Re GVM
[2012] QMHC 19
•26 July 2012
MENTAL HEALTH COURT
CITATION:
Re GVM [2012] QMHC 19
PARTIES:
APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL
ATTORNEY-GENERAL FOR QUEENSLAND
AppellantGVM
RespondentDIRECTOR OF MENTAL HEALTH
Respondent by Election
PROCEEDING NO:
No 279 of 2011
DELIVERED ON:
Ex Tempore reasons 26 July 2012;
Written reasons 14 August 2012DELIVERED AT:
Brisbane
HEARING DATE:
11 November 2011;
26 July 2012
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr J J SundinFINDINGS AND ORDERS:
The decision of the Mental Health Review Tribunal of 5 October 2011 is set aside and the Forensic Order is revoked.
COUNSEL:
L M Syme for the Attorney-General
C L Morgan for the defendant
J Tate for the Director of Mental HealthSOLICITORS:
Crown Law for the Attorney-General
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
ANN LYONS J:
On 26 July 2012 the Forensic Order made by this Court on 9 September 2009 was revoked. Ex tempore reasons were given at the time the Forensic Order was revoked and an indication was given that more extensive reasons would be provided in due course. These are those reasons.
History
GVM was placed on a Forensic Order by the Mental Health Court on 9 September 2009 after he was found to be of unsound mind in relation to a charge of attempted murder. He was residing in a nursing home at the time with a frail, 66 year old man who had dementia. At around 1.50am on 5 May 2008 a nurse heard a noise, entered a room and saw GVM forcefully holding a pillow over the head of the victim, saying “You’re on the side of the Krauts and Germans”. She wrestled with GVM but he took the nurse’s torch and twice violently hit down on the victim’s face with the torch.
It was clear that there were a number of medical conditions operating at the time of the offences and GVM had also consumed a considerable dose of benzodiazepines at the time. He had also experienced a fall some weeks earlier which was serious and there were demonstrable abnormalities noted on the x-ray. It would seem there was a resolving frontal lobe haematoma. His behaviour in the nursing home was disordered. A number of reports were obtained from psychiatrists and, in particular, Dr Voita indicated that at the time of the alleged offence GVM was suffering from a mental disease or natural mental infirmity, specifically a delirium due to multiple aetiologies including substance intoxications, which included opioids and benzodiazepines, as well as a general medical condition which was the frontal lobe haematoma. She also indicated there was a history of underlying chronic cognitive defects due to alcohol abuse.
Dr Voita concluded that at the time of the offence GVM was experiencing auditory and visual hallucinations and delusional ideas consistent with psychotic symptoms secondary to organic pathology, that is a delirium and frontal lobe impairment. Dr Voita noted previous surgery and a fall in April, as well as his deteriorating behaviour in the nursing home.
Dr Fama also diagnosed an alcohol dependence syndrome, as well as polymorphic psychotic disorder resulting from an overdose of benzodiazepines and risperidone. Dr Fama agreed that GVM’s disorder arose out of both the drug overdose and an underlying brain condition, namely frontal lobe injury from trauma. He considered that the nature of the clinical features was such that it transcended ordinary intoxication and that it persisted in custody at least until he was interviewed by Dr Heffernan on 8 May 2008. Dr Fama also noted that there had been progressive subsequent improvement.
The conclusions of the Mental Health Court at the time were that GVM was acting under delusions as a result of delirium and that that deprived him of the capacity to know he ought not do the act. The Court was satisfied that the substance abuse delirium was a disease of the mind. It was considered that a Forensic Order was required given the seriousness of the offences.
The Court approved Limited Community Treatment (LCT) allowing GVM to reside at Redcliffe Lodge or at a place approved in writing by the authorised psychiatrists. He was also required to refrain from using alcohol and illicit drugs. He was a special notification forensic patient.
Subsequent Events
GVM’s Forensic Order and the LCT conditions have been regularly reviewed by the Mental Health Review Tribunal (MHRT) since September 2009. On 6 April 2011, LCT was approved which allowed escorted leave or unescorted leave with supervision.
On 5 October 2011, however, the MHRT approved LCT conditions which would allow full discharge into the community to independent living within six months. The Attorney-General appealed that decision on 20 October 2011 in relation to that LCT condition.
The reasons for the appeal are:
“1. The patient poses a significant risk to the community when he consumes alcohol. There is an unacceptable risk that the patient will continue to use alcohol. There was no sufficient evidential basis to conclude the patient would not use alcohol.
2. The treating team’s proposal to allow the patient unescorted and unsupervised leave in independent accommodation appears to be based on the treating team’s tentative view that the diagnosis at the time of the index offence should have been a delirium caused by an overdose of alcohol and sleeping pills. This tentative view is contrary to the finding of unsoundness of mind by the Mental Health Court and a subsequent diagnosis of Alcohol Induced Persisting Dementia. The Tribunal should not have permitted unescorted unsupervised leave without an independent opinion from a forensic psychiatrist.
3. The Tribunal’s decision that the patient does not represent an unacceptable risk to the safety of others if allowed unescorted, unsupervised leave in independent accommodation is contrary to recent LCTRC and CFOS assessments which recommended the patient be accommodated in a secure nursing home.”[1]
[1]Notice of Appeal against decision of Mental Health Review Tribunal filed 20 October 2011.
The appeal hearing on 11 November 2011
On 11 November 2011 the appeal was heard and adjourned when it became apparent that further up-to-date reports were required. The application by the Attorney-General for a stay of the decision allowing full community discharge within six months was successful and the condition allowing full community discharge was removed. The LCT conditions were also amended to allow GVM continuous absences for up to three days, which would allow monitoring of GVM at his community accommodation by the treating team.
The current medical reports
Dr Duke is GVM’s current treating psychiatrist and he recommends that the Forensic Order be revoked. He indicated that GVM’s mental state has been stable and free of delirium-related psychotic symptoms since 2008. Dr Duke also indicated that the offence occurred in a situation where he shared a room with a person after he suffered a head injury and developed delirium and persecutory delusions. Dr Duke indicates that GVM does not currently require accommodation in a secure nursing home. He does not have dementia and he does not have a mental illness.
Dr Duke advised that GVM’s physical care needs can be met in the community and he does not require the level of care of a nursing home. He indicated that, whilst it is clear that GVM will continue to use alcohol, he disputes the assertion that GVM poses a significant risk to the community when he uses alcohol. Dr Duke indicated that GVM is using alcohol to self-medicate the trauma of childhood sexual abuse and has done so for more than 40 years. Dr Duke stated that he could find no evidence to support the assertion that he poses a significant risk to the community when he consumes alcohol, particularly when the index offence occurred when he was suffering from a delirium which had been precipitated by a head injury and not as a result of his consuming alcohol.
Dr Duke accepts that GVM may experience physical deterioration from chronic heavy alcohol use, but notes that alcohol use is excluded from the definition of mental illness in the Mental Health Act 2000 (Qld) (the Act). Dr Duke considers that the finding of unsoundness was clearly based on a view that the delirium resulted in a finding of unsoundness of mind. Dr Duke stated that the delirium was not caused by an overdose and sleeping pills but, rather, by the affects of the head injury he sustained during the fall.
Dr Duke considered that this was supported by radiological findings of cerebral contusions. He noted that GVM has a long history of overuse of alcohol and medications and has never had an episode of delirium as a result of this, except in the presence of co-morbid head injury. Dr Duke indicated that none of the subsequent assessments have indicated that there is a diagnosis of alcohol-induced, persistent dementia. Dr Duke further indicates that GVM has disputed the findings on the original assessment on the basis that he did not have his hearing aids and it took two hours rather than the usual four hour assessment.
Dr Duke considered that the MHRT’s decision to allow unescorted, unsupervised leave in independent accommodation did not represent an unacceptable risk to the safety of others. That was on the basis that occupational therapy assessments have found that GVM possesses the skills and abilities to live independently in the community and his health has improved to the point where he is able to resume independent living in the community. Dr Duke stated in his report that the current plan is that GVM will live alone in independent accommodation and that he has obtained a community housing apartment in Caboolture.
An extensive analysis of GVM’s cognitive functioning has been conducted by Dr Lucille Douglas. That report indicates that, after extensive testing, Dr Douglas failed to find any evidence that would support a finding that GVM suffered from an acquired cognitive deficiency or that he has some form of dementia. She states his intellectual and memory functioning is well within normal limits for a man of his age and background history.
Dr Douglas noted that there was concern that GVM’s chronic alcohol abuse may have resulted in some chronic cognitive dysfunction. Dr Douglas stated, however, that the test data does not support such a hypothesis. Dr Douglas concluded that GVM has sustained no permanent or persistent cognitive decline that could be considered attributable to either the head injury or the negative effects of alcohol abuse. Dr Douglas noted that the index offence occurred in the context of a delirium and that he was considered to be of unsound mind. Dr Douglas concluded that at the present time GVM presents with no evidence of any lasting cognitive impairment. Those findings were also supported by the report of clinical neuropsychologist Dr Michele Andrews.
Dr Pamela van de Hoef also prepared a report. Dr van de Hoef considered that on examination GVM did not present with any formal thought disorder or any other psychotic features, such as delusional thinking or hallucinatory experiences. He denied having suicidal thoughts and plans or any ideas of ever hurting anyone else. She said he was not clouded. He was orientated in time and place and was able to give consistent time frames, dates and accounts of events in his life (apart from the index offence). His account of events, whilst minimising alcohol, was coherent and consistent. He impressed her as being of average to low intelligence.
Dr van de Hoef considered that GVM’s insight into his delirium at the time of the offence was partial – he said he “dreamt” of fighting against the Germans after drinking and taking a handful of pills. She said he did not believe that he had attacked the victim and suspected “those nurses” of not liking him and fabricating their story of him taking of the torch and using it as a weapon. However, he also said that he had not hurt the man seriously (as he “heard” he did not need hospitalisation). He believed he should not have been charged with attempted murder. He told her he disliked the Forensic Order as it “took away all his freedom” and prevented his discharge from hospital.
Dr van de Hoef stated that GVM did not believe he had, or had ever had, a mental illness (apart from “depression” in jail whilst on remand for this index offence). He had absolutely no insight into the severity of his alcohol abuse, the damage it had already wrought in his life, relationships and on his health and the risks it posed to foreshortening and ending his life. He told Dr van de Hoef that he would resume drinking immediately if he could and would probably drink to excess. She indicated he has no interest in either abstinence or harm minimisation.
Dr van de Hoef considered his current diagnosis to be severe chronic alcohol abuse and dependence. By virtue of his hospitalisation he is in forced remission. She said that although he is physically detoxified, he clearly remains dependent psychologically on alcohol and has no motivation to abstain or limit his drinking. Dr van de Hoef also thought he has borderline personality traits, if not a disorder.
Dr van de Hoef’s assessment is that “[GVM] poses a low risk of reoffending and in particular violent reoffending”.[2]
[2]Report of Dr P van de Hoef dated 13 April 2012, p14.
The further report of Dr Kovacevic also indicated that GVM did not suffer from any mental disorder independent of his alcohol abuse and that he did not appear to suffer from any cognitive impairment. An occupational therapy report was also obtained in relation to GVM’s functioning in the community, which indicated that GVM needed a graded transition into the community subsequent to his hip replacement surgery, which occurred in February 2012.
The hearing of the appeal on 26 July 2012
The appeal was scheduled for hearing on 26 July 2012 and Drs Keane, Duke, Kovacevic and van de Hoef were scheduled to give oral evidence before the Court. Dr Duke had travelled from Caboolture for the hearing and GVM attended the hearing in person, having been brought to Court by several health workers. On the morning of the hearing, Counsel for the Attorney-General advised the Court that the doctors were not required for cross-examination and conceded that the evidence was all to the effect that GVM did not currently have a mental illness. Counsel conceded that the appropriate order in the circumstances was that the Forensic Order be revoked.
It is commendable that the Attorney-General, as a model litigant, not pursue appeals where there is no evidence in support of the appeal. I note with concern, however, the fact that a full day had been set aside for the hearing of this contested appeal and that extensive further reports, which clearly indicated that GVM did not have a mental illness or any cognitive dysfunction, had been provided to the appellant at least a month previously. An early intimation of the course which the appellant took would have meant that four busy medical specialists and busy healthcare staff would not have been required to come to Court to be ultimately told that they were not required.
All litigants in this Court need to be cognizant of the need to wisely and appropriately spend the limited funds available to this Court.
The determination of this appeal
The decision of the MHRT which is currently under appeal is the decision of 5 October 2011. The decision under appeal related to the decision to confirm the Forensic Order and to approve LCT conditions, which allowed GVM full discharge into the community after a staged and graduated release into community living, which was to be subject to the assessment of the treating psychiatrist.
Section 200 of the Act provides that the MHRT must conduct a hearing and review a forensic patient’s mental condition every six months or earlier if an application is made. A ‘forensic patient’ is defined in the dictionary in the Schedule to the Act as a person who is or who is liable to be detained in an authorised mental health service under a Forensic Order. The relevant provisions in relation to the review of a Forensic Order by the MHRT are then set out in ss 203 and 204 of the Act.
Section 203 provides that the MHRT, on review, must decide whether to confirm or revoke a Forensic Order, as follows:
“203 Decisions on review
(1) On the review, the tribunal must decide to confirm or revoke the Forensic Order for the patient.
(2) If the tribunal confirms the Forensic Order, the tribunal may decide to make 1 or more of the following orders—
(a) an order that the patient have Limited Community Treatment subject to the reasonable conditions the tribunal considers appropriate;
(b) an order approving Limited Community Treatment for the patient subject to the reasonable conditions the tribunal considers appropriate;
(c) an order revoking an order or approval for Limited Community Treatment for the patient; or
(d) an order that the patient be transferred from one authorised mental health service to another authorised mental health service; or
(e) an order that the patient be transferred from an authorised mental health service to the forensic disability service.
…
(6) In making a decision under subsection (1) or (2) in relation to a patient whose most recent Forensic Order is not a Forensic Order (Mental Health Court—Disability), the tribunal must have regard to the following—
(a) the patient’s mental state and psychiatric history;
(b) each offence leading to the patient becoming a forensic patient;
(c) the patient’s social circumstances;
(d) the patient’s response to treatment and willingness to continue treatment.
(6A)In making a decision under subsection (1) or (2) in relation to a patient whose most recent Forensic Order is a Forensic Order (Mental Health Court—Disability), the tribunal must have regard to the following—
(a) the patient’s mental state;
(b) the patient’s intellectual disability;
(c) each offence leading to the patient becoming subject to the Forensic Order;
(d) the patient’s social circumstances;
(e) the patient’s treatment plan;
(f) the patient’s behaviour in response to that plan, including behaviour that places the patient’s health or safety or the safety of others at risk;
(g) any report by the director (forensic disability) on a review about the patient under the Forensic Disability Act, section 141.
(7) This section has effect subject to sections 203A and 204.”
Section 204 then provides that the MHRT must not revoke a Forensic Order unless satisfied that the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual disability.
In the 2005 Mental Health Court decision of Re AKB,[3] Holmes J (as her Honour then was) considered an appeal from a decision of the MHRT which confirmed a forensic order in circumstances where the evidence was that the forensic patient currently “poses a risk, but not because of any mental illness or intellectual disability”.[4] Her Honour indicated that the medical evidence available was that the patient did not, in fact, suffer from a psychotic disorder in 1996 when a finding was made that he was of unsound mind, but rather the current medical evidence was that it was likely that the sedative medication and his expressive language disorder “gave the impression that he was more intellectually impaired than he was.”[5] Her Honour examined the powers of the MHRT in reviewing a Forensic Order, as follows:
[3][2005] QMHC 005.
[4]Ibid at [9].
[5]Ibid at [10].
“[13]In any case, the Tribunal observed, s 204(1) prohibited it from revoking the forensic order unless satisfied that the patient did not represent an unacceptable risk to the safety of himself or others, having regard to his mental illness or intellectual disability.
…
[18] [F]or the Tribunal to proceed on the basis that it should also apply the s 288(3) considerations on the basis of the original finding of unsoundness, without regard to its current applicability, ignores the Tribunal’s function. Section 200(1) requires it to review the “forensic patient’s mental condition.” The whole point of the s 203 discretion is to recognise that the mental condition underlying a forensic order is not necessarily immutable. It does not amount to an attack on the original finding to consider whether the condition continues to exist; but the Tribunal seems to have avoided doing so here, by embarking instead on an examination of whether the s 288(3) factors had altered. In my view, the proper construction of s 203 is that the decision to confirm or revoke must be based on the factors set out in s 203(6), as applied to the current set of circumstances. To impose on those considerations a further requirement that there be some demonstrated change in the s 288(3) factors applied by the Mental Health Court or Tribunal is to place an unwarranted gloss on s 203.
...
[24] In my view, although one starts from the premise that the patient had the mental illness or intellectual disability in the first instance, one must also have regard to his current state; because an illness or disability which no longer exists can hardly give rise to a present risk. A construction which precludes detention in the absence of any existing illness or disability is, I think, consistent with the purpose of the Act. And there is nothing in s 204 which makes it incumbent on an applicant patient to show how it is that his condition has changed from what was found by the tribunal or court making the forensic order; although, of course, his case may be considerably more convincing if he does.
[25] I do not think that the appellant’s argument carried any necessary implication that the original decision was wrong. Rather, as he was entitled to do, he invited attention to the expert opinion as to his current mental state. So far as some (but not all) of that opinion suggests that there was no mental illness or infirmity to warrant the 1997 finding of unsoundness, it is simply not to the point; that finding prevents consideration of any such question per res judicatam. What is to the point is that the evidence is uniformly and overwhelmingly to the effect that while the appellant does pose a risk to the community, that risk does not arise from any mental illness or intellectual disability. Section 204(1) can have no application.
[26] Since I conclude that s 204 does not apply, the decision must be made with regard to s 203, sub-section (6) of which sets out mandatory but not exhaustive considerations. Does s 203, which does not expressly premise confirmation or revocation of the forensic order on a current finding of mental illness, permit confirmation of an order in a case such as the present? Section 203(6)(a) requires that regard be had to the patient’s “mental state”, a term which is undefined, as well as his psychiatric history. It is arguable that that might extend to a consideration of personality disorder. Sub-section (6)(b) requires attention to “each offence leading to the patient becoming a forensic patient”. That suggests that risk remains an important consideration. Sub-section (c), which refers to “the patient’s social circumstances”, is neutral. Sub-section (d) requiring consideration of “the patient’s response to treatment and willingness to continue treatment” certainly suggests that current mental illness is the issue. Schedule 2 contains this definition of the term, “treatment”:
“treatment, of a person who has a mental illness, means anything done, or to be done, with the intention of having a therapeutic effect on the person’s illness.” [6]
[6]Emphasis added.
Given the extensive updated reports which have now been prepared, it is clear that there is no evidence before this Court that GVM currently has a mental illness or any cognitive impairment. He was obviously suffering from a complex interaction of medical conditions at the time of the original offence in 2008. Significantly, one of those conditions was a delirium due to multiple aetiologies including a frontal lobe haematoma and intoxication from opioids and benzodiazepines. There were also underlying cognitive defects due to alcohol abuse. In the past four years the haematoma has resolved, GVM has received good medical care and he has been largely abstinent from alcohol to the extent that his cognition has significantly improved
Appeals to this Court form the MHRT are governed by Chapter 8 of the Act. Section 325 provides that in determining an appeal the Court has the following powers:
“325 Appeal powers
(1) In deciding the appeal, the Mental Health Court may confirm or set aside the decision appealed against.
(2) If the Mental Health Court sets aside the decision appealed against—
(a) the Court may make a decision the tribunal could have made on the review or application; and
(b) the decision is taken, for this Act (other than this part) and the Forensic Disability Act, to be that of the tribunal.”
Accordingly, if the Court sets aside the decision this Court may make any decision that the MHRT could have made on the review of the Forensic Order. In my view, it is clear that on the basis of the current medical reports as well as the advice of the assisting psychiatrists, GVM does not currently have a mental illness or an intellectual disability. The decision as to whether the Forensic Order should be confirmed or revoked must be based on the s 203(6) factors as applied to the current circumstances. Whilst s 204(1) requires the Court to consider ‘unacceptable risk’ based on the patient’s mental illness or intellectual disability, if there is no mental illness or intellectual disability then the requirements of s 204(1) do not apply. In applying the s 203(6) considerations, however, it must be noted that s 203 does not premise the revocation or confirmation of a Forensic Order on a “current finding of mental illness”. Rather s 203(6) refers to a patient’s “mental state” and psychiatric history.
Section 203(6)(b) requires a consideration of “each offence leading to the patient becoming a forensic patient” which, as Holmes J concluded, “suggests that risk remains an important consideration.”[7]
[7]Ibid at [26].
In coming to a conclusion on the s 203(6) factors, I am satisfied that whilst the offence of attempted murder which led to the current Forensic Order is extremely serious, that offence occurred over four years ago in quite a unique set of circumstances. GVM does not have any past psychiatric history and his current “mental state” is stable. All of the medical reports indicate that the current risk of reoffending is low.
I am satisfied that based on the up to date medical reports and the advice of the assisting psychiatrist an examination of the mandatory factors set out in s 203(6) supports the revocation of the Forensic Order.
Accordingly the decision of the MHRT of 5 October 2011 is set aside and the Forensic Order is revoked.
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