Re Franklin

[2011] QMHC 28

MENTAL HEALTH COURT

CITATION:

Re Franklin  [2011] QMHC 28

PARTIES:

REFERENCE BY LEGAL REPRESENTATIVES IN RESPECT OF JEAN HEATHER FRANKLIN

PROCEEDING NO:

0190/10

DELIVERED ON:

2 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2011

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr Lawrence

FINDINGS AND ORDERS:

1.    The reference is withdrawn;

2.    The proceedings are to continue according to law.

COUNSEL:

R Davies for the defendant

J Tate for the Director of Mental Health

S Ryan for the Director of Forensic Disability

A Lossberg for the Director of Public Prosecutions

SOLICITORS:

South Queensland Law for the defendant
Crown Law for the Director of Mental Health
Director of Forensic Disability (Qld)
Director of Public Prosecutions (Qld)

A LYONS J:

The current reference

1. This is a reference by the legal representatives of Jean Heather Franklin. The reference was filed on 19 January 2011. Mrs Franklin is charged with the dangerous operation of a motor vehicle causing death and the dangerous operation of a motor vehicle causing grievous bodily harm.

1. Those charges arose out of an incident involving a vehicle which crashed into a room where elderly residents were playing bridge at Drayton Villas in Toowoomba which is a retirement centre with a community hall. The evidence indicates that Mrs Franklin attempted to park in front of the hall and the car accelerated in reverse across the street, then accelerated forward into the car park area of the hall. It continued to accelerate through a pergola support post and it crashed through an external wall of the hall, then into an internal wall and struck a number of people who were sitting at tables playing cards. One woman died and another sustained serious injuries. No alcohol or drugs were involved.

The medical reports

1. The report of Dr Tucker dated 2 February 2010 indicated that the cause of the temporary loss of control at the time of the incident could be heart arrhythmia and that there was possibly some altered perfusion to the brain, possibly an embolism from the heart or carotids.

1. Dr Ross Phillipson in a report dated 19 November 2010 stated that Mrs Franklin has mild cognitive impairment and an anxious temperament. He also indicated that she has insulin dependent diabetes, atrial fibrillation and congestive cardiac failure. He considers it highly likely that Mrs Franklin suffered a cerebral event at the time of the incident being either a transient ischaemic attack or sudden cardiac rhythm disturbance.  He stated that such a cerebral event would cause temporary loss of circulation of the brain and temporary loss of consciousness. Dr Phillipson therefore considered that Mrs Franklin was deprived of the capacity to control her actions due to an acute cerebral event.

1. Dr Joanne Barkla in a report dated 26 May 2011 considers that Mrs Franklin has mild cognitive deficits on the interface of age related cognitive decline and a mild cognitive disorder. She considers that Mrs Franklin’s amnesiac state at the time of events is most likely due to a cardiac or cerebral event. Dr Barkla considers that there is a very high risk that Mrs Franklin may not survive the proceedings as a result of her fragile physical health.

The Mental Health Act 2000 (Qld)

1. Section 268 of the Mental Health Act provides that the court must not make a decision if there is a reasonable doubt that the person committed the offences. Given that Mrs Franklin has a diagnosis of a transient alteration of consciousness and a supplementary diagnosis of organic automatism, I consider that there is a reasonable doubt that Mrs Franklin committed the offence given that s 23(1)(a) of the Criminal Code 1899 (Qld) provides that a person is not criminally responsible for an act or commission that occurs independent of the person’s will and s 23(1)(b) provides a person is not criminally responsible for an event which occurs by accident.

1. Accordingly, the court cannot proceed to determine the reference given those issues of automatism which arise in relation to the alleged offences.

1. Section 270 however provides that the court must determine the question of fitness to plead in relation to reference where a decision is not made pursuant to s 268 as follows:

“270 When Mental Health Court must decide fitness for trial

(1)The Mental Health Court must decide whether the person is fit for trial if—

(a) the court decides the person was not of unsound mind; or

(b) under section 268 or 269, the court must not decide whether the person was of unsound mind when the alleged offence was committed.

(2)Subsection (1) does not apply if, under section 268(4), proceedings against the person for the alleged offence are discontinued.”

1. Schedule 2 of the Act however contains the definition of “fit for trial”.

“fit for trial, for a person, means fit to plead at the person’s trial and to instruct counsel and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.”

1. Counsel for Mrs Franklin, Mr Davies, argued that the Court should proceed to determine the issue of fitness for trial despite the fact that the evidence indicates that it is unlikely Mrs Franklin could endure her trial because of the risk of adverse consequences to her mental health. Mr Davies argued that whilst “fit for trial” is defined as “fit to endure the person's trial, with serious adverse consequences to the person's mental condition unlikely” the Court should also receive evidence of the physical condition of the defendant to determine if a serious adverse consequence to the defendant’s mental condition is likely to result from a trial because of the physical impact on them.

1. Mr Davies argues that there is evidence that a trial is likely to have serious adverse consequences to the defendant's physical health, even death.  In particular reliance is placed on the following reports:

   a.Dr Phillipson (Report 19/11/10) ‘...I am gravely concerned that [the defendant] would experience such a degree of anxiety in a trial situation that the subsequent release of adrenalin could cause her to experience a sudden cardiac event which could prove fatal’

   b. Dr Barkla (Report 26/05/11) '[The defendant] is at high risk of a further cardiac event and destabilising diabetic control if exposed to stressful circumstances .... I believe there is a very high risk that [the defendant] may not survive these proceedings...’

2. Mr Davies argues that both psychiatrists stated that in their opinion and in the current circumstances, the defendant was unfit to stand trial. Furthermore Dr Barkla’s report indicates that “the unfitness for trial was likely to be permanent” and Dr Phillipson opines that Mrs Franklin is “permanently unfit for trial”.

1. Mr Davies submits that the mechanisms for the potential catastrophic physical consequences to Mrs Franklin’s health are the mental conditions of stress and anxiety caused and/or exacerbated by the trial process. He notes that it is important to note that following the committal she suffered stress and anxiety leading to… “a syncopal event. The differential diagnosis for this includes a simple faint, an epileptic event, syncope secondary to cardiac rhythm disturbance such as profound but transient slowing of the heart rate, or a transient cerebral ischaemic event.”

1. Mr Davies contends that the same process may reasonably be expected before, during or immediately following the trial process. Reliance is also placed on the 2002 Mental Health Court decision in RBD[1] where Justice Wilson took the defendant's deteriorating physical condition into account in finding the defendant permanently unfit for trial.

   [1][2002] QMHC 2 at [29].

1. Dr Davies also argued that s 613 of the Criminal Code  does not apply as there is no issue about Mrs Franklin's “want of understanding”. Accordingly he submits that the only option for an accused whose physical health is so challenged by the anxiety and stress of the trial process is to make a submission to the Director of Public Prosecutions in accordance with his published Guidelines. However he notes that the Guidelines are discretionary and do not have the force of law. In any event Mr Davies argues that Mrs Franklin arguably does not neatly fit into the criteria.

1. It is clear however that the decision of RBD is distinguishable on its facts as in that case it was clear that there was evidence of a progressive cognitive decline and three of the assessing psychiatrists had indicated they considered that there was a permanent unfitness for trial because of the combination of physical and mental factors. That is not the position in the current case. The clear evidence would seem to be that in the present case the only adverse impact on Mrs Franklin’s health  is related to her physical condition.

1. Counsel for the DPP submitted that as the impact on Mrs Franklin related to her physical condition the Mental Health Court did not have jurisdiction given the definition in schedule 2.

1. Mr Tate for the Director of Mental Health also indicated that there was a jurisdictional issue which was best addressed by the views of the assisting psychiatrists as to whether in their clinical opinion Mrs Franklin’s mental condition would in fact be impacted upon by her physical conditions. Mr Tate also submitted that a further option available to the legal representatives of Mrs Franklin was to apply for a stay of the indictment.

1. The advice of the assisting psychiatrists was that there was no evidence that the trial would impact on Mrs Franklin’s mental condition. Dr McVie noted that neither of the reporting doctors diagnosed a serious mental disorder as both diagnosed mild cognitive decline, which was an age-related cognitive decline. Dr McVie considered that this was relatively minor and certainly not sufficient to have any association with the incident causing the charges or any significant impact on fitness for trial. Dr McVie advised:

“My overall advice is that it does not appear to be deterioration in her mental state that the stress of the Court hearing is likely to cause, rather it is likely to cause deterioration in her physical state and, to my mind, this does not really fit the criteria that the Mental Health Court normally use in terms of looking at fitness for trial.”

1. Similarly Dr Lawrence stated:

“My view is that the reports of Dr Philippson and Dr Barkla do not indicate the presence of a serious mental illness or a mental illness, per se.  There are references to her anxious temperament, it could be considered that she may have had a mild anxiety state, and it would appear that there was evidence of some early cognitive decline, probably age-related since this lady is now 88 and nearly 89.

In that sense, I don't think that that degree of deteriorative cognitive decline would in fact qualify as a mental illness and therefore affect the issue of the fitness to plead.”

1. Dr Lawrence continued:

“Whilst I would certainly accept that a trial would constitute a significant stress to this nearly 89 year old lady with serious conditions, I can't see that you could argue that that stress, which would undoubtedly increase her anxiety, that I can't see how that would prevent her on, shall we say, mental or cognitive grounds from being able to withstand a trial.

One can see that that could aggravate her underlying physical condition, the cardial condition, and that that would cause fluctuations, if you like, in her - perhaps her mental condition from time to time, and over a period of time there could be a more substantial aggravation or accentuation of her cognitive decline, so that ultimately one could get to the point over time of arguing that there was sufficient cognitive impairment to constitute a mental illness, but I can't see that happening in the short space of time of a trial, which would be imminent.

So my feeling is that the arguments for her inability to withstand the - or to endure the trial without adverse consequences is really based on her physical condition rather than her mental condition, as such.

I think that certainly warrants the close attention of the authorities to be borne in mind from the overall point of view, but I guess from the point of view of Mental Health Court jurisdictions I suspect that it's a physical condition not a mental one.”

1. On the basis of that advice from the assisting psychiatrists I do not consider that this Court has jurisdiction to determine the question of whether Mrs Franklin is “fit for trial” given the lack of any evidence that a trial would affect her ‘mental condition’ as opposed to her physical health.

1. Whilst I understand the dilemma which the legal representatives for Mrs Franklin find themselves in, I would endorse Mr Tate’s submission that an application for a permanent stay on the indictment might be the more appropriate course or a renewed application to the Director of Public Prosecutions.

1. I would therefore refuse the reference.

ORDERS:

1.   The reference is withdrawn.

2.   The proceedings are to continue according to law.