Re DAE

[2007] QMHC 11

MENTAL HEALTH COURT

CITATION:

Re DAE  [2007] QMHC 011

PARTIES:

AN APPEAL BY THE DIRECTOR OF MENTAL HEALTH AGAINST A DECISION BY THE MENTAL HEALTH REVIEW TRIBUNAL

FILE NO/S:

Proceeding No 0023 of 2007

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr Wood

Dr Lawrence

ORDER:

Appeal upheld and the decision of the Mental Health Review Tribunal of 22 December 2006 is set aside

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where appeal against decision of Mental Health Review Tribunal approving that the appellant move to Sri Lanka on certain conditions – where appellant subject to a forensic order in Queensland – whether Tribunal ought to have been satisfied that appropriate arrangements existed for the appellant’s treatment and care in Sri Lanka as required by s 173 of the Mental Health Act 2000 (Qld)

Mental Health Act 2000 (Qld), s 173

COUNSEL:

Mr S Hamlyn-Harris for the Appellant

Mr W Isdale for the Director of Mental Health

SOLICITORS:

Robertson O’Gorman for the Appellant

Crown Law for the Director of Mental Health

1. PHILIPPIDES J: This is an appeal by the Director of Mental Health against a decision of the Mental Health Review Tribunal on 22 December 2006 approving that the appellant DAE move out of Queensland and live in Sri Lanka on certain conditions. 

1. The grounds of appeal are essentially that the Tribunal erred in concluding that appropriate arrangements existed for the appellant's treatment or care at the place where he intended to move to, that is Sri Lanka.  I am satisfied error has been shown in respect of the decision made by the Tribunal and that it ought not to have been satisfied on the material before it that appropriate arrangements existed.

1. I note that s 173 of the Mental Health Act 2000 (Qld) provides that the Tribunal may only approve the movement of a patient out of Queensland if it is satisfied that appropriate arrangements exist for the patient's care or treatment at the place where it is intended that the patient move to.

1. There are a number of aspects in this case which indicate that the Tribunal's decision was erroneously made. 

1. I note that the appellant continues to be under a forensic order.  Indeed, a forensic order was made only yesterday upon Dr A's recommendation.  Both Dr A and Dr B see a forensic order as being necessary for the management of the appellant for quite some time at least.  Both doctors indicate the appellant lacks full insight into his condition.  He does not consider that he continues to require medication. 

1. There is no evidence before the Court as to what arrangements are available in Sri Lanka for the compulsory detention of individuals in the appellant's situation, that is, where a person suffers from a mental illness and has been found to be of unsound mind and to require supervision under a forensic order.   

1. The evidence indicates that Dr C communicated via e-mail some willingness at one stage to be involved in the appellant's care, but there was no statutory declaration or any other formal document from him which one would have thought would have been required in making a decision as significant as the one which the Tribunal was considering. Indeed, I note that the evidence in relation to the family's intentions for and support of the appellant was also contained in letters and e-mails. To my mind, that is not an appropriate method of providing evidence to a Tribunal or to a Court dealing with an application under s 173. Apparently Dr C is no longer prepared to be involved in the appellant's care and management. It seems another doctor has been approached. But the position remains very unclear. In addition, Dr B has raised a number of other issues of concern in his report.

1. Quite apart from questions of the legislative framework that applies in Sri Lanka, there is no clear indication of what arrangements presently exist for the care of the appellant on relocation to Sri Lanka.  It is obviously a very unsatisfactory state of affairs.  In those circumstances it is appropriate that the appeal be upheld and the decision of the Tribunal of 22 December 2006 be set aside.

1. It would be appropriate that the evidence before the Court and the opinions of the assisting psychiatrists be provided to the treating team and to the Mental Health Review Tribunal for the purposes of any further review.