Re Da

[2012] QMHC 11

MENTAL HEALTH COURT

CITATION:

Re JDA  [2012] QMHC 11

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

PROCEEDING NO:

No 150 of 2011

DELIVERED ON:

Delivered ex tempore on 26 April 2012
Written Reasons on 31 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2011

26 April 2012

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr Sundin

FINDINGS AND ORDERS:

1.   The Patient’s Appeal against the Order of the MHRT dated 6 May 2011 is dismissed;

2.   The appeal of the Attorney-General is upheld to the extent that conditions 1(c) and 3 are deleted. The Forensic Order is otherwise confirmed.

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT
OF MENTALLY ILL PERSONS AND SIMILAR ORDERS

– GENERALLY – where patient appeals against a decision of the Mental Health Review Tribunal which confirmed his forensic order – where the Attorney-General appeals a decision of the Mental Health Review Tribunal on the basis that the decision permits the patient unescorted but supervised absences from the Authorised Mental Health Service and the patient has a history of absconding – where there is evidence that the patient has a mental illness which is presently untreated – whether appeal should be allowed or dismissed.

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health
B McMillan for the Attorney-General

SOLICITORS:

Legal Aid for the defendant
Crown Law for the Director of Mental Health
Crown Law for the Attorney-General

ANN LYONS J:

The Current Appeals

1. On 8 February 2008 the patient JDA was found permanently unfit for trial in relation to a charge of attempted murder and placed on a Forensic Order. The Forensic Order has been regularly reviewed by the Mental Health Review Tribunal (“MHRT”) and on 6 May 2011 after a regular review the Forensic Order was confirmed and limited community treatment (“LCT”) was approved subject to strict requirements. In particular, LCT condition 1(c) only allowed “Unescorted absences from the authorised mental health service to start in 3 months if the patient has not been absent without permission on prior escorted absences.”  LCT condition 3 also required that during those unescorted absences he was to “be supervised by a culturally appropriate responsible adult approved by the treating psychiatrist.”

1. Pursuant to a Notice of Appeal filed on 15 June 2011, JDA has appealed that decision of the MHRT arguing that he does not have a mental illness and that the level of his intellectual disability is such that a Forensic Order is not warranted.

1. On 16 June 2011 the Attorney-General also appealed the decision of the MHRT on the basis that the decision

“permits the patient unescorted but supervised absences from the Authorised Mental Health Service (AMHS). The patient has a history of absconding whilst on unescorted and accompanied absences from AMHS. The patient’s treatment has not progressed to the stage where unescorted but supervised leave is an appropriate treatment option.”

It is also argued that the decision “to permit the patient unescorted but supervised leave poses too great a risk to the community at this time.”

1. The appeal has been adjourned on a number of occasions to allow the preparation of further extensive reports given the assertions by the patient’s treating team that, contrary to earlier reports before the court, it was now considered that the patient did not have a mental illness. The appeal was finally heard on 26 April 2012 and the appeal was dismissed with ex tempore reason given. I indicated that I would publish more extensive reasons at a later date. These are those reasons.

The History of the Forensic Order

1. JDA was initially charged with attempted murder alleged to have occurred on 3 February 2004. On 8 February 2006 the Mental Health Court found the patient was not of unsound mind because at the time of the alleged offence he was intoxicated. The Court also found he was fit for trial. Subsequently, however, reports indicated that the patient was significantly intellectually impaired with a full scale IQ of 50. The subsequent reports of Dr Fama and Dr Aboud indicated that he was not fit for trial. The Mental Health Court revisited the issue therefore and on 8 February 2008 he was found to be permanently unfit for trial and a Forensic Order issued. It is not entirely clear from the reports and the transcript that the finding of unfitness was solely based on the patient’s intellectual functioning.

1. The patient was transferred initially to The Park and then transferred to the Mental Health Unit in Townsville in July 2008. That Forensic Order was regularly reviewed by the MHRT and it has subsequently become apparent that the treating team in Townsville consider that the Forensic Order should be revoked because they believe he does not suffer from schizophrenia or an intellectual impairment.

Hearings before the MHRT

1. On 31 May 2010 the patient’s treating psychiatrist, Dr Kahn, told the MHRT that, if JDA ever suffered from schizophrenia, he has not suffered from that illness for some time. Dr Kahn stated that there were no existing signs of schizophrenia and that the patient was only on a homoeopathic dose of chlorpromazine.

1. Dr Kahn also stated that the IQ testings done in 2007 and 2009 were invalid because the patient is Aboriginal and cultural factors precluded an accurate assessment. Dr Kahn also indicated that the patient said that he was told by his lawyer “to play stupid”.

1. On 6 May 2011 the MHRT reviewed the Forensic Order. The Tribunal considered the available medical information and, in particular, the clinical report of Dr Kahn. Dr Kahn indicated that JDA had not received anti-psychotics on a regular basis for more than 12 months and, whilst he is fed up with the process, he is not violent or aggressive but is frustrated with being in hospital. Dr Kahn considers that the patient should return to his community. Dr Kahn indicated that JDA had absconded in December 2010 when he was absent for 3 days and became seriously drunk. He was, however, returned to the unit by police without any further incident. The MHRT considered the report of Dr Kahn as well as an extensive report from Dr Schramm dated 2 October 2010 and a report from Dr Mariani dated 24 September 2010.

1. The MHRT noted that Dr Schramm’s report supported the presence of both schizophrenia and intellectual disability and that Dr Mariani’s report supported a moderate to severe intellectual impairment. The Tribunal also noted that every past psychological test conducted on the patient indicated that he had an intellectual disability. Further, the Tribunal noted that at prior hearings the MHRT had been satisfied that JDA had an intellectual disability but had not been able to confidently determine if he has a mental illness as no overt signs of psychosis had been reported. The Tribunal noted that the purpose of hospitalisation and treatment is to properly treat mental illness and stated that the absence of symptoms after treatment in a stable supported environment over a limited period of time is not of itself proof of the absence of any previously diagnosed illness.

1. In terms of JDA’s response to treatment, the MHRT noted that his regular antipsychotic medication ceased 12 months ago, however, his intellectual disability was permanent and the only treatment given to him at present is hospitalisation. The Tribunal indicated that JDA shows minimal engagement with that process and that his treatment is stalled because of his lack of engagement with the services. The Tribunal noted that he clearly has an intellectual disability which impacts on his executive functioning and impulse control. JDA also has an antisocial personality disorder and has been impossibly violent. The Tribunal also indicated JDA has a significant criminal history and that in December 2010 he had absconded from two escorts. He then got very drunk, which further reduced his self-control. The Tribunal noted that no serious adverse consequences were reported before police found him.

1. The MHRT concluded however that it is likely that JDA would pose a risk to others without substantial support. The Tribunal was satisfied that he has an intellectual disability and that he poses an unacceptable risk of violent behaviour in the context of the challenges arising from alcohol abuse lowering his already impaired self-control.

1. On 6 May 2011 therefore the MHRT considered that the forensic order should be confirmed and approved limited community treatment.

Dr Schramm’s evidence

1. Dr Schramm has prepared two reports dated 2 October 2011 and 22 December 2011 and gave evidence before the Court on the hearing of the appeal. Dr Schramm indicated that, at least over the last 6 years or so, the patient has suffered from some kind of chronic psychotic illness and he believes that the evidence for that is significant. In particular, he considers that the account of the index offence which he provided to police and to Dr Fama implies the presence of psychotic symptoms driving his dangerous act. Partiularly, JDA told Dr Fama of his command hallucinations which had a flavour of religiosity. Dr Schramm noted that the opinions of Drs Todorovic, Fama and Aboud were that JDA suffered from schizophrenia.

1. Dr Schramm noted that Dr Mariani, who saw JDA on 23 August 2010, opined that JDA did not suffer from mental illness as she did not illicit from him ideas suggestive of thought interference. Dr Schramm also noted that the Townsville treating team claimed that there had never been any evidence for psychosis during his stay with them.

1. Dr Schramm undertook an extensive and well documented analysis of the hospital records and his clear evidence was that he found, in JDA’s file, examples of incidents and comments which would raise a suspicion that psychosis was present and continues. Dr Schramm noted,

“It may well be that the lack of florid psychosis and apparent intermittent nature of these markers (it may be that they are only intermittently seen and or documented) could be explained by this low level anti psychotic regime.”

Dr Schramm considered that JDA is chronically deluded and out of guardedness only hints of the processes of psychosis. Dr Schramm also indicated that he has a suspicion that JDA has in fact experienced true hallucinations. Dr Schramm stated that complete exploration of potential psychosis is stymied by the patient’s evasiveness and difficulty in expressing himself. Dr Schramm considered there were several indications of possible psychosis peppered throughout his files.

1. Dr Schramm considered that chronic schizophrenia was the most appropriate diagnosis.

1. In terms of whether there was an intellectual impairment Dr Schramm noted the report of Dr Keane which noted after testing a full scale IQ of 50 and very poor functioning in various tests. He also noted that the impression of the Prison Mental Health Service, as well as that of Dr Fama, was that JDA had an intellectual impairment. Dr Schramm noted that a general screening test for cognition, which is the Barry Rehabilitation Inpatient Screening of Cognition test, had him scoring 91 out of 135, where scores of less than 120 indicate a functional deficit in brain injured patients.

1. Dr Duncan McIntyre who administered intellectual functioning tests in 2009 specifically took into account the fact that the patient was Aboriginal and still considered that he would be considered to suffer from mild intellectual impairment. Dr Schramm also indicated that the testing by Dr Mia Mariani on 24 September 2010 reproduced his poor performance on formal tests of cognition functioning and that those tests were consistent with previous testing. She considered JDA had a full scale IQ of 59.

1. In terms of risk, Dr Schramm noted that the index offence was one of serious violence whilst grossly intoxicated. Dr Schramm also noted that there had been some acts of aggression in the Townsville Mental Health Unit and he considers that that there is still a risk of violence. Dr Schramm was particularly concerned about JDA’s continuing aggression to staff. Dr Schramm ultimately concluded that the patient suffers from both a mental illness and intellectual impairment. He considered that, even if his persecutory beliefs about staff are a function of his low intelligence and concrete thinking (although he maintained they were a sign of a schizophrenic like illness), that alone must be considered to be such that he was intellectually impaired. Dr Schramm considered that if JDA’s psychosis is not adequately treated and he is without a firm plan for structured support and monitoring he would be a risk of violence in the community.

1. Dr Schramm noted the treating team’s view that they are simply providing preventative detention to a man whose risk of violence may well have been reduced. Dr Schramm was concerned that the treating team considered that JDA was essentially untreatable and Dr Schramm noted that JDA is certainly a man who is both an unwilling and impaired participant in the usual rehabilitation efforts. Dr Schramm considered that there seemed to be no particular plan in place for him other than to contain him or revoke his forensic order. Dr Schramm considered that a long term plan needed to be put in place. He suggested that the team psychologist be involved in formulating a plan to not only react to behaviours in the unit but to guide progression towards leave.

1. Dr Schramm also indicated that his diagnosis of continued psychosis implies a need for adequate and appropriate anti-psychotic medication. Dr Schramm considered that there should not have unescorted leave until there is a return to a medication regime for his psychosis. He also considered that there needs to be a consequence to JDA for his bad behaviour and that all instructions and consequences for breaches to needed to be simple and explicit. Put simply, the message should be that if he behaves badly he does not get any leave.  Dr Schramm stated that JDA should have no leave whilst he continues to have a bad attitude towards staff. 

1. Dr Schramm stated that there needed to be a radical turnaround in how the treating team views JDA and that JDA patient needed to be involved in that process. His view was that the patient needed to be told, in very clear terms, that he had a mental illness.  He also considered that Dr Kahn needed to be involved in that process as well. Dr Schramm stated that he was also concerned at the number of treating psychiatrists who had been involved in recent years. Dr Schramm noted the current advice that there had been no recent leave given his recent absconding behaviour. In his view there should be no unescorted leave until JDA has been on neuroleptic medication for three to four months and had good reports of his behaviour on escorted leave. Furthermore, Dr Schramm considered that there should be a graduated leave plan and that, closer to the time of progression towards leave in the community, supports and monitoring plans needed to be put in place.

1. Dr Schramm also noted that the Department of Communities report indicates that the view of that Department is that they could never adequately manage the patient in the community. Dr Schramm stated that he did not consider that a move to Brisbane would be appropriate given his ties to the community in the north and his desire to eventually return to his community.

Dr Heffernan’s Report

1. In a report dated 22 February 2012, Dr Heffernan stated that it was his view that the patient suffered from a psychotic illness that had been present for more than a decade. He also considered that JDA suffered from substance use disorder and personality pathology consistent with childhood neglect and trauma. It was also apparent that JDA had an intellectual disability, the extent of which had been hard to quantify, but it was his view that it was likely to be in the low average or mild mental retardation spectrum.

1. Dr Heffernan concluded:

“It was our view that in the context of an untreated psychosis and a perception of mistreatment by staff, the manifestations of impulsivity, low frustration tolerance and poor coping capacity, related to his intellectual disability and personality pathology, became manifestly exacerbated. It is likely that some of his aggressive outbursts and interactions with staff related to his untreated psychotic illness, but the effects of persistent hospitalisation and the frustrations associated with this and learned patterns of interaction cannot be discounted as well.”

1. Dr Heffernan also considered that his risk profile had increased since his last risk assessment in 2008 given that his behaviour has become increasingly abusive and hostile and has included pushing and spitting on staff.  He considered that the treatment of the psychotic processes would assist his capacity to engage in rehabilitation activities and ultimately the community.

Dr Jamal’s evidence.

1. The current treating psychiatrist, Dr Jamal, also gave evidence and stated that he has undertaken an independent assessment of the patient. Dr Jamal stated that he is “absolutely” satisfied that the patient has a mental illness and that he is suffering from “persecutory delusions” which were “profound’ and “overt”.  He also stated that his behaviour was incongruent. In his view the only leave which was appropriate in the short term was escorted leave once an appropriate medication regime was in place. Dr Jamal advised the Court that the correct medication regime was still a matter of debate and an appropriate treatment regime had yet to be put in place.

Mr Hatzipetrou’s evidence.

1. Clinical Psychologist Luke Hatzipetrou provided an extensive report dated 3 April 2012 and also gave evidence before the Court. Mr Hatzipetrou stated that whilst the patient did not meet the diagnostic criteria for an intellectual disability he did present with an intellectual impairment. He stated that the findings suggest that JDA’s cognitive abilities were “likely to fall within the extremely low to average range when compared to his peers.” JDA possessed impairments in processing speed, verbal reasoning, vocabulary knowledge, executive functioning and working memory, but had strengths in visuospatial analysis and perceptual organisation.

1. He also indicated that he possessed impaired adaptive functioning skills. He considered that he presented with a history of severe alcoholism, drug and petrol abuse together with impoverished childhood experiences. He stated that with a history of schizophrenia coupled with institutionalisation his impairments were likely to be acquired rather than congenital. Additionally he considered that “[p]eople with schizophrenia tend to experience significant cognitive impairments often implicating the executive functioning and memory.”

The advice of the assisting psychiatrists

1. Both Dr McVie and Dr Sundin advised the Court that there was “overwhelming” evidence that the patient suffered from a mental illness and that he required a Forensic Order.

1. In particular, concern was raised by Dr McVie that at the time of the hearing a medication regime had still not commenced and JDA was facing yet another change in his treating psychiatrist. The assisting psychiatrists considered that given the history of the matter Dr Reilly should take charge of the patient’s treatment into the future.

The appeals

1. The basis of the patient’s appeal was that he did not have a mental illness and that a forensic order was not required.

1. I am satisfied that there is indeed overwhelming evidence that the patient has a mental illness and, in fact, has had a mental illness for the best part of a decade on the current state of the evidence. That mental illness is presently untreated as an appropriate treatment regime, including antipsychotic medication, has still not commenced.

1. Given the seriousness of the index offence of attempted murder, as well as his current level of aggressive behaviour and his lack of insight into his illness as well as his untreated illness, I consider that a Forensic Order is clearly required. 

1. The Patient’s Appeal against the Order of the MHRT dated 6 May 2011 is therefore dismissed.

1. The basis of the Appeal by the Attorney-General was that unescorted but supervised leave was not appropriate given the patient’s current level of risk.  The evidence before the Court is that the patient is currently untreated and has a clear history of aggressive and hostile behaviour toward the treating team. I am not therefore satisfied that he is not an unacceptable risk to the community. I consider that he is an unacceptable risk to the community should he access supervised but unescorted leave in the community.  In my view, given the evidence as to his mental functioning, he should access escorted leave only once he is well established on a regime of anti-psychotic medication.

1. It is also clear that a clear treatment plan, as foreshadowed by Dr Schramm, is required. I also note the assisting psychiatrists’ recommendations that Dr Reilly take charge of his treatment and endorse such an approach.

1. The appeal of the Attorney-General is upheld to the extent that conditions 1(c) and 3 are deleted. The Forensic Order is otherwise confirmed.