condition at the time of implementation; andd)       

That at all times a responsible adult approved by the authorised psychiatrist ensure that he is not left unaccompanied in the presence of any child or children.  e)        

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where forensic order initially made in respect of the respondent after a finding of unfitness for trial in relation to a charge of indecent dealing with a child under 12 years of age – where a further charge of rape for which the respondent found to be fit for trial – where the respondent has an intellectual disability - where, pursuant to review by the Mental Health Review Tribunal, limited community treatment was approved involving residence at the respondent’s mother’s residence – where stay application against the MHRT decision was successful, pending appeal – whether the respondent was suitable for discharge from hospital and could be monitored by his mother without significant risk to the community

COUNSEL:

Ms C Morgan for the respondent
Mr J Tate for the Director of Mental Health

Mr W Isdale for the Attorney-General of Queensland

SOLICITORS:

Legal Aid Queensland for the appellant
The Crown Solicitor for the Director of Mental Health

The Attorney-General of Queensland

1. HOLMES J: This is an appeal against a decision of the Mental Health Review Tribunal approving limited community treatment on conditions which included residence for CD in the community.  I will deal first with the appeal itself since that is the substantive application.

1. CD was charged with indecent dealing with a child under 12 years of age between 1 January 2000 and 31 January 2000.  He was found unfit for trial and placed on a forensic order on 27 February 2001; that forensic order has since been reviewed at six monthly intervals. 

1. He was later charged with one count of rape between 1 May 2003 and 21 May 2003.  That allegation, it seems, was an anonymous allegation.  The child herself had made no disclosure.  It would appear from the material that CD may have made initial admissions and then a denial of that incident.  As matters transpired, the charge did not proceed although, in fact, this Court, having expressed a satisfaction of reasonable doubt as to the commission of the offence, had found CD fit for trial.

1. At any rate, CD was admitted as an in-patient at Charters Towers in June 2004.  In July 2004, he commenced escorted leave up to eight hours a day.  On 14 January 2005, the Mental Health Review Tribunal made a decision that, in effect, released him from inpatient care.  The decision imposed limited community treatment, with conditions involving residence with his mother, regular appointments, he was to have no alcohol or drugs, and limited community treatment was to be implemented subject to the assessment of the treating psychiatrist that it was appropriate having regard to his mental condition.  That is the decision under appeal here.

1. I should say that the decision was made in the context of a number of medical and psychological reports reaching back some years.  Importantly, a report of a psychologist, Ms A, on 1 June 2000, had spoken of those allegations which concerned the indecent treatment.  Ms A records a statement by CD to the effect of "wanting to do things every time he was around little kids".  Similarly, Dr B, in June of 2003, records earlier urges which she describes as paedophilic, while pointing out that there was no point in keeping CD in a psychiatric hospital.  Dr C noted, on 6 December 2003, that CD had, in the past, made admissions of sex with an intellectually impaired child although those were, it seems, subsequently denied.  Dr B, in a later report of 27 May 2004, again spoke of a potential risk. 

1. In the proceedings before the Mental Health Review Tribunal, what had initially been proposed was unescorted leave.  Dr D, a treating psychiatrist, had given a report of January 2005 in which he said, among other things, that there was a risk of sexually inappropriate behaviour if CD were left unsupervised, although he was easily managed in an inpatient setting.  However, it seems that he gave evidence before the Tribunal and expressed the view that there was a relatively small risk of inappropriate behaviour which could be minimised if CD were discharged into the community with supports; so that a recommendation for unescorted leave was then expanded to full community leave.

1. The Tribunal accepted that evidence and considered CD was now suitable for discharge and could be monitored by his mother without significant risk.  That has led to this appeal.  Essentially, the grounds are that limited community treatment of the kind proposed made inadequate provision for community protection; there was insufficient supervision allowed for, and insufficient consideration of the other option of unescorted leave; and the allegation of rape had been insufficiently considered.

1. Mr Isdale makes the point here as well that there is a concern that CD's past alcohol consumption may not have been made clear to the Tribunal, so that there may not have been sufficient consideration given to it. 

1. On 2 March 2005, this Court gave a stay of the decision and, in effect, substituted conditions which allowed limited community treatment with the addition of the condition that a responsible adult, approved by the authorised psychiatrist, attend CD to ensure that he was not left unaccompanied in the presence of any child.

1. Since that date, further reports have been received from Ms E.  In her initial report she advised of the arrangements which had been made for CD.  He has a 15 hours a week Disability Services Queensland package.  She has made another report of today's date, 13 April, 2005, in which she points to a number of constraints upon her service, the Tablelands District Mental Health Service, in assisting CD.  However, encouragingly, she does say that all adults authorised by the treating psychiatrist are meeting with Dr B and the case manager tomorrow to discuss their responsibilities.

1. Dr F, a psychiatrist, has given a report of 8 April, 2005, which is of considerable assistance.  It has been disclosed to him that CD continues to have some intrusive thoughts of a sexual nature involving children.  Dr F proposes that the limited community treatment plan be maintained.  He makes a number of recommendations, including a family case plan for supervision, specialist intervention, consideration of anti-depressants to decrease sexual urges and an increase in Disability Services Queensland support.

1. At the end of the day, considering the decision itself, that is, the decision of the Mental Health Review Tribunal, it is, I think, plain that insufficient consideration was given to community protection in the release of CD into the community on the conditions as proposed, because there was no provision such as was ultimately imposed pursuant to the stay.  It seems to me that it is necessary that the Tribunal's decision be set aside and that this Court then make a decision which could have been made on that review itself; that is to impose a forensic order with limited community treatment which is in terms of the order made in connection with the stay application. 

1. That order was that limited community treatment be approved for CD and that it commence forthwith, subject to conditions that he reside at a specified address; that he comply with all appointments for follow-up and prescribed treatment, including the taking of prescribed medication, and undergo random tests for those medications as required by the treating psychiatrist; that he not use alcohol or illicit drugs and cooperate fully in random medical tests for those substances as required by the treating psychiatrist; that limited community treatment be implemented subject to the assessment of the authorised psychiatrist that was appropriate having regard to the patient's mental condition at the time of implementation; and finally, that at all times a responsible adult approved by the authorised psychiatrist ensure that he was not left unaccompanied in the presence of any child or children. 

1. Those are the conditions which will now apply.   I would make some observations.  I recommend that the treating team have regard to the report of Dr F and seek his advice where possible as to the management of CD. 

1. It does seem that there is a meeting tomorrow between the existing authorised responsible adult, CD’s mother and Dr B and others.  It may be possible at that meeting to ascertain from Dr B who else may fill the role of authorised adult to have responsibility for CD. 

1. It is appropriate, and I order, that a copy of the judgment, the transcripts of the stay application and of this appeal itself be provided to the Director-General of Disability Services Queensland and the treating team.  The recommendations of Dr F, of course, should be given very considerable consideration, particularly when he speaks of support for CD.