Re Florence

[2011] QMHC 9

MENTAL HEALTH COURT

CITATION:

Re Florence  [2011] QMHC 9

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF DAVID JOHN FLORENCE

PROCEEDING NO:

 0190/10

DELIVERED ON:

23 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2011

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

1. That at the time of the alleged offences the subject of the reference the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld);
2. The defendant is fit for trial
3. The proceedings against the defendant are to continue according to law

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – where the defendant is charged with three offences – where at the time of the alleged offences the defendant was under an Involuntary Treatment Order – where the defendant has a history of mental health issues – whether the defendant was of unsound mind as defined by Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offences

Mental Health Act 2000 (Qld)

COUNSEL:

J Briggs for the defendant
K Parrott for the Director of Mental Health
J-A Thomas for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is a reference by the Director of Mental Health dated 6 August 2010 in relation to David John Florence.

The offences

1. Mr Florence is charged with three offences namely stealing, receiving stolen property, and attempted fraud. The stealing and receiving stolen property charges are alleged to have occurred between 31 May and 3 June 2010. The attempted fraud is alleged to have been committed on 2 June 2010.

1. In relation to the stealing offences it is alleged that Mr Florence stole a credit card and a driver’s licence that belonged to his ex-partner. He was staying at her house overnight and removed those items from her handbag.

1. The basis for the attempted fraud charge is that it is alleged that on 2 June Mr Florence attended at a car yard and spoke to a salesman in relation to purchasing a vehicle for $16,500. He produced the stolen credit card and the salesman unsuccessfully attempted to process the transaction. The transaction was declined as the card had been cancelled. The salesman attempted to process the transaction five times but all were declined. Mr Florence told Dr Sadasivan that he attended a number of car yards attempting to purchase a car with the card but all were declined.   Mr Florence placed the credit card and the driver’s licence back under the seat of the complainant’s car after the attempted use. 

Dr Gavilan’s Report 7 June 2010

1. Mr Florence was under an Involuntary Treatment Order (ITO) at the time of the alleged offences and indeed attended at the Mental Health Service on the morning of 2 June 2010 where he saw Dr Gavilan who was preparing a report in relation to his mental state in connection with five offences which occurred in April and May 2010. Those offences consisted of 2 counts of driving an uninsured vehicle, 3 counts in relation to driving unregistered vehicles and one count of wilful damage.

1. Dr John Gavilan’s report dated 7 June 2010 outlined Mr Florence’s previous mental health history which commenced in November 2003 when he was admitted to the Gold Coast Hospital with auditory hallucinations. In particular he noted that Mr Florence has diagnoses which include Schizo Affective Disorder and Bipolar Affective Disorder, as well as a drug induced psychosis.  He stated that he has a long history of drug use and has many offences in the past in relation to driving offences and assault charges. Dr Gavilan noted that there was no doubt that the use of substances and alcohol had contributed towards his mental condition.

1. Dr Gavilan stated that Mr Florence was most recently admitted to the Gold Coast Hospital on 12 April 2010 following an episode of psychosis which related to the use of drugs. During that admission he had persecutory delusions, elevation of mood and disorganised thoughts. He also admitted to hearing voices intermittently. 

1. In relation to the 6 criminal offences which were pending at the time of that report, Dr Gavilan concluded Mr Florence was not deprived of one of the relevant capacities at the time and therefore had no defence of unsoundness of mind in relation to them. Dr Gavilan noted he was discharged on 27 April 2010.

1. Dr Gavilan’s report noted that on 2 June 2010 when assessed by him Mr Florence was tense but not elevated in mood.  He stated however that there was;

“Evidence that he has ideas which are grandiose in content. These probably fluctuate between partial and complete delusions. He talked frequently about the queen. He talked about his army abilities to fight off aggressors but was not directing his anger toward any civilian currently.”

1. Dr Gavilan also reported that Mr Florence was preoccupied throughout the interview. He stated that Mr Florence heard voices intermittently and that the voices were at times ‘imperative’ and directed him to carry out actions. He also noted that Mr Florence did not believe he was unwell and stated that his judgment was poor. He stated that there was alcohol and cannabis abuse and ordered a Urine Drug Screen (UDS). Whilst a sample was collected at 11am that day the subsequent analysis indicated that no cannabis was present. 

Dr Sadasivan’s Report 6 August 2010

1. In a report dated 6 August 2010 Dr Asha Sadasivan stated that Mr Florence was admitted to the Gold Coast Hospital on 3 June 2010 with grandiose delusional beliefs, elevated mood, irritability and a complete lack of insight. He had previously been diagnosed with drug induced psychosis and bipolar disorder. Dr Sadasivan noted in the report that Mr Florence believed he was a member of the SAS which gave him the right to drive at whatever speed he liked. In relation to the stealing offence Dr Sadasivan indicated that Mr Florence believed that he was entitled to a payback from his ex-girlfriend.

1. Dr Sadasivan did not consider that there was a defence of unsoundness of mind in relation to the two stealing offences.

1. In relation to the attempted fraud charge however, Dr Sadasivan said that Mr Florence believed that he was being followed by “them” and as everyone knew which car he drove he needed to get a new car. Dr Sadasivan considered he was incapacitated due to his delusional beliefs. She considered that he was incapable of controlling his actions given that he told her that he went from car yard to car yard even after the card had been declined trying to buy a car.  She considers he was driven to do this by his delusional thinking. Dr Sadasivan noted that his current diagnosis was one of bipolar disorder.

1. In her evidence to the court Dr Sadasivan stated that when admitted Mr Florence was hostile and aggressive and not very open with the treating team. She considers that he was able to “keep it all together” and that he did not disclose his delusional thinking until mid June. Dr Sadasivan stated that collateral information obtained from his family indicated the extent of his delusional thinking particularly in relation to his beliefs about the SAS. She also stated that Mr Florence’s very strong views about not wishing to be on a forensic order coloured his disclosure of information to his treating team. Dr Sadasivan stated that he had a very strong view that he did not wish his criminal matters to be referred to the Mental Health Court.

Dr Kovacevic’s Report 21 January 2011

1. In a report dated 21 January 2011 Dr Kovacevic stated that Mr Florence had a history which was consistent with a diagnosis of Bipolar Affective Disorder which was complicated by alcohol and substance abuse and treatment non adherence. He also noted an extensive history of contact with mental health services including numerous inpatient psychiatric admissions in the context of abnormally elevated mood and substance abuse. Dr Kovacevic also noted a family history of mental illness which increased his vulnerability to the development of a mental disorder. He noted that Mr Florence, at the time of his interview with him, had a poor recall of the incident in relation to the stealing and attempted fraud, but that the Gold Coast Hospital medical records at the time were of assistance.

1. In particular, Dr Kovacevic placed reliance on the report of Dr Gavilan who had assessed him on 2 June in relation to a report for his then pending criminal charges.  At that time Mr Florence apparently told Dr Gavilan that he was drinking alcohol and smoking cannabis around the time of the assessment. Dr Kovacevic also noted that there was no reference in that interview with Dr Gavilan to his delusional beliefs about being a member of the SAS. Dr Kovacevic noted however that the Gold Coast Hospital records and the statements of his family members are supportive of the conclusion that his mental state was deteriorating around that time and that he was described as insightless, delusional and elevated in mood.

1. In coming to his conclusion that Mr Florence was not deprived of any of the relevant capacities at the time of any of the offences, Dr Kovacevic placed particular reliance on Mr Florence’s report to Dr Gavilan. Dr Kovacevic stated that his view did not alter despite the clear urine drug screen. Dr Kovacevic placed significance on the fact that he did not indicate to Dr Gavilan any of his delusional beliefs. Dr Kovacevic considered that it was of relevance during his admission Mr Florence first voiced ideas about being linked with the SAS only after almost two weeks in hospital, although that had been reported earlier by his family members.

1. Dr Kovacevic in his report disagreed with Dr Sadasivan who considered that Mr Florence was deprived of the capacity to control his actions in relation to the charge of attempted fraud. Dr Kovacevic considered that Mr Florence was not deprived of the capacity to control his actions. In his view he considered there was no sufficient evidence to link Mr Florence’s specific belief about the SAS with his attempt to purchase a vehicle using the stolen credit card. Dr Kovacevic considered that if Mr Florence knew that stealing the credit card was wrong then he would have also had a capacity to understand that using the same credit card was just as wrong. He considered that any irresistible compulsion to obtain a vehicle with the purpose of escaping from the SAS could not be substantiated.

1. Dr Kovacevic said that Mr Florence gave him different reasons for attempting to purchase the vehicle which bore no relationship to the SAS. He could not elicit information about alternative attempts to obtain means of escape from the persecution. Dr Kovacevic also noted that instead of fleeing Mr Florence turned up for a psychiatric appointment on 2 June and despite speaking freely about a range of unusual beliefs and experiences, he did not mention his concerns about persecution from the SAS. Accordingly Dr Kovacevic considered Mr Florence was not deprived of any of the relevant legal capacities at the time when he committed the offence of attempted fraud.

1. In summary then in relation to the question of unsoundness of mind, Dr Kovacevic considered that when he committed the alleged offending Mr Florence suffered from an exacerbation of his bipolar mood disorder in the context of non compliance with medications and alcohol and cannabis abuse. Whilst this disorder constitutes a mental disease and that his elevated mood affected his judgment and capacities to make decisions and moral choices, Dr Kovacevic considered that whilst Mr Florence’s capacities to control his behaviour and understand the wrongfulness of his actions were impaired, he does not believe Mr Florence was deprived of any of the relevant capacities in relation to the offending and would not support a defence of unsoundness of mind. Dr Kovacevic also indicated that alcohol and cannabis affected Mr Florence’s mental state and contributed to the deterioration in his psychiatric illness.

The views of the assisting psychiatrists

1. Dr McVie noted that that there was no evidence to support a conclusion that Mr Florence was using cannabis and alcohol at the time given his clear urine drug screen.  Dr McVie stated that Mr Florence has a mental illness which has been diagnosed as a schizoaffective disorder and this was first diagnosed in 2003. In the year in question he had an admission of almost a full month of April and then was discharged on oral Quetiapine, an anti-psychotic, and then again he was re-admitted on the 3rd of June, the day after the offence in question, the attempted fraud.

1. Dr McVie stated that the treating psychiatrist has described his behaviour during the admission in June as irritable and fluctuating and yet he committed acts which were later found to be consistent with delusional content that had been provided to the treating team through collateral sources. Dr McVie noted that Dr Sadasivan gave a very clear opinion that she believed that the attempted fraud was an offence which was driven by his delusional beliefs and she opined that he was deprived of the capacity to control his actions due to feeling compelled to act on his delusions to get away from his pursuers.

1. Dr McVie noted that it was only midway through June that he actually divulged any clear delusional beliefs to his treating team about his beliefs with the SAS she considers it possible that his partially treated illness resulted in him being less guarded and more amenable to discussing what he was really thinking and this commonly occurs in partial treatment of mental illness. Dr McVie also considered it notable that he was treated with depot medication during his admission in June where he had previously had oral medication. He has remained well and compliant on his depot medication and on his continued and voluntary treatment order.

1. Dr McVie stated that having regard to the way he has described his delusions over time and the fact that he was irritable and unpredictable on the 3rd of June, it's possible that his pursuers were the SAS or they may have been some other delusional force at that time. She noted that Dr Sadasivan was firm in her opinion that he was seeking a car and had gone to several different car yards before he attempted to purchase the car for the offence for which he is charged.

1. Dr McVie’s advice was that the correct capacity that he would have been deprived of was the capacity to reason.  She considers that his delusional beliefs would have been altering his ability to reason with a moderate degree of sense and composure and he was more likely than not deprived of the capacity to know he ought not do the act.

1. Dr McVie noted that Dr Kovacevic did not find him deprived of any capacity but it should be noted that when he interviewed Mr Florence, Mr Florence was well-controlled on his depot medication and he presented information based on his preference to avoid the Mental Health Court and to avoid forensic orders.

1. Dr McVie’s overall advice was that Mr Florence does have a serious mental illness which is probably exacerbated by some degree of substance use although the clinical material provided does not really identify a clear association between substance use and onset of illness.  It is certainly not helped by non-compliance with oral medication and in June 2010, Mr Florence had a limited insight into his mental illness.

1. Dr Lawrence however stated that whilst Mr Florence has a serious mental illness she did not consider he was deprived of any of the relevant capacities at the time of the offences.

1. Dr Lawrence noted that when Mr Florence was admitted to hospital on the day following the offences displaying irrational behaviour he was taken directly to the ward and the next entry in the notes is that that night he was elevated, delusional and insightless.  Dr Lawrence stated however that the delusions were about paedophiles and he was stating how he knew that there were paedophiles on Russell Island and the address of others and what he was going to do to them and he was going to kill them with a gun. She noted that there was absolutely no reference to anything to do with his associations with the SAS and no reference to the SAS matters until much later.

1. Dr Lawrence acknowledges that Mr Florence was very keen not to have a forensic order issued and was very consciously aware that he was at risk of that happening to him and was anxious not to be found unsound.  Accordingly Dr Lawrence considers that there is evidence that Mr Florence is able to control his behaviour from time to time.  Dr Lawrence considered that there was no suggestion Mr Florence was deprived of the capacity to know that he ought not steal the card or commit the other offences.  She indicated that it is only when you come to the using of the card and attempting to buy a car and the card is refused that we find that he is given a defence by Dr Sadasivan on the basis that he needed the car because he thought he was being pursued by the SAS which as Dr Lawrence noted were usually supportive of him.

1. Dr Lawrence did not consider that on the particular occasion when he attempted to buy a car with the stolen card, that he was deprived of either knowing that he ought not do that particular act by reason of his somewhat intermittent delusional belief or that he was deprived of the capacity to control his behaviour at that time as a result of any mental illness such as a manic state.

1. It is clear on the evidence that Mr Florence has a mental illness and was seriously unwell at the time of the alleged offences. I consider that Mr Florence’s capacities to reason and to control his behaviour were seriously impaired however I am not satisfied that he was deprived of any of the relevant capacities at the time of the commission of the offences the subject of the reference. Overall I am persuaded by the opinion of Dr Kovacevic and the advice of Dr Lawrence in this regard.

1. I consider that the evidence indicates that Mr Florence was aware that stealing the credit card and licence were wrong. After attempting to use the card and licence he placed them back in his ex partner’s vehicle surreptitiously. I accept that his elevated mood affected his judgment and capacities to make decisions but I do not consider that he was totally deprived. I agree with Dr Lawrence that overall Mr Florence has shown he has the ability to control his behaviours. I consider it was significant that his delusional belief systems about the SAS were not mentioned when first admitted and even when mentioned do not explain why being a member of the SAS or even being pursued by the SAS entitled him to use a credit card he knew to be stolen. I cannot see any link between his delusional beliefs and his use of the card. In particular I am not satisfied that a belief about being pursued deprived him of the capacity to control his actions as contended given he acted in such a considered fashion on the day in question.

1. I am not satisfied therefore that Mr Florence was deprived of any of the relevant capacities such as would entitle him to a defence of unsoundness of mind.

1. The charges should therefore continue according to law.

1. The reports indicate Mr Florence is fit for trial.