Re EDL

[2012] QMHC 14

MENTAL HEALTH COURT

CITATION:

Re EDL [2012] QMHC 14

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

EDL
Appellant

DIRECTOR OF MENTAL HEALTH

Respondent by Election

PROCEEDING NO:

No 108 of 2012

DELIVERED ON:

Ex tempore reasons delivered on 8 June 2012
Written reasons delivered on 20 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2012

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J J Sundin

FINDINGS AND ORDERS:

1. That the appeal is dismissed; and
2. That the decision of the Mental Health Review Tribunal is confirmed.

COUNSEL:

D C Shepherd for the applicant
J Tate for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Crown Law for the respondent

ANN LYONS J:

1. EDL is currently 64 years of age and she was diagnosed with a Bipolar Disorder whilst in her 20s. She has had multiple admissions to mental health services in Australia and New Zealand since that time.

1. She was most recently placed on an Involuntary Treatment Order (ITO) on 28 March 2010, which is well over two years ago. 

1. On 6 March 2012, the Mental Health Review Tribunal (MHRT) reviewed that ITO and, at that time, was satisfied the treatment criteria was satisfied and that the ITO should be confirmed.

This appeal

1. EDL, in a Notice of Appeal filed on 18 May 2012, now appeals against the decision of the MHRT.

1. EDL states that as an adult person of 64 years of age, she accepts that she needs backup and support from professional people who do not treat her with suspicion and paranoia.  She considers she is getting along reasonably well under the circumstances.  She states she has a good general practitioner, that she has complied with the ITO and she considers that in the last 18 months she has proven her ability to comply.

1. She accepts that in the past she would go off her medications but acknowledges that was due to her immaturity and her belief in self-medication.  She states, "I have come full circle and it's a comfortable place to be after so many admissions.  I've no interest in dodging bullets any more on account of my behaviour.  I'm for the quiet life.  Experience works wonders."

1. Mr Shepherd, on EDL’s behalf, argued that the ITO should be revoked.  Mr Shepherd argued that EDL has capacity to consent to her own treatment and that she has insight into her illness.  He argued that she has a sufficient level of knowledge and she has made significant efforts in this regard. He stated that she has the knowledge required to manage her illness.  Particularly, Mr Shepherd argued that her contact with the Mental Health Service is minimal and they have been of no real assistance to her, whereas her friends, family and GP are more engaged with her and would, therefore, notice her deterioration rather than the Mental Health Service.

1. Mr Shepherd relied on a decision of Re GMH [2003] QMHC 8. He submitted that EDL shows the requisite level of understanding of her illness, she has knowledge of the consequences of not complying with treatment and that she acknowledges she will comply with the treatment. Mr Shepherd argued that it has not been established that EDL lacks the capacity to consent.

The treating psychiatrist

1. In this regard, we have had evidence and also a report from Dr Dhingra.  Dr Dhingra indicates that EDL has had a history of mental illness from at least 1975. The evidence is that her illness is characterised by predominant episodes of mania, often with features of psychosis.  He said she has been diagnosed with Bipolar I disorder, with a differential diagnosis of schizoaffective disorder.  The evidence is that her presentation on relapse is often with elevated mood, intrusive behaviours, and impaired insight into her need for treatment.  Dr Dhingra's report states that historically the accompanying psychosis is often characterised by paranoid delusions with a belief that her life is endangered in some manner.  He states that EDL has been hospitalised in Australia and New Zealand on more than 20 occasions and that non-compliance with all medication has been the contributor to her relapse on many occasions. Dr Dhingra states that the information on the file indicates that EDL usually decreases her medication, becomes unwell, and then ceases her medication.  He acknowledges that the last in-patient admission was over 12 months ago, in May 2011.

1. Dr Dhingra's concern is that, when unwell, EDL is a risk through vulnerability and misadventure because her judgment then becomes impaired through delusional influences.  In that situation, she can not adequately assess the risk of her actions, including confronting others and exposing herself in public.

1. EDL’s admission in May 2011 was amid concerns that a deterioration in her mental state was putting her at risk of losing her accommodation.  It would seem that she was disruptive in the early hours of the morning, singing and banging rubbish tins, which was disturbing the neighbours.

1. I note that as recently as January and February 2012 there is evidence EDL has been suspicious of neighbours, indicating they were planning to send her to an asylum.  She believed people were breaking into her house, stealing her belongings and putting drugs into her food. She reported these issues to police and changed the locks.  Significantly though, when she was seen by a psychiatrist at that time, she was noted to have persecutory delusions, elevated mood and poor insight.

1. The evidence is clear that, at that time, she was only taking a half dose of Olanzapine that had been prescribed, although I note there is evidence that there was concern about the inter-relationship with her medication and her other physical illnesses.

1. Dr Dhingra's report states that when he interviewed EDL in March 2012, she continued to believe her house was being broken into.  However, when he saw her in May, she was not displaying any delusional ideation or hallucinations. On that occasion, EDL acknowledged that when she becomes unwell she stops her medication.

1. Dr Dhingra acknowledges that EDL has partial insight, but that she loses this insight when she becomes unwell.  He considers very clearly that she needs an ITO to manage the mental illness and he considers she fulfils the criteria. In particular, he considers that she disengages from treatment.  He considers that there is a high risk of relapse if she is not on medication.

1. He states that she does not have the relevant awareness of the symptoms of a mental illness and that he did not consider she was able to recognise the symptoms of persecution in February 2012. In particular, he states she cannot form the link between the delusions and the mental illness.  He states that whilst EDL agrees to take lithium, she does not really acknowledge the Bipolar illness consistently.

1. He agrees that she has continued to see the psychiatrists.  He does have concerns, however, that she has no real support in Brisbane and acknowledges that she has only one good friend.

Should the Involuntary Treatment Order be continued?

1. Having considered all of this material and having considered the material that was before the Mental Health Review Tribunal, I am satisfied that EDL suffers from a mental illness.  Currently the diagnosis is Bipolar I disorder, with a differential diagnosis of schizoaffective disorder.  However, in this regard I note the significant comments by both Dr McVie and Dr Sundin in relation to this diagnosis and their very strong advice that this diagnosis needs to be clarified.  I consider the treating team should take this advice into account and that a review of the diagnosis should be made.  I accept therefore that there is a mental illness in existence.  I am satisfied that EDL has for the last 40 years had a long history of mental illness and that she has had a long history of hospitalisations.

1. I also accept that when she is unwell she is at significant risk of losing her accommodation and is at risk of a significant intersection with police services due to her abusive behaviour.

1. I accept that EDL has made great efforts in relation to managing her illness and she is currently compliant with medication.  I accept that she has good support from her general practitioner and her friend, who is here today at the hearing. However, my real concern is the recent exacerbation in January/February this year and, given Dr Dhingra's very clear evidence about his discussions with her at that time and her level of insight at that time, I am not satisfied EDL is currently at the point where she has the significant insight required.

1. I consider that in the last 12 months there have been at least two exacerbations.  I accept that she has only recently been engaged with this team at the Mental Health Service and I accept that there is a plan to develop greater psycho-social education and that there is a plan for greater therapeutic alliance to be made.  However, I accept that there are significant steps that need to be taken by the Mental Health Service also.

1. In particular, in this regard, I take into account the very clear advice of the assisting psychiatrists in relation to the need for the review of the diagnosis and, in particular, their advice is that there needs to be a review of her current medical problems and the intersection with her mental state and the other medications that she is prescribed.

1. I also endorse the very strong advice by the assisting psychiatrists that investigations should be made into whether there can be a private psychiatrist who will work with the public sector case managers.  I endorse their concerns about the real lack of continuation of care in the last 12 months and that their view that EDL is well justified in feeling she is not supported by the Service.

1. However, given that history, I am satisfied that EDL does not currently have the capacity to consent to treatment.  I consider, therefore, that at this point in time there is no less restrictive way of managing her mental illness.  I am therefore satisfied the treatment criteria have been met and that the ITO should be continued.

1. The treating team and the MHRT need to be aware of the issues that have been raised by both of the assisting psychiatrists so that those issues can be followed up at the MHRT and so that a clear treatment plan can be established.

1. Accordingly, I am satisfied that the decision of the MHRT should be confirmed and that the appeal should be dismissed.

ORDERS:

1.          That the appeal is dismissed; and

2.          That the decision of the Mental Health Review Tribunal is confirmed.